Republic of the Philippines SUPREME COURT

Manila EN BANC

G.R. No. 120905 March 7, 1996 RENATO U. REYES, petitioner, vs. COMMISSION ON ELECTIONS, and ROGELIO DE CASTRO, respondents. G.R. No. 120940 March 7, 1996 JULIUS O. GARCIA, petitioner, vs. COMMISSION ON ELECTIONS, and RENATO U. REYES, respondents. MENDOZA., J.:p For resolution are special civil actions of certiorari. The petition in G.R. No. 120905 seeks to annul the resolution dated May 9, 1995 of the Second Division of the Commission on Elections, declaring petitioner Renato U. Reyes disqualified from running for local office and cancelling his certificate of candidacy, and the resolution dated July 3, 1995 of the Commission en banc, denying petitioner's motion for reconsideration. On the other hand, the petition in G.R. No. 120940, filed by Julius O. Garcia, has for its purpose the annulment of the aforesaid resolution of July 3, 1995 of the Commission en banc insofar as it denies his motion to be proclaimed the elected mayor of Bongabong, Oriental Mindoro, in view of the disqualification of Renato U. Reyes. On August 1, 1995, the Court issued a temporary restraining order directing the Commission on Elections en banc to cease and desist from implementing its resolution of July 3, 1995. It also ordered the two cases to be consolidated, inasmuch as they involved the same resolutions of the COMELEC. The facts are as follows: Petitioner Renato U. Reyes was the incumbent mayor of the municipality of Bongabong, Oriental Mindoro, having been elected to that office on May 11, 1992. On October 26, 1994, an administrative complaint was filed against him with the Sangguniang Panlalawigan by Dr. Ernesto Manalo. It was alleged, among other things, that petitioner exacted and collected P50,000,00 from each market stall holder in the Bongabong Public Market; that certain checks issued to him by the National Reconciliation and Development Program of the Department of Interior and Local Government were never received by the Municipal Treasurer nor reflected in the books of accounts of the same officer; and that he took twenty-seven (27) heads of cattle from beneficiaries of a cattle dispersal program after the latter had reared and fattened the cattle for seven months. In its decision, dated February 6, 1995, the Sangguniang Panlalawigan found petitioner guilty of the charges and ordered his removal from office. It appears that earlier, after learning that the Sanggunian had terminated the proceedings in the case and was about to render judgment, petitioner filed a petition for certiorari, prohibition and injunction with the Regional Trial Court of Oriental Mindoro, Branch 42, alleging that the proceedings had been terminated without giving him a chance to be heard. A temporary restraining order was issued by the court on February 7, 1995, enjoining the Sangguniang Panlalawigan from proceeding with the case. As a result, the decision of the Sangguniang Panlalawigan could not be served upon Reyes. But on March 3, 1995, following the expiration of the temporary restraining order and without any injunction being issued by the Regional Trial Court, an attempt was made to serve the decision upon petitioner's counsel in Manila. However, the latter refused to accept the decision. Subsequent attempts to serve the decision upon petitioner himself also failed, as he also refused to accept the decision. On March 23, 1995, the Presiding Officer of the Sangguniang Panlalawigan, Vice Governor Pedrito A. Reyes, issued an order for petitioner to vacate the position of mayor and peacefully turn over the office to the incumbent vice mayor. But service of the order upon petitioner was also refused. Meanwhile, on March 20, 1995, petitioner filed a certificate of candidacy with the Office of the Election Officer of the COMELEC in Bongabong.

On March 24, 1995, private respondent Rogelio de Castro, as registered voter of Bongabong, sought the disqualification of petitioner as candidate for mayor, citing the Local Government Code of 1991 (R.A. No .7160) which states:

§40. Disqualification. — The following persons are disqualified from running for any elective local position: . . . . (b) Those removed from office as a result of an administrative case.

Nonetheless, because of the absence of any contrary order from the COMELEC, petitioner Reyes was voted for in the elections held on May 8, 1995. On May 9, 1995, the COMELEC's Second Division issued the questioned resolution, the dispositive portion of which reads as follows:

WHEREFORE, respondent having been removed from office by virtue of Administrative Case 006-94, he is hereby DISQUALIFIED from running for public office, in conformity with Section 40, paragraph (b) of the 1991 Local Government Code. The respondent's Certificate of Candidacy is CANCELLED in conformity with this resolution. The Election Officer of Bongabong, Oriental Mindoro is ordered to amend the official list of candidates in Bongabong to reflect the respondent's disqualification and to IMMEDIATELY circulate the amendment to the different Boards of Election Inspectors in Bongabong upon the receipt of this decision.

On May 10, 1995, the Municipal Board of Canvassers of Bongabong, apparently unaware of the disqualification of Reyes by the COMELEC, proclaimed him the duly-elected mayor. On July 3, 1995, petitioner filed a motion for reconsideration of the resolution of the COMELEC's Second Division, but his motion was denied. The COMELEC en banc declared him to have been validly disqualified as candidate and, consequently, set aside his proclamation as municipal mayor of Bongabong. Hence the petition in G.R. No. 120905, which was filed on July 20, 1995, alleging grave abuse of discretion by the COMELEC on the ground that the decision in the administrative case against petitioner Reyes was not yet final and executory and therefore could not be used as basis for his disqualification. It is contended that the charges against him were rendered moot and academic by the expiration of the term during which the acts complained of had allegedly been committed. Invoking the ruling in the case of Aguinaldo v. Santos, 1 petitioner argues that his election on May 8, 1995 is a bar to his disqualification. On the other hand, it appears that petitioner Julius M. Garcia, who obtained the second highest number of votes next to petitioner Reyes in the same elections of May 8, 1995, intervened in the COMELEC on June 13, 1995 (after the main decision disqualifying Renato Reyes was promulgated), contending that because Reyes was disqualified, he (Garcia) was entitled to be proclaimed mayor of Bongabong, Oriental Mindoro. In its resolution of July 3, 1995, the COMELEC en banc denied Garcia's prayer, citing the ruling in Republic v. De la Rosa 2 that a candidate who obtains the second highest number of votes in an election cannot be declared winner. Hence the petition in G.R. No. 120940. Petitioner contends that (1) the COMELEC en banc should have decided his petition at least 15 days before the May 8, 1995 elections as provided in 78 of the Omnibus Elections Code, and that because it failed to do so, many votes were invalidated which could have been for him had the voters been told earlier who were qualified to be candidates; (2) that the decision of the Sangguniang Panlalawigan was final and executory and resulted in the automatic disqualification of petitioner, and the COMELEC did not need much time to decide the case for disqualification against Reyes since the latter did not appeal the decision in the administrative case ordering his removal; (3) that the COMELEC should have considered the votes cast for Reyes as stray votes. After deliberating on the petitions filed in these cases, the Court resolved to dismiss them for lack of showing that the COMELEC committed grave abuse of discretion in issuing the resolutions in question. G.R. No. 120905 First. Petitioner Reyes claims that the decision of the Sangguniang Panlalawigan, ordering him removed from office, is not yet final because he has not been served a copy thereof. It appears, however, that the failure of the Sangguniang Panlalawigan to deliver a copy of its decision was due to the refusal of petitioner and his counsel to receive the decision. As the secretary to the Sangguniang Panlalawigan, Mario Manzo, stated in his certification, repeated attempts had been made to serve the decision on Reyes personally and by registered mail, but Reyes refused to receive the decision. Manzo's certification states:

On March 3, 1995, Mr. Marcelino B. Macatangay went to Manila to furnish a copy of the decision to the Counsel for Respondent, Atty. Rogelio V. Garcia, which said counsel refused to accept.

On March 23, 1995, Mr. Mario I. C. Manzo, Secretary to the Sangguniang Panlalawigan with Mr. Marcelino B. Macatangay again went to the office of the Mayor of Bongabong to serve the decision. Mayor Renato U. Reyes, himself present, refused to accept the ORDER enforcing the decision citing particularly the pending case filed in the Sala of Judge Manuel A. Roman as the basis of his refusal. On [sic] 4:40 p.m., of the same date, the Secretary to the Sangguniang Panlalawigan, unable to serve the ORDER, mailed the same (registered mail receipt No. 432) on the Bongabong Post Office to forward the ORDER to the Office of Mayor Renato U. Reyes. On March 28, 1995 said registered mail was returned to the Sangguniang Panlalawigan with the following inscriptions on the back by the Postmaster: 1) 1st attempt — addressee out of town — 9:15 a.m., 3-23-95 2) 2nd attempt — addressee cannot be contacted, out of town, 8:50 a.m., 3-24-95. 3) 3rd attempt — addressee not contacted — out of town 8:15 a.m., 3-24-95. 4) 4th attempt — addressee refused to accept 8:15 a.m., 3-27-95. On March 24, 1995, Mr. Marcelino B. Macatangay, again went to Bongabong to serve the same ORDER enforcing the decision. Mayor Renato U. Reyes was not present so the copy was left on the Mayor's Office with comments from the employees that they would not accept the same. 3

Rule 13, §§ 3 and 7 of the Rules of Court provide for the service of final orders and judgments either personally or by mail. Personal service is completed upon actual or constructive delivery, which may be made by delivering a copy personally to the party or his attorney, or by leaving it in his office with a person having charge thereof, or at his residence, if his office is not known. 4 Hence service was completed when the decision was served upon petitioner's counsel in his office in Manila on March 3, 1995. In addition, as the secretary of the Sangguniang Panlalawigan certified, service by registered mail was also made on petitioner Reyes. Although the mail containing the decision was not claimed by him, service was deemed completed five days after the last notice to him on March 27, 1995. 5 If a judgment or decision is not delivered to a party for reasons attributable to him, service is deemed completed and the judgment or decision will be considered validly served as long as it can be shown that the attempt to deliver it to him would be valid were it not for his or his counsel's refusal to receive it. Indeed that petitioner's counsel knew that a decision in the administrative case had been rendered is evident in his effort to bargain with the counsel for the Sangguniang Panlalawigan not to have the decision served upon him and his client while their petition for certiorari in the Regional Trial Court was pending. 6 His refusal to receive the decision may, therefore, be construed as a waiver on his part to have a copy of the decision. The purpose of the rules on service is to make sure that the party being served with the pleading, order or judgment is duly informed of the same so that he can take steps to protect his interests, enable a party to file an appeal or apply for other appropriate reliefs before the decision becomes final.

In practice, service means the delivery or communication of a pleading, notice or other papers in a case to the opposite party so as to charge him with receipt of it, and subject him to its legal effect. 7

In the case at bar, petitioner was given sufficient notice of the decision. Prudence required that, rather than resist the service, he should have received the decision and taken an appeal to the Office of the President in accordance with R.A. No. 7160, § 67. 8 But petitioner did not do so. Accordingly, the decision became final on April 2, 1995, 30 days after the first service upon petitioner. The net result is that when the elections were held on May 8, 1995, the decision of the Sangguniang Panlalawigan had already become final and executory. The filing of a petition for certiorari with the Regional Trial Court did not prevent the administrative decision from attaining finality. An original action of certiorari is an independent action and does not interrupt the course of the principal action nor the running of the reglementary period involved in the proceeding. 9

Consequently, to arrest the course of the principal action during the pendency of the certiorariproceedings, there must be a restraining order or a writ of preliminary injunction from the appellate court directed to the lower court. 10

In the case at bar, although a temporary restraining order was issued by the Regional Trial Court, no preliminary injunction was subsequently issued. The temporary restraining order issued expired after 20 days. From that moment on, there was no more legal barrier to the service of the decision upon petitioner.

Petitioner claims that the decision cannot be served upon him because at the hearing held on February 15, 1995 of the case which he filed in the RTC, the counsel of the Sangguniang Panlalawigan, Atty. Nestor Atienza, agreed not to effect service of the decision of the Sangguniang Panlalawigan pending final resolution of the petition forcertiorari. The alleged agreement between the counsels of Reyes and the Sangguniang Panlalawigan cannot bind the Sangguniang Panlalawigan. It was illegal . And it would have been no less illegal for the Sangguniang Panlalawigan to have carried it out because R.A. No. 7160, § 66 (a) makes it mandatory that "[c]opies of the decision [of the Sangguniang Panlalawigan] shall immediately be furnished to respondent and/or interested parties." It was the Sangguniang Panlalawigan's duty to serve it upon the parties without unnecessary delay. To have delayed the service of the decision would have resulted in the Sangguniang Panlalawigan's failure to perform a legal duty. It, therefore, properly acted in having its decision served upon petitioner Reyes. Second. The next question is whether there election of petitioner rendered the administrative charges against him moot and academic. Petitioner invokes the ruling in Aguinaldo v. COMELEC, 11 in which it was held that a public official could not be removed for misconduct committed during a prior term and that his reelection operated as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. But that was because in that case, before the petition questioning the validity of the administrative decision removing petitioner could be decided, the term of office during which the alleged misconduct was committed expired. 12 Removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected for another term. This is the rationale for the ruling in the twoAguinaldo cases. The case at bar is the very opposite of those cases. Here, although petitioner Reyes brought an action to question the decision in the administrative case, the temporary restraining order issued in the action he brought lapsed, with the result that the decision was served on petitioner and it thereafter became final on April 3, 1995, because petitioner failed to appeal to the Office of the President. He was thus validly removed from office and, pursuant to § 40(b) of the Local Government Code, he was disqualified from running for reelection. It is noteworthy that at the time the Aguinaldo cases were decided there was no provision similar to § 40(b) which disqualifies any person from running for any elective position on the ground that he has been removed as a result of an administrative case. The Local Government Code of 1991 (R.A. No. 7160) could not be given retroactive effect. Said the Court in the first Aguinaldo case: 13

The COMELEC applied Section 40(b) of the Local Government Code Republic Act 7160) which provides: Sec. 40. The following persons are disqualified from running for any elective local position: . . . . . (b) Those removed from office as a result of an administrative case. Republic Act 7160 took effect only on January 1, 1992. . . . There is no provision in the statute which would clearly indicate that the same operates retroactively. It, therefore, follows that 40(b) of the Local Government Code is not applicable to the present case. Furthermore, the decision has not yet attained finality. As indicated earlier, the decision of the then Secretary of Local Government was questioned by the petitioner in this Court and that to date, the petition remains unresolved.

At any rate, petitioner's claim that he was not given time to present his evidence in the administrative case has no basis, as the following portion of the decision of the Sangguniang Panlalawigan makes clear:

On November 28, 1994 the Sanggunian received from respondent's counsel a motion for extension of time to file a verified answer within 15 days from November 23, 1994. In the interest of justice another fifteen (15) day period was granted the respondent. On December 5, 1994 which is the last day for filing his answer, respondent instead filed a motion to dismiss and set the same for hearing on December 22, 1994. . . . .

On January 4, 1995, the motion to dismiss was denied for lack of merit and the order of denial was received by respondent on January 7, 1995. Considering the fact that the last day within which to file his answer fell on December 5, 1994, respondent is obliged to file the verified answer on January 7, 1995 when he received the order denying his motion to dismiss. In the hearing of the instant case on January 26, 1995, the counsel for the complainant manifested that he be allowed to present his evidence for failure of the respondent to file his answer albeit the lapse of 19 days from January 7, 1995. The manifestation of complainant's counsel was granted over the objection of the respondent, and the Sanggunian in open session, in the presence of the counsel for the respondent, issued an order dated January 26, 1995 quoted as follows:

"As shown from the record of this case, Mayor Renato U. Reyes of Bongabong failed to file his answer within the time prescribed by law, after the motion to dismiss was denied by this Sanggunian. The Sanggunian declares that respondent Mayor Renato U. Reyes failed to file his answer to the complaint filed against him within the reglementary period of fifteen (15) days. Counsel for respondent requested for reconsideration twice, which oral motions for reconsideration were denied for lack of merit. Art. 126 (a) (1) provides that failure of respondent to file his verified answer within fifteen (15) days from receipt of the complaint shall be considered a waiver of his rights to present evidence in his behalf. It is important to note that this case should be heard in accordance with what is provided for in the constitution that all parties are entitled to speedy disposition of their cases. It is pivotal to state that the Sanggunian Panlalawigan will lose its authority to investigate this case come February 8, 1995 and therefore, in the interest of justice and truth the Sanggunian must exercise that authority by pursuing the hearing of this case. Accordingly, the counsel for complainant Dr. Ernesto L. Manalo, et al., will present his evidence on February 2, 3, and 6, 1995, and the counsel for respondent will be given a chance to cross-examine the witnesses that may be presented thereat." . . . .

On February 2, 1995, the respondent through counsel despite due notice in open session, and by registered mail (registry receipt no. 1495) dated January 27, 1995, failed to appear. No telegram was received by this body to the effect that he will appear on any of the dates stated in the Order of January 26, 1995. Indeed, such in action is a waiver of the respondent to whatever rights he may have under our laws. All in all, herein respondent Mayor Reyes was given by this Sanggunian a period of sixty one (61) days to file his verified answer however, he resorted to dilatory motions which in the end proved fatal to his cause. Veritably, he neither filed nor furnished the complainant a copy of his answer. Failure of the respondent to file his verified answer within fifteen (15) days from receipt of the complaint shall be considered a waiver of his rights to present evidence in his behalf ((1). Art. 126 of Rules and Regulations implementing the Local Government Code of 1991). All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies (Sec. 16, Art. III of the Constitution).

Indeed, it appears that petitioner was given sufficient opportunity to file his answer. He failed to do so. Nonetheless, he was told that the complainant would be presenting his evidence and that he (petitioner) would then have the opportunity to cross-examine the witnesses. But on the date set, he failed to appear. He would say later that this was because he had filed a motion for postponement and was awaiting a ruling thereon. This only betrays the pattern of delay he employed to render the case against him moot by his election. G.R. No. 120940 We likewise find no grave abuse of discretion on the part of the COMELEC in denying petitioner Julius O. Garcia's petition to be proclaimed mayor in view of the disqualification of Renato U. Reyes. That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled. 14 The doctrinal instability caused by see-sawing rulings 15 has since been removed. In the latest ruling 16 on the question, this Court said:

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 the circumstances.

Garcia's plea that the votes cast for Reyes be invalidated is without merit. The votes cast for Reyes are presumed to have been cast in the belief that Reyes was qualified and for that reason can not be treated as stray, void, or meaningless. 17 The subsequent finding that he is disqualified cannot retroact to the date of the elections so as to invalidate the votes cast for him. As for Garcia's contention that the COMELEC committed a grave abuse of discretion in not deciding the case before the date of the election, suffice it to say that under R.A. No. 6646, § 6, the COMELEC can continue proceedings for disqualification against a candidate even after the election and order the suspension of his proclamation whenever the evidence of his guilt is strong. For the same reason, we find no merit in the argument that the COMELEC should have seen right away that Reyes had not exhausted administrative remedies by appealing the decision of the Sangguniang Panlalawigan and, therefore, should have disqualified him before the elections. WHEREFORE, the petition in G.R. 120905 and G.R. No, 120940 are DISMISSED for lack of merit. SO ORDERED.

Republic of the Philippines SUPREME COURT

Manila EN BANC

G.R. No. 120099 July 24, 1996 EDUARDO T. RODRIGUEZ, petitioner, vs. COMMISSION ON ELECTIONS, BIENVENIDO O. MARQUEZ, JR., respondents. FRANCISCO, J.:p

Petitioner Eduardo T. Rodriguez and private respondent Bienvenido O. Marquez Jr. (Rodriguez and Marquez, for brevity) were protagonists for the gubernatorial post of Quezon Province in the May 1992 elections. Rodriguez won and was proclaimed duly-elected governor. Marquez challenged Rodriguez' victory via petition for quo warranto before the COMELEC (EPC No. 92-28). Marquez revealed that Rodriguez left the United States where a charge, filed on November 12, 1985, is pending against the latter before the Los Angeles Municipal Court for fraudulent insurance claims, grand theft and attempted grand theft of personal property. Rodriguez is therefore a "fugitive from justice" which is a ground for his disqualification/ineligibility under Section 40(e) of the Local Government Code (R.A. 7160), so argued Marquez. The COMELEC dismissed Marquez' quo warranto petition (EPC No. 92-28) in a resolution of February 2, 1993, and likewise denied a reconsideration thereof. Marquez challenged the COMELEC dismissal of EPC No. 92-28 before this Court via petition for certiorari, docketed as G.R. No. 112889. The crux of said petition is whether Rodriguez, is a "fugitive from justice" as contemplated by Section 40 (e) of the Local Government Code based on the alleged pendency of a criminal charge against him (as previously mentioned). In resolving that Marquez petition (112889), the Court in "Marquez, Jr. vs. COMELEC"' promulgated on April 18, 1995, now appearing in Volume 243, page 538 of the SCRA and hereinafter referred to as theMARQUEZ Decision, declared that:

. . . , "fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution. This definition truly finds support from jurisprudence (. . .), and it may be so conceded as expressing the general and ordinary connotation of the term. 1

Whether or not Rodriguez is a "fugitive from justice" under the definition thus given was not passed upon by the Court. That task was to devolve on the COMELEC upon remand of the case to it, with the directive to proceed therewith with dispatch conformably with the MARQUEZ Decision. Rodriguez sought a reconsideration thereof. He also filed an "Urgent Motion to Admit Additional Argument in Support of the Motion for Reconsideration" to which was attached a certification from the Commission on Immigration showing that Rodriguez left the US on June 25, 1985 — roughly five (5) months prior to the institution of the criminal complaint filed against him before the Los Angeles court. The Court however denied a reconsideration of the MARQUEZ Decision. In the May 8, 1995 election, Rodriguez and Marquez renewed their rivalry for the same position of governor. This time, Marquez challenged Rodriguez' candidacy via petition for disqualification before the COMELEC, based principally on the same allegation that Rodriguez is a "fugitive from justice." This petition for disqualification (SPA No. 95-089) was filed by Marquez on April 11, 1995 when Rodriguez' petition forcertiorari (112889) — from where the April 18, 1995 MARQUEZ Decision sprung — was still then pending before the Court. On May 7, 1995 and after the promulgation of the MARQUEZ Decision, the COMELEC promulgated a Consolidated Resolution for EPC No. 92-28 (quo warranto case) and SPA NO. 95-089 (disqualification case). In justifying a joint resolution of these two (2) cases, the COMELEC explained that: 1. EPC No. 92-28 and SPA No. 95-089 are inherently related cases

2. the parties, facts and issue involved are identical in both cases 3. the same evidence is to be utilized in both cases in determining the common issue of whether Rodriguez is a "fugitive from justice" 4. on consultation with the Commission En Banc, the Commissioners unanimously agreed that a consolidated resolution of the two (2) cases is not procedurally flawed. Going now into the meat of that Consolidated Resolution, the COMELEC, allegedly having kept in mind theMARQUEZ Decision definition of "fugitive from justice", found Rodriguez to be one. Such finding was essentially based on Marquez' documentary evidence consisting of 1. an authenticated copy of the November 12, 1995 warrant of arrest issued by the Los Angeles municipal court against Rodriguez, and 2. an authenticated copy of the felony complaint which the COMELEC allowed to be presented ex-parte after Rodriguez walked-out of the hearing of the case on April 26, 1995 following the COMELEC's denial of Rodriguez' motion for postponement. With the walk-out, the COMELEC considered Rodriguez as having waived his right to disprove the authenticity of Marquez' aforementioned documentary evidence. The COMELEC thus made the following analysis:

The authenticated documents submitted by petitioner (Marquez) to show the pendency of a criminal complaint against the respondent (Rodriguez) in the Municipal Court of Los Angeles, California, U.S.A., and the fact that there is an outstanding warrant against him amply proves petitioner's contention that the respondent is a fugitive from justice. The Commission cannot look with favor on respondent's defense that long before the felony complaint was allegedly filed, respondent was already in the Philippines and he did not know of the filing of the same nor was he aware that he was being proceeded against criminally. In a sense, thru this defense, respondent implicitly contends that he cannot be deemed a fugitive from justice, because to be so, one must be aware of the filing of the criminal complaint, and his disappearance in the place where the long arm of the law, thru the warrant of arrest, may reach him is predicated on a clear desire to avoid and evade the warrant. This allegation in the Answer, however, was not even fortified with any attached document to show when he left the United States and when he returned to this country, facts upon which the conclusion of absence of knowledge about the criminal complaint may be derived. On the contrary, the fact of arrest of respondent's wife on November 6, 1985 in the United States by the Fraud Bureau investigators in an apartment paid for respondent in that country can hardly rebut whatever presumption of knowledge there is against the respondent. 2

And proceeding therefrom, the COMELEC, in the dispositive portion, declared: WHEREFORE, considering that respondent has been proven to be fugitive from justice, he is hereby ordered disqualified or ineligible from assuming and performing the functions of Governor of Quezon Province. Respondent is ordered to immediately vacate said office. Further, he is hereby disqualified from running for Governor for Quezon Province in the May 8, 1995 elections. Lastly, his certificate of candidacy for the May 8, 1995 elections is hereby set aside.

At any rate, Rodriguez again emerge as the victorious candidate in the May 8, 1995 election for the position of governor. On May 10 and 11, 1995, Marquez filed urgent motions to suspend Rodriguez' proclamation which the COMELEC granted on May 11, 1995. The Provincial Board of Canvassers nonetheless proclaimed Rodriguez on May 12, 1995. The COMELEC Consolidated Resolution in EPC No. 92-28 and SPA No. 95-089 and the May 11, 1995 Resolution suspending Rodriguez' proclamation thus gave rise to the filing of the instant petition forcertiorari (G.R. No. 120099) on May 16, 1995. On May 22, 1995, Marquez filed an "Omnibus Motion To Annul The Proclamation of Rodriguez, To Proclaim Marquez And To Cite The Provincial Board of Canvassers in Contempt" before the COMELEC (in EPC No. 92-28 and SPA No. 95-089). Acting on Marquez' omnibus motion, the COMELEC, in its Resolution of June 23, 1995, nullified Rodriguez' proclamation and ordered certain members of the Quezon Province Provincial Board of Canvassers to explain why they should not be cited in contempt for disobeying the poll body's May 11, 1995 Resolution suspending Rodriguez' proclamation. But with respect to Marquez' motion for his proclamation, the COMELEC deferred action until after this Court has resolved the instant petition (G.R. No. 120099). Rodriguez filed a motion to admit supplemental petition to include the aforesaid COMELEC June 23, 1995 Resolution, apart from the May 7 and May 11, 1995 Resolutions (Consolidated Resolution and Order to suspend Rodriguez' proclamation, respectively).

As directed by the Court, oral arguments were had in relation to the instant petition (G.R. No. 120099) on July 13, 1995. Marquez, on August 3, 1995, filed an "Urgent Motion for Temporary Restraining Order Or Preliminary Injunction" which sought to retain and enjoin Rodriguez "from exercising the powers, functions and prerogatives of Governor of Quezon . . . ." Acting favorably thereon, the Court in a Resolution dated August 8, 1995 issued a temporary restraining order. Rodriguez' "Urgent Motion to Lift Temporary Restraining Order And/Or For Reconsideration" was denied by the Court in an August 15, 1995 Resolution. Another similar urgent motion was later on filed by Rodriguez which the Court also denied. In a Resolution dated October 24, 1995, the Court

. . . RESOLVED to DIRECT the Chairman of the Commission on Elections ("COMELEC") to designate a Commissioner or a ranking official of the COMELEC to RECEIVE AND EVALUATE such legally admissible evidence as herein petitioner Eduardo Rodriguez may be minded to present by way of refuting the evidence heretofore submitted by private respondent Bienvenido Marquez, Sr., or that which can tend to establish petitioner's contention that he does not fall within the legal concept of a "fugitive from justice." Private respondent Marquez may likewise, if he so desires, introduce additional and admissible evidence in support of his own position. The provisions of Sections 3 to 10, Rule 33, of the Rules of Court may be applied in the reception of the evidence. The Chairman of the COMELEC shall have the proceedings completed and the corresponding report submitted to this Court within thirty (30) days from notice hereof.

The COMELEC complied therewith by filing before the Court, on December 26, 1995, a report entitled "'EVIDENCE OF THE PARTIES and COMMISSION'S EVALUATION" wherein the COMELEC, after calibrating the parties' evidence, declared that Rodriguez is NOT a "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision, thus making a 180-degree turnaround from its finding in the Consolidated Resolution. In arriving at this new conclusion, the COMELEC opined that intent to evade is a material element of the MARQUEZ Decision definition. Such intent to evade is absent in Rodriguez' case because evidence has established that Rodriguez arrived in the Philippines (June 25, 1985) long before the criminal charge was instituted in the Los Angeles Court (November 12, 1985). But the COMELEC report did not end there. The poll body expressed what it describes as its "persistent discomfort" on whether it read and applied correctly the MARQUEZ Decision definition of "fugitive from justice". So as not to miss anything, we quote the COMELEC's observations in full:

. . . The main opinion's definition of a "fugitive from justice" "include not only those who flee after conviction to avoid punishment but also those who, after being charged, flee to avoid prosecution." It proceeded to state that:

This definition truly finds support from jurisprudence (Philippine Law Dictionary Third Edition, p. 399 by F.B. Moreno; Black's Law Dictionary, Sixth Edition, p. 671; King v. Noe, 244 SC 344; 137 SE 2d 102, 103; Hughes v. Pflanz, 138 Federal Reporter 980; Tobin v. Casaus 275 Pacific Reporter 2d p. 792), and it may be so conceded as expressing the general and ordinary connotation of the term.

But in the majority of the cases cited, the definition of the term "fugitive from justice" contemplates other instances not explicitly mentioned in the main opinion. Black's Law Dictionary begins the definition of the term by referring to a "fugitive from justice" as:

(A) person, who, having committed a crime, flees from jurisdiction of the court where crime was committed or departs from his usual place of abode and conceals himself within the district. . . .

Then, citing King v. Noe, the definition continues and conceptualizes a "fugitive from justice" as: . . . a person who, having committed or been charged with a crime in one state, has left its jurisdiction and is found within the territory of another when it is sought to subject him to the criminal process of the former state. (our emphasis)

In Hughes v. Pflanz, the term was defined as: a person who, having committed within a state a crime, when sought for, to be subjected to criminal process, is found within the territory of another state.

Moreno's Philippine Law Dictionary, 5th Ed. considers the term as an:

expression which refers to one having committed, or being accused, of a crime in one jurisdiction and is absent for any reason from that jurisdiction. Specifically, one who flees to avoid punishment . . . (emphasis ours)

From the above rulings, it can be gleaned that the objective facts sufficient to constitute flight from justice are: (a) a person committed a "crime" or has been charged for the commission thereof; and (b) thereafter, leaves the jurisdiction of the court where said crime was committed or his usual place of abode. Filing of charges prior to flight is not always an antecedent requirement to label one a "fugitive from justice". Mere commission of a "crime" without charges having been filed for the same and flight subsequent thereto sufficiently meet the definition. Attention is directed at the use of the word "crime" which is not employed to connote guilt or conviction for the commission thereof. Justice Davide's separate opinion in G.R. No. 112889 elucidates that the disqualification for being a fugitive does not involve the issue of the presumption of innocence, the reason for disqualification being that a person "was not brought within the jurisdiction of the court because he had successfully evaded arrest; or if he was brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded service of sentence because he had jumped bail or escaped. The disqualification then is based on his flight from justice." Other rulings of the United States Supreme Court further amplify the view that intent and purpose for departure is inconsequential to the inquiry. The texts, which are persuasive in our jurisdiction, are more unequivocal in their pronouncements. In King v. US (144 F. 2nd 729), citing Roberts v. Reilly(116 US 80) the United States Supreme Court held:

. . . it is not necessary that the party should have left the state or the judicial district where the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding an anticipated prosecution, but that, having committed a crime within a state or district, he has left and is found in another jurisdiction (emphasis supplied)

Citing State v. Richter (37 Minn. 436), the Court further ruled in unmistakeable language: The simple fact that they (person who have committed crime within a state) are not within the state to answer its criminal process when required renders them, in legal intendment, fugitives from justice. THEREFORE, IT APPEARS THAT GIVEN THE AUTHORITIES CITED IN G.R. NO. 112889, THE MERE FACT THAT THERE ARE PENDING CHARGES IN THE UNITED STATES AND THAT PETITIONER RODRIGUEZ IS IN THE PHILIPPINES MAKE PETITIONER A "FUGITIVE FROM JUSTICE". From the foregoing discussions, the determination of whether or not Rodriguez is a fugitive from justice hinges on whether or not Rodriguez' evidence shall be measured against the two instances mentioned in the main opinion, or is to be expanded as to include other situations alluded to by the foreign jurisprudence cited by the Court. In fact, the spirited legal fray between the parties in this case focused on each camp's attempt to construe the Court's definition so as to fit or to exclude petitioner within the definition of a "fugitive from justice". Considering, therefore, the equally valid yet different interpretations resulting from the Supreme Court decision in G.R. No. 112889, the Commission deems it most conformable to said decision to evaluate the evidence in light of the varied constructions open to it and to respectfully submit the final determination of the case to the Honorable Supreme Court as the final interpreter of the law.

The instant petition dwells on that nagging issue of whether Rodriguez is a "fugitive from justice", the determination of which, as we have directed the COMELEC on two (2) occasions (in the MARQUEZ Decision and in the Court's October 24, 1995 Resolution), must conform to how such term has been defined by the Court in the MARQUEZ Decision. To reiterate, a "fugitive from justice":

. . . includes not only those who flee after conviction to avoid punishment but likewise who, after being charged, flee to avoid prosecution. The definition thus indicates that the intent to evade is the compelling factor that animates one's flight from a particular jurisdiction. And obviously, there can only be an intent to evade prosecution or punishment when there is knowledge by the fleeing subject of an already instituted indictment, or of a promulgated judgment of conviction.

Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival in the Philippines from the US on June 25, 1985, as per certifications issued by the Bureau of Immigrations dated April 27 3 and June 26 of 1995, 4 preceded the filing of the felony complaint in the Los Angeles Court on November 12, 1985 and of the issuance on even date of the arrest warrant by the same foreign court, by almost five (5) months. It was clearly impossible for Rodriguez to have known about such felony complaint and arrest warrant at the time he left the US, as there was in fact no complaint and arrest warrant — much less conviction — to speak of yet at such time. What prosecution or punishment then was Rodriguez deliberately running away from with his departure from the US? The very essence of being a "fugitive from justice" under the MARQUEZ Decision definition, is just nowhere to be found in the circumstances of Rodriguez. With that, the Court gives due credit to the COMELEC in having made the same analysis in its ". . . COMMISSION'S EVALUATION". There are, in fact, other observations consistent with such analysis made by the poll body that are equally formidable so as to merit their adoption as part of this decision, to wit:

It is acknowledged that there was an attempt by private respondent to show Rodriguez' intent to evade the law. This was done by offering for admission a voluminous copy of an investigation report (Exhibits I to I-17 and J to J-87 inclusive) on the alleged crimes committed which led to the filing of the charges against petitioner. It was offered for the sole purpose of establishing the fact that it was impossible for petitioner not to have known of said investigation due to its magnitude. Unfortunately, such conclusion misleads because investigations of this nature, no matter how extensive or prolonged, are shrouded with utmost secrecy to afford law enforcers the advantage of surprise and effect the arrest of those who would be charged. Otherwise, the indiscreet conduct of the investigation would be nothing short of a well-publicized announcement to the perpetrators of the imminent filing of charges against them. And having been forewarned, every effort to sabotage the investigation may be resorted to by its intended objects. But if private respondent's attempt to show Rodriguez' intent to evade the law at the time he left the United States has any legal consequence at all, it will be nothing more than proof that even private respondent accepts that intent to evade the law is a material element in the definition of a fugitive. The circumstantial fact that it was seventeen (17) days after Rodriguez' departure that charges against him were filed cannot overturn the presumption of good faith in his favor. The same suggests nothing more than the sequence of events which transpired. A subjective fact as that of petitioner's purpose cannot be inferred from the objective data at hand in the absence of further proof to substantiate such claim. In fact, the evidence of petitioner Rodriguez sufficiently proves that his compulsion to return to the Philippines was due to his desire to join and participate vigorously in the political campaigns against former President Ferdinand E. Marcos. For indeed, not long after petitioner's arrival in the country, the upheaval wrought by the political forces and the avalanche of events which occurred resulted in one of the more colorful events in the Philippine history. The EDSA Revolution led to the ouster of former Pres. Marcos and precipitated changes in the political climate. And being a figure in these developments, petitioner Rodriguez began serving his home province as OIC-Board Member of the Sangguniang Panlalawigan ng Quezon in 1986. Then, he was elected Governor in 1988 and continues to be involved in politics in the same capacity as re-elected Governor in 1992 and the disputed re-election in 1995. Altogether, these landmark dates hem in for petitioner a period of relentless, intensive and extensive activity of varied political campaigns — first against the Marcos government, then for the governorship. And serving the people of Quezon province as such, the position entails absolute dedication of one's time to the demands of the office. Having established petitioner's lack of knowledge of the charges to be filed against him at the time he left the United States, it becomes immaterial under such construction to determine the exact time when he was made aware thereof. While the law, as interpreted by the Supreme Court, does not countenance flight from justice in the instance that a person flees the jurisdiction of another state after charges against him or a warrant for his arrest was issued or even in view of the imminent filing and issuance of the same, petitioner's plight is altogether a different situation. When, in good faith, a person leaves the territory of a state not his own, homeward bound, and learns subsequently of charges filed against him while in the relative peace and service of his own country, the fact that he does not subject himself to the jurisdiction of the former state does not qualify him outright as a fugitive from justice.

The severity of the law construed in the manner as to require of a person that he subject himself to the jurisdiction of another state while already in his country or else be disqualified from office, is more apparent when applied in petitioner's case. The criminal process of the United States extends only within its territorial jurisdiction. That petitioner has already left said country when the latter sought to subject him to its criminal process is hardly petitioner's fault. In the absence of an intent to evade the laws of the United States, petitioner had every right to depart therefrom at the precise time that he did and to return to the Philippines. Not justifiable reason existed to curtail or fetter petitioner's exercise of his right to leave the United State and return home. Hence, sustaining the contrary proposition would be to unduly burden and punish petitioner for exercising a right as he cannot be faulted for the circumstances that brought him within Philippine territory at the time he was sought to be placed under arrest and to answer for charges filed against him. Granting, as the evidence warrants, that petitioner Rodriguez came to know of the charges only later, and under his circumstances, is there a law that requires petitioner to travel to the United States and subject himself to the monetary burden and tedious process of defending himself before the country's courts? It must be noted that moral uprightness is not a standard too far-reaching as to demand of political candidate the performance of duties and obligations that are supererogatory in nature. We do not dispute that an alleged "fugitive from justice" must perform acts in order not to be so categorized. Clearly, a person who is aware of the imminent filing of charges against him or of the same already filed in connection with acts he committed in the jurisdiction of a particular state, is under an obligation not to flee said place of commission. However, as in petitioner's case, his departure from the United States may not place him under a similar obligation. His subsequent knowledge while in the Philippines and non-submission to the jurisdiction of the former country does not operate to label petitioner automatically a fugitive from justice. As he was a public officer appointed and elected immediately after his return to the country, petitioner Rodriguez had every reason to devote utmost priority to the service of his office. He could not have gone back to the United States in the middle of his term nor could he have traveled intermittently thereto without jeopardizing the interest of the public he serves. The require that of petitioner would be to put him in a paradoxical quandary where he is compelled to violate the very functions of his office.

However, Marquez and the COMELEC (in its "COMMISSION'S EVALUATION" as earlier quoted) seem to urge the Court to re-define "fugitive from justice". They espouse the broader concept of the term and culled from foreign authorities (mainly of U.S. vintage) cited in the MARQUEZ Decision itself, i.e., that one becomes a "fugitive from justice" by the mere fact that he leaves the jurisdiction where a charge is pending against him, regardless of whether or not the charge has already been filed at the time of his flight. Suffice it to say that the "law of the case" doctrine forbids the Court to craft an expanded re-definition of"fugitive from justice" (which is at variance with the MARQUEZ Decision) and proceed therefrom in resolving the instant petition. The various definitions of that doctrine have been laid down in People v.Pinuila, 103 Phil. 992, 999, to wit:

"Law of the case" has been defined as the opinion delivered on a former appeal. More specifically, it means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case, whether correct on a general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. (21 C.J.S. 330) It may be stated as a rule of general application that, where the evidence on a second or succeeding appeal is substantially the same as that on the first or preceding appeal, all matters, questions, points, or issues adjudicated on the prior appeal are the law of the case on all subsequent appeals and will not be considered or readjudicated therein. (5 C.J.S. 1267) In accordance with the general rule stated in Section 1821, where, after a definite determination, the court has remanded the cause for further action below, it will refuse to examine question other than those arising subsequently to such determination and remand, or other than the propriety of the compliance with its mandate; and if the court below has proceeded in substantial conformity to the directions of the appellate court, its action will not be questioned on a second appeal.

As a general rule a decision on a prior appeal of the same case is held to be the law of the casewhether that decision is right or wrong, the remedy of the party deeming himself aggrieved being to seek a rehearing. (5 C.J.S. 1276-77). Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case on a subsequent appeal, although the questions are not expressly treated in the opinion of the court, as the presumption is that all the facts in the case bearing on the point decided have received due consideration whether all or none of them are mentioned in the opinion. (5 C.J.S. 1286-87).

To elaborate, the same parties (Rodriguez and Marquez) and issue (whether or not Rodriguez is a "fugitive from justice") are involved in the MARQUEZ Decision and the instant petition. The MARQUEZ Decision was an appeal from EPC No. 92-28 (the Marquez' quo warranto petition before the COMELEC). The instant petition is also an appeal from EPC No. 92-28 although the COMELEC resolved the latter jointly with SPA No. 95-089 (Marquez' petition for the disqualification of Rodriguez). Therefore, what was irrevocably established as the controlling legal rule in the MARQUEZ Decision must govern the instant petition. And we specifically refer to the concept of "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision which highlights the significance of an intent to evade but which Marquez and the COMELEC, with their proposed expanded definition, seem to trivialize. Besides, to re-define "fugitive from justice" would only foment instability in our jurisprudence when hardly has the ink dried in the MARQUEZ Decision. To summarize, the term "fugitive from justice" as a ground for the disqualification or ineligibility of a person seeking to run for any elective local petition under Section 40(e) of the Local Government Code, should be understood according to the definition given in the MARQUEZ Decision, to wit:

A "fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution. (Emphasis ours.)

Intent to evade on the part of a candidate must therefore be established by proof that there has already been a conviction or at least, a charge has already been filed, at the time of flight. Not being a "fugitive from justice" under this definition, Rodriguez cannot be denied the Quezon Province gubernatorial post. WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED and the assailed Resolutions of the COMELEC dated May 7, 1995 (Consolidated Resolution), May 11, 1995 (Resolution suspending Rodriguez' proclamation) and June 23, 1995 (Resolution nullifying Rodriguez' proclamation and ordering the Quezon Province Provincial Board and Canvassers to explain why they should not be cited in contempt) are SET ASIDE. SO ORDERED.

Republic of the Philippines SUPREME COURT

Manila EN BANC

G.R. Nos. 117589-92 May 22, 1996 ROMEO R. SALALIMA, DANILO S. AZAÑA, JUAN VICTORIA, LORENZO REYEG, ARTURO OSIA, CLENIO CABREDO, VICENTE GO, SR., RAMON FERNANDEZ, JR., MASIKAP FONTANILLA, WILBOR RONTAS and NEMESIO BACLAO, petitioners, vs. HON. TEOFISTO T. GUINGONA, in his capacity as the Executive Secretary, VICTOR R. SUMULONG, RENATO C. CORONA and ANGEL V. SALDIVAR, in their capacity as Members of the Ad Hoc Committee, MAYOR NAOMI C. CORRAL, KGD. FRANCISCO ALARTE, MAYOR ANTONIO DEMETRIOU; and DOMINADOR LIM, JESUS JAMES CALISIN, EVELYN SILVERIO, SILVERIO COPE, TOBIAS BETITO, MANUEL LANUZA, JAMES ENRICO SALAZAR, RODOLFO ANTE, JUAN RIVERA, MARCIAL TUANQUI, DR. SALVADOR SAMBITAN, ATTY. EUTIQUIO NEPOMUCENO, in their capacity as ACTING GOVERNOR, ACTING VICE-GOVERNOR, and ACTING MEMBERS OF THE SANGGUNIANG PANLALAWIGAN OF ALBAY, respectively,respondents. DAVIDE, JR., J.:p Petitioners seek to annul and set aside Administrative Order No. 153, signed on 7 October 1994 by the President and by public respondent Executive Secretary Teofisto T. Guingona, Jr., approving the findings of fact and recommendations of the Ad Hoc Committee and holding the petitioners administratively liable for the following acts or omissions: (a) wanton disregard of law amounting to abuse of authority in O.P. Case No. 5470; (b) grave abuse of authority under Section 60 (e) of the Local Government Code of 1991 (R.A. No. 7160) in O.P. Case No. 5469; (c) oppression and abuse of authority under Section 60 (c) and (e) of R.A. No. 7160 in O.P. Case No. 5471; and (d) abuse of authority and negligence in O.P. Case No. 5450. The said order meted out on each of the petitioners penalties of suspension of different durations, to be served successively but not to go beyond their respective unexpired terms in accordance with Section 66 (b) of R.A. No. 7160. Prefacing the petition with a claim that the challenged administrative order is "an oppressive and capricious exercise of executive power," the petitioners submit that:

I. THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUSPENDING THE PETITIONERS FOR PERIODS RANGING FROM TWELVE MONTHS TO TWENTY MONTHS IN VIOLATION OF THE CONSTITUTIONAL MANDATES ON LOCAL AUTONOMY AND SECURITY OF TENURE AND APPOINTING UNQUALIFIED PERSONS TO NON-VACANT POSITIONS AS THEIR SUCCESSORS IN OFFICE.

II. THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING THE PETITIONERS GUILTY OF ABUSE OF AUTHORITY FOR FAILURE TO SHARE WITH THE MUNICIPALITY OF TIWI THE AMOUNT OF P40,724,471.74 PAID BY NAPOCOR TO THE PROVINCE OF ALBAY, PURSUANT TO THE MEMORANDUM OF AGREEMENT DATED JULY 29, 1992.

III. THE PUBLIC RESPONDENT TEOFISTO T. GUINGONA, JR. ACTED WITH ABUSE OF DISCRETION IN SUSPENDING THE PETITIONERS BASED UPON THE PROVISIONS OF THE LOCAL GOVERNMENT CODE:

A. WHAT WERE NOT COMPLAINED OF; B. UPON ACTS COMMITTED PRIOR TO ITS EFFECTIVITY; AND C. WHERE THE ADMINISTRATIVE CASES WHEN FILED WERE ALREADY COVERED BY PRESCRIPTION.

IV. THE PUBLIC RESPONDENT EXCEEDED ITS JURISDICTION WHEN IT PREMATURELY DECIDED THESE CASES ON THE BASIS OF THE SAO REPORT NO. 93-11 WHICH IS PENDING APPEAL TO THE COMMISSION ON AUDIT SITTING EN BANC.

We resolved to give due course to this petition and to decide it on the basis of the pleadings thus far submitted, after due consideration of the satisfactory explanation of the petitioners that his case has not been mooted by the expiration of their term of office on 30 June 1995 and the comment of the Office of the Solicitor General that this case be resolved on the merits. In seeking a resolution of this case on the merits, the office of the Solicitor General invites the attention of the Court to the following:

(a) While the periods of suspension have been served by petitioners and that some of them have even been elected to other government positions, there is the primary issue of whether the suspensions were valid and grounded on sufficient cause. (b) If the suspensions are found to be valid, petitioners are not entitled to reimbursement of salaries during their suspension period. (c) If upheld, Administrative Order No. 15, would be used as a strong ground in filing cases against petitioners for violations of the Anti Graft and Corrupt Practices Act. (d) Corollary [sic] to these issues is the issue of the interpretation and application of the [R]eal Property Tax Code and the Local Government Code under the circumstances of this case. (e) The resolution of these issues would finally put to rest whether respondents acted with grave abuse of discretion amounting to lack of jurisdiction for having suspended petitioners on the basis of their findings in the four (4) administrative cases filed against the petitioners.

The factual antecedents are not complicated. Sometime in 1993, several administrative complaints against the petitioners, who were elective officials of the Province of Albay, were filed with the Office of the President and later docketed as O.P. Cases Nos. 5450, 5469, 5470, and 5471. Acting thereon, the President issued Administrative Order No. 94 creating an Ad Hoc Committee to investigate the charges and to thereafter submit its findings and recommendations. The Ad Hoc committee was composed of Undersecretary Victor R. Sumulong of the Department of the Interior and Local Government (DILG), Assistant Executive Secretary Renato C. Corona, and Presidential Assistant Angel V. Saldivar. On 26 August 1994, after conducting hearings, the Ad Hoc Committee submitted its report to the Office of the President. On 7 October 1994, the President promulgated Administrative Order No. 153 quoting with approval the following pertinent findings and recommendations of the Committee; thus:

The finding of the Ad-Hoc Committee in OP Case Nos. 547(1, 5469, 5471 and 5450 are as follows I. OP Case No. 5470

This refers to the administrative complaint filed by Tiwi Mayor Naomi Corral against Albay Governor Romeo Salalima, Vice-Governor Danilo Azaña, and Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Clenio Cabredo, Vicente Go [S]r., Jesus Marcellana, Ramon Fernandez, Jr. Masikap Fontilla, and Wilbor Rontas. Docketed as OP Case No. 5470, the complaint charges the respondents for malversation and consistent & habitual violation of pars. (c) and (d) of Section 60 of Republic Act (RA) No. 7160, otherwise known as the "Local Government Code." The antecedent facts are as follows: On 4 June 1990, the Supreme Court in the case entitled "National Power Corporation (NPC) v. The Province of Albay, et al.", G.R. No. 87479 rendered judgment (Exhs. D to D-14) declaring, inter alia, NPC liable for unpaid real estate taxes on its properties in Albay covering the period 11 June 1984 to 10 March 1987.

Citing the fact that its tax exemption privileges had been revoked, the Supreme Court held that NPC's real properties, consisting mainly of geothermal plants in Tiwi and substation facilities in Daraga, are subject to real estate tax in accordance with Presidential Decree (PD) No. 464, as amended, otherwise known as the "Real Property Tax Decree." Earlier, said properties were sold at an auction sale conducted by the Province of Albay (the "Province") to satisfy NPC's tax liabilities. Being the sole bidder at the auction, the Province acquired ownership over said properties. On 29 July 1992, the NPC through then President Pablo Malixi and the Province represented by respondent Salalima, entered into a Memorandum of agreement ("MOA") [Exhs. 7 to 7-A] whereby the former agreed to settle its tax liabilities, then estimated at P214,845,104.76. Under the MOA, the parties agreed that:

— the actual amount collectible from NPC will have to be recomputed/revalidated; — NPC shall make an initial payment of P17,763,000.00 upon signing of the agreement; — the balance of the recomputed/revalidated amount (less the aforesaid initial payment), shall be paid in twenty-four (24) equal monthly installments to commence in September 1992; and — ownership over the auctioned properties shall revert to NPC upon satisfaction of the tax liabilities.

On 3 August 1992, Mayor Corral formally requested the Province through respondent Salalima, to remit the rightful tax shares of Tiwi and certain barangays of Tiwi where NPC's properties are located ("concerned barangays") relative to the payments made by NPC (Exh. B). On the same day, 3 August 1992, the Tiwi Sangguniang Bayan passed Resolution No. 12-91 (Exhs. G to G-1) requesting the Albay Sangguniang Panlalawigan to hold a joint session with the former together with Mayor Corral and the Sangguniang Pambarangays of the concerned barangays, for the purpose of discussing the distribution or application of the NPC payments. On 10 August 1992, respondent Salalima replied that the request cannot be granted as the initial payment amounting to P17,763,000.00 was only an "earnest money" and that the total amount to be collected from NPC was still being validated (Exh. 1). Not satisfied with respondent Salalima's response, Mayor Corral complained to NPC about the Province's failure to remit Tiwi's and the concerned barangays' shares in the payments made by NPC (Exh. 50-C). On 14 August 1992, President Malixi informed respondent Salalima that the representatives of both NPC and the Province have reconciled their accounts and determined that the amount due from NPC was down to P207,375,774.52 (Exh. 20). Due to the brewing misunderstanding between Tiwi and the concerned barangays on the one hand, and the Province on the other, and so as not to be caught in the middle of the controversy, NPC requested a clarification from the Office of the President as to the scope and extent of the shares of local government units in real estate tax collections (Exh. 6 to 6-A). Meantime, the Albay Sangguniang Panlalawigan passed Resolution No. 178-92 dated 8 October 1992 (Exh. R) and Resolution No. 204-92 dated 5 November 1992 (Exh. S) appropriating P9,778,932.57 and P17,663,431.58 or a total of P27,442,364.15 from the general fund to satisfy "prior years" obligations and to implement certain projects of the Province. These resolutions were approved by respondent Salalima on 22 October 1992 and 6 November 1992, respectively. On 3 December 1992, the Office of the President through Chief Presidential Legal Counsel Antonio Carpio opined that the MOA entered into by NPC and the Province merely recognized and established NPC's tax liability. He further clarified that the sharing scheme and those entitled to the payments to be made by NPC under the MOA should be that provided under the law, and since Tiwi is entitled to share in said tax liabilities, NPC may remit such share directly to Tiwi. The pertinent portion of Chief Presidential Legal Counsel Carpio's letter dated 3 December 1992 (Exhs. H to H-1) addressed to President Malixi reads:

xxx xxx xxx The Memorandum of Agreement entered into by the Province of Albay and NPC merely enunciates the tax liability of NPC. The Memorandum of Agreement does not provide for the manner of payment of NPC's liability. Thus, the manner of

payment as provided for by law shall govern. In any event, the Memorandum of Agreement cannot amend the law allowing the payment of said taxes to the Municipality of Tiwi. The decision in the case of NPC v. Province of Albay (186 SCRA 198), likewise, only establishes the liability of NPC for real property taxes but does not specifically provide that said back taxes be paid exclusively to Albay province. Therefore, it is our opinion that the NPC may pay directly to the municipality of Tiwi the real property taxes accruing to the same. Please be guided accordingly.

Very truly Because of this opinion, President Malixi, through a letter dated 9 December 1992 (Exh. I to I-1), informed Mayor Corral and respondent Salalima that starting with the January 1993 installment, NPC will directly pay Tiwi its share in the payments under the MOA. He also invited the parties to a clarificatory meeting on 17 December 1992 at his Quezon City office to discuss the matter in detail. Only Mayor Corral attended the 17 December 1992 meeting with President Malixi as respondent Salalima was indisposed. President Malixi then provided Mayor Corral with schedules (Exhs. J to J-2) of the payments already made by NPC under the MOA and the computation and the distribution of shares. As of 9 December 1992, payments made by NPC to the Province reached P40,724,471.74, broken down as follows: Payment Dates Amount July 29, 1992 P 17,763,000.00 Sept. 3, 1992 4,660,255.80 Oct. 5, 1992 6,820,480.02 Nov. 5, 1992 5,740,367.96 Dec. 9, 1992 5,740,367.96 —————— Total P 40,724,471.74 On 19 December 1992, in an apparent reaction to NPC's decision to directly remit to Tiwi its share in the payments made and still to be made pursuant to the MOA, the Albay Sangguniang Panlalawigan passed Ordinance No. 09-92 (Exhs. K to K-1), which, among others:

— authorized the Provincial Treasurer upon the direction of the Provincial Governor to sell the real properties (acquired by the Province at the auction sale) at a public auction, and to cause the immediate transfer thereof to the winning bidder; and — declared as forfeited in favor of the Province, all the payments already made by NPC under the MOA.

Realizing from the actuations of the respondents that Tiwi's share in the P40,724,471.74 payments already made by NPC will not be forthcoming, Mayor Corral filed the present complaint with the Office of the President on 25 January 1993. In determining whether the respondents are guilty of the charges against them, the threshold issue of whether the payments to be made by NPC under the MOA should accrue solely and exclusively in favor of the Province, must first be resolved. Sections 38, 39, 41, 86 and 87 of PD No. 464, as amended, prescribe the authority of local government units to levy real property tax as well as the sharing scheme among local government units including the national government with respect thereto. Said provisions read:

Sec. 38. Incidence of Real Property Tax. — There shall be levied, assessed, and collected in all provinces, cities and municipalities an annual ad valorem tax on real property, such as land, buildings, machinery and the improvements affixed or attached to real property not hereinafter specifically exempted. Sec. 39. Rates of Levy. — The provincial, city or municipal board or council shall fix a uniform rate of real property tax applicable to their respective localities as follows:

(1) In the case of a province, the tax shall be fixed by ordinance of the provincial boardat the rate of not less than one-fourth of one percent but not more than one-half of one percent of the assessed value of real property; (2) In the case of a city, the tax shall be fixed by ordinance of the municipal board or city council at the rate of not less than one-half of one percent but not more than two percent of the assessed value of real property; and (3) In the case of a municipality, the tax shall be fixed by ordinance of the municipal council subject to the approval of the provincial board at the rate of not less than one-fourth of one percent but not more than one-half of one percent of the assessed value of real property. Sec. 41. An additional one percent tax on real property for the Special Education Fund. — There is hereby imposed an annual tax of one percent on real property to accrue to the Special Education Fund created under Republic Act No. 5447, which shall be in addition to the basic real property tax which local governments are authorized to levy, assess and collect under this Code; Provided, That real property granted exemption under Section 40 of this code shall also be exempt from the imposition accruing to the Special Education Fund. (as amended by PD No. 1913). Sec. 86. Distribution of proceeds. — (a) The proceeds of the real property tax, except as otherwise provided in this Code, shall accrue to the province, city or municipality where the property subject to the tax is situated and shall be applied by the respective local government unit for its own use and benefit. (b) Barrio shares in real property tax collections. — The annual shares of the barrios in real property tax collections shall be as follows: (1) Five percent of the real property tax collections of the province and another five percent of the collections of the municipality shall accrue to the barrio where the property subject to the tax is situated. (2) In the case of the city, ten percent of the collections of the tax shall likewise accrue to the barrio where the property is situated.

xxx xxx xxx Sec. 87. Application of proceeds. — (a) The proceeds of the real property tax pertaining to the city and to the municipality shall accrue entirely to their respective general funds. In the case of the province, one-fourth thereof shall accrue to its road and bridge fund and remaining three-fourths of its general fund.

(b) The entire proceeds of the additional one percent real property tax Levied for the Special Education Fund created under R.A. No. 6447 collected in the province or city on real property situated in their respective territorial jurisdictions shall be distributed as follows:

(1) Collections in the provinces: Fifty-five percent shall accrue to the municipality where the property subject to the tax is situated; twenty-five percent shall accrue to the province; and twenty percent shall be remitted to the Treasurer of the Philippines. (as amended by PD No. 1969).

xxx xxx xxx (c) The proceeds of all delinquent taxes and penalties, as well as the income realized from the use, lease or other disposition of real property acquired by the province or city at a public auction in accordance with the provisions of this Code, and the proceeds of the sale of the delinquent real property or of the redemption thereof, shall accrue to the province, city or municipality in the same manner and proportion as if the tax or taxes had been paid in regular course.

xxx xxx xxx (Emphasis supplied) The foregoing provisions clearly show that local government units may levy and collect real property tax ranging from a low of one-fourth of one percent (0.25%) to a high of two percent (2.0%) of the assessed value of real property depending on the local government unit levying the same. It is likewise clear that a province, a municipality and a city may each separately levy said tax on real property located within their respective jurisdictions but not exceeding the rates prescribed under Sec. 39 of PD No. 464.

And apart from said basic tax; the law authorizes the collection of an additional tax equivalent to one percent (1.0%) of the assessed value of the real property to accrue to the Special Education Fund (SEF). In accordance with the authority confirmed upon them by PD No. 464, the following tax resolutions or ordinances were passed: By the province — Resolution No. 30, series of 1974, of the Provincial Board of Albay, enacting Provincial Tax Ordinance No. 4 whose Section 1, provides:

There shall be levied, assessed and collected an annual ad valorem tax on real properties including improvements thereon equivalent to one-half of one percent of the assessed value of real property.

By the Municipality of Tiwi — Ordinance No. 25, series of 1974, of the Sangguniang Bayan of Tiwi, Albay, whose Section 2 provides:

That the tax rate of real property shall be one-half of one percent of the assessed value of real property. By the Municipality of Daraga — Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga, Albay, whose Section 3 provides:

Rates of Levy — The tax herein levied is hereby fixed at one-half of one percent (1/2 of 1%) of the assessed value of real property. (see Exhs. 50-G; Emphasis supplied).

Applying said rates of levy, the real property taxes collectible from the NPC are: 1. A basic tax of 1%, levied by the Province (0.5%) and Tiwi (0.5%) on the one hand; and the Province (0.5%) and Daraga (0.5%) on the other; and 2. The additional 1% tax pertaining to the SEF.

or a total of 2.0% on the assessed value of NPC's real properties. On the other hand, sharing on said taxes, shall be as follows: 1. On the basic tax:

Province 47.5% Municipality 47.5% Barangay 5.0% ——— Total 100.0%

2. On the additional tax pertaining to the SEF: Province 25.0% Municipality 55.0% National Government 20.0% ——— Total 100.0%

In real terms, the P40,724,471.74 in payments earlier made by NPC should be shared by the Province, Tiwi and Daraga, the concerned barangays and the national government, as follows: Province Municipalities Barangay Natl. Govt. Basic Tax P 9,672,062.04 9,672,062.04 1,018,111.79 none SEF 4,072,447.18 10,181,117.93 none 6,108,670.76 ————— ————— ————— —————

Total P13,744,509.22 19,853,179.97 1,018,111.79 6,108,670.76 =========== ========== ========= ========= This shows that the Province is entitled only to P13,744,509.21 of the P40,724,471.74 aggregate payments by NPC. On the other hand, the balance of P26,979,962.52 represents the collective shares of Tiwi, Daraga, the concerned barangays and the national government. The Province maintains, however, that considering that it acquired ownership over the properties of NPC subject matter of the auction, all the payments to be made by NPC under the MOA should accrue exclusively to the Province. This is untenable. The law clearly provides that "the proceeds of all the delinquent taxes and penalties as well as the income realized from the . . . disposition of real property acquired by the province or city at a public auction . . ., and the sale of delinquent property or the redemption thereof shall accrue to the province, city or municipality in the same manner and proportion as if the tax or taxes have been paid in the regular course" (Sec. 87(c) supra.). It is immaterial that the Province was the highest bidder and eventually became the owner of the properties sold at the auction sale. What is essential is that the proceeds of the re-sale of said properties acquired by the Province, be distributed in the same manner and proportion among the rightful beneficiaries thereof as provided by law. This was the import and essence of Chief Presidential Legal Counsel Carpio's opinion when he stated that the sharing scheme provided by law cannot be amended by a mere agreement between the taxpayer, in this case NPC, and the collecting authority, in this instance, the Province of Albay. Likewise, it is axiomatic that while "contracting parties may establish stipulations, clauses, terms and conditions as they may deem convenient", they may not do so if these are "contrary to law, morals, good customs, public order or public policy" (Art 1306, New Civil Code.). Also relevant to the discussion are the following provisions of the Local Government Code of 1991:

Sec. 307. Remittance of Government Monies to the Local Treasury. — Officers of local government authorized to receive and collect monies arising from taxes, revenues, or receipts of any kind shall remit the full amount received and collected to the treasury of such Local government unit which shall be credited to the particular account or accounts to which the monies in question properly belong. Sec. 308. Local Funds. — Every local government unit shall maintain a General Fund which shall be used to account for such monies and resources as may be received by and disbursed from the local treasury. The General Fund shall consist of monies and resources of the local government which are available for the payment of expenditures, obligations or purposes not specifically declared by law as accruing and chargeable to, or payable from any other fund. Sec. 309. Special Funds. — There shall be maintained in every provincial, city, or municipal treasury the following special funds: (a) Special Education Fund (SEF) shall consist of the respective shares of provinces, cities, municipalities and barangays in the proceeds of the additional tax on real propertyto be appropriated for purposes prescribed in Section 272 of this Code; and (b) Trust Funds shall consist of private and public monies which have officially come into the possession of the local government or of a local government official as trustee, agent or administrator, or which have been received as a guaranty for the fulfillment of some obligation. A trust fund shall only be used for the specific purpose for which it was created or for which it came into the possession of the Local government unit. (Emphasis supplied).

These provisions are restatements of Sec. 3(4) and (5) of PD No. 1445 and both Sec. 43, Book V and Sec. 2(4) of Book V(B) of Executive Order No. 292, otherwise known as the "Administrative Code of 1987."

It is unmistakable from the foregoing provisions that the shares of Tiwi, Daraga, the concerned barangays and the national government in the payments made by NPC under the MOA, should be, as they are in fact, trust funds. As such, the Province should have, upon receipt of said payments, segregated and lodged in special accounts, the respective shares of Tiwi, Daraga, the concerned barangays and the national government for eventual remittance to said beneficiaries. Said shares cannot be lodged in, nor remain part of, the Province's general fund. Moreover, the Province cannot utilize said amounts for its own benefit or account (see also Sec. 86, PD No. 464, as amended). Therefore, the balance of P26,979,962.52 representing the collective shares of Tiwi and Daraga, the concerned barangays and the national government, cannot be appropriated nor disbursed by the Province for the payment of its own expenditures or contractual obligations. However, in total disregard of the law, the Province treated the P40,724,471.74 NPC payments as "surplus adjustment" (Account 7-92-419) and lodged the same in its general fund. No trust liability accounts were created in favor of the rightful beneficiaries thereof as required by law. Report No. 93-11 (Exh. N), prepared and made by the Special Audit Office (SAG) of the Commission on Audit (COA) further support our findings, thus —

xxx xxx xxx Part II. Findings and Observations

The audit findings, which are discussed in detail in the attached report, are summarized below: 1. The remittances of the NPC of the P40,724,471.74 from July to December 1992 representing partial payments of real tax delinquencies from June 22, 1984 to March 10, 1989, were not shared with the Municipalities of Tiwi, Daraga, and the concerned barangays and the National Government in violation of PD 464. The Memorandum of Agreement entered into between the Province of Albay and Napocor cannot amend the provisions of PD 464 which specifies the sharing scheme of the real property tax among the province, city or municipality where the property subject to tax is situated and the National Government.

xxx xxx xxx 2. The collection of P40,724,471.74 was fully treated as surplus adjustment (Account 7-92-419) being prior years income, without creating a trust liability for the municipality and barangays concerned and national government. As of December 31, 1992, the balance of the account was only P25,668,653.12 thus, stressing that P15,255,818.62 was spent. . . . Under the General Fund, cash available was only P4,921,353.44 leaving practically no cash to answer for the shares of the Municipalities of Tiwi and Daraga and their barangays where the properties are located. (pp. 4 and 16; (Emphasis supplied).

xxx xxx xxx As pointed our earlier, the Province was entitled only to P13,744,509.21 of the P40,724,471.74 in payments made by NPC. Thus, it may only appropriate and disburse P13,744,509.21. Any disbursements exceeding this amount would therefore be illegal. This Committee particularly notes the factual finding of COA that as of 31 December 1992, the actual cash balance of the Province's general fund was only P4,921,353.44. This means that of the P40,724,471.74 actually paid by the NPC and lodged in the Province's general fund, P35,803,118.30 was disbursed or spent by the Province. This exceeds the P13,744,509.21 share of the Province by P22,058,609.09. The foregoing may be illustrated as follows: NPC Payments received by the Province P40,724,471.74 Less Actual Cash Balance general fund as of 12-31-92 4,921,353.44 —————— P35,803,118.30

=========== Less Share of the Province 13,744,509.21 Amount Illegally Disbursed by the Province P22,058,609.09 =========== We have already shown that Ordinance No. 09-92 (Exhs. K to K-1) declaring as forfeited in favor of the Province the entire amount of P40,724,471.74 paid by NPC to be patently illegal as it unlawfully deprives Tiwi and Daraga, the barangays concerned, and the national government of their rightful shares in said payments. Being illegal, said ordinance may not be used or relied upon by the respondents to justify the disbursements of funds in excess of their share. Neither may Resolution Nos. 178-92 and 204-92 be used to justify the disbursements considering that the appropriations made thereunder totalling P27,442,364.51 are to be funded by the P40,724,471.74 "surplus adjustment" that includes the "trust funds" not belonging to the Province. Even assuring that Resolution No. 178-92 authorizing the expenditure of P9,778,912.57 were to be taken from the Province's share amounting to P13,744,509.21, the rest of the disbursements still have no legal basis. Clearly, this is violative of the fundamental rule that "(n)o money shall be paid out of the local treasury except in pursuance of an appropriation ordinance or law" (par [a], Sec. 305, Republic Act No. 7160). Respondents raise the common defense that the findings obtained in SAO Report No. 93-11 are not yet final as they have filed an appeal therefrom. It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50-J) raised by the respondents to COA merely involve questions of law, i.e., as to whether the Province alone should be entitled to the payments made by NPC under the MOA, and whether the shares of Tiwi and Daraga, the concerned barangays, and the national government, should be held in trust for said beneficiaries. Considering that the factual findings under SAO Report 93-11 are not disputed, this Committee has treated said factual findings as final or, at the very least, as corroborative evidence. Respondents' contention that COA's factual findings, contained in SAO Report No. 93-11 cannot be considered in this investigation is untenable. For no administrative or criminal investigation can proceed, if a respondent is allowed to argue that a particular COA finding is still the subject of an appeal and move that the resolution of such administrative or criminal case be held in abeyance. This will inevitably cause unnecessary delays in the investigation of administrative and criminal cases since an appeal from a COA finding may be brought all the way up to the Supreme Court. Besides, the matters raised by the respondents on appeal involve only conclusions/interpretation of law. Surely, investigative bodies, such as COA, the Ombudsman and even this Committee, are empowered to make their own conclusions of law based on a given set of facts. Finally, sufficient evidence has been adduced in this case apart from the factual findings contained in SAO Report, 93-11 to enable this Committee to evaluate the merits of the instant complaint. We also reject respondent Azaña's defense that since he did not participate in the deliberation and passage of Resolution No. 09-92, merely signing the same as presiding officer of the Sangguniang Panlalawigan, and only certifying that the same had been passed, he did not incur any administrative liability. The fact remains that as presiding officer of the Sangguniang Panlalawigan and being the second highest official of the Province, respondent Azaña is jointly responsible with other provincial officials in the administration of fiscal and financial transactions of the Province. As presiding officer of the Sangguniang Panlalawigan, respondent Azaña has a duty to see to it that resolutions or ordinances passed are within the bounds of the law. He cannot merely preside over the sessions of the Sangguniang Panlalawigan unmindful of the legality and propriety of resolutions or ordinances being proposed or deliberated upon by his colleagues. This collective responsibility is provided under Secs. 304 and 305 of Republic Act. No. 7160, thus —

Sec. 304. Scope. — This Title shall govern the conduct and management of financial affairs, transactions and operations of provinces, cities, municipalities, and barangays. Sec. 305. Fundamental Principles. — The financial affairs, transactions, and operations of local government units shall be governed by the following fundamental principles:

xxx xxx xxx (1) Fiscal responsibility shall be shared by all those exercising authority over the financial affairs, transactions, and operations of local government units; and

xxx xxx xxx (Emphasis supplied) It cannot be denied that the Sangguniang Panlalawigan has control over the Province's "purse" as it may approve or not resolutions or ordinances generating revenue or imposing taxes all well as appropriating and authorizing the disbursement of funds to meet operational requirements or for the prosecution of projects. Being entrusted with such responsibility, the provincial governor, vice-governor and the members of the Sangguniang Panlalawigan, must always be guided by the so-called "fundamental" principles enunciated under the Local Government Code, i.e., "No money shall be paid out of the local treasury except in pursuance of an appropriations ordinance or law; local revenue is generated only from sources authorized by law or ordinance and collection thereof shall at all times be acknowledged properly; all monies officially received by a local government officer in any capacity or on any occasion shall be accounted for as local funds, unless otherwise provided by law; and trust funds in the local treasury shall not be paid out except in fulfillment of the purposes for which the trust was created or the funds received" (Sec. 305, R.A. 7160). All the respondents could not claim ignorance of the law especially with respect to the provisions of PD No. 464 that lay down the sharing scheme among local government units concerned and the national government, for both the basic real property tax and additional tax pertaining to the Special Education Fund. Nor can they claim that the Province could validly forfeit the P40,724,471.74 paid by NPC considering that the Province is only entitled to a portion thereof and that the balance was merely being held in trust for the other beneficiaries. As a public officer, respondent Azaña (and the other respondents as well) has a duty to protect the interests not only of the Province but also of the municipalities of Tiwi and Daraga and even the national government. When the passage of an illegal or unlawful ordinance by the Sangguniang Panlalawigan is imminent, the presiding officer has a duty to act accordingly, but actively opposing the same by temporarily relinquishing his chair and participating in the deliberations. If his colleagues insist on its passage, he should make known his opposition thereto by placing the same on record. No evidence or any sort was shown in this regard by respondent Azaña. Clearly, all the respondents have, whether by act or omission, denied the other beneficiaries of their rightful shares in the tax delinquency payments made by the NPC and caused the illegal forfeiture, appropriation and disbursement of funds not belonging to the Province, through the passage and approval of Ordinance No. 09-92 and Resolution Nos. 178-92 and 204-92. The foregoing factual setting shows a wanton disregard of law on the part of the respondents tantamount to abuse of authority. Moreover, the illegal disbursements made can qualify as technical malversation. This Committee, thus, finds all the respondents guilty of abuse of authority, and acccordingly, recommends the imposition of the following penalties of suspension without pay: a. Respondent Salalima — five (5) months; and b. All the other respondents — four (4) months each.

II. OP Case No. 5469

This refers to the administrative complaint filed against Albay Governor Romeo Salalima, Vice-Governor Danilo Azaña, Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., and Nemesio Baclao relative to the retainer contract for legal services entered into between the Province of Albay, on the one hand, and Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm, on the other, and the disbursement of public fund in payment thereof. The complaint was docketed as OP Case No. 5469. The antecedent facts are as follows. Because of the refusal by the National Power Corporation ("NPC") to pay real property taxes assessed by the Province of Albay ("the Province") covering the period from 11 June 1984 up to 10 March 1987 amounting to P214,845,184.76, the Province sold at public auction the properties of NPC consisting of geothermal power plants, buildings, machinery and other improvements located at Tiwi and Daraga, Albay. The Province was the sole and winning bidder at the auction sale. As NPC failed to redeem its properties sold at the auction, the Province petitioned the Regional Trial Court in Tabaco, Albay to issue a writ of possession over the same. Sometime in 1989, NPC filed a petition with the Supreme Court, which was docketed as G.R. No. 87479, questioning the validity of the auction sale conducted by the Province. NPC claims, inter alia, that its properties are not subject to real property tax. On 17 May 1989, the Province, through Atty. Romulo Ricafort, the legal officer of the Province, filed it; comment on the NPC petition with the Supreme Court. On 2 June 1989, the Albay Sangguniang Panlalawigan adopted Resolution No. 129-89 (Exhs. B to B-1) authorizing respondent Governor to engage the services of a Manila-based law firm to handle the case against NPC. On 25 August 1989, Atty. Jesus R. Cornago entered his appearance with the Supreme Court as collaborating counsel for the Province in G.R. No. 87479. The entry of appearance of Atty. Cornago bore the conformity of respondent Governor. On 14 November 1989, Atty. Antonio Jose F. Cortes of the Cortes & Reyna Law Firm sent respondent Governor a letter (Exhs. D to D-1) informing him that Atty. Jesus R. Cornago, as collaborating counsel for the Province, has filed a memorandum with the Supreme Court, suggesting that a retainer agreement be signed between the Province, on the one hand, and Atty. Cornago and Cortes & Reyna Law Firm, on the other hand, and setting forth the conditions of the retainer agreement, thus:

As collaborating counsels for the respondents in the aforementioned case, our law firm and that of Atty. Jesus R. Cornago request that you pay us an Acceptance Fee of FIFTY THOUSAND (P50,000.00) PESOS, while the aforementioned case is pending in the Supreme Court. Thereafter, we will charge you a contingent fee equivalent to eighteen percent (18%) of the value of the property subject matter of the case which is P214 million, payable to us in the event that we obtain a favorable judgment for you from the Supreme Court in the case. Xerox expenses for copies of motions, memorandum and other matters to be filed with the Supreme Court in the case, together with xerox copies of documentary evidence, as well as mailing expenses, will be for your account also.

On 8 January 1990, the Albay Sangguniang Panlalawigan passed Resolution No. 01-90 (Exhs. C to C-1) authorizing respondent Governor to sign and confirm the retainer contract with the Cortes & Reyna Law Firm. Respondent Salalima signed the retainer agreement. On 4 June 1990, the Supreme Court issued a decision dismissing the NPC petition and upholding the validity of the auction sale conducted by the province to answer for NPC's tax liabilities. Subsequently, the following payments amounting to P7,380,410.31 (Exhs. E to N-1) were made by the Province to Atty. Antonio Jose Cortes and Atty. Jesus R. Cornago: Particulars Claimant/Payee Amount Disbursement Cortes & Reyna P 60,508.75

Voucher (DV No. 4, Jan. 8, 1990 Check No. 931019 DV No. 1889 Atty. Antonio Jose Cortes P 1,421,040.00 Aug. 13, 1992; Check No. 236063-S DV No. 1890 Atty. Jesus R. Cornago P 1,736,300.00 Aug. 13, 1992; Check No. 236064-S DV No. 2151 Atty. Antonio Jose Cortes P 838,851.44 Sept. 28, 1992; Check No. 238174-S DV No. 2226 Atty. Antonio Jose Cortes P 886,662.40 Oct. 8, 1992; Check No. 239528-S DV No. 2227 Atty. Jesus R. Cornago P 341,024.00 Oct. 8, 1992; Check No. 239529-S DV No. 2474 Atty. Jesus R. Cornago P 287,018.40 Nov. 6, 1992; Check No. 250933 DV No. 2475 Atty. Antonio Jose Cortes P 746,247.83 Dec. 9, 1992; Check No. 253163 DV No. 2751 Atty. Antonio Jose Cortes P 747,247.84 Dec. 9, 1992; Check No. 253163 DV No. 2752 Atty. Jesus R. Cornago P 267,018.40 Dec. 9, 1992; Check No. 253164 —————— TOTAL P 7,380,410.31 Disbursement Voucher Nos. 2474 and 2475 were approved by respondent Azaña. The rest were approved by respondent Governor. In a letter dated 31 May 1993 (Exh. O) and certificate of settlement and balances dated 17 May 1993 (Exh. P), the Provincial Auditor of Albay informed respondent Governor that payments made by the Province as attorney's fees amounting to P7,380,410.31 have been disallowed by the Commission on Audit (COA) with the following notation:

The disbursement vouchers detailed hereunder represent payments for attorney's fees of Cortes & Reyna Law Office for Legal services rendered re: G.R. No. 87479 "NAPOCOR, Petitioner vs. The Province of Albay, et al., Respondent," Supreme Court,en banc. Total payments of P7,380,410.31 are disallowed for lack of the requisite "prior written conformity and acquiescence of the Solicitor General . . . as well as the written concurrence of the Commission on Audit" as provided for and

required under COA Circular No. 86-255 dated April 2, 1986, re: "Inhibition against employment by government: agencies and instrumentalities . . . of private lawyers to handle their legal cases," viz.

The complaint alleges that by entering into the retainer agreement with private lawyers and paying P7,380,410.31 to the said private lawyers, respondents violated several provisions of law which warrants the imposition of administrative penalties against them. It is to be noted that respondents Victoria, Reyeg, Cabredo, Marcellana and Osia were not yet members of the Sangguniang Panlalawigan when Resolution No. 129 was passed. However, the complaint alleges that these respondents were named in the complaint because they approved the supplemental budget/appropriation ordinances providing for the payment of the attorney's fees. The sole issue in this case is whether or not respondents have incurred administrative liability in entering into the retainer agreement with Atty. Cornago and the Cortes & Reyna Law Firm and in making payments pursuant to said agreement for purposes of the case filed by NPC with the Supreme Court against the province. We find merit in the complaint and hold that under the circumstances surrounding the transaction in question, the respondents abused their authority. Sec. 481 of the Local Government Code (RA. No. 7160) requires the appointment of a legal officer for the province whose functions include the following:

Represent the local government unit in all civil actions and special proceedings wherein the local government unit or any official thereof, in his official capacity is a party;Provided, That, in actions or proceeding where a component city or municipality is a party adverse to the provincial government or to another component city or municipality, a special legal officer may be employed to represent the adverse party.

The Supreme Court has ruled in Municipality of Bocaue, et al. v. Manotok, 93 Phil 173 (1953), that local governments [sic] units cannot be represented by private lawyers and it is solely the Provincial Fiscal who can rightfully represent them, thus:

Under the law, the Provincial Fiscal of Bulacan and his assistants are charged with the duty to represent the province and any municipality thereof in all civil actions . . . It would seem clear that the Provincial Fiscal is the only counsel who can rightfully represent the plaintiffs and therefore, Attys. Alvir and Macapagal [the private lawyers hired by the Province of Bulacan] have no standing in the case. The appeal herein interposed in behalf of the plaintiffs cannot therefore be maintained.

This ruling applies squarely to the case at hand because Sec. 481 of the Local Government Code is based on Sec. 1681 of the Revised Administrative Code which was the subject of interpretation in the abovecited case of Municipality of Bocaue, et al. v. Manotok. In hiring private lawyers to represent the Province of Albay, respondents exceeded their authority and violated the abovequoted section of the Local Government Code and the doctrine laid down by the Supreme Court. Moreover, the entire transaction was attended by irregularities. First, the disbursements to the lawyers amounting to P7,380,410.31 were disallowed by the Provincial Auditor on the ground that these were made without the prior written conformity of the Solicitor General and the written concurrence of the Commission on Audit (COA) as required by COA Circular No. 86-255 dated 2 April 1986. The respondents attempted to dispute this finding by presenting the Solicitor General's conformity dated 15 July 3993. This conformity was, however obtained after the disbursements were already made in 1990 and 1992. What is required by COA Circular No. 85-255 is a prior written conformity and acquiescence of the Solicitor General. Another irregularity in the transaction concerns the lawyers. Resolution No. 01-90 authorized the respondent Governor to sign and confirm a retainer contract for legal services with the Cortes & Reyna Law Firm at 202 E. Rodriguez Sr. Blvd., Quezon City. The retainer contract signed by respondent Governor was, however, not only with the Cortes & Reyna Law Firm but also with Atty. Jesus R. Cornago of Jamecca Building, 280 Tomas Morato Avenue, Quezon City. That Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm are two separate entities is evident from the retainer contract itself:

As collaborating counsels for the respondents in the aforementioned case, our law firm and that of Atty. Jesus R. Cornago request that you pay us an Acceptance Fee of FIFTY THOUSAND (P50,000.00) PESOS, while the aforementioned case is pending in the Supreme Court. Thereafter, we will charge you a contingent fee equivalent to eighteen percent (18%) of the value of the property subject matter of the case which is P214 Million, payable to us in the event we obtain a favorable judgment for you from the Supreme Court in the case. Xerox expenses for copies of motions, memorandum and other matters to be filed with the Supreme Court in the case, together with xerox copies of documentary evidence, as well as mailing expenses, will be for your account also.

xxx xxx xxx in

With my conformity: (Sgd) GOV. ROMEO R. SALALIMA Province of Albay (emphasis supplied.) In entering into a retainer agreement not only with the Cortes & Reyna Law Firm but also with Atty. Jose R. Cornago, respondent Governor exceeded his authority under Resolution No. 01-90. Complicating further the web of deception surrounding the transaction is the fact that it was only Atty. Cornago who appeared as collaborating counsel of record of the Province in the Supreme Court case (G R. No. 87479). We quote the entry of appearance of Atty. Cornago in full in said case:

APPEARANCE COMES NOW, the undersigned counsel, and to this Honorable Supreme Court, respectfully enters his appearance as counsel for the respondents in the above-entitled case, in collaboration with Atty. Romulo L. Ricafort, counsel of record for the respondents. This appearance bears the conformity of the respondent Gov. Romeo R. Salalima, as shown by his signature appearing at the space indicated below. In this connection, it is respectfully requested that, henceforth, the undersigned counsel be furnished with a copy of all notices, orders, resolutions and other matters that may be issued in this case at its office address indicated below. Quezon City, for Manila, August 24, 1989.

M With my conformity: (Sgd) ROMEO R. SALALIMA Respondent Office of the Governor of Albay Legaspi City Even the Solicitor General, in his letter to respondent Governor dated 15 July 1993, noted that the Province is represented in the Supreme Court by Attys. Ricafort Cornago and Glenn Manahan but not by the Cortes & Reyna Law Firm, thus:

Incidentally, a check with our office records of the case G.R. No. 87479 reveals that the Province of Albay and its officials named respondents therein were represented in the Supreme Court by Atty. Romulo Ricafort the Province's Legal Officer II, and Attys. Jesus R. Cornago and Glenn Manahan of JAMECCA Building, 280 Tomas Morato Avenue, Quezon City; no appearance was entered therein by the Cortes & Reyna Law Firm. (Emphasis supplied.)

Furthermore, the memorandum with the Supreme Court filed for the Province was signed by Atty. Cornago and not by the Cortes & Reyna Law Firm. Consequently, the Cortes & Reyna Law Firm was not counsel of record of the Province in G.R. No. 87479. And yet, six of the ten

checks paid by the Province and amounting to more than P3.6 million were issued in favor of the Cortes & Reyna Law Firm through Atty. Antonio Jose Cortes. In other words, respondents disbursed money to the Cortes & Reyna Law Firm although the latter did not appear as counsel for the Province in the Supreme Court in G.R. No. 87479. Finally, the attorney's fees agreed upon by respondent Salalima and confirmed by the other respondents are not only unreasonable but also unconscionable. The contingent fee of 18% of the "P214 million" claim of the Province against NPC amounts to P38.5 million. The word "unconscionable", as applied to attorney's fee, "means nothing more than that the fee contracted for, standing alone and unexplained would be sufficient to show that an unfair advantage had been taken of the client, or that a legal fraud had been taken of the client, or that a legal fraud had been perpetrated on him." (Moran, Comments on the Rules of Court, Vol. 6, p. 236.) The Province has a legal officer, Atty. Ricafort, who had already filed a comment on NPC's petition against the Province. The comment filed by Atty. Ricafort already covers the basic issues raised in the petition. When Atty. Cornago filed an appearance and subsequently a memorandum for the Province, the petition was already been given due course by the Supreme Court and the only pleading to be filed by the parties before the Court would issue its decision was a memorandum. Surely, one memorandum could not be worth P38.5 million. Furthermore, the professional character and social standing of Atty. Cornago are not such as would merit a P38.5 million fee for the legal services rendered for the Province. During the hearing, respondent Governor admitted that he had hired Atty. Cornago because they were schoolmates at San Beda College, thus:

SECRETARY CORONA: May I ask a question Governor, what was your basis for choosing this particular law office? Why not ACCRA, why not Sycip Salazar, why not Carpio Villaraza, why this particular Law office? Frankly, I never heard of this law office. Who recommended it? GOVERNOR SALALIMA: Atty. Cornago was then a graduate of San Beda and I am a graduate of San Beda. SECRETARY CORONA: Were you classmates? GOVERNOR SALALIMA: No. SECRETARY CORONA: How many years apart were you? GOVERNOR SALALIMA: Two (2) years. SECRETARY CORONA: So, you knew each other from the law school? GOVERNOR SALALIMA: Yes. SECRETARY CORONA: Were you members of the same fraternity in San Beda? GOVERNOR SALALIMA: Yes. (TSN, 12 July 1992, pp. 27-29.)

It is evident that respondent Governor hired Atty. Cornago not on the basis of his competency and standing in the legal community but purely for personal reasons. Likewise, the standing of the Cortes & Reyna Law Firm is not such as would merit P38.5 million for one memorandum,

which, in this case, it had not even filed because it was not the counsel of record. Hence, considering the labor and time involved, the skill and experience called for in the performance of the services and the professional character and social standing of the lawyers, the attorney's fee of P38.5 million is unconscionable. By allowing such scandalously exorbitant attorney's fees which is patently disadvantageous to the government, respondents betrayed a personal bias to the lawyers involved and committed abuse of authority. Parenthetically, the retainer contract containing such exorbitant attorney's fees may also be violative of the following: (a) COA Circular No. 85-55-A (8 September 1985) prohibiting irregular, unnecessary, excessive or extravagant expenditures or uses of funds; and (b) Sec. 3 (e) and (g) of RA No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. Finally, the Committee again applies in this case, as was applied in OP Case No. 5470, the rule of joint responsibility as enunciated under Sec. 305 (1) of the Local Government Code. In view of the foregoing, the Committee holds that respondents committed abuse of authority under Sec. 60(e) of the Local Government Code for the following:

1. Hiring private lawyers, in violation of Sec. 481 of the Local Government Code, to handle the case of the Province of Albay before the Supreme Court in G.R. No. 87479; 2. Disbursing public money in violation of COA rules and regulations; 3. Paying the Cortes & Reyna Law Firm public money although it was only Atty. Cornago who was the counsel of record of the Province of Albay in the Supreme Court case; 4. Authorizing an unconscionable and grossly disadvantageous attorney's fees of P38.5 million; and 5. Additionally, as to respondent Governor, entering into a retainer agreement not only with the Cortes & Reyna Law Firm but also with Atty. Cornago, thus exceeding his authority under Resolution No. 01-90 passed by the Sangguniang Panlalawigan.

After taking all the attendant circumstances into consideration, the Committee recommends that the following penalties of suspensions without pay be meted out: a. Respondent Salalima — six (6) months; and Azaña each; and b. All the other respondents — four (4) months each.

III. OP Case No. 5471 This refers to the administrative complaint filed by the Tiwi Mayor Naomi Corral against Albay Governor Romeo Salalima, Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Jesus Marcellana, Nemesio Baclao, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., Wilbor Rontas and Clenio Cabredo, and Tiwi Vice-Mayor Rodolfo Benibe for "abuse of authority and oppression" under Sec. 60 (c) and (e) of RA No. 7160. The antecedent facts are as follows: On 20 October 1992, Mayor Corral and seven (7) Kagawads of the Tiwi Sangguniang Bayan charged herein respondent Governor Salalima and Vice-Governor Azaña for abuse of authority, misconduct in office and oppression. This administrative complaint, initially docketed as OP Case No. 4982 (DILG Adm. Case No. P-8-93), arose from the refusal of said respondents to remit Tiwi's share in the P40,724,471.74 tax delinquency payments made by NPC. This case was subsequently substituted by OP Case No. 5470 filed on 25 January 1993 which now included as respondents Albay Sangguniang Panlalawigan Members Victoria, Reyeg, Osia, Cabredo, Go, Marcellana, Fernandez, Fontanilla, and Rontas.

Subsequently, Mayor Corral became the subject of several administrative and criminal complaints filed by certain individuals with the following offices: a. Achilles Berces v. Mayor Naomi Corral (1) Albay Sangguniang Panlalawigan, Adm. Case No. 02-92 (2) Albay Sangguniang Panlalawigan, Adm. Case No. 05-92 (3) Office of the Ombudsman, OMB Adm. Case No. 1930163 (4) Office of the Ombudsman, OMB Case No. 0930682 (5) Office of the Ombudsman, OMB-092-3008 b. Muriel Cortezano v. Mayor Naomi Corral (6) Albay Sangguniang Panlalawigan, Adm. Case No. 10-93 (7) Office of the Ombudsman, OMB-0-92-3000 c. Amelia Catorce v. Mayor Naomi Corral (8) Albay Sangguniang Panlalawigan, Adm. Case No. 09-93 d. Aida Marfil v. Mayor Naomi Corral (9) Albay Sangguniang Panlalawigan, Adm. Case No. 07-93 (10) Office of the Ombudsman, OMB Case No. 5-93-0110 e. Rodolfo Belbis v. Mayor Naomi Corral (11) Albay Sangguniang Panlalawigan, Adm. Case No. 06-93 (12) Office of the Ombudsman, OMB Case No. 0-93-0098 f. Kin. Juan Victoria, et al. v. Mayor Naomi Corral (13) Office of the Prosecutor, I.S. No. 93-046 (for Libel), Legaspi City g. Governor Romeo Salalima, et al. v. Mayor Naomi Corral (14) Office of the Prosecutor, I.S. No. 93-044 (for Libel and Perjury), Legaspi City (15) Office of the Prosecutor, I.S. No. 93-045 (for Libel and Perjury), Legaspi City or a total of fifteen (15) cases. On 7 January 1993, the respondent-members of the Sangguniang Panlalawigan passed Omnibus Resolution No. 2 recommending that Mayor Corral be placed under preventive suspension for sixty (60) days pending the resolution of Adm. Case No. 05-92 (Exh. 18). On 11 January 1993, respondent Salalima approved said resolution and, on the same date, officially directed herein respondent Tiwi Vice-Mayor Benibe to assume the office and discharge the functions of Tiwi Mayor (Exh. 18). On 21 January 1993, Department of the Interior and Local Government (DILG) Secretary Rafael Alunan III directed the lifting of the 11 January 1993 suspension order issued by respondent Salalima. In his letter to Mayor Corral (Exh. C), he stated, thus:

Considering that the preventive suspension imposed upon you by Governor Romeo R. Salalima of that province, was issued after the latter's refusal to accept your answer, therefore, the issuance of subject order of preventive suspension is premature, the issues having not been joined. In view thereof, the Order of Preventive Suspension dated 11 January 1993, issued by Governor Salalima, is hereby lifted.

On 26 January 1993, the Office of the President (OP), acting in OP Case No. 4982, after finding that "the evidence of guilt is strong, and given the gravity of the offense and the great probability that the continuance in office of respondent Governor Romeo R. Salalima would influence the witnesses or pose a threat to the safety and integrity of the records and other evidence," placed respondent Salalima under preventive suspension for sixty (60) days (Exhs. D to D-2).

Respondent Salalima subsequently sought the reversal of the OP Order dated 26 January 1993 but the same was dismissed by the Supreme Court on 26 May 1993 in the case entitled "Salalima v. the Hon. Executive Secretary," G.R. No. 108585 (Exh. E). On 2 February 1993, Mayor Corral filed a motion to inhibit the respondents from hearing the six cases filed against her with the Sangguniang Panlalawigan (Adm. Case Nos. 02-92, 05-92, 06-93, 07-93, 09-93 and 10-93) asserting her constitutional right to due process of law. This motion was however denied with the respondent-members of the Sangguniang Panlalawigan assuming jurisdiction over the cases. After conducting marathon hearings, respondent-members of the Sangguniang Panlalawigan rendered judgments against Mayor Corral and imposing, among others, the following penalties of suspension: 1. In Adm. Case No. 02-92 — suspension for two (2) months (see Decision dated 1 July 1993, [Exhs. F to F-2]); 2. In Adm Case No. 05-92 — suspension for three (3) months (see Resolution dated 5 July 1993, [Exhs. G to 6-2]); 3. In Adm Case No. 06-93 and 07-93 — suspension for one (1) month (see Resolution dated 8 July 1993, [Exhs. H to H-3]); and 4. In Adm Case No. 10-93 — suspension for the period of unexpired term (see Resolution dated 9 July 1993, [Exhs. I to I-21). On 22 July 1993, respondent Salalima issued a directive addressed to the Provincial Treasurer, Provincial Auditor, PNP Provincial Director, Provincial Assessor, Provincial Accountant, Provincial Budget Officer, Provincial DILG Officer, the Sangguniang Panlalawigan and Provincial Prosecutor enjoining them to assist in the implementation of the decisions suspending Mayor Corral "by decreeing directives to your subordinate officials in Tiwi, Albay to strictly adhere thereto." Subsequently, Mayor Corral interposed appeals from the decisions of respondent-members of the Sangguniang Panlalawigan suspending her from office to the OP (docketed as OP Case Nos. 5337 and 5345) with a prayer that the implementation of said decisions be stayed. On 28 July 1993, the OP ordered the suspension/stay of execution of the decisions in Adm. Case Nos. 02-92 and 05-92 (Exhs. J to 5-2). Similarly, on 3 August 1993, the OP ordered the suspension/stay of execution of the decisions in Adm. Case Nos. 06-93, 07-93 and 10-93 (Exhs. K to K-1). Also, with respect to Adm. Case Nos. 6-93 and 7-93, the Civil Service Commission (CSC) issued Resolution Nos. 93-005 (dated 5 January 1993) and 92-817 (dated 4 March 1993), which provided the bases and justifications for the acts of Mayor Corral complained of in these two (2) cases. The Supreme Court subsequently affirmed said CSC resolutions (Exhs. L to L-2). In the multiple charges for libel and perjury against Mayor Corral, arising from her complaint in OP Case No. 5470, filed with the Regional Trial Court of Legaspi City, the Supreme Court ordered the lower court to cease and desist from proceeding with the case in a resolution dated 16 September 1993 (Exhs. Q to Q-2). In determining whether respondents are guilty of the charges levelled against them, the following issue has to be resolved, i.e., whether the conduct of the proceedings in the administrative cases filed and the series of suspension orders imposed by the respondent-members of the Sangguniang Panlalawigan on Mayor Corral constitute oppression and abuse of authority? Oppression" has been defined as an "act of cruelty, severity, unlawful exaction, domination or excessive use of authority." (Ochate v. Ty Deling, L-13298, March 30, 1959, 105 Phil. 384, 390.). "Abuse" means "to make excessive or improper use of a thing, or to employ it in a manner contrary to the natural or legal rules for its use. To make an extravagant or excessive use, as to abuse one's authority" (Black's Law Dictionary <5th Ed.>, 11). It includes "misuse" (City of Baltimore v. Cornellsville & S.P. Ry, Co. 6 Phils. 190, 191, 3 Pitt 20, 23). Moreover, Section 63(d) of RA No. 7160 expressly states that, "[a]ny abuse of the exercise of the powers of preventive suspension shall be penalized as abuse of authority." Now, does the above narration of facts show commission by respondents of the administrative offenses complained of? A review of the proceedings reveal that the same were marked by haste and arbitrariness. This was evident from the start when Mayor Corral was preventively suspended (in Adm. Case No. 05-92) even before she could file her answer. In the other cases, respondent-members of Sangguniang Panlalawigan ruled that Mayor Corral had waived her right to adduce evidence in her defense.

Consequently, respondents did not also fully evaluate the evidences presented to support the charges made. As such, all the decisions of respondents suspending Mayor Corral were ordered lifted suspended by the DILG and OP. Thus, even the cases filed with the Office of the Ombudsman, which were based on the same incidents complained of in the said administrative cases, were subsequently dismissed. Respondents should have inhibited themselves from assuming jurisdiction over said cases (Adm Case Nos. 02-92, O6-92, 06-93, 07-93, 09-93, and 10-93) as timely moved by Mayor Corral considering that they were the respondents in various administrative complaints she earlier filed with the OP and with the DILG starting with OP Case No. 4892. However, despite the violation of due process resulting from their collective acts, respondents, in their determination and eagerness to suspend and harass Mayor Corral, proceeded to hear and decide said cases. The OP has no jurisdiction over administrative complaints filed against elective municipal officials. Under Sec. 61(b) of RA No. 7160, "[a] complaint against any elective official of a municipality shall be filed before the Sangguniang Panlalawigan whose decision may be appealed to the Office of the President." WHEREFORE, the charges against Vice Mayor Benibe are dismissed. However, all the other respondents herein are found guilty of oppression and abuse of authority under Section 60 (c) and (e) of RA No. 7160. Accordingly, it is recommended that each of them be meted the penalty of four (4) months suspension without pay.

IV. OP Case No. 5450. This refers to the administrative charges filed by Tabaco Mayor Antonio Demetriou against Governor Romeo Salalima for violation of — Section 60, pars. (c) and (d) of the Local Government Code, Section 3, par. (g) of Republic Act No. 3019, and the provisions of PD No. 1594, as amended. This case was filed with the Office of the President (OP) on 18 October 1993 and docketed as OP Case No. 5450. The facts as found by this Committee are as follows: On 27 September 1989 the Tabaco Public Market was destroyed by fire (Exh. A, par. 1). On 26 September 1990, the OP advised Mayor Demetriou and respondent Salalima that the P12.0 Million in Budgetary Assistance to Local (Government Units (BALGU) funds earlier remitted by the national government to the Province, should be used for the rehabilitation of the Tabaco Public Market, and that the project should be implemented by the Provincial Governor in consultation with the Mayor of Tabaco (Exh.. 37). On 8 May 1991, a public bidding was conducted by the Albay Provincial Government for the repair and rehabilitation of the Tabaco Public Market (Exh. A, par. 1) On 29 May 1991, the Province represented by respondent Salalima and RYU Construction entered into a contract for P6,783,737.59 for said repair and rehabilitation (Exh. H). Among others, the contract stipulated that the contracted work should be completed in 150 days. The contractor started the project on 1 July 1991 and completed the same on 2 June 1992 (Exh. 41). On 6 March 1992, the Province represented by respondent Salalima entered into another contract (Exh. I) for P4,304,474.00 with RYU Construction for additional repair and rehabilitation works for the Tabaco Public Market. The terms and conditions of this contract are the same as those stipulated in the 29 May 1991 contract except for the construction period which is only for 90 days. Construction of the second project commenced on 27 March 1992 and was completed on 2 June 1992 (Exh. 42). In his complaint, Mayor Demetriou alleged that despite the delay in the completion of work under the first contract, liquidated damages were not imposed on, nor collected from, RYU Construction by the Province. Moreover, he claims that the second contract with RYU Construction was entered into in violation of PD No. 1594 as RYU incurred delay with respect to the first contract. We find merit in the complaint: Pars. 1 and 2 of item CI 8, par. 1 of item CI 11, and par. 10.4.2 of item IB of the Implementing Rules and Regulations (IRR) of PD No. 1594, as amended, read: CI 3 — LIQUIDATED DAMAGES.

1. Where the contractor refuses or fails to satisfactorily complete the work within the specified contract time, plus any time extension duly granted and is hereby in default under the contract, the contractor shall pay the Government for Liquidated damages, and not by way of penalty, an amount to be determined in accordance with the following formula for each calendar day of delay, until the work is completed and accepted or taken over by the Government:

xxx xxx xxx 2. To be entitled to such Liquidated, damages, the Government does not have to prove that it has incurred actual damages. Such amount shall be deducted from any money due or which may become due the contractor under the contract and/or collect such Liquidated damages from the retention money or other securities posted the contractor whichever is convenient to the Government. CI — Extension of Contract time. 1. Should the amount of additional work of any kind or other special circumstances of any kind whatsoever occur such as to fairly entitle the contractor to an extension of contract time, the Government shall determine the amount of such extension; provided that the Government is not bound to take into account any claim for an extension of time unless the contractor has prior to the expiration of the contract time and within thirty (30) calendar days after such work has been commenced or after the circumstances leading to such claim have arisen, delivered to the Government notices in order that it could have investigated them at that time. Failure to provide such notice shall constitute a waiver by the contractor of any claim. Upon receipt of full and detailed particulars, the Government shall examine the facts and extend of the delay and shall extend the contract title for completing the contract work when, in the Government's opinion, the finding of facts justify an extension.

xxx xxx xxx IB 10.4.2 — By Negotiated Contract 1. Negotiated contract may be entered into only where any of the exists and the implementing following conditions office/agency/corporation is not capable of undertaking the project by administration:

xxx xxx xxx c Where the subject project is adjacent or contiguous to an ongoing project and it could be economical prosecuted by the same contractor, in which case, direct negotiation may be undertaken with the said contractor at the same unit prices adjusted to price levels prevailing at the time of negotiation using parametric formulae herein prescribed without the 5% deduction and contract conditions, less mobilization cost, provided that he has no negative slippage and has demonstrated a satisfactory performance. (Emphasis supplied).

xxx xxx xxx A reading of items CI 8 and CI 11 above shows that the collection of liquidated damages is mandatory in cases of delay unless there are valid orders of extension of contract work given by the Government. Under the 29 May 1991 contract, the repair works should have been completed on 26 December 1991 since the project was started on 1 July. But then the project was finished only on 2 June 1992. This is confirmed by the COA through CAO Report No. 93-11 (Exh. N), thus —

. . . The project was completed only on June 2, 1992 or a delay of 132 working days, as shown in the following tabulation: Billing As of Days Lapsed % Accomplished

First Dec. 2, 1991 130 26.48 Second Jan. 8, 1992 187 53.19 Third Feb. 10, 1992 100 75.23 Final June 2, 1992 202 100.00.

In view of the delays in project completion the Team requested from the Provincial Engineer any copy of the order suspending and resuming the work (suspension and resume order) since the same was not, attached to the claims of the contractor or paid vouchers. Unfortunately the Provincial Engineer could not provide said document at the Engineering

Office had not issued any. In effect. there was no basis for the extension of contract time and the contractor should have been considered as behind schedule in the performance of the contract. Despite its deficiency, no liquidated damages was ever imposed against the contractor. (pp. 25-26) [emphasis supplied]

Respondent Salalima failed to submit an evidence concerning any order issued by the Provincial Government extending RYU Construction's contract. The law requires that requests for contract extension as well as the orders granting the same must be made and given prior to the expiration of the contract. The rationale for this requirement is obviously to prevent a contractor from justifying any "delay" after the contract expires. Before signing the 6 March 1992 contract, which was entered into on a negotiated basis and not through bidding, respondent Salalima should have inquired whether or not RYU Construction incurred negative slippage. Had he done so, the matter of imposing and collecting liquidated damages would have been given appropriate attention. This is aggravated by the fact that respondent knew that RYU Construction was the contractor for the original rehabilitation and repair work for the Tabaco Public market being the signatory to the first contract. Clearly, therefore, there was a failure on the part of the Province to impose and collect liquidated damages from the erring contractor, RYU Construction. Going to the second charge, we find that respondent Salalima unmistakably violated the provision of PD No. 1594, as amended. Fundamental is the rule that government contracts especially infrastructure contracts are awarded only through bidding. As explicitly ordained by Sec. 4 of PD No. 1594, construction projects shall generally be undertaken by contract after "competitive bidding". By its very nature and characteristic, a competitive public bidding aims to protect the public interest by giving the public the best possible advantages through open competition. At the same time, bidding seeks to prevent or curtail favoritism, fraud and corruption in the award of the contract which otherwise might prevail were the government official concerned is vested with the full or absolute authority to select the prospective contractor (Fernandez, Treatise on Government Contracts Under Philippine Law, 1991 Ed. citingCaltex Phil., Inc. v. Delgado Bros. 96 Phil. 368; San Diego v. Municipality of Naujan, 107 Phil. 118; and Matute v. Hernandez, 66 Phil. 68). This is precisely the reason why negotiated contracts can be resorted to only in a few instances such as that provided under par. 1 (c) of item IB 10.4.2 of the IRR' of PD No. 1594, supra. However, said proviso requires that the contractor had not incurred negative slippage and has demonstrated a satisfactory performance. And since RYU Construction incurred negative slippage with respect to the repair works under the 29 May 1991 contract as found by COA, it was anomalous for the Province through respondent Salalima to enter into a negotiated contract with said contractor for additional repair and rehabilitation work; for the Tabaco public market. Failing to comply with the requirements of law, the 6 March 1992 contract is clearly irregular, if not illegal. Finally, said contract may also be violative of the following: (a) COA Circular No. 85-55-A (dated 8 September 1985) prohibiting irregular expenditures or uses of funds; and (b) Sec. 3 (e) and (g) of RA No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. Premises considered, this Committee finds the respondent guilty of abuse of authority and gross negligence. Accordingly, it is recommended that the penalty of suspension without pay be meted out on respondents Salalima for five (5) months. (pp. 2-35).

The President then concluded and disposed as follows: After a careful review of the cases, I agree with and adopt the findings and recommendations of the Ad-Hoc Committee, supported as they are by the evidence on record. WHEREFORE, the following penalties are meted out on each of the respondents, to wit: In OP Case No. 5470 — a. Governor Romeo Salalima — suspension without pay for five (5) months;

b. Vice-Governor Danilo Azana, Albay Sangguniang Panlalawigan members Juan Victoria, Lorenzo Reyeg, Arturo Osia, CLenio Cabredo, Vicente Go, Sr., Jesus Marcellana, Ramon Fernandez, Jr., Masikap Fontanilla, and Wilbor Rontas — suspension without pay for four (4) months. In OP Case No. 5469 — a. Governor Romeo Salalima and Vice-Governor Danilo Azaña — suspension without pay for six (6) months; and b. Albay Sangguniang members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontilla, Vicente Go, Sr., and Nemesio Baclao — suspension without pay for four (4) months; In OP Case No. 5471 — a. Governor Romeo Salalima and Albay Sangguniang members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Wilbor Rontas, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontilla, Vicente Go, Sr., and Nemesio Baclao — suspension without pay for four (4) months;. In OP Case No. 5450 — a. Governor Romeo Salalima — suspension without pay for five (5) months. The suspension imposed on respondents shall be served successively but shall not exceed their respective unexpired terms, in accordance with the limitation imposed under Section 66 (b) of the Local Government Code.

It must at once be pointed out that insofar as O.P. Case No. 5471 is concerned, nothing of its substantive aspect is challenged in this petition. The petitioners mentioned it only in their claim of prematurity of Administrative Order No. 153 in view of their appeal from Special Audit Office (SAO) Report No. 93-11 to the COA en banc. O. P. Case No. 5471 is the administrative complaint, filed by Tiwi Mayor Corral against the petitioners for abuse of authority and oppression in connection with their conduct in the several administrative cases filed by certain individuals against Mayor Corral. It has no logical nexus to the appeal. The decision then in O.P. Case No. 5471 stands unchallenged in this petition. As to O.P. Cases Nos. 5450, 5469, and 5470, the issues presented by the petitioners may be reformulated in this wise:

I. Did the Office of the President act with grave abuse of discretion amounting to lack or excess of jurisdiction in suspending the petitioners for periods ranging from twelve to twenty months? II. Did the Office of the President commit grave abuse of discretion in deciding O.P. cases Nos. 5450, 5469, and 5470 despite the pendency of the petitioners' appeal to the COA en banc from Special Audit Office (SAO) Report No. 93-11 and the Certificate of Settlement and Balances (CSB)? III. Did the Office of the President commit grave abuse of discretion in holding the petitioners guilty of abuse of authority in denying the Municipality of Tiwi of its rightful shore in the P40,724,471.74 which the Province of Albay had received from the NPC under the Memorandum of Agreement? IV. Did the Office of the President commit grave abuse of discretion in suspending in O.P. Cases Nos. 5469 and 5450 petitioner Salalima, who was reelected on 11 May 1992, for an alleged administrative offense committed during his first term; and in suspending in O.P. Case No. 5469 the other petitioners, some of whom were elected and others reelected on 11 May 1992, for an alleged administrative offense committed in 1989? V. Did the Office of the President commit grave abuse of discretion in holding the petitioners in O.P. Case No. 5469 guilty of grave abuse of authority under Section 60 (e) of the Local Government Code of 1991 although they were charged under Section 3(g) of R.A. No. 3019, as amended, and Section 60(d) of the Local Government? Code of 1991, thereby depriving them of due process of law?

We shall take up these issues in the order they are presented. I

Anent the first issue, the petitioners contend that the challenged administrative order deprived them of their respective offices without procedural and substantive due process. Their suspensions ranging from twelve months to twenty months or for the entire duration of their unexpired term, which was then only seven

months, constituted permanent disenfranchisement or removal from office in clear violation of Section 60 of R.A. No. 7160 which mandates that an elective local official may be removed from office by order of the court. The Comment of the Solicitor General is silent on this issue. However, respondents Mayor Corral and newly appointed provincial officials maintain that the suspension imposed upon the petitioners in each of the four cases was within the limits provided for in Section 66(b) of R.A. No. 7160 and that the Aggregate thereof ranging from twelve months to twenty months, but not to exceed the unexpired portion of the petitioners term of office, did not change its nature as to amount to removal. Section 66(b, of R.A. No. 7160 expressly provides:

Sec. 66. Form and Notice of Decision. — . . . (b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long as he meet the qualifications for the office.

This provision sets the limits to the penalty of suspension , viz., it should not exceed six months or the unexpired portion of the term of office of the respondent for every administrative offense. An administrative offense means every act or conduct or omission which amounts to, or constitutes, every of the grounds or disciplinary action. The offenses for which suspension may be imposed are enumerated in Section 60 of the Code, which reads:

Sec. 60. Grounds for Disciplinary Action. — An elective local official may be disciplined, suspended, or removed from office on any of the following grounds: (a) Disloyalty to the Republic of the Philippines; (b) Culpable violation of the Constitution; (c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty; (d) Commission of any offense involving moral turpitude or an offense punishable by at Least prision mayor; (e) Abuse of authority; (f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay; g) Acquisition for, or acquisition of, foreign citizenship or residence or the status ,e an immigrant of another country; and (h) Such other grounds as may be provided in this Code and other laws. An elective local official may be removed from office on the grounds enumerated above by order of the proper court

Assuming then that the findings and conclusions of the Office of the President in each of the subject four administrative cases are correct, it committed no grave abuse of discretion in imposing the penalty of suspension, although the aggregate thereof exceeded six months and the unexpired portion of the petitioners' term of office. The fact remains that the suspension imposed for each administrative offense did not exceed six months and there was an express provision that the successive service of the suspension should not exceed the unexpired portion of the term of office of the petitioners. Their term of office expired at noon of 30 June 1995. 2 And this Court is not prepared to rule that the suspension to the petitioners' removal office. 3

II Petitioners contend that the decisions in O.P. Cases Nos. 5450, 5470, and 5471 are predicated on SAO Report No. 93-11 of the COA Audit Team, while that in O.P. Case No. 5469 is based on the CSB issued by the Provincial Auditor of Albay. Since the Report and the CSB are on appeal with, and pending resolution by, the Commission on Audit En Banc, they are not yet final, conclusive, and executory as admitted by the team leader of the COA Audit Team that submitted the SAO Report and by the Provincial Auditor who issued the CSB. The petitioners also point out that the COA Chairman had already reversed the recommendation in the SAO Report No. 93-11 that the Provincial Government of Albay should share with the Municipality of Tiwi the P40,724,471.74 representing payments of the NPC as of December 1992. They then submit that Administrative Order No. 153 suspending all the petitioners is premature in view of the pendency of the appeal to the COA en banc from SAO Report No. 93-11 and the CSB. This issue of prematurity was raised before the Ad Hoc Committee. In rejecting it, the Committee explained as follows:

It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50-J) raised by the respondents to COA merely involve questions of law, i.e., as to whether the Province alone should be entitled to the payments made by NPC under the MOA, and whether the shares of Tiwi and Daraga, the concerned barangays, and the national government, should be held in trust for said beneficiaries. Considering that the factual findings under SAO Report 93-11 are not disputed, this Committee has treated said factual findings as final or, as the very least, as corroborative evidence. Respondents' contention that COA's factual finding, as contained in SAO Report No. 93-11 cannot be considered in this investigation is untenable. For no administrative and criminal investigation can proceed, if a respondent is allowed to argue that a particular COA finding is still the subject of an appeal and move that the resolution of such administrative or criminal case be held it abeyance. This will inevitably cause unnecessary delays in the investigation of administrative and criminal cases since an appeal from a COA finding may be brought all the way up to the Supreme Court. Besides, the matters raised by the respondents on appeal involve only conclusions/interpretation, of law. Surely, investigative bodies, such as COA, the Ombudsman and even this Committee, are empowered to make their own conclusions of law based on a given set of facts. Finally, sufficient evidence has been adduced in this case apart from the factual findings contained in SAO Report No. 93-11 to enable this Committee to evaluate the merits of the instant complaint.

The alleged appeal from the CSB is unclear From the records, and in light of the foregoing statement of the Ad Hoc Committee it is obvious that such appeal was not raised. We agree with the Ad Hoc Committee that the pendency of the appeal was no obstacle to the investigation and resolution of their administrative cases. It may be further stressed that a special audit has a different purpose in line with the constitutional power, authority, and duty of the COA under Section 2, Subdivision D, Article IX of the Constitution "to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held intrust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters" and its "exclusive authority . . . to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting aid auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties." 4

III As to the third issue, the petitioners aver that the P40,724,471.74 received by the Province of Albay from the NPC represents part of the price paid for properties owned by the province in a corporate capacity and repurchased by the former owner. It constitutes payment of a debt and net of a tax, which debt "arose from. and was a consequence of the Memorandum of agreement dated May 29, 1992." They further contend that the Memorandum of Agreement (MOA) partakes of a deed of sale. And nowhere in the Real Property Tax Code (P.D. No. 464) 5 is there any provision requiring provinces to share with the municipalities the proceeds of a private sale. What are required to be shared are only the collections of real property taxes and Special Education Fund (SBF); proceeds of delinquent taxes and penalties, or of the sale of delinquent real property, or of the redemption thereof; and income realized from the use, lease, or disposition of real property seized by the province. It must be recalled that in August 1992, Governor Salalima and NPC President; Pablo Malixi, were already agreed that the basic tax due from the NPC was P207,375,774.72. 6 But later, Malixi informed the former that upon recomputation of the real property tax payable to the Province of Albay at the minimum of one-fourth of one percent pursuant to Section 39(1) of the Real Property Tax Code, the NPC came up with an adjusted figure of P129,609,859.20. 7Governor Salalima then explained that one percent was applied in the computation for the reconciled figure of P207,375,774.72 because the one-half percent imposed by the respective ordinances of the municipalities where the delinquent properties are located was added to the one-half percent imposed by the tax ordinance of the Province. His reply reads as follows:

Hon Pablo V. Malixi President, National Power

Corporation Diliman, Quezon City. Dear President Malixi: As suggested in your letter of August 31, 1992, we are very pleased to furnish you herewith the certified true copies of the local tax ordinances which served as our basis in imposing the rate of 1% of the reconciled figure of P207,375,774.72, to wit: (a) Resolution No. 30, series of 1974 of the Provincial Board of Albay, enacting Provincial Tax Ordinance No. 4, whose Section I, provides:

"There shall be levied, assessed and collected as annual ad valorem tax on real properties including improvements thereon equivalent to one half of one percent, of the assessed value of real property."

(b) Ordinance No. 25, series of 1974, of the Sangguniang Bayan of Tiwi, Albay, whose Section 2 provides: "That the tax rate of real property shall be one-half of one percent of the assessed value of real property."

(c) Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga, Albay, whose Section 3 provides: "Rates of Levy — The tax herein levied is hereby fixed at one-half of one percent (1/2 of 1%) of the assessed value of the real property.

These tax ordinances were in pursuance to Sec. 39 (1) (3) of PD 464, the applicable law during the period 1984 to 1987. By adding the one half percent imposed in the tax Ordinance of Tiwi to the one half percent also imposed in the Provincial Tax Ordinance, we have a total of one percent which we used as the rate of levy in computing the basic tax due on the real properties in Tiwi. On the real properties in Daraga, we also added the one-half percent imposed by the Daraga Tax Ordinance to the one-half percent of the Provincial Tax Ordinance. The additional tax of one percent for the Special Educational Fund (SEF) was imposed pursuant to Section 41 of PD 464, which provides as follows:

"There is hereby imposed annual tax of one percent on real property to accrue to the Special Educational Fund created under Republic Act No. 5447, which shall be in addition to the basic real property tax which local governments are authorized to levy, assess and collect under this Code; . . . "

We hope that the foregoing clarification will settle whatever doubt there is on why we applied 1% for basic tax and another 1% for SEF in arriving at P207,375,774.72. 8 (emphasis supplied).

The petitioners even emphasized in the instant petition that "Governor Salalima specifically included the amounts due to the Municipalities of Tiwi and Daraga in asking Napocor to settle its obligations." In other words, the original claim of P214,845,184.76 or the reconciled figure of P207,375,774.72 representing real property taxes from 11 June 1984 to 10 March 1987 already covered the real property taxes payable to the municipalities concerned. Hence, when the Province sold at public auction the delinquent properties consisting of buildings, machines, and similar improvements, it was acting not only in its own behalf but also in behalf of the municipalities concerned. And rightly so, because under Section 60 of P.D. No. 477, the Province, thru the Provincial Treasurer, is duty bound collect taxes throughout the province, including the national, provincial, and municipal taxes and other revenues authorized by law. Moreover, under Section 73 of the Real Property Tax Code, the provincial or city treasurer is the one authorized to advertise the sale at public auction of the entire delinquent real property, except real property mentioned in Subsection (a) of Section 40, to satisfy all the taxes and penalties due and costs of sale. He is also authorized to buy the delinquent real property in the name of the province if there is no bidder or if the highest bid is for an amount not sufficient to pay the taxes, penalties, and costs of sale. 9 Since in this case, there was no bidder, the provincial treasurer could buy, as he did, the delinquent properties in the name of the province for the amount of taxes, penalties due thereon, and the costs of sale, which included the amounts of taxes due the municipalities concerned. It is therefore wrong for the petitioners to say that the subject NPC properties are exclusively owned by the Province. The Municipalities of Tiwi and Daraga may be considered co-owners thereof to the extent of their respective shares in the real property taxes and the penalties thereon.

It must further be noted that it is the provincial treasurer who has charge of the delinquent real property acquired by the province. 10 He is also the one whom the delinquent taxpayer or any person holding a lien or claim to the property deal with in case the latter wishes to redeem the property. 11 He is also the one authorized to effect the resale at public auction of the delinquent property. 12 Thus, the municipalities concerned had to depend on him for the effective collection of real property taxes payable to them. Accordingly, when the Province entered into the Memorandum of Agreement with the NPC, it was also acting in behalf of the municipalities concerned. And whatever benefits that might spring from that agreement should also be shared with the latter. The MOA, contrary to the position of the petitioners, is not an ordinary contract of sale. Hereinbelow is the pertinent portion of that agreement:

WHEREAS, the Supreme Court ruled in the NATIONAL POWER CORPORATION VS. THE PROVINCE OF ALBAY, et al., G.R. No. 87479 that NAPOCOR is liable to pay Realty Tax for its properties in the municipalities of Tiwi and Daraga, Albay for the period June 11, 1984 to March 10, 1987; WHEREAS, NAPOCOR is willing to settle its realty tax liability in favor of the PROVINCE OF ALBAY; WHEREAS, there is a need to further validate/reconcile the computation of the realty tax in the total amount of P214,845,184.76; NOW, THEREFORE, in view of the foregoing premises and for and in consideration of the mutual covenant and stipulations hereinafter provided, the parties hereto have agreed as follows:

1. NAPOCOR will make an initial payment of P17,783,000.00 receipt of which is hereby/acknowledged. 2. The balance of the validated/reconciled amount of the real estate taxes will be paid in 24 equal monthly installments, payable within the first five (5) working days of the month. The first monthly installment will commence in September 1992. 3. Should NAPOCOR default in any monthly installment, the balance will immediately become due and demandable. 4. NAPOCOR will pay such other taxes and charges, such as the franchise tax as provided for in the Local Government Code of 1991. 5. In consideration of settlement of NAPOCOR's tax Liability, the PROVINCE OF ALBAY hereby waives its claim of ownership over NAPOCOR' properties subject in G.R. No. 87479 upon full payment of the balance due to the PROVINCE OF ALBAY. 13 (emphasis supplied).

The tenor of the abovequoted agreement shows that the intention of the parties was for the redemption of the subject properties in that the Province would waive ownership over the properties "in consideration of settlement of Napocor's tax liability. Under Section 78 of the Real Property Tax Code, the delinquent real property sold at public auction may be redeemed by paying the total amount of taxes and penalties due up to the date of redemption, costs of sale, and the interest at 20% of the purchase price. The petitioners are estopped from claiming that the amounts received by the Province from the NPC constitute payments of a debt under the MOA or of contract price in a private sale. They constitute redemption price or payments of NPC's tax liabilities. This is evident from the MOA as well as the entry in the receipt issued by the Province, thru the Provincial Treasurer, which reads:

Date: July 29, 1992 Received from National Power Corp. Manila. In the amount of Seventeen Million Seven Hundred Sixty-Three Thousand Pesos Philippine Currency P17,763,030.00 In payment of the following: For Partial Payment = P17,763,000.00 of Realty Tax Delinquency of Case No. 87479, NPC vs. Province of Albay. Total P17,763,000.00.

(

Also worth noting is Provincial Ordinance No. 09-92 adopted by the petitioners which provides: "That the installments paid by said corporation for the months of September to December 1992, representing partial payments of the principal tax due are declared forfeited in favor of the Provincial Government of Albay." Moreover, in Resolution No. 197-92, the petitioners referred as "tax benefits" the shares of certain municipalities and barangays from the amount paid by the NPC under the MOA. The resolution reads in part as follows:

WHEREAS, by virtue of the Memorandum agreement, signed by the petitioner, Province of Albay and respondent-oppositor, National Power Corporation (NPC), the latter have agreed and paid an initial payment to the Province of Albay; WHEREAS, the sharing based on the Local Government Code of 1991, the municipalities of Malinao and Ligao are entitled to their shares of P1,435.00 and P4,416.82 respectively and the barangays Bay in Lingao to P319.00 and Tagoytoy in Malinao to P981.00, WHEREAS, these tax benefits due them are not enough to pursue a worthwhile project in said municipalities and barangays considering the present economic situation. 15 (emphasis supplied).

As pointed out by the respondents, if the MOA was merely for the repurchase by NPC of its properties from Albay, what could have been executed was a simple deed of absolute sale in favor of NPC at an agreed price not necessarily P214 million which was the total amount of the realty tax in arrears. Additionally, there would have been no need for the parties "to further validate/reconcile the tax computation of the realty tax in the total amount of P214,845,184,76." Clearly, the P40,724,471.74 paid by the NPC to the Province pursuant to the MOA was part of the redemption price or of the realty taxes in arrears. It is conceded that under Section 78 of the Real Property Tax Code, redemption of delinquency property must be made within one year from the date of registration of sale of the property. The auction sale of the NPC properties was held on 30 March 1989 and declared valid by this Court in its 4 June 1990 decision. It was only on 29 July 1992 that the NPC offered to repurchase its former properties by paying its tax liabilities. When the Province accepted the offer, it virtually waived the one-year redemption period. And having thus allowed the MPC to redeem the subject properties and having received part of the redemption price, the Province should have shared with the municipalities concerned those amounts paid by the NPC in the same manner and proportion as if the taxes had been paid in, regular course conformably with Section 87(c) of the Real Property Tax Code, which provides:

(c) the proceeds of all delinquent taxes and penalties, as well as the income realized from the use, lease or other disposition of real property acquired by the province or city at a public auction in accordance with the provisions of this Code, and the proceeds of the sale of the delinquent real property or of the redemption thereof shall accrue to the province, city or municipality in the same proportion as if the tax or taxes had been paid in regular course.

As early as 3 August 1992, respondent Mayor Corral had already made a written demand for payment or remittance of the shares accruing to the Municipality of Tiwi. Petitioner Governor Salalima refused saying that the initial check of P17,763,000.00 was merely an "earnest money." Yet, on 22 October 1992, the petitioners passed the aforequoted Resolution No. 197-92 giving some local government units, where smaller portions of the delinquent properties are situated, shares from the payments made by the NPC under the MOA.. The petitioners cannot claim to have acted in good faith in refusing to give the municipalities of Tiwi and Daraga their share. As pointed out by the Office of the Solicitor General, the petitioners were aware of the local tax ordinances passed by the respective Sangguniang Bayan of Tiwi and Daraga relative to the realty tax to be imposed on properties located in their respective localities. Petitioner Salalima had even quoted the said ordinances in his letter to Mr. Pablo Malixi and attached copies thereof to that letter. Significantly, the petitioners averred in the instant petition that "Governor Salalima specifically included the amounts due to the municipalities of Tiwi and Daraga in asking NPC to settle its obligations." When doubt arose as to whether the municipalities concerned are entitled to share in the amounts paid by the NPC, the province filed on 20 November 1992 a petition for declaratory relief, which the Regional Trial Court of Albay decided only on 12 May 1994. Yet, as of 31 December 1992, the province had already disbursed or spent a large part of the NPC payments. As found by COA, "of the P40,724,471.74 actually paid by the NPC and lodged in the province's general fund, P35,803,118.300 was disbursed or spent by the Province."

If petitioners were really in good faith, they should have held the shares of Tiwi and Daraga in trust 16pursuant to Section 309 (b) of the Local Government Code of 1991, which provides:

Trust funds shall consist of private and public monies which have officially come into the possession of the local government or of a local government official as trustee, agent or administrator . . . A trust fund shall only be used for the specific purpose for which it came into the possession of the local government unit.

As pointed out by the Ad Hoc Committee in its report, which was adopted by the Office of the President: It is unmistakable from the foregoing provisions that the shares of Tiwi, Daraga, the concerned barangays and the national government in the payments made by NPC under the MOA, should be, as they are in fact, trust funds. As such, the Province should have, upon receipt of said payments, segregated and lodged in special accounts, the respective shares of Tiwi, Daraga, the concerned barangays and the national government for eventual remittance to said beneficiaries. Said shares cannot be lodged in, nor remain part of, the Province's general fund. Moreover, the Province cannot utilize said amounts for its own benefit or account (see also Sec. 86, PD No. 464, as amended). Therefore, the balance of P26,979,962.52 representing the collective shares of Tiwi and Daraga, the concerned barangays and the national government, cannot be appropriated nor disbursed by the Province for the payment of its own expenditures or contractual obligations. However, in total disregard of the law, the Province treated the P40,724,471.74 NPC payments as "surplus adjustment" (Account 7-92-419) and lodged the same in its general fund. No trust liability accounts were created in favor of the rightful beneficiaries thereof as required by law.

We cannot therefore fault the public respondents with grave abuse of discretion in holding the petitioners guilty of abuse of authority for failure to share with the municipalities of Tiwi and Daraga the amount of P40,724,471.74 paid by the NPC.

IV We agree with the petitioners that Governor Salalima could no longer be held administratively liable in C.P. Case No. 5450 in connection with the negotiated contract entered into on 6 March 1992 with RYU Construction for additional rehabilitation work at the Tabaco Public Market. Nor could the petitioners be held administratively liable in O.P. Case No. 5469 for the execution in November 1989 of the retainer contract with Atty. Jesus Cornago and the Corte's and Reyna Law Firm. This is so because public officials cannot be subject to disciplinary action for administrative misconduct committed during a prior term, as held in Pascual vs. Provincial Board of Nueva Ecija 17 and Aguinaldo vs. Santos. 18 In Pascual, this Court ruled:

We now come to one main issue of the controversy — the legality of disciplining an elective municipal official for a wrongful act committed by him during his immediately preceding term of office. In the absence of any precedent in this jurisdiction, we have resorted to American authorities. We found that cases on the matter are conflicting due in part, probably, to differences in statutes and constitutional provisions, and also, in part, to a divergence of views with respect to the question of whether the subsequent election or appointment condones the prior misconduct. The weight of authority, however, seems to incline to the rule denying the right to remove one from office because of misconduct during a prior term, to which we fully subscribe.

Offenses committed, or acts done, during previous term are generally held not to furnish cause for removal and this is especially true where the constitution provides that the penalty in proceedings for removal shall not extend beyond the removal from office, and disqualification from holding office for the term for which the office was elected or appointed. (67 C.J.S. p. 248, citing Rice vs. State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40 S W. 2d 418; People ex rel. Bagshaw vs. Thompson, 130 P. 2d 237; Board of Com'rs of Kingfisher County vs. Shutler, 281 P. 222; State vs. Blake, 280 P. 388; In re Fudula, 147 A. 67; State vs. Ward, 43 S.V. 2d. 217).

The underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor (43 Am. Jur. p. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A.. (NS) 553. As held on Conant vs. Brogan (1887) 6 N.Y.S.R. 332, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA (NS) 553 —

The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the people.

This Court reiterated this rule in Aguinaldo and explicitly stated therein: Clearly then, the rule is that a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioners for acts he may have committed during the failed coup.

However, the Office of the Solicitor General maintains that Aguinaldo does not apply because the case against the official therein was already pending when he filed his certificate of candidacy for his reelection bid. It is of the view that an official's reelection renders moot and academic an administrative complaint against him for acts done during his previous term only if the complaint was filed before his reelection. The fine distinction does not impress us. The rule makes no distinction. As a matter of fact, in Pascual the administrative complaint against Pascual for acts committed during his first term as Mayor of San Jose, Nueva Ecija, was filed only a year after he was reelected. The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are concerned, is still a good law. Such a rule is not only founded on the theory that an official's reelection expresses the sovereign will of the electorate to forgive or condone any act or omission constituting a ground for administrative discipline which was committed during his previous term. We may add that sound public policy dictates it. To rule otherwise would open the floodgates to exacerbating endless partisan contests between the reelected official and his political enemies, who may not stop to hound the former during his new term with administrative cases for acts alleged to have been committed during his previous term. His second term may thus be devoted to defending himself in the said cases to the detriment of public service. This doctrine of forgiveness or condonation cannot, however, apply to criminal acts which the reelected official may have committed during his previous term. We thus rule that any administrative liability which petitioner Salalima might have incurred in the execution of the retainer contract in O.P. Case No. 5469 and the incidents related therewith and in the execution on 6 March 1992 of a contract for additional repair and rehabilitation works for the Tabaco Public Market in O.P. Case No. 5450 are deemed extinguished by his reelection in the 11 May 1992 synchronized elections. So are the liabilities, if any, of petitioner members of the Sangguniang Panlalawigan ng Albay, who signed Resolution No. 129 authorizing petitioner Salalima to enter into the retainer contract in question and who were reelected in the 1992 elections. This is, however, without prejudice to the institution of appropriate civil and criminal cases as may be warranted by the attendant circumstances. As to petitioners Victoria, Marcellana, Reyeg, Osia, and Cabredo who became members of the Sangguniang Panlalawigan only after their election in 1992, they could not beheld administratively liable in O.P. case No. 5469, for they had nothing to do with the said resolution which was adopted in April 1989 yet. Having thus held that the petitioners could no longer be administratively liable in O.P. Case No. 5469, we find it unnecessary to delve into, and pass upon, the fifth issue. WHEREFORE, the instant special action for certiorari is hereby partly GRANTED. That part of the challenged Administrative Order No. 153 imposing the penalty of suspension on petitioner Governor Romeo Salalima in O.P. Cases Nos. 5450 and 5469 and on petitioners Vice Governor Danilo Azaña and Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Wilbor Rontas, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., and Nemesio Baclao in O.P. Case No. 5469 are hereby ANNULLED and SET ASIDE, without prejudice to the filing of appropriate civil or criminal actions against them if warranted by the attendant circumstances. No pronouncement as to costs. SO ORDERED.

EN BANC

URBANO M. MORENO, G.R. No. 168550 Petitioner,

Present: PANGANIBAN, C.J., PUNO, QUISUMBING, - versus - YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, COMMISSION ON ELECTIONS TINGA, and NORMA L. MEJES, CHICO-NAZARIO, Respondents. GARCIA, and VELASCO, J., JJ. Promulgated: August 10, 2006 x------------------------------------------------------------------------------------ x

D E C I S I O N TINGA, J.:

In this Petition[1] dated July 6, 2005, Urbano M. Moreno (Moreno) assails the Resolution[2] of the Commission on Elections (Comelec) en banc dated June 1, 2005, affirming the Resolution[3] of the Comelec First Division dated November 15, 2002 which, in turn, disqualified him from running for the elective office of Punong Barangay ofBarangay Cabugao, Daram, Samar in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections.

The following are the undisputed facts:

Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from running for Punong Barangay on the ground that the latter was convicted by final judgment of the crime of Arbitrary Detention and was sentenced to suffer imprisonment of Four (4) Months and One (1) Day to Two (2) Years and Four (4) Months by the Regional Trial Court, Branch 28 of Catbalogan, Samar on August 27, 1998.

Moreno filed an answer averring that the petition states no cause of action because he was already granted probation. Allegedly, following the case

of Baclayon v. Mutia,[4] the imposition of the sentence of imprisonment, as well as the accessory penalties, was thereby suspended. Moreno also argued that under Sec. 16 of the Probation Law of 1976 (Probation Law), the final discharge of the probation shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed. The order of the trial court dated December 18, 2000 allegedly terminated his probation and restored to him all the civil rights he lost as a result of his conviction, including the right to vote and be voted for in the July 15, 2002 elections.

The case was forwarded to the Office of the Provincial Election Supervisor of Samar for preliminary hearing. After due proceedings, the Investigating

Officer recommended that Moreno be disqualified from running for Punong Barangay. The Comelec First Division adopted this recommendation. On motion for reconsideration filed with the Comelec en banc, the Resolution of the First

Division was affirmed. According to the Comelec en banc, Sec. 40(a) of the Local Government Code provides that those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence, are disqualified from running for any elective local position.[5]Since Moreno was released from probation on December 20, 2000, disqualification shall commence on this date and end two (2) years thence. The grant of probation to Morenomerely suspended the execution of his sentence but did not affect his disqualification from running for an elective local office.

Further, the Comelec en banc held that the provisions of the Local Government Code take precedence over the case of Baclayon v. Mutia cited

by Moreno and the Probation Law because it is a much later enactment and a special law setting forth the qualifications and disqualifications of elective local officials.

In this petition, Moreno argues that the disqualification under the Local Government Code applies only to those who have served their sentence and not

to probationers because the latter do not serve the adjudged sentence. The Probation Law should allegedly be read as an exception to the Local Government Code because it is a special law which applies only to probationers. Further, even assuming that he is disqualified, his subsequent election as Punong Barangay allegedly constitutes an implied pardon of his previous misconduct.

In its Comment[6] dated November 18, 2005 on behalf of the Comelec, the Office of the Solicitor General argues that this Court

in Dela Torre v. Comelec[7] definitively settled a similar controversy by ruling that conviction for an offense involving moral turpitude stands even if the candidate was granted probation. The disqualification under Sec. 40(a) of the Local Government Code subsists and remains totally unaffected notwithstanding the grant of probation.

Moreno filed a Reply to Comment[8] dated March 27, 2006, reiterating his arguments and pointing out material differences between his case

and Dela Torre v. Comelecwhich allegedly warrant a conclusion favorable to him. According to Moreno, Dela Torre v. Comelec involves a conviction for violation of the Anti-Fencing Law, an offense involving moral turpitude covered by the first part of Sec. 40(a) of the Local Government Code. Dela Torre, the petitioner in that case, applied for probation nearly four (4) years after his conviction and only after appealing his conviction, such that he could not have been eligible for probation under the law.

In contrast, Moreno alleges that he applied for and was granted probation within the period specified therefor. He never served a day of his sentence as a result. Hence, the disqualification under Sec. 40(a) of the Local Government Code does not apply to him.

The resolution of the present controversy depends on the application of the phrase within two (2) years after serving sentence found in Sec. 40(a) of the

Local Government Code, which reads:

Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or

more of imprisonment, within two (2) years after serving sentence; [Emphasis supplied.] . . . .

We should mention at this juncture that there is no need to rule on whether Arbitrary Detention, the crime of which Moreno was convicted by final

judgment, involves moral turpitude falling under the first part of the above-quoted provision. The question of whether Arbitrary Detention is a crime involving moral turpitude was never raised in the petition for disqualification because the ground relied upon by Mejes, and which the Comelec used in its assailed resolutions, is his alleged disqualification from running for a local elective office within two (2) years from his discharge from probation after having been convicted by final judgment for an offense punishable by Four (4) Months and One (1) Day to Two (2) Years and Four (4) Months. Besides, a determination that the crime of Arbitrary Detention involves moral turpitude is not decisive of this case, the crucial issue being whether Morenos sentence was in fact served.

In this sense, Dela Torre v. Comelec is not squarely applicable. Our pronouncement therein that the grant of probation does not affect the

disqualification under Sec. 40(a) of the Local Government Code was based primarily on the finding that the crime of fencing of which petitioner was convicted involves moral turpitude, a circumstance which does not obtain in this case. At any rate, the phrase within two (2) years after serving sentence should have been interpreted and understood to apply both to those who have been sentenced by final judgment for an offense involving moral turpitude and to those who have been sentenced by final judgment for an offense punishable by one (1) year or more of imprisonment. The placing of the comma (,) in the provision means that the phrase modifies both parts of Sec. 40(a) of the Local Government Code.

The Courts declaration on the effect of probation on Sec. 40(a) of the Local Government Code, we should add, ought to be considered an obiter in view

of the fact thatDela Torre was not even entitled to probation because he appealed his conviction to the Regional Trial Court which, however, affirmed his conviction. It has been held that the perfection of an appeal is a relinquishment of the alternative remedy of availing of the Probation Law, the purpose of which is to prevent speculation or opportunism on the part of an accused who, although already eligible, did not at once apply for probation, but did so only after failing in his appeal.[9]

Sec. 40(a) of the Local Government Code appears innocuous enough at first glance. The phrase service of sentence, understood in

its general and common sense, means the confinement of a convicted person in a penal facility for the period adjudged by the court.[10] This seemingly clear and unambiguous provision, however, has spawned a controversy worthy of this Courts attention because the Comelec, in the assailed resolutions, is alleged to have broadened the coverage of the law to include even those who did not serve a day of their sentence because they were granted probation.

Moreno argues, quite persuasively, that he should not have been disqualified because he did not serve the adjudged sentence having been granted probation and finally discharged by the trial court.

In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a sentence but is rather, in effect, a suspension of the

imposition of sentence.We held that the grant of probation to petitioner suspended the imposition of the principal penalty of imprisonment, as well as the accessory penalties of suspension from public office and from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage. We thus deleted from the order granting probation the paragraph which required that petitioner refrain from continuing with her teaching profession.

Applying this doctrine to the instant case, the accessory penalties of suspension from public office, from the right to follow a profession or calling, and

that of perpetual special disqualification from the right of suffrage, attendant to the penalty of arresto mayor in its maximum period to prision correccional in its minimum period[11] imposed upon Moreno were similarly suspended upon the grant of probation.

It appears then that during the period of probation, the probationer is not even disqualified from running for a public office because the accessory

penalty of suspension from public office is put on hold for the duration of the probation. Clearly, the period within which a person is under probation cannot be equated with service of the sentence adjudged. Sec. 4 of the Probation Law

specifically provides that the grant of probation suspends the execution of the sentence. During the period of probation,[12] the probationer does not serve the penalty imposed upon him by the court but is merely required to comply with all the conditions prescribed in the probation order.[13]

It is regrettable that the Comelec and the OSG have misapprehended the real issue in this case. They focused on the fact that Morenos judgment of

conviction attained finality upon his application for probation instead of the question of whether his sentence had been served. The Comelec could have correctly resolved this case by simply applying the law to the letter. Sec. 40(a) of the Local Government Code unequivocally

disqualifies only those who have been sentenced by final judgment for an offense punishable by imprisonment of one (1) year or more, within two (2) years after serving sentence.

This is as good a time as any to clarify that those who have not served their sentence by reason of the grant of probation which, we reiterate, should not

be equated with service of sentence, should not likewise be disqualified from running for a local elective office because the two (2)-year period of ineligibility under Sec. 40(a) of the Local Government Code does not even begin to run.

The fact that the trial court already issued an order finally discharging Moreno fortifies his position. Sec. 16 of the Probation Law provides that [t]he

final discharge of the probationer shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which probation was granted. Thus, when Moreno was finally discharged upon the courts finding that he has fulfilled the terms and conditions of his probation, his case was deemed terminated and all civil rights lost or suspended as a result of his conviction were restored to him, including the right to run for public office.

Even assuming that there is an ambiguity in Sec. 40(a) of the Local Government Code which gives room for judicial interpretation,[14] our conclusion

will remain the same.

It is unfortunate that the deliberations on the Local Government Code afford us no clue as to the intended meaning of the phrase service of sentence, i.e., whether the legislature also meant to disqualify those who have been granted probation. The Courts function, in the face of this seeming dissonance, is to interpret and harmonize the Probation Law and the Local Government Code. Interpretare et concordare legis legibus est optimus interpretandi.

Probation is not a right of an accused but a mere privilege, an act of grace and clemency or immunity conferred by the state, which is granted to a

deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he was convicted.[15] Thus, the Probation Law lays out rather stringent standards regarding who are qualified for probation. For instance, it provides that the benefits of probation shall not be extended to those sentenced to serve a maximum term of imprisonment of more than six (6) years; convicted of any offense against the security of the State; those who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one (1) month and one (1) day and/or a fine of not less than P200.00; those who have been once on probation; and those who are already serving sentence at the time the substantive provisions of the Probation Law became applicable.[16]

It is important to note that the disqualification under Sec. 40(a) of the Local Government Code covers offenses punishable by one (1) year or more of

imprisonment, a penalty which also covers probationable offenses. In spite of this, the provision does not specifically disqualify probationers from running for a local elective office. This omission is significant because it offers a glimpse into the legislative intent to treat probationers as a distinct class of offenders not covered by the disqualification.

Further, it should be mentioned that the present Local Government Code was enacted in 1991, some seven (7) years after Baclayon v. Mutia was

decided. When the legislature approved the enumerated disqualifications under Sec. 40(a) of the Local Government Code, it is presumed to have knowledge of our ruling in Baclayon v. Mutia on the effect of probation on the disqualification from holding public office. That it chose not to include probationers within the purview of the provision is a clear expression of the legislative will not to disqualify probationers.

On this score, we agree with Moreno that the Probation Law should be construed as an exception to the Local Government Code. While the Local

Government Code is a later law which sets forth the qualifications and disqualifications of local elective officials, the Probation Law is a special legislation which applies only to probationers. It is a canon of statutory construction that a later statute, general in its terms and not expressly repealing a prior special statute, will ordinarily not affect the special provisions of such earlier statute.[17]

In construing Sec. 40(a) of the Local Government Code in a way that broadens the scope of the disqualification to include Moreno,

the Comelec committed an egregious error which we here correct. We rule that Moreno was not disqualified to run for Punong Barangay of Barangay Cabugao, Daram, Samar in the July 15, 2002 SynchronizedBarangay and Sangguniang Kabataan Elections.

Finally, we note that Moreno was the incumbent Punong Barangay at the time of his conviction of the crime of Arbitrary Detention. He claims to have

obtained a fresh mandate from the people of Barangay Cabugao, Daram, Samar in the July 15, 2002 elections. This situation calls to mind the poignant words of Mr. Justice now Chief JusticeArtemio Panganiban in Frivaldo v. Comelec[18] where he said that it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms.

WHEREFORE, the petition is GRANTED. The Resolution of the Commission on Elections en banc dated June 1, 2005 and the Resolution of its First

Division dated November 15, 2002, as well as all other actions and orders issued pursuant thereto, are ANNULLED and SET ASIDE. The Commission on Elections is directed to proceed in accordance with this Decision. No pronouncement as to costs.

SO ORDERED.

Republic of the Philippines SUPREME COURT

Manila EN BANC

G.R. No. 193237 October 9, 2012 DOMINADOR G. JALOSJOS, JR., Petitioner, vs. COMMISSION ON ELECTIONS and AGAPITO J. CARDINO, Respondents. x - - - - - - - - - - - - - - - - - - - - - - - x G.R. No. 193536 AGAPITO J. CARDINO, Petitioner, vs. DOMINADOR G. JALOSJOS, JR., and COMMISSION ON ELECTIONS, Respondents.

D E C I S I O N CARPIO, J.: These are two special civil actions for certiorari1 questioning the resolutions of the Commission on Elections (COMELEC) in SPA No. 09-076 (DC). In G.R. No. 193237, Dominador G. Jalosjos, Jr. (Jalosjos) seeks to annul the 10 May 2010 Resolution2 of the COMELEC First Division and the 11 August 2010 Resolution3 of the COMELEC En Banc, which both ordered the cancellation of his certificate of candidacy on the ground of false material representation. In G.R. No. 193536, Agapito J. Cardino (Cardino) challenges the 11 August 2010 Resolution of the COMELEC En Banc, which applied the rule on succession under the Local Government Code in filling the vacancy in the Office of the Mayor of Dapitan City, Zamboanga del Norte created by the cancellation of Jalosjos’ certificate of candidacy. The Facts Both Jalosjos and Cardino were candidates for Mayor of Dapitan City, Zamboanga del Norte in the May 2010 elections. Jalosjos was running for his third term. Cardino filed on 6 December 2009 a petition under Section 78 of the Omnibus Election Code to deny due course and to cancel the certificate of candidacy of Jalosjos. Cardino asserted that Jalosjos made a false material representation in his certificate of candidacy when he declared under oath that he was eligible for the Office of Mayor. Cardino claimed that long before Jalosjos filed his certificate of candidacy, Jalosjos had already been convicted by final judgment for robbery and sentenced to prisión mayor by the Regional Trial Court, Branch 18 (RTC) of Cebu City, in Criminal Case No. CCC-XIV-140-CEBU. Cardino asserted that Jalosjos has not yet served his sentence. Jalosjos admitted his conviction but stated that he had already been granted probation. Cardino countered that the RTC revoked Jalosjos’ probation in an Order dated 19 March 1987. Jalosjos refuted Cardino and stated that the RTC issued an Order dated 5 February 2004 declaring that Jalosjos had duly complied with the order of probation. Jalosjos further stated that during the 2004 elections the COMELEC denied a petition for disqualification filed against him on the same grounds.4 The COMELEC En Banc narrated the circumstances of Jalosjos’ criminal record as follows: As backgrounder, Jalosjos and three (3) others were accused of the crime of robbery on January 22, 1969 in Cebu City. On April 30, 1970, Judge Francisco Ro. Cupin of the then Circuit Criminal Court of Cebu City found him and his co-accused guilty of robbery and sentenced them to suffer the penalty of prision correccional minimum to prision mayor maximum. Jalosjos appealed this decision to the Court of Appeals but his appeal was dismissed on August 9, 1973. It was only after a lapse of several years or more specifically on June 17, 1985 that Jalosjos filed a Petition for Probation before the RTC Branch 18 of Cebu City which was granted by the court. But then, on motion filed by his Probation Officer, Jalosjos’ probation was revoked by the RTC Cebu City on March 19, 1987 and the corresponding warrant for his arrest was issued. Surprisingly, on December 19, 2003, Parole and Probation Administrator Gregorio F. Bacolod issued a

Certification attesting that respondent Jalosjos, Jr., had already fulfilled the terms and conditions of his probation. This Certification was the one used by respondent Jalosjos to secure the dismissal of the disqualification case filed against him by Adasa in 2004, docketed as SPA No. 04-235. This prompted Cardino to call the attention of the Commission on the decision of the Sandiganbayan dated September 29, 2008 finding Gregorio F. Bacolod, former Administrator of the Parole and Probation Administration, guilty of violating Section 3(e) of R.A. 3019 for issuing a falsified Certification on December 19, 2003 attesting to the fact that respondent Jalosjos had fully complied with the terms and conditions of his probation. A portion of the decision of the Sandiganbayan is quoted hereunder: The Court finds that the above acts of the accused gave probationer Dominador Jalosjos, Jr., unwarranted benefits and advantage because the subject certification, which was issued by the accused without adequate or official support, was subsequently utilized by the said probationer as basis of the Urgent Motion for Reconsideration and to Lift Warrant of Arrest that he filed with the Regional Trial Court of Cebu City, which prompted the said court to issue the Order dated February 5, 2004 in Crim. Case No. CCC-XIV-140-CEBU, declaring that said probationer has complied with the order of probation and setting aside its Order of January 16, 2004 recalling the warrant or [sic] arrest; and that said Certification was also used by the said probationer and became the basis for the Commission on Elections to deny in its Resolution of August 2, 2004 the petition or [sic] private complainant James Adasa for the disqualification of the probationer from running for re-election as Mayor of Dapitan City in the National and Local Elections of 2004.5 The COMELEC’s Rulings On 10 May 2010, the COMELEC First Division granted Cardino’s petition and cancelled Jalosjos’ certificate of candidacy. The COMELEC First Division concluded that "Jalosjos has indeed committed material misrepresentation in his certificate of candidacy when he declared, under oath, that he is eligible for the office he seeks to be elected to when in fact he is not by reason of a final judgment in a criminal case, the sentence of which he has not yet served."6 The COMELEC First Division found that Jalosjos’ certificate of compliance of probation was fraudulently issued; thus, Jalosjos has not yet served his sentence. The penalty imposed on Jalosjos was the indeterminate sentence of one year, eight months and twenty days of prisión correccional as minimum, to four years, two months and one day of prisión mayor as maximum. The COMELEC First Division ruled that Jalosjos "is not eligible by reason of his disqualification as provided for in Section 40(a) of Republic Act No. 7160."7 On 11 August 2010, the COMELEC En Banc denied Jalosjos’ motion for reconsideration. The pertinent portions of the 11 August 2010 Resolution read: With the proper revocation of Jalosjos’ earlier probation and a clear showing that he has not yet served the terms of his sentence, there is simply no basis for Jalosjos to claim that his civil as well as political rights have been violated. Having been convicted by final judgment, Jalosjos is disqualified to run for an elective position or to hold public office. His proclamation as the elected mayor in the May 10, 2010 election does not deprive the Commission of its authority to resolve the present petition to its finality, and to oust him from the office he now wrongfully holds. WHEREFORE, in view of the foregoing, the Motion for Reconsideration is denied for utter lack of merit. Jalosjos is hereby OUSTED from office and ordered to CEASE and DESIST from occupying and discharging the functions of the Office of the Mayor of Dapitan City, Zamboanga. Let the provisions of the Local Government Code on succession apply. SO ORDERED.8 Jalosjos filed his petition on 25 August 2010, docketed as G.R. No. 193237, while Cardino filed his petition on 17 September 2010, docketed as G.R. No. 193536. On 22 February 2011, this Court issued a Resolution dismissing G.R. No. 193237. WHEREFORE, the foregoing premises considered, the Petition for Certiorari is DISMISSED. The assailed Resolution dated May 10, 2010 and Resolution dated August 11, 2010 of the Commission on Elections in SPA Case No. 09-076 (DC) are hereby AFFIRMED.9 Cardino filed a Manifestation on 17 March 2011 praying that this Court take judicial notice of its resolution in G.R. No. 193237. Jalosjos filed a Motion for Reconsideration10 on 22 March 2011. On 29 March 2011, this Court resolved11 to consolidate G.R. No. 193536 with G.R. No. 193237.Jalosjos then filed a Manifestation on 1 June 2012 which stated that "he has resigned from the position of Mayor of the City of Dapitan effective 30 April 2012, which resignation was accepted by the Provincial Governor of Zamboanga del Norte, Atty. Rolando E. Yebes."12Jalosjos’ resignation was made "in deference with the provision of the Omnibus Election Code in relation to his candidacy as Provincial Governor of Zamboanga del Sur in May 2013."13

These cases are not rendered moot by Jalosjos’ resignation. In resolving Jalosjos’ Motion for Reconsideration in G.R. No. 193237 and Cardino’s Petition in G.R. No. 193536, we address not only Jalosjos’ eligibility to run for public office and the consequences of the cancellation of his certificate of candidacy, but also COMELEC’s constitutional duty to enforce and administer all laws relating to the conduct of elections. The Issues In G.R. No. 193237, Jalosjos argues that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction when it (1) ruled that Jalosjos’ probation was revoked; (2) ruled that Jalosjos was disqualified to run as candidate for Mayor of Dapitan City, Zamboanga del Norte; and (3) cancelled Jalosjos’ certificate of candidacy without making a finding that Jalosjos committed a deliberate misrepresentation as to his qualifications, as Jalosjos relied in good faith upon a previous COMELEC decision declaring him eligible for the same position from which he is now being ousted. Finally, the Resolutions dated 10 May 2010 and 11 August 2010 were issued in violation of the COMELEC Rules of Procedure. In G.R. No. 193536, Cardino argues that the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it added to the dispositive portion of its 11 August 2010 Resolution that the provisions of the Local Government Code on succession should apply. This Court’s Ruling The perpetual special disqualification against Jalosjos arising from his criminal conviction by final judgment is a material fact involving eligibility which is a proper ground for a petition under Section 78 of the Omnibus Election Code. Jalosjos’ certificate of candidacy was void from the start since he was not eligible to run for any public office at the time he filed his certificate of candidacy. Jalosjos was never a candidate at any time, and all votes for Jalosjos were stray votes. As a result of Jalosjos’ certificate of candidacy being void ab initio, Cardino, as the only qualified candidate, actually garnered the highest number of votes for the position of Mayor. The dissenting opinions affirm with modification the 10 May 2010 Resolution of the COMELEC First Division and the 11 August 2010 Resolution of the COMELEC En Banc. The dissenting opinions erroneously limit the remedy against Jalosjos to disqualification under Section 68 of the Omnibus Election Code and apply the rule on succession under the Local Government Code. A false statement in a certificate of candidacy that a candidate is eligible to run for public office is a false material representation which is a ground for a petition under Section 78 of the same Code. Sections 74 and 78 read: Sec. 74. Contents of certificate of candidacy. – The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. – A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. (Emphasis supplied) Section 74 requires the candidate to state under oath in his certificate of candidacy "that he is eligible for said office." A candidate is eligible if he has a right to run for the public office.14 If a candidate is not actually eligible because he is barred by final judgment in a criminal case from running for public office, and he still states under oath in his certificate of candidacy that he is eligible to run for public office, then the candidate clearly makes a false material representation that is a ground for a petition under Section 78. A sentence of prisión mayor by final judgment is a ground for disqualification under Section 40 of the Local Government Code and under Section 12 of the Omnibus Election Code. It is also a material fact involving the eligibility of a candidate under Sections 74 and 78 of the Omnibus Election Code. Thus, a person

can file a petition under Section 40 of the Local Government Code or under either Section 12 or Section 78 of the Omnibus Election Code. The pertinent provisions read: Section 40, Local Government Code: Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) Those removed from office as a result of an administrative case; (c) Those convicted by final judgment for violating the oath of allegiance to the Republic; (d) Those with dual citizenship; (e) Fugitives from justice in criminal or non-political cases here or abroad; (f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and (g) The insane or feeble-minded.

Section 12, Omnibus Election Code: Sec. 12. Disqualifications. — Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he was sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified. Section 68, Omnibus Election Code: Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by final decision by a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. Revised Penal Code: Art. 27. Reclusion perpetua. — x x x Prisión mayor and temporary disqualification. — The duration of the penalties of prisión mayor and temporary disqualification shall be from six years and one day to twelve years, except when the penalty of disqualification is imposed as an accessory penalty, in which case, it shall be that of the principal penalty. x x x x Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. — The penalties of perpetual or temporary absolute disqualification for public office shall produce the following effects:

1. The deprivation of the public offices and employments which the offender may have held, even if conferred by popular election. 2. The deprivation of the right to vote in any election for any popular elective office or to be elected to such office. 3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned. In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall last during the term of the sentence. 4. The loss of all rights to retirement pay or other pension for any office formerly held.

Art. 31. Effects of the penalties of perpetual or temporary special disqualification. — The penalties of perpetual or temporary special disqualification for public office, profession or calling shall produce the following effects:

1. The deprivation of the office, employment, profession or calling affected. 2. The disqualification for holding similar offices or employments either perpetually or during the term of the sentence, according to the extent of such disqualification.

Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. — The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the period of his disqualification. Art. 42. Prisión mayor — its accessory penalties. — The penalty of prisión mayor shall carry with it that of temporary absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphasis supplied) The penalty of prisión mayor automatically carries with it, by operation of law,15 the accessory penalties of temporary absolute disqualification and perpetual special disqualification. Under Article 30 of the Revised Penal Code, temporary absolute disqualification produces the effect of "deprivation of the right to vote in any election for any popular elective office or to be elected to such office." The duration of the temporary absolute disqualification is the same as that of the principal penalty. On the other hand, under Article 32 of the Revised Penal Code perpetual special disqualification means that "the offender shall not be permitted to hold any public office during the period of his disqualification," which is perpetually. Both temporary absolute disqualification and perpetual special disqualification constitute ineligibilities to hold elective public office. A person suffering from these ineligibilities is ineligible to run for elective public office, and commits a false material representation if he states in his certificate of candidacy that he is eligible to so run. In Lacuna v. Abes,16 the Court, speaking through Justice J.B.L. Reyes, explained the import of the accessory penalty of perpetual special disqualification: On the first defense of respondent-appellee Abes, it must be remembered that appellee’s conviction of a crime penalized with prisión mayor which carried the accessory penalties of temporary absolute disqualification and perpetual special disqualification from the right of suffrage (Article 42, Revised Penal Code); and Section 99 of the Revised Election Code disqualifies a person from voting if he had been sentenced by final judgment to suffer one year or more of imprisonment. The accessory penalty of temporary absolute disqualification disqualifies the convict for public office and for the right to vote, such disqualification to last only during the term of the sentence (Article 27, paragraph 3, & Article 30, Revised Penal Code) that, in the case of Abes, would have expired on 13 October 1961. But this does not hold true with respect to the other accessory penalty of perpetual special disqualification for the exercise of the right of suffrage. This accessory penalty deprives the convict of the right to vote or to be elected to or hold public office perpetually, as distinguished from temporary special disqualification, which lasts during the term of the sentence. Article 32, Revised Penal Code, provides: Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. — The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the period of disqualification. The word "perpetually" and the phrase "during the term of the sentence" should be applied distributively to their respective antecedents; thus, the word "perpetually" refers to the perpetual kind of special disqualification, while the phrase "during the term of the sentence" refers to the temporary special disqualification. The duration between the perpetual and the temporary (both special) are necessarily different because the provision, instead of merging their durations into one period, states that such duration is "according to the nature of said penalty" — which means according to whether the penalty is the perpetual or the temporary special disqualification. (Emphasis supplied) Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives the convict of the right to vote or to be elected to or hold public office perpetually."

The accessory penalty of perpetual special disqualification takes effect immediately once the judgment of conviction becomes final. The effectivity of this accessory penalty does not depend on the duration of the principal penalty, or on whether the convict serves his jail sentence or not. The last sentence of Article 32 states that "the offender shall not be permitted to hold any public office during the period of his perpetual special disqualification." Once the judgment of conviction becomes final, it is immediately executory. Any public office that the convict may be holding at the time of his conviction becomes vacant upon finality of the judgment, and the convict becomes ineligible to run for any elective public office perpetually. In the case of Jalosjos, he became ineligible perpetually to hold, or to run for, any elective public office from the time his judgment of conviction became final. Perpetual special disqualification is a ground for a petition under Section 78 of the Omnibus Election Code because this accessory penalty is an ineligibility, which means that the convict is not eligible to run for public office, contrary to the statement that Section 74 requires him to state under oath. As used in Section 74, the word "eligible" means having the right to run for elective public office, that is, having all the qualifications and none of the ineligibilities to run for public office. As this Court held in Fermin v. Commission on Elections,17 the false material representation may refer to "qualifications or eligibility." One who suffers from perpetual special disqualification is ineligible to run for public office. If a person suffering from perpetual special disqualification files a certificate of candidacy stating under oath that "he is eligible to run for (public) office," as expressly required under Section 74, then he clearly makes a false material representation that is a ground for a petition under Section 78. As this Court explained in Fermin: Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding that the candidate made a material representation that is false, which may relate to the qualifications required of the public office he/she is running for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory provisions on qualifications or eligibility for public office. If the candidate subsequently states a material representation in the CoC that is false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of the winning candidate.18(Emphasis supplied) Conviction for robbery by final judgment with the penalty of prisión mayor, to which perpetual special disqualification attaches by operation of law, is not a ground for a petition under Section 68 because robbery is not one of the offenses enumerated in Section 68. Insofar as crimes are concerned, Section 68 refers only to election offenses under the Omnibus Election Code and not to crimes under the Revised Penal Code. For ready reference, we quote again Section 68 of the Omnibus Election Code: Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by final decision by a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. (Emphasis supplied) There is absolutely nothing in the language of Section 68 that will justify including the crime of robbery as one of the offenses enumerated in this Section. All the offenses enumerated in Section 68 refer to offenses under the Omnibus Election Code. The dissenting opinion of Justice Reyes gravely errs when it holds that Jalosjos’ conviction for the crime of robbery under the Revised Penal Code is a ground for "a petition for disqualification under Section 68 of the OEC and not for cancellation of COC under Section 78 thereof." This Court has already ruled that offenses punished in laws other than in the Omnibus Election Code cannot be a ground for a petition under Section 68. In Codilla, Sr. v. de Venecia,19 the Court declared: The jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of the Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC jurisdiction.They are criminal and not administrative in nature. (Emphasis supplied)

A candidate for mayor during the 2010 local elections certifies under oath four statements: (1) a statement that the candidate is a natural born or naturalized Filipino citizen; (2) a statement that the candidate is not a permanent resident of, or immigrant to, a foreign country; (3) a statement that the candidate is eligible for the office he seeks election; and (4) a statement of the candidate’s allegiance to the Constitution of the Republic of the Philippines.20 We now ask: Did Jalosjos make a false statement of a material fact in his certificate of candidacy when he stated under oath that he was eligible to run for mayor? The COMELEC and the dissenting opinions all found that Jalosjos was not eligible to run for public office. The COMELEC concluded that Jalosjos made a false material representation that is a ground for a petition under Section 78. The dissenting opinion of Justice Reyes, however, concluded that the ineligibility of Jalosjos is a disqualification which is a ground for a petition under Section 68 and not under Section 78. The dissenting opinion of Justice Brion concluded that the ineligibility of Jalosjos is a disqualification that is not a ground under Section 78 without, however, saying under what specific provision of law a petition against Jalosjos can be filed to cancel his certificate of candidacy. What is indisputably clear is that the false material representation of Jalosjos is a ground for a petition under Section 78. However, since the false material representation arises from a crime penalized by prisión mayor, a petition under Section 12 of the Omnibus Election Code or Section 40 of the Local Government Code can also be properly filed. The petitioner has a choice whether to anchor his petition on Section 12 or Section 78 of the Omnibus Election Code, or on Section 40 of the Local Government Code. The law expressly provides multiple remedies and the choice of which remedy to adopt belongs to the petitioner. The COMELEC properly cancelled Jalosjos’ certificate of candidacy. A void certificate of candidacy on the ground of ineligibility that existed at the time of the filing of the certificate of candidacy can never give rise to a valid candidacy, and much less to valid votes.21 Jalosjos’ certificate of candidacy was cancelled because he was ineligible from the start to run for Mayor. Whether his certificate of candidacy is cancelled before or after the elections is immaterial because the cancellation on such ground means he was never a valid candidate from the very beginning, his certificate of candidacy being void ab initio. Jalosjos’ ineligibility existed on the day he filed his certificate of candidacy, and the cancellation of his certificate of candidacy retroacted to the day he filed it. Thus, Cardino ran unopposed. There was only one qualified candidate for Mayor in the May 2010 elections – Cardino – who received the highest number of votes. Decisions of this Court holding that the second-placer cannot be proclaimed winner if the first-placer is disqualified or declared ineligible22 should be limited to situations where the certificate of candidacy of the first-placer was valid at the time of filing but subsequently had to be cancelled because of a violation of law that took place, or a legal impediment that took effect, after the filing of the certificate of candidacy. If the certificate of candidacy is void ab initio, then legally the person who filed such void certificate of candidacy was never a candidate in the elections at any time. All votes for such non-candidate are stray votes and should not be counted. Thus, such non-candidate can never be a first-placer in the elections. If a certificate of candidacy void ab initio is cancelled on the day, or before the day, of the election, prevailing jurisprudence holds that all votes for that candidate are stray votes.23 If a certificate of candidacy void ab initio is cancelled one day or more after the elections, all votes for such candidate should also be stray votes because the certificate of candidacy is void from the very beginning. This is the more equitable and logical approach on the effect of the cancellation of a certificate of candidacy that is void ab initio. Otherwise, a certificate of candidacy void ab initio can operate to defeat one or more valid certificates of candidacy for the same position. Even without a petition under either Section 12 or Section 78 of the Omnibus Election Code, or under Section 40 of the Local Government Code, the COMELEC is under a legal duty to cancel the certificate of candidacy of anyone suffering from the accessory penalty of perpetual special disqualification to run for public office by virtue of a final judgment of conviction. The final judgment of conviction is notice to the COMELEC of the disqualification of the convict from running for public office. The law itself bars the convict from running for public office, and the disqualification is part of the final judgment of conviction. The final judgment of the court is addressed not only to the Executive branch, but also to other government agencies tasked to implement the final judgment under the law. Whether or not the COMELEC is expressly mentioned in the judgment to implement the disqualification, it is assumed that the portion of the final judgment on disqualification to run for elective public office is addressed to the COMELEC because under the Constitution the COMELEC is duty bound to "enforce and administer all laws and regulations relative to the conduct of an election."24 The disqualification of a convict to run for public office under the Revised Penal Code, as affirmed by final judgment of a competent court, is part of the enforcement and administration of "all laws" relating to the conduct of elections. To allow the COMELEC to wait for a person to file a petition to cancel the certificate of candidacy of one suffering from perpetual special disqualification will result in the anomaly that these cases so grotesquely exemplify. Despite a prior perpetual special disqualification, Jalosjos was elected and served twice as mayor.

The COMELEC will be grossly remiss in its constitutional duty to "enforce and administer all laws" relating to the conduct of elections if it does not motu proprio bar from running for public office those suffering from perpetual special disqualification by virtue of a final judgment. WHEREFORE, the Motion for Reconsideration in G.R. No. 193237 is DENIED, and the Petition in G.R. No. 193536 is GRANTED. The Resolutions dated 10 May 2010 and 11 August 2010 of the COMELEC First Division and the COMELEC En Bane, respectively, in SPA No. 09-076 (DC), are AFFIRMED with the MODIFICATION that Agapito J. Cardino ran unopposed in the May 2010 elections and thus received the highest number of votes for Mayor. The COMELEC En Bane is DIRECTED to constitute a Special City Board of Canvassers to proclaim Agapito J. Cardino as the duly elected Mayor of Dapitan City, Zamboanga del Norte. Let copies of this Decision be furnished the Secretaries of the Department of Justice and the Department of Interior and Local Government so they can cause the arrest of, and enforce the jail sentence on, Dominador G. Jalosjos, Jr. due to his conviction for the crime of robbery in a final judgment issued by the Regional Trial Court (Branch 18) of Cebu City in Criminal Case No. CCC-XIV-140-CEBU. SO ORDERED.

epublic of the Philippines SUPREME COURT

Manila EN BANC

G.R. No. 195649 July 2, 2013 CASAN MACODE MACQUILING, PETITIONER, vs. COMMISSION ON ELECTIONS, ROMMEL ARNADO Y CAGOCO, AND LINOG G. BALUA. RESPONDENTS.

R E S O L U T I O N SERENO, J.: This Resolution resolves the Motion for Reconsideration filed by respondent on May 10, 2013 and the Supplemental Motion for Reconsideration filed on May 20, 2013. We are not unaware that the term of office of the local officials elected in the May 2010 elections has already ended on June 30, 2010. Arnado, therefore, has successfully finished his term of office. While the relief sought can no longer be granted, ruling on the motion for reconsideration is important as it will either affirm the validity of Arnado’s election or affirm that Arnado never qualified to run for public office. Respondent failed to advance any argument to support his plea for the reversal of this Court’s Decision dated April 16, 2013. Instead, he presented his accomplishments as the Mayor of Kauswagan, Lanao del Norte and reiterated that he has taken the Oath of Allegiance not only twice but six times. It must be stressed, however, that the relevant question is the efficacy of his renunciation of his foreign citizenship and not the taking of the Oath of Allegiance to the Republic of the Philippines. Neither do his accomplishments as mayor affect the question before this Court. Respondent cites Section 349 of the Immigration and Naturalization Act of the United States as having the effect of expatriation when he executed his Affidavit of Renunciation of American Citizenship on April 3, 2009 and thus claims that he was divested of his American citizenship. If indeed, respondent was divested of all the rights of an American citizen, the fact that he was still able to use his US passport after executing his Affidavit of Renunciation repudiates this claim. The Court cannot take judicial notice of foreign laws,1 which must be presented as public documents2 of a foreign country and must be "evidenced by an official publication thereof."3 Mere reference to a foreign law in a pleading does not suffice for it to be considered in deciding a case. Respondent likewise contends that this Court failed to cite any law of the United States "providing that a person who is divested of American citizenship thru an Affidavit of Renunciation will re-acquire such American citizenship by using a US Passport issued prior to expatriation."4 American law does not govern in this jurisdiction. Instead, Section 40(d) of the Local Government Code calls for application in the case before us, given the fact that at the time Arnado filed his certificate of candidacy, he was not only a Filipino citizen but, by his own declaration, also an American citizen. It is the application of this law and not of any foreign law that serves as the basis for Arnado’s disqualification to run for any local elective position. With all due respect to the dissent, the declared policy of Republic Act No. (RA) 9225 is that "all Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act."5 This policy pertains to the reacquisition of Philippine citizenship. Section 5(2)6 requires those who have re-acquired Philippine citizenship and who seek elective public office, to renounce any and all foreign citizenship. This requirement of renunciation of any and all foreign citizenship, when read together with Section 40(d) of the Local Government Code7 which disqualifies those with dual citizenship from running for any elective local position, indicates a policy that anyone who seeks to run for public office must be solely and exclusively a Filipino citizen. To allow a former Filipino who reacquires Philippine citizenship to continue using a foreign passport – which indicates the recognition of a foreign state of the individual as its national – even after the Filipino has renounced his foreign citizenship, is to allow a complete disregard of this policy. Further, we respectfully disagree that the majority decision rules on a situation of doubt. Indeed, there is no doubt that Section 40(d) of the Local Government Code disqualifies those with dual citizenship from running for local elective positions.

There is likewise no doubt that the use of a passport is a positive declaration that one is a citizen of the country which issued the passport, or that a passport proves that the country which issued it recognizes the person named therein as its national. It is unquestioned that Arnado is a natural born Filipino citizen, or that he acquired American citizenship by naturalization. There is no doubt that he reacquired his Filipino citizenship by taking his Oath of Allegiance to the Philippines and that he renounced his American citizenship. It is also indubitable that after renouncing his American citizenship, Arnado used his U.S. passport at least six times. If there is any remaining doubt, it is regarding the efficacy of Arnado’s renunciation of his American citizenship when he subsequently used his U.S. passport. The renunciation of foreign citizenship must be complete and unequivocal. The requirement that the renunciation must be made through an oath emphasizes the solemn duty of the one making the oath of renunciation to remain true to what he has sworn to. Allowing the subsequent use of a foreign passport because it is convenient for the person to do so is rendering the oath a hollow act. It devalues the act of taking of an oath, reducing it to a mere ceremonial formality. The dissent states that the Court has effectively left Arnado "a man without a country".1âwphi1 On the contrary, this Court has, in fact, found Arnado to have more than one. Nowhere in the decision does it say that Arnado is not a Filipino citizen. What the decision merely points out is that he also possessed another citizenship at the time he filed his certificate of candidacy. Well-settled is the rule that findings of fact of administrative bodies will not be interfered with by the courts in the absence of grave abuse of discretion on the part of said agencies, or unless the aforementioned findings are not supported by substantial evidence.8 They are accorded not only great respect but even finality, and are binding upon this Court, unless it is shown that the administrative body had arbitrarily disregarded or misapprehended evidence before it to such an extent as to compel a contrary conclusion had such evidence been properly appreciated.9 Nevertheless, it must be emphasized that COMELEC First Division found that Arnado used his U.S. Passport at least six times after he renounced his American citizenship. This was debunked by the COMELEC En Banc, which found that Arnado only used his U.S. passport four times, and which agreed with Arnado’s claim that he only used his U.S. passport on those occasions because his Philippine passport was not yet issued. The COMELEC En Banc argued that Arnado was able to prove that he used his Philippine passport for his travels on the following dates: 12 January 2010, 31 January 2010, 31 March 2010, 16 April 2010, 20 May 2010, and 4 June 2010. None of these dates coincide with the two other dates indicated in the certification issued by the Bureau of Immigration showing that on 21 January 2010 and on 23 March 2010, Arnado arrived in the Philippines using his U.S. Passport No. 057782700 which also indicated therein that his nationality is USA-American. Adding these two travel dates to the travel record provided by the Bureau of Immigration showing that Arnado also presented his U.S. passport four times (upon departure on 14 April 2009, upon arrival on 25 June 2009, upon departure on 29 July 2009 and upon arrival on 24 November 2009), these incidents sum up to six. The COMELEC En Banc concluded that "the use of the US passport was because to his knowledge, his Philippine passport was not yet issued to him for his use."10 This conclusion, however, is not supported by the facts. Arnado claims that his Philippine passport was issued on 18 June 2009. The records show that he continued to use his U.S. passport even after he already received his Philippine passport. Arnado’s travel records show that he presented his U.S. passport on 24 November 2009, on 21 January 2010, and on 23 March 2010. These facts were never refuted by Arnado. Thus, the ruling of the COMELEC En Banc is based on a misapprehension of the facts that the use of the U.S. passport was discontinued when Arnado obtained his Philippine passport. Arnado’s continued use of his U.S. passport cannot be considered as isolated acts contrary to what the dissent wants us to believe. It must be stressed that what is at stake here is the principle that only those who are exclusively Filipinos are qualified to run for public office. If we allow dual citizens who wish to run for public office to renounce their foreign citizenship and afterwards continue using their foreign passports, we are creating a special privilege for these dual citizens, thereby effectively junking the prohibition in Section 40(d) of the Local Government Code. WHEREFORE, the Motion for Reconsideration and the Supplemental Motion for Reconsideration are hereby DENIED with finality. SO ORDERED.

EN BANC [G.R. No. 140179. March 13, 2000]

ROQUE FERMO, petitioner, vs. COMMISSION ON ELECTIONS and MANUEL D. LAXINA SR., respondents. D E C I S I O N

GONZAGA-REYES, J.: Before us is a Petition for Certiorari (with prayer for the issuance of a restraining order or a writ of preliminary injunction) assailing the Resolution[1] of the Commission on Elections (COMELEC)[2] in SPR No. 4-99 entitled "MANUEL D. LAXINA, SR. vs. ROQUE FERMO and Hon. AMANTE T. BANDAYREL" which annulled the order of the Metropolitan Trial Court (MTC) of Quezon City, Branch 40 granting petitioner Roque Fermos (FERMO) motion for execution pending appeal. The factual antecedents of this case are as follows:

"Manuel Laxina, Sr. and Roque Fermo were both candidates for the position of Punong Barangay, Barangay Batasan Hills, District II, Quezon City, during the May 12, 1997 elections. The canvassed results showed Laxina obtaining 1,957 votes and Fermo getting 1,712 votes. With a plurality of 245 votes, Laxina was proclaimed duly elected to the post. Subsequently, Fermo filed an election protest questioning the results in four (4) clustered precincts of Capitol Bliss and twenty four (24) COA precincts on the ground that the elections therein was attended by massive fraud and serious irregularities. Summoned to answer, protestee Laxina filed his responsive pleading denying protestants allegations of anomalies and interposed the defense that the conduct of the elections in Barangay Batasan Hills, District II, Quezon City, from the special registration of voters, the campaign as well as the voting and all the way to and until the counting, canvassing and tallying of votes and the proclamation of the winning candidates during the recent barangay elections has been generally honest, orderly and peaceful, with the result of the elections being truly reflective of the will of the electorate in the said barangay.' Protestee then moved for the dismissal of the case on the ground that the same was filed beyond the ten day period allowed by law. The Court ruled that the case was seasonably filed, dismissed the motion to dismiss and ordered a judicial recount. For the purpose, a revision committee was constituted. After all the proceedings were terminated, the Court a quo rendered its decision holding that Fermo won the contested post. The Courts decision was promulgated on January 8, 1999. On the same date, Laxina filed a Notice of Appeal manifesting his intent to elevate the case to the Commission on Elections. On January 12, 1999, Roque Fermo filed a Motion for Execution pending Appeal grounded on the following averments:

That a decision was promulgated by the Honorable Court on January 8, 1999 whereby the protestant Roque Fermo was declared the winner in the May 12, 1997 Barangay Election in Batasan Hills, District II by a plurality of ONE HUNDRED THIRTY FOUR (134) votes over protestee, Manuel Laxina; That there is good and special reason for the issuance of a Writ of Execution Pending Appeal, i.e., the possibility that the term of the contested seat might have expired already long before the appeal has been decided;

On January 19, 1999, Laxina opposed the motion maintaining that the Court had lost jurisdiction over the case because of the perfection of the appeal. On January 20, 1999, the Court issued an Order granting execution pending appeal, the pertinent part of which reads:

The Court is clothed with discretionary power to execute judgment pending appeal upon good reasons. The good reasons mentioned in protestants Motion for Execution Pending Appeal is the possibility that the term of the contested seat of Barangay Captainship in Barangay Batasan Hills, Quezon City might have expired long before the appeal has been decided, considering also that the term of the contested office had past almost midway of the whole term. To do otherwise would not serve the end of justice."[3]

Not satisfied with the decision of the MTC, respondent Manuel D. Laxina (LAXINA) appealed to the COMELEC, which reversed the order of the MTC granting herein petitioners motion for execution pending appeal. In reversing the MTC, the COMELEC found that the possibility that the term of the contested seat might expire by the time the appeal is decided was not a "good reason" to warrant execution pending appeal. Hence this petition with prayer for the issuance of a temporary restraining order or a writ of preliminary injunction where petitioner assigns the following errors:

"RESPONDENT COMELEC ACTED WITHOUT OR IN EXCESS OF JURISDICTION AND/OR WITH GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OR EXCESS OF JURISDICTION - A. IN HOLDING THAT THE REASON INVOKED BY PETITIONER IN HIS MOTION FOR EXECUTION PENDING APPEAL, i.e., SHORTNESS OF TERM IS INSUFFICIENT OR DOES NOT QUALIFY AS "GOOD REASONS" TO WARRANT EXECUTION PENDING APPEAL. B. IN ANNULLING THE JANUARY 20, 1999 ORDER OF MTC GRANTING THE MOTION FOR EXECUTION PENDING APPEAL ON THE GROUND THAT THE MTC COMMITTED GRAVE ABUSE OF DISCRETION. C. IN ORDERING PETITIONER TO CEASE AND DESIST FROM FURTHER PERFORMING THE FUNCTIONS OF PUNONG BARANGAY AND TO RELINQUISH THE SAME TO PRIVATE RESPONDENT PENDING FINAL RESOLUTION OF THE LATTERS APPEAL, IN EFFECT, GRANTING EXECUTION PENDING APPEAL IN FAVOR OF PRIVATE RESPONDENT WITHOUT ANY MOTION THEREFOR."[4]

In support of his petition, FERMO maintains that the COMELEC acted with grave abuse of discretion in ruling that the possibility that the term of the contested seat might expire long before the appeal is decided is not a good reason to warrant execution pending appeal. FERMOs theory is that such reason taken together with the finding of the MTC that the election was tainted with fraud and irregularities is sufficient reason to grant execution pending appeal. He further argues that even assuming the COMELEC did not err in annulling the order of execution, the COMELEC should not have ordered him to relinquish the position as this is tantamount to granting execution pending appeal in favor of LAXINA who did not file any such motion for that purpose nor cite any "good reasons" therefor. Moreover, the order of COMELEC in effect prejudged the pending appeal of FERMO considering that it ordered LAXINA to discharge the functions of Punong Barangay pending the resolution of the appeal. On the other hand, private respondent LAXINA agrees with the COMELECs conclusion that the "shortness of term" is not "good reason" to justify execution pending appeal. He argues that petitioners allegations are mere conjectures unsupported by any factual or legal basis. Public respondent COMELEC contends that since the term of Barangay officials was extended to five (5) years or until 2002, the reliance of the petitioner on the "shortness of term" to justify execution pending appeal is not justified. Moreover, the decision of the MTC "contains questionable rulings which casts doubt on its validity." It was not clearly established that petitioner in fact won.[5] The issue to be resolved in this petition is whether the COMELEC acted with grave abuse of discretion amounting to lack of or excess of jurisdiction in annulling the order of the MTC granting herein petitioners motion for execution pending appeal on the ground that there were no "good reasons" for the issuance therefor. We rule in the negative. Execution of judgments pending appeal in election cases is governed by Section 2, Rule 39[6] of the Rules of Court which reads:

"Sec. 2. Discretionary execution. (a) Execution of a judgment or final order pending appeal. - On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal. After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court. Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing."

A valid exercise of the discretion to allow execution pending appeal requires that it should be based "upon good reasons to be stated in a special order." The following constitute "good reasons" and a combination of two or more of them will suffice to grant execution pending appeal: (1.) public interest involved or will

of the electorate; (2.) the shortness of the remaining portion of the term of the contested office; and (3.) the length of time that the election contest has been pending (emphasis supplied).[7] In Lauban vs. COMELEC[8], this Court ruled that "shortness of the remaining term of office and posting a bond are not good reasons for execution of a judgment pending appeal xxx".[9] In the present case, the petitioner relies solely on one ground to support his petition i.e. "shortness of term". We find that the COMELEC committed no reversible error in ruling that:

"Shortness of term, alone and by itself cannot justify premature execution. It must be manifest in the decision sought to be executed that the defeat of the protestee and the victory of the protestant has been clearly established."[10]

Moreover, Republic Act No. 8524,[11] which took effect in 1998, has extended the term of office of barangay officials to five (5) years, and this negates, or removes the factual basis for the finding of the MTC that the term of the contested office "had past almost midway of the whole term." COMELEC Chairman Harriet Demetriou correctly points out in her SEPARATE CONCURRING OPINION[12] that:

"Obviously, the court a quo erroneously assumed that the term of the barangay captains is only for three (3) years. Hence, the conclusion that the term of the contested office is almost in its midway. This, too, has no leg to stand on. It shall be worth stressing that Republic Act No. 8524 which took effect sometime in 1998 extended the term of office of barangay officials to five (5)years. Thus, it provides:

Section 1. Section 43 of Republic Act No. 1760, otherwise known as the Local Government Code of 1991, is hereby amended to read as follows: SEC. 43. Term of Office. xxx xxxx c the term of barangay officials and members of the sangguniang kabataan shall be for five (5) years, which shall begin after the regular election of barangay officials on the second Monday of May 1997 xxx xxx. Sec. 2. The provisions of this Act shall apply to the incumbent barangay officials xxx xxxx.

Perfunctorily, the term of the contested office will expire in the year 2002 or more or less, three years from now. "[13] Petitioners argument that COMELECs nullification of the MTC order does not imply that LAXINA is entitled to discharge the functions of Punong Brangay and that FERMO should cease and desist from performing said functions is flawed. The order of the COMELEC annulling the grant of execution pending appeal would be inutile if it did not have the effect of authorizing LAXINA to discharge the functions of Punong Barangay during the pendency of the appeal. When the COMELEC nullified the writ of execution pending appeal in favor of FERMO, the decision of the MTC proclaiming FERMO as the winner of the election was stayed[14] and the "status quo" or the last actual peaceful uncontested situation preceding the controversy[15] was restored. Thus, the COMELEC correctly ordered FERMO to cease and desist from performing the functions of Punong Barangay considering that LAXINA was the proclaimed winner of the election prior to FERMOs filing of the election protest. The order for FERMO to relinquish his post to LAXINA pending final resolution of the appeal is a logical and necessary consequence of the denial of execution pending appeal. Finally, there is nothing in the COMELEC Resolution which shows that the COMELEC made "conclusionary findings" which would in effect "pre-judge" the MTC decision itself. The Resolution categorically stated that the COMELEC shall not attempt to resolve who between LAXINA and FERMO has the right to occupy the contested seat for that question will appropriately be settled in the pending appeal. Although the Resolution cited certain "lapses patent on the decision itself" which "cast a cloud of uncertainty over the victory of Fermo", the observation was made to stress that no other justification other than the "shortness of term" would justify premature execution. WHEREFORE, the instant petition is hereby DISMISSED for failure of the petitioner to show that respondent Commission on Elections acted with grave abuse of discretion in rendering the challenged Resolution dated September 16, 1999 in SPR No. 4-99. Costs against petitioners. SO ORDERED.

EN BANC ROMULO F. PECSON, Petitioner,

- versus -

COMMISSION ON ELECTIONS, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT and LYNDON A. CUNANAN, Respondents.

G.R. No. 182865 Present:

PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, LEONARDO-DE CASTRO, and BRION, JJ.

Promulgated:

December 24, 2008

x --------------------------------------------------------------------------------------------x D E C I S I O N

BRION, J.:

This petition for certiorari filed by Romulo F. Pecson (Pecson) under Rule 64, in relation with Rule 65 of the Revised Rules of Court seeks to set aside and annul the Resolution dated May 21, 2008 of the Commission on Elections en banc (COMELEC) in SPR 60-2007.[1] The assailed Resolution nullified the grant (via a Special Order) by the Regional Trial Court (RTC), Branch 56, Angeles City, of the execution pending appeal of its Decision in the election contest between Pecson and the private respondent Lyndon A. Cunanan (Cunanan), the proclaimed winner in the 2007 mayoralty election in Magalang, Pampanga.

THE ANTECEDENTS

Pecson and Cunanan were candidates for the mayoralty position in the Municipality of Magalang, Province of Pampanga in the May 2007 elections. On May 17, 2007, Cunanan was proclaimed the winning candidate, garnering a total of 12,592 votes as against Pecsons 12,531, or a margin of 61 votes. Cunanan took his oath and assumed the position of Mayor of Magalang. Soon thereafter, Pecson filed an election protest, docketed as EPE No. 07-51, with the RTC. On November 23, 2007, the RTC rendered a Decision in Pecsons favor. The RTC ruled that Pecson received a total of 14,897 votes as against Cunanans 13,758 a vote margin of 1,139. Cunanan received a copy of the Decision on November 26, 2007 and filed a Notice of Appeal the day after. The RTC issued on November 27, 2008 an Order noting the filing of the notice of appeal and the payment of appeal fee and directing the transmittal of the records of the case to the Electoral Contests Adjudication Department (ECAD) of theCOMELEC. Pecson, on the other hand, filed on November 28, 2007 an Urgent Motion for Immediate Execution Pending Appeal, claiming that Section 11, Rule 14 of the Rules of Procedure in Election Contests before the Courts Involving Elective Municipal and Barangay Officials[2] (Rules) allows this remedy.

The RTC granted Pecsons motion for execution pending appeal via a Special Order dated December 3, 2007 (Special Order) but suspended, pursuant to the Rules, the actual issuance of the writ of execution for twenty (20) days. The Special Order states the following reasons:

1. The result of the judicial revision show[s] that the protestant garnered 14,897 votes as against protestees 13,758 votes or a plurality of 1,139 votes. The victory of the protestant is clearly and manifestly established by the rulings and tabulation of results made by the Court x x x; 2. It is settled jurisprudence that execution pending appeal in election cases should be granted to give as much recognition to the worth of a trial judges decision as that which is initially ascribed by the law to the proclamation by the board of canvassers. The Court holds that this wisp of judicial wisdom of the Supreme Court enunciated in the Gahol case and subsequent cases citing it is borne by the recognition that the decision of the trial court in an election case is nothing but the court upholding the mandate of the voter, which has as its source no other than the exercise of the constitutional right to vote. While it is true that the protestee can avail of the remedy of appeal before the COMELEC, the Court is more convinced that between upholding the mandate of the electorate of Magalang, Pampanga which is the fruit of the exercise of the constitutional right to vote and a procedural remedy, the Court is more inclined to uphold and give effect to and actualize the mandate of the electorate of Magalang. To the mind of the Court, in granting execution pending appeal the Court is being true to its bounden duty to uphold the exercise of constitutional rights and gives flesh to the mandate of the people. The foregoing is, as far as the Court is concerned, considered far superior circumstance that convinces the Court to grant protestants motion; 3. Public interest and the will of the electorate must be respected and given meaning; 4. In the case of Navarosa v. Comelec, the Supreme Court held that In the Gahol case, the Court gave an additional justification for allowing execution pending appeal of decisions of trial courts, thus: Public policy underlies it, x x x [S]omething had to be done to strike the death blow at the pernicious grab-the-proclamation-prolong-the-protest technique often, if not invariably, resorted to by unscrupulous politicians who would render nugatory the peoples verdict against them and persist in continuing in an office they very well know they have no legitimate right to hold. x x x. A primordial public interest is served by the grant of the protestants motion, i.e., to obviate a hollow victory for the duly elected candidate. In the words of Chief Justice Cesar Bengzon, The well known delay in the adjudication of election protests often gave the successful contestant a mere pyrrhic victory, i.e., a vindication when the term of office is about to expire or has expired.

Expectedly, Cunanan moved to reconsider the Order, arguing that the RTC gravely abused its discretion: (1) in ruling that there were good reasons to issue a writ of execution pending appeal; and (2) in entertaining and subsequently granting the motion for execution pending appeal despite the issuance of an order transmitting the records of the case.

Thereupon, Cunanan filed with the COMELEC a Petition for Application of Preliminary Injunction with Prayer for Status Quo Ante Order/Temporary

Restraining Order (TRO) with Prayer for Immediate Raffle. He argued in his petition that: (1) the RTC Decision did not clearly establish Pecsons victory or his (Cunanans) defeat a requirement of Section 11, Rule 14 of the Rules; among other reasons, the number of votes the RTC tallied and tabulated exceeded the number of those who actually voted and the votes cast for the position of Mayor, and (2) the RTC had constructively relinquished its jurisdiction by the issuance of the Order dated November 27, 2007 directing the transmittal of the records of the case.

The Second Division of the COMELEC issued on January 4, 2008 a 60-day TRO directing: (1) the RTC to cease and desist from issuing or causing the

issuance of a writ of execution or implementing the Special Order; and (2) Cunanan to continue performing the functions of Mayor of Magalang. In his Answer and/or Opposition, with Prayer for Immediate Lifting of TRO, Pecson argued that: (1) preliminary injunction cannot exist except as part

or incident of an independent action, being a mere ancillary remedy that exists only as an incident of the main proceeding; (2) the petition for application of preliminary injunction, as an original action, should be dismissed outright; and (3) Cunanan is guilty of forum shopping, as he filed a motion for reconsideration of the Special Order simultaneously with the petition filed with the COMELEC.

The COMELECs Second Division denied Cunanans petition in a Resolution dated March 6, 2008. It ruled that: (1) the resolution of the motion for

execution pending appeal is part of the residual jurisdiction of the RTC to settle pending incidents; the motion was filed prior to the expiration of the period to appeal and while the RTC was still in possession of the original record; and (2) there is good reason to justify the execution of the Decision pending appeal, as Pecsons victory was clearly and manifestly established.Ruling on the alleged defect in the RTC count, the Second Division ruled:

[A]fter a careful scrutiny of the Decision, We found that the error lies in the trial courts computation of the results. In its Decision, the trial court, to the votes obtained by the party (as per proclamation of the MBOC), deducted the votes per physical count after revision and deducted further the invalid/nullified ballots per the trial courts appreciation and thereafter added the valid claimed ballots per the trial courts appreciation, thus:

Votes obtained per proclamation of the MBOC (-) Votes per physical count (-) Invalid or nullified ballots (+) Valid claimed ballots =

Total Votes Obtained The formula used by the trial court is erroneous as it used as its reference the votes obtained by the parties as per the proclamation of

the MBOC. It complicated an otherwise simple and straightforward computation, thus leading to the error. The correct formula should have been as follows:

Total Number of Uncontested Ballots (+) Valid Contested Ballots (+) Valid Claimed Ballots = Total Votes Obtained Using this formula and applying the figures in pages 744 and 745 of the trial courts Decision, the results will be as follows: For the Petitioner Cunanan Total Number of Uncontested Ballots 9,656

Add: Valid Contested Ballots 2,058 Add: Valid Claimed Ballots 36 Total Votes of Petitioner 11,750 For the Private Respondent (Pecson) Total Number of Uncontested Ballots 9,271 Add: Valid Contested Ballots 2,827 Add: Valid Claimed Ballots 39 Total Votes of Petitioner 12,134 Using the correct formula, private respondent still obtained a plurality of the votes cast and enjoys a margin of 384 votes over the

petitioner. Although not as wide as the margin found by the trial court, We are nevertheless convinced that the victory of private respondent has been clearly established in the trial courts decision for the following reasons:

First, the error lies merely in the computation and does not put in issue the appreciation and tabulation of votes. The error is

purely mathematical which will not involve the opening of ballot boxes or an examination and appreciation of ballots. It is a matter of arithmetic which calls for the mere clerical act of reflecting the true and correct votes of the candidates.

Second, the error did not affect the final outcome of the election protest as to which candidate obtained the plurality of the

votes cast. We are likewise convinced that the assailed order states good or special reasons justifying the execution pending appeal, to wit: (1) The victory of the protestant was clearly and manifestly established; (2) Execution pending appeal in election cases should be granted to give as much recognition to the worth of a trial judges decision

as that which is initially ascribed by the law to the proclamation by the board of canvassers; (3) Public interest and the will of the electorate must be respected and given meaning; and (4) Public policy underlies it, as something had to be done to strike the death blow at the pernicious grab-the-proclamation-prolong-

the-protest technique often, if not invariably resorted to by unscrupulous politicians. Such reasons to Our mind constitute superior circumstances as to warrant the execution of the trial courts decision pending appeal.

Pecson thus asked for the issuance of a writ of execution via an Ex-Parte Motion. Despite Cunanans opposition, the RTC granted Pecsons motion and issued the writ of execution on March 11, 2008. Pecson thereafter assumed the duties and functions of Mayor of Magalang. The Assailed Resolution

On Cunanans motion, the COMELEC en banc issued its Resolution dated May 21, 2008 reversing the ruling of the Second Division insofar as it affirmed the RTCs findings of good reasons to execute the decision pending appeal. It affirmed the authority of the RTC to order execution pending appeal; it however nullified the March 11, 2008 writ of execution on the ground that the RTC could no longer issue the writ because it had lost jurisdiction over the case after transmittal of the records and the perfection of the appeals of both Cunanan and Pecson (to be accurate, the lapse of Pecsons period to appeal).

On the propriety of executing the RTC Decision pending appeal, the COMELEC en banc ruled that it was not convinced of the good reasons stated by the RTC in its Special Order. It ruled that recognition of the worth of a trial judges decision, on the one hand, and the right to appeal, including the Commissions authority to review the decision of the trial court, on the other, requires a balancing act; and not every invocation of public interest will suffice to justify an execution pending appeal. It added that at a stage when the decision of the trial court has yet to attain finality, both the protestee and the protestant are to be considered presumptive winners. It noted too that the Second Division already cast a doubt on the correctness of the number of votes obtained by the parties after the trial courts revision; thus, the resolution of the pending appeal becomes all the more important. Between two presumptive winners, considering the pending appeal of the election protest to the Commission and public service being the prime consideration,the balance should tilt in favor of non-disruption of government service. The execution of the RTC Decision pending appeal would necessarily entail the unseating of the protestee, resulting not only in the disruption of public service, but also in confusion in running the affairs of the government; a subsequent reversal too of the RTC Decision also results in the unseating of the protestant. This situation (i.e., the series of turn-over of the seat of power from one presumptive winner to another) cannot but cause irreparable damage to the people of Magalang, and overweighs the reasons asserted by the RTC in its Special Order. In the end, according to the COMELEC, public interest is best served when he who was really voted for the position is proclaimed and adjudged as winner with finality. The Petition and the Prayer for the issuance of a Status Quo Order In imputing grave abuse of discretion to the COMELEC en banc, Pecson argues that: (1) the RTC Decision clearly showed Pecsons victory; (2) the reasons for the reversal of the RTC Decision practically render impossible a grant of an execution pending appeal; and (3) the RTC correctly found the presence of the requisites for execution pending appeal. Threatened to be unseated, Pecson asked, as interim relief, for the issuance of a Status Quo Order. He claimed that: (1) the Department of Interior and Local Government already recognized (based on the issuance of the assailed Resolution) Cunanans assumption of office even if the assailed Resolution had not attained finality; and (2) in order to prevent grave and irreparable injury to Pecson and the perpetuation of a travesty of justice, a Status Quo Order must immediately issue.

THE COURTS RULING We find the petition meritorious. The remedy of executing court decisions pending appeal in election contests is provided under the Rules as follows:

SEC. 11. Execution pending appeal . On motion of the prevailing party with notice to the adverse party, the court, while still in possession of the original records, may, at its discretion, order the execution of the decision in an election contest before the expiration of the period to appeal, subject to the following rules:

(a) There must be a motion by the prevailing party with three-day notice to the adverse party. Execution pending appeal shall not issue without prior notice and hearing. There must be good reasons for the execution pending appeal. The court, in a special order, must state the good or special reasons justifying the execution pending appeal. Such reasons must:

(1) constitute superior circumstances demanding urgency that will outweigh the injury or damage should the losing party secure a reversal of the judgment on appeal; and

(2) be manifest, in the decision sought to be executed, that the defeat of the protestee or the victory of the protestant has been clearly established.

(b) If the court grants execution pending appeal, an aggrieved party shall have twenty working days from notice of the special

order within which to secure a restraining order orstatus quo order from the Supreme Court of the Commission on Elections. The corresponding writ of execution shall issue after twenty days, if no restraining order or status quo order is issued.During such period, the writ of execution pending appeal shall be stayed. [3]

This remedy is not new. Under prevailing jurisprudence,[4] the remedy may be resorted to pursuant to the suppletory application of the Rules of Court,

specifically its Section 2, Rule 39.[5] What the Rules (A.M. No. 07-4-15-C) has done is to give the availability of the remedy the element of certainty. Significantly, the Rules similarly apply thegood reason standard (in fact, the even greater superior circumstances standard) for execution pending appeal under the Rules of Court, making the remedy an exception rather than the rule.

At the heart of the present controversy is the question of whether there has been compliance with the standards required for an execution pending appeal

in an election contest. As heretofore cited, the RTC found all these requisites present. The Second Division of the COMELEC supported the RTCs ruling, but the COMELEC en banc held a contrary view and nullified the execution pending appeal. This en banc ruling is now before us.

Our review of a COMELEC ruling or decision is via a petition for certiorari. This is a limited review on jurisdictional grounds, specifically of the question on whether the COMELEC has jurisdiction, or whether the assailed order or resolution is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction. Correctly understood, grave abuse of discretion is such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or [an] exercise of power in an arbitrary and despotic manner by reason of passion or personal hostility, or an exercise of judgment so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or to act in a manner not at all in contemplation of law.[6]

Because this case is essentially about the implementation of an RTC decision pending appeal, we must first dwell on the writ the RTC issued. The

COMELEC ruled in this regard that the writ of execution the RTC issued on March 11, 2008 was void; the RTC could no longer issue the writ because of the lapse of the period for appeal, and because the RTC no longer held the records of the election contest which had then been transmitted to the ECAD-COMELEC.

Cunanan argues in his Comment that this ruling has become final and executory because Pecson did not question it in the present petition. In Cunanans

view, the finality of this aspect of the COMELEC ruling renders the issue of the nullification of the Special Order moot and academic, as any ruling we shall render would serve no practical purpose; it can no longer be implemented since the means (obviously referring to the writ the RTC issued on March 11, 2008) of executing the RTC decision (i.e., seating Pecson as Mayor of Magalang) has, to all intents and purposes, been nullified and rendered ineffective.

We see no merit in Cunanans argument. The writ of execution issued by the RTC is a mere administrative enforcement medium of the Special Order the

main order supporting Pecsons motion for the issuance of a writ of execution. The writ itself cannot and does not assume a life of its own independent from the Special Order on which it is based. Certainly, its nullification does not carry with it the nullification of the Special Order. This consequence does not of course hold true in the reverse situation the nullification of the Special Order effectively carries with it the nullification of its implementing writ and removes the basis for the issuance of another implementing writ. In the present case, the reality is that if and when we ultimately affirm the validity of the Special Order, nothing will thereafter prevent the RTC from issuing another writ.

Another legal reality is that the COMELEC is wrong in its ruling that the RTC could no longer actually issue the writ on March 11, 2008 because it no longer had jurisdiction to do so after the appeal period lapsed and after the records were transmitted to the ECAD-COMELEC. That the RTC is still in possession of the records and that the period to appeal (of both contending parties) must have not lapsed are important for jurisdictional purposes if the issue is the authority of the RTC to grant a Special Orderallowing execution pending appeal; they are requisite elements for the exercise by the RTC of its residual jurisdiction to validly order an execution pending appeal, not for the issuance of the writ itself. This is clearly evident from the cited provision of the Rules which does not require the issuance of the implementing writ within the above limited jurisdictional period. The RTC cannot legally issue the implementing writ within this limited period for two reasons: (1) the cited twenty-day waiting period under Section 11(b); and (2) the mandatory immediate transmittal of the records to the ECAD of the COMELEC under Section 10 of the Rules.[7]

On the substantive issue of whether a writ of execution pending appeal should issue, we do not agree with the COMELECs view that there are two

presumptive winnersprior to its ruling on the protest case. We likewise cannot support its balancing act view that essentially posits that given the pendency of the appeal and the lack of finality of a decision in the election protest, the unseating of the protestee, and the need for continuity of public service, the balance should tilt in favor of continuity or non-disruption of public service; hence, the execution pending appeal should be denied.

As Pecson correctly argued, this reasoning effectively prevents a winner (at the level of the courts) of an election protest from ever availing of an

execution pending appeal; it gives too much emphasis to the COMELECs authority to decide the election contest and the losing partys right to appeal. What is there to execute pending appeal if, as the COMELEC suggested, a party should await a COMELEC final ruling on the protest case? Effectively, the two presumptive winners and the balancing act views negate the execution pending appeal that we have categorically and unequivocally recognized in our rulings and in the Rules we issued. To be sure, the COMELEC cannot, on its own, render ineffective a rule of procedure we established by formulating its own ruling requiring a final determination at its level before an RTC decision in a protest case can be implemented.

We additionally note that disruption of public service necessarily results from any order allowing execution pending appeal and is a concern that this Court was aware of when it expressly provided the remedy under the Rules. Such disruption is therefore an element that has been weighed and factored in and cannot be per se a basis to deny execution pending appeal.

What comes out clearly from this examination of the COMELEC ruling is that it looked at the wrong material considerations when it nullified the RTCs

Special Order.They are the wrong considerations because they are not the standards outlined under Section 11, Rule 14 of the Rules against which the validity of a Special Order must be tested.Significantly, the use of wrong considerations in arriving at a decision constitutes grave abuse of discretion.[8]

The proper consideration that the COMELEC made relates to the correctness of the RTCs Decision in light of the Rules requirement that the victory of

the protestant and the defeat of the protestee be clearly established for execution pending appeal to issue. According to the COMELEC, no less than the Second Division cast a doubt on the correctness of the number of votes obtained by the parties after the revision of ballots when the Second Division proposed a mathematical formula to correct the RTC count. At the same time, the COMELEC noted that the Second Division could not have corrected the RTC count, as the petition before it was one for certiorari while the correction of errors in computation properly pertained to the resolution of Cunanans pending appeal. To the COMELEC, all these showed that the correctness of the RTC Decision in favor of Pecson was far from clear and cannot support an execution pending appeal.

We disagree once more with the COMELEC en banc in this conclusion, as it failed to accurately and completely appreciate the Second Divisions

findings. The RTC Decision, on its face, shows that Pecson garnered more valid votes than Cunanan after the revision of ballots. The Second Division properly recognized, however, that the RTC computation suffered from a facial defect that did not affect the final results; as Cunanan pointed out, the votes for Pecson and Cunanan, if totally summed up, exceeded the total number of valid votes for mayor.

Duly alerted, the Second Division looked into the purported error, analyzed it, and found the error to be merely mathematical; the RTC formula would

necessarily exceed the total number of votes cast for mayor because it counted some votes twice. In making this finding, the Second Division was guided by the rule that one of the requisites for an execution pending appeal is a clear showing in the decision of the protestants victory and the protestees defeat. Its examination of the RTC Decision was only for this limited purpose and this was what it did, no more no less. Specifically, it did not review the RTCs appreciation of the ballots on revision; it did not review the intrinsic merits of the RTC Decision issues that properly belong to the appeal that is currently pending. It merely found that the defect Cunanan noted was actually inconsequential with respect to the results, thus showing Pecsons clear victory under the RTC Decision. In other words, the Second Divisions corrected view of the RTC count confirmed, rather than contradicted or placed in doubt, the conclusion that Pecson won.

Other than the clarity of Pecsons victory under the RTC Decision, the Special Order cited good and special reasons that justified an execution pending

appeal, specifically:(1) the need to give as much recognition to the worth of a trial judges decision as that which is initially given by the law to the proclamation by the board of canvassers; (2) public interest and/or respect for and giving meaning to the will of the electorate; and (3) public policy something had to be done to deal a death blow to the pernicious grab-the-proclamation-prolong-the-protest technique often, if not invariably, resorted to by unscrupulous politicians who would render nugatory the peoples verdict against them.

Unfortunately, the COMELEC en banc simply glossed over the RTCs cited reasons and did not fully discuss why these reasons were not sufficient to

justify execution pending appeal. A combination, however, of the reasons the RTC cited, to our mind, justifies execution of the RTC Decision pending appeal. A striking feature of the present case is the time element involved. We have time and again noted the well known delay in the adjudication of election

contests that, more often than not, gives the protestant an empty or hollow victory in a long drawn-out legal battle.[9] Some petitions before us involving election contests have been in fact dismissed for being moot, the term for the contested position having long expired before the final ruling on the merits came.[10] In the present case, the term for mayor consists of only three (3) years. One year and six months has lapsed since the May 2007 election; thus, less than two years are left of the elected mayors term. The election protest, while already decided at the RTC level, is still at the execution-pending-appeal stage and is still far from the finality of any decision on the merits, given the available appellate remedies and the recourses available through special civil actions. To be sure, there is nothing definite in the horizon on who will finally be declared the lawfully elected mayor.

Also, we reiterate here our consistent ruling that decisions of the courts in election protest cases, resulting as they do from a judicial evaluation of the

ballots and after full-blown adversarial proceedings, should at least be given similar worth and recognition as decisions of the board of canvassers.[11] This is especially true when attended by other equally weighty circumstances of the case, such as the shortness of the term of the contested elective office, of the case.

In light of all these considerations, we conclude that the COMELEC erred in nullifying the RTCs Special Order in a manner sufficiently gross to affect

its exercise of jurisdiction. Specifically, it committed grave abuse of discretion when it looked at wrong considerations and when it acted outside of the contemplation of the law in nullifying the Special Order. WHEREFORE, premises considered, we GRANT the petition and accordingly ANNUL the assailed COMELEC Resolution.

SO ORDERED.

EN BANC [G.R. No. 135150. July 28, 1999]

ROMEO LONZANIDA, petitioner, vs. THE HONORABLE COMMISSION ON ELECTION and EUFEMIO MULI, repondents. D E C I S I O N

GONZAGA-REYES, J.: This petition for certiorari under Rule 65 of the Rules of Court seeks to set aside the resolutions issued by the COMELEC First Division dated May 21,

1998 and by the COMELEC En Banc dated August 11, 1998 in SPA 98-190 entitled, In the matter of the Petition to Disqualify Mayoralty Candidate Romeo Lonzanida of San Antonio, Zambales. Eufemio Muli, petitioner, vs. Romeo Lonzanida, respondent. The assailed resolutions declared herein petitioner Romeo Lonzanida disqualified to run for Mayor in the municipality of San Antonio, Zambales in the May 1998 elections and that all votes cast in his favor shall not be counted and if he has been proclaimed winner the said proclamation is declared null and void.

Petitioner Romeo Lonzanida was duly elected and served two consecutive terms as municipal mayor of San Antonio, Zambales prior to the May 8, 1995 elections. In the May 1995 elections Lonzanida ran for mayor of San Antonio, Zambales and was again proclaimed winner. He assumed office and discharged the duties thereof. His proclamation in 1995 was however contested by his then opponent Juan Alvez who filed an election protest before the Regional Trial Court of Zambales, which in a decision dated January 9, 1997 declared a failure of elections. The court ruled: PREMISES CONSIDERED, this court hereby renders judgment declaring the results of the election for the office of the mayor in San Antonio, Zambales last May 8, 1995 as null and void on the ground that there was a failure of election. Accordingly, the office of the mayor of the Municipality of San Antonio, Zambales is hereby declared vacant. Both parties appealed to the COMELEC. On November 13, 1997 the COMELEC resolved the election protest filed by Alvez and after a revision and re-appreciation of the contested ballots declared Alvez the duly elected mayor of San Antonio, Zambales by plurality of votes cast in his favor totaling 1,720 votes as against 1,488 votes for Lonzanida. On February 27, 1998 the COMELEC issued a writ of execution ordering Lonzanida to vacate the post, which obeyed, and Alvez assumed office for the remainder of the term.

In the May 11, 1998 elections Lonzanida again filed his certificate of candidacy for mayor of San Antonio. On April 21, 1998 his opponent Eufemio Muli timely filed a petition to disqualify Lonzanida from running for mayor of San Antonio in the 1998 elections on the ground that he had served three consecutive terms in the same post. On May 13, 1998, petitioner Lonzanida was proclaimed winner. On May 21, 1998 the First Division of the COMELEC issued the questioned resolution granting the petition for disqualification upon a finding that Lonzanida had served three consecutive terms as mayor of San Antonio, Zambales and he is therefore disqualified to run for the same post for the fourth time. The COMELEC found that Lonzanidas assumption of office by virtue of his proclamation in May 1995, although he was later unseated before the expiration of the term, should be counted as service for one full term in computing the three term limit under the Constitution and the Local Government Code. The finding of the COMELEC First Division was affirmed by the COMELEC En Banc in a resolution dated August 11, 1998.

Petitioner Lonzanida challenges the validity of the COMELEC resolutions finding him disqualified to run for mayor of San Antonio Zambales in the 1998 elections. He maintains that he was duly elected mayor for only two consecutive terms and that his assumption of office in 1995 cannot be counted as service of a term for the purpose of applying the three term limit for local government officials, because he was not the duly elected mayor of San Antonio in the May 1995 elections as evidenced by the COMELEC decision dated November 13, 1997 in EAC no. 6-97 entitled Juan Alvez, Protestant-Appellee vs. Romeo Lonzanida, Protestee-Appellant, wherein the COMELEC declared Juan Alvez as the duly elected mayor of San Antonio, Zambales. Petitioner also argues that the COMELEC ceased to have jurisdiction over the petition for disqualification after he was proclaimed winner in the 1998 mayoral elections; as the proper remedy is a petition for quo warranto with the appropriate regional trial court under Rule 36 of the COMELEC Rules of Procedure.

Private respondent Eufemio Muli filed comment to the petition asking this court to sustain the questioned resolutions of the COMELEC and to uphold its jurisdiction over the petition for disqualification.The private respondent states that the petition for disqualification was filed on April 21, 1998 or before the May 1998 mayoral elections. Under section 6, RA 6646 and Rule 25 of the COMELEC Rules of Procedure petitions for disqualification filed with the COMELEC before the elections and/or proclamation of the party sought to be disqualified may still be herd and decided by the COMELEC after the election and

proclamation of the said party without distinction as to the alleged ground for disqualification, whether for acts constituting an election offense or for ineligibility. Accordingly, it is argued that the resolutions of the COMELEC on the merits of the petition for disqualification were issued within the commissions jurisdiction. As regards the merits of the case, the private respondent maintains that the petitioners assumption of office in 1995 should be considered as service of one full term because he discharged the duties of mayor for almost three years until March 1, 1998 or barely a few months before the next mayoral elections.

The Solicitor-General filed comment to the petition for the respondent COMELEC praying for the dismissal of the petition. The Solicitor-General stressed that section 8, Art. X of the Constitution and section 43 (b), Chapter I of the Local Government Code which bar a local government official from serving more than three consecutive terms in the same position speaks of service of a term and so the rule should be examined in this light. The public respondent contends that petitioner Lonzanida discharged the rights and duties of mayor from 1995 to 1998 which should be counted as service of one full term, albeit he was later unseated, because he served as mayor for the greater part of the term. The issue of whether or not Lonzanida served as a de jure or de facto mayor for the 1995-1998 term is inconsequential in the application of the three term limit because the prohibition speaks of service of a term which was intended by the framers of the Constitution to foil any attempt to monopolize political power. It is likewise argued by the respondent that a petition for quo warranto with the regional trial court is proper when the petition for disqualification is filed after the elections and so the instant petition for disqualification which was filed before the elections may be resolved by the COMELEC thereafter regardless of the imputed basis of disqualification.

The petitioner filed Reply to the comment. It is maintained that the petitioner could not have served a valid term from 1995 to 1998 although he assumed office as mayor for that period because he was no t lawfully elected to the said office. Moreover, the petitioner was unseated before the expiration of the term and so his service for the period cannot be considered as one full term. As regards the issue of jurisdiction, the petitioner reiterated in his Reply that the COMELEC ceased to have jurisdiction to hear the election protest after the petitioners proclamation.

The petition has merit. Section 8, Art. X of the Constitution provides:

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

Section 43 of the Local Government Code (R.A. No. 7160) restates the same rule: Sec. 43. Term of Office. (b) No local elective official shall serve for more than three consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected.

The issue before us is whether petitioner Lonzanidas assumption of office as mayor of San Antonio Zambales from May 1995 to March 1998 may be considered as service of one full term for the purpose of applying the three-term limit for elective local government officials.

The records of the 1986 Constitutional Commission show that the three-term limit which is now embodied in section 8, Art. X of the Constitution was initially proposed to be an absolute bar to any elective local government official from running for the same position after serving three consecutive terms. The said disqualification was primarily intended to forestall the accumulation of massive political power by an elective local government official in a given locality in order to perpetuate his tenure in office. The delegates also considered the need to broaden the choices of the electorate of the candidates who will run for office, and to infuse new blood in the political arena by disqualifying officials from running for the same office after a term of nine years. The mayor was compared by some delegates to the President of the Republic as he is a powerful chief executive of his political territory and is most likely to form a political dynasty.[1] The drafters however, recognized and took note of the fact that some local government officials run for office before they reach forty years of age; thus to perpetually bar them from running for the same office after serving nine consecutive years may deprive the people of qualified candidates to choose from. As finally voted upon, it was agreed that an elective local government official should be barred from running for the same post after three consecutive terms. After a hiatus of at least one term, he may again run for the same office.[2]

The scope of the constitutional provision barring elective officials with the exception of barangay officials from serving more than three consecutive terms was discussed at length in the case of Benjamin Borja, Jr., vs. COMELEC and Jose Capco, Jr.[3] where the issue raised was whether a vice-mayor who succeeds

to the office of the mayor by operation of law upon the death of the incumbent mayor and served the remainder of the term should be considered to have served a term in that office for the purpose of computing the three term limit. This court pointed out that from the discussions of the Constitutional Convention it is evident that the delegates proceeded from the premise that the officials assumption of office is by reason of election. This Court stated:[4] Two ideas emerge from a consideration of the proceedings of the Constitutional Commission. The first is the notion of service of term, derived from the concern about the accumulation of power as a result of a prolonged stay in office. The second is the idea of election, derived from the concern that the right of the people to choose those whom they wish to govern them be preserved. It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on the assumption that the officials concerned were serving by reason of election. This is clear from the following exchange in the Constitutional Commission concerning term limits, now embodied in Art. VI sections 4 and 7 of the Constitution, for members of Congress:

MR. GASCON. I would like to ask a question with regard to the issue after the second term. We will allow the Senator to rest for a period of time before he can run again?

MR. DAVIDE. That is correct. MR. GASCON. And the question that we left behind before-if the Gentlemen will remember-was: How long will that period of rest be? Will it be one

election which is three years or one term which is six years? MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the view that during the election following the expiration of the first 12

years, whether such election will be on the third year or on the sixth year thereafter, his particular member of the Senate can run. So it is not really a period of hibernation for six years. That was the Committees stand.

xxxx xxxx xxxx Second, not only historical examination but textual analysis as well supports the ruling of the COMELEC that Art X, section 8 contemplates service by local officials for three consecutive terms as a result of election. The first sentence speaks of the term of office of elective local officials and bars such officials from serving for more than three consecutive terms. The second sentence, in explaining when an elective official may be deemed to have served his full term of office, states that voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. The term served must therefore be one for which the the official concerned was elected. The purpose of the provision is to prevent a circumvention of the limitation on the number of terms an elective official may serve. This Court held that two conditions for the application of the disqualification must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive terms. It stated: To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply.

It is not disputed that the petitioner was previously elected and served two consecutive terms as mayor of San Antonio Zambales prior to the May 1995 mayoral elections. In the May 1995 elections he again ran for mayor of San Antonio, Zambales and was proclaimed winner. He assumed office and discharged the rights and duties of mayor until March 1998 when he was ordered to vacate the post by reason of the COMELEC decision dated November 13, 1997 on the election protest against the petitioner which declared his opponent Juan Alvez, the duly elected mayor of San Antonio. Alvez served the remaining portion of the 1995-1998 mayoral term.

The two requisites for the application of the three term rule are absent. First, the petitioner cannot be considered as having been duly elected to the post in the May 1995 elections, and second, the petitioner did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. After a re-appreciation and revision of the contested ballots the COMELEC itself declared by final judgment that petitioner Lonzanida lost in the May 1995 mayoral elections and his previous proclamation as winner was declared null and void. His assumption of office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void proclamation. It has been repeatedly held by this court that a proclamation subsequently declared void is no proclamation at all[5] and while a proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who

assumes office subject to the final outcome of the election protest.[6] Petitioner Lonzanida did not serve a term as mayor of San Antonio, Zambales from May 1995 to March 1998 because he was not duly elected to the post; he merely assumed office as presumptive winner, which presumption was later overturned by the COMELEC when it decided with finality that Lonzanida lost in the May 1995 mayoral elections.

Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate his post before the expiration of the term. The respondents contention that the petitioner should be deemed to have served one full term from May 1995-1998 because he served the greater portion of that term has no legal basis to support it; it disregards the second requisite for the application of the disqualification, i.e., that he has fully served three consecutive terms. The second sentence of the constitutional provision under scrutiny states, Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected. The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the peoples choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term porvided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term.

In sum, the petitioner was not the duly elected mayor and that he did not hold office for the full term; hence, his assumption of office from May 1995 to March 1998 cannot be counted as a term for purposes of computing the three term limit. The Resolution of the COMELEC finding him disqualified on this ground to run in the May 1998 mayoral elections should therefore be set aside.

The respondents harp on the delay in resolving the election protest between petitioner and his then opponent Alvez which took roughly about three years and resultantly extended the petitioners incumbency in an office to which he was not lawfully elected. We note that such delay cannot be imputed to the petitioner. There is no specific allegation nor proof that the delay was due to any political maneuvering on his part to prolong his stay in office. Moreover, protestant Alvez, was not without legal recourse to move for the early resolution of the election protest while it was pending before the regional trial court or to file a motion for the execution of the regional trial courts decision declaring the position of mayor vacant and ordering the vice-mayor to assume office while the appeal was pending with the COMELEC. Such delay which is not here shown to have been intentionally sought by the petitioner to prolong his stay in office cannot serve as basis to bar his right to be elected and to serve his chosen local government post in the succeeding mayoral election.

The petitioners contention that the COMELEC ceased to have jurisdiction over the petition for disqualification after he was proclaimed winner is without merit. The instant petition for disqualification was filed on April 21, 1998 or before the May 1998 elections and was resolved on May 21, 1998 or after the petitioners proclamation. It was held in the case of Sunga vs. COMELEC and Trinidad[7] that the proclamation nor the assumption of office of a candidate against whom a petition for disqualification is pending before the COMELEC does not divest the COMELEC of jurisdiction to continue hearing the case and to resolve it on the merits.

Section 6 of RA 6646 specifically mandates that: Sec. 6. Effects of disqualification Case.- any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the court or commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.

This court held that the clear legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion i.e., until judgment is rendered. The outright dismissal of the petition for disqualification filed before the election but which remained unresolved after the proclamation of the candidate sought to be disqualified will unduly reward the said candidate and may encourage him to employ delaying tactics to impede the resolution of the petition until after he has been proclaimed.

The court stated:

Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion, i.e., until judgment is rendered thereon. The word shall signified that this requirement of the law is mandatory, operating to impose a positive duty which must be enforced. Theimplication is that the COMELEC is left with no discretion but to proceed with the disqualification case even after the election. Thus, in providing for the outright dismissal of the disqualification case which remains unresolved after the election, Silvestre vs. Duavit in effect disallows what R. A. No. 6646 imperatively requires. This amounts to a quasi-judicial legislation by the COMELEC which cannot be countenanced and is invalid for having been issued beyond the scope of its authority. Interpretative rulings of quasi-judicial bodies or administrative agencies must always be in perfect harmony with statutes and should be for the sole purpose of carrying their general provisions into effect. By such interpretative or administrative rulings, of course, the scope of the law itself cannot be limited. Indeed, a quasi-judicial body or an administrative agency for that matter cannot amend an act of Congress.Hence, in case of a discrepancy between the basic law and an interpretative or administrative ruling, the basic law prevails. Besides, the deleterious effect of the Silvestre ruling is not difficult to forsee. A candidate guilty of election offenses would be undeservedly rewarded, instead of punished, by the dismissal of thedisqualification case against him simply because the investigating body was unable, for any reason caused upon it, to determine before the election if the offenses were indeed committed by the candidate sought to be disqualified. All that the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on the commission of election offenses would not be decided before the election. This scenario is productive of more fraud which certainly is not the main intent and purpose of the law. The fact that Trinidad was already proclaimed and had assumed the position of mayor did not divest the COMELEC of authority and jurisdiction to continue the hearing and eventually decide the disqualification case. In Aguam v. COMELEC this Court held- Time and again this Court has given its imprimatur on the principle that COMELEC is with authority to annul any canvass and proclamation which was illegally made. The fact that a candidate proclaimed has assumed office, we have said, is no bar to the exercise of such power. It of course may not be availed of where there has been a valid proclamation. Since private respondents petition before the COMELEC is precisely directed at the annulment of the canvass and proclamation, we perceive that inquiry into this issue is within the area allocated by the Constitution and law to COMELEC xxx Really, were a victim of a proclamation to be precluded from challenging the validity thereof after that proclamation and the assumption of office thereunder, baneful effects may easily supervene. It must be emphasized that the purpose of a disqualification proceeding is to prevent the candidate from running or, if elected. From serving, or to prosecute him for violation of the election laws. Obviously, the fact that a candidate has been proclaimed elected does not signify that his disqualification is deemed condoned and may no longer be the subject of a separate investigation.

ACCORDINGLY, the petition is granted. The assailed resolutions of the COMELEC declaring petitioner Lonzanida disqualified to run for mayor in the 1998 mayoral elections are hereby set aside.

SO ORDERED.

EN BANC ROBERTO LACEDA, SR., Petitioner,

- versus -

RANDY L. LIMENA and COMMISSION ON ELECTIONS,

Respondents.

G.R. No. 182867 Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO,* CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES,

LEONARDO-DE CASTRO, and BRION, JJ.

Promulgated: November 25, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x RESOLUTION

QUISUMBING, J.:

From this Courts June 10, 2008 Resolution[1] dismissing his petition for certiorari, petitioner Roberto Laceda, Sr. filed the instant motion for reconsideration,[2] insisting that the Commission on Elections (COMELEC) committed grave abuse of discretion in issuing the Resolutions dated January 15, 2008[3] and May 7, 2008[4] in SPA No. 07-028 (BRGY).

The facts are as follows: Petitioner Roberto Laceda, Sr., and private respondent Randy L. Limena were candidates for Punong Barangay of Barangay Panlayaan, West District,

Sorsogon City, during the October 29, 2007 Barangay and Sangguniang Kabataan Elections. On October 23, 2007, Limena filed a petition for disqualification and/or declaration as an ineligible candidate[5] against Laceda before the COMELEC, contending that Laceda had already served as Punong Barangay for Brgy. Panlayaan for three consecutive terms since 1994, and was thus prohibited from running for the fourth time under Section 2 of Republic Act No. 9164[6] which provides:

SEC. 2. Term of Office.The term of office of all barangay and sangguniang kabataan officials after the effectivity of this Act shall be three (3) years.

No barangay elective official shall serve for more than three (3) consecutive terms in the same position: Provided, however, That the term of office shall be reckoned from the 1994 barangay elections. Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected. Limena likewise attached the following certification from the Department of the Interior and Local Government:

THIS IS TO CERTIFY that per records in this office HON. ROBERTO LACEDA, SR., incumbent Punong Barangay of Panlayaan, West District, Sorsogon City. was elected as Punong Barangay during the May 9, 1994, May 12, 1997 and July 15, 2002 Barangay Elections. He resigned from office on March 20, 1995 to run as Municipal Councilor. Hence, he is covered by the three-term rule of paragraph 2, Section 2 of RA 9164 which provides that: No barangay elective official shall serve for more than three (3) consecutive terms in the same position: Provided, however, that the term of office shall be reckoned from the 1994 barangay elections. Voluntary renunciation of office [for] any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected.[7]

x x x x

In his Answer,[8] Laceda admitted having served as Punong Barangay of Panlayaan for three consecutive terms. However, he asserted that when he was elected for his first two terms, Sorsogon was still a municipality, and that when he served his third term, the Municipality of Sorsogon had already been merged with the Municipality of Bacon to form a new political unit, the City of Sorsogon, pursuant to Republic Act No. 8806.[9] Thus, he argued that his third term was actually just his first in the new political unit and that he was accordingly entitled to run for two more terms.

Laceda likewise argued that assuming he had already served three consecutive terms, Rep. Act No. 9164 which imposes the three-term limit, cannot be made to apply to him as it would violate his vested right to office. He alleged that when he was elected in 1994 the prohibition did not exist. Had he known that there will be a law preventing him to run for the fourth time, he would not have run for office in 1994 as he was looking forward to the election in 2007.[10]

On January 15, 2008, the COMELEC declared Laceda disqualified and cancelled his certificate of candidacy: WHEREFORE, this Commission RESOLVED, as it hereby RESOLVED, to declare Respondent Roberto Laceda, Sr. DISQUALIFIED from running as Punong Barangay of Panlayaan, West District, Sorsogon City and consequently denies due course and cancels his Certificate of Candidacy. SO ORDERED.[11] Laceda moved for reconsideration, but his motion was denied by the COMELEC in a Resolution dated May 7, 2008. Aggrieved, Laceda filed a petition

for certiorari before this Court. On June 10, 2008, this Court dismissed the petition for failure to sufficiently show that any grave abuse of discretion was committed by the COMELEC

in rendering the assailed Resolutions of January 15, 2008 and May 7, 2008. Hence, this motion for reconsideration. Laceda insists that the COMELEC committed grave abuse of discretion in basing its decision on the requisites enunciated in Lonzanida v. Commission

on Elections[12] for the application of the three-term prohibition in Section 43[13] of the Local Government Code.[14] Laceda argues that said case is inapplicable since it involved the position of municipal mayor while the instant case concerned the position of Punong Barangay. He likewise insists that he served his third term in a new political unit and therefore he should not be deemed already to have served a third term as Punong Barangay for purposes of applying the three-term limit.[15]

For reasons hereafter discussed, the motion for reconsideration cannot prosper. Section 2 of Rep. Act No. 9164, like Section 43 of the Local Government Code from which it was taken, is primarily intended to broaden the choices of the

electorate of the candidates who will run for office, and to infuse new blood in the political arena by disqualifying officials from running for the same office after a term

of nine years. This Court has held that for the prohibition to apply, two requisites must concur: (1) that the official concerned has been elected for three consecutive terms in the same local government post and (2) that he or she has fully served three consecutive terms.[16]

In this case, while it is true that under Rep. Act No. 8806 the municipalities of Sorsogon and Bacon were merged and converted into a city thereby abolishing the former and creating Sorsogon City as a new political unit, it cannot be said that for the purpose of applying the prohibition in Section 2 of Rep. Act No. 9164, the office of Punong Barangay of Barangay Panlayaan, Municipality of Sorsogon, would now be construed as a different local government post as that of the office of Punong Barangay of Barangay Panlayaan,Sorsogon City. The territorial jurisdiction of Barangay Panlayaan, Sorsogon City, is the same as before the conversion. Consequently, the inhabitants of the barangay are the same.They are the same group of voters who elected Laceda to be their Punong Barangay for three consecutive terms and over whom Laceda held power and authority as their PunongBarangay. Moreover, Rep. Act No. 8806 did not interrupt Lacedas term.

In Latasa v. Commission on Elections,[17] which involved a similar question, this Court held that where a person has been elected for three consecutive terms as a municipal mayor and prior to the end or termination of such three-year term the municipality has been converted by law into a city, without the city charter interrupting his term until the end of the three-year term, the prohibition applies to prevent him from running for the fourth time as city mayor thereof, there being no break in the continuity of the terms.

Thus, conformably with the democratic intent of Rep. Act No. 9164 and this Courts ruling in Latasa v. Commission on Elections, we hold that the prohibition in Section 2 of said statute applies to Laceda. The COMELEC did not err nor commit any abuse of discretion when it declared him disqualified and cancelled his certificate of candidacy.

WHEREFORE, petitioner Roberto Laceda, Sr.s Motion for Reconsideration[18] dated July 25, 2008 assailing this Courts Resolution dated June 10, 2008 is DENIEDwith FINALITY.

SO ORDERED.

Republic of the Philippines SUPREME COURT

Manila EN BANC

G.R. No. 167591 May 9, 2007 ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN, Petitioners, vs. COMELEC and MARINO "BOKING" MORALES, Respondents. x---------------------------------------------x G.R. No. 170577 May 9, 2007 ANTHONY D. DEE, Petitioner, vs. COMELEC and MARINO "BOKING" MORALES, Respondents.

D E C I S I O N SANDOVAL-GUTIERREZ, J.: For our resolution are two consolidated petitions for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, assailing the Resolutions dated March 14, 2005 and November 8, 2005 of the COMELEC En Banc.

G.R. No. 167591 ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN v. COMELEC and MARINO "BOKING" MORALES

In the May 2004 Synchronized National and Local Elections, respondent Marino "Boking" Morales ran as candidate for mayor of Mabalacat, Pampanga for the term commencing July 1, 2004 to June 30, 2007. Prior thereto or on January 5, 2004, he filed his Certificate of Candidacy. On January 10, 2004, Attys. Venancio Q. Rivera and Normandick De Guzman, petitioners, filed with the Second Division of the Commission on Elections (COMELEC) a petition to cancel respondent Morales’ Certificate of Candidacy on the ground that he was elected and had served three previous consecutive terms as mayor of Mabalacat. They alleged that his candidacy violated Section 8, Article X of the Constitution and Section 43 (b) of Republic Act (R.A.) No. 7160, also known as the Local Government Code. In his answer to the petition, respondent Morales admitted that he was elected mayor of Mabalacat for the term commencing July 1, 1995 to June 30, 1998 (first term) and July 1, 2001 to June 30, 2004 (third term), but he served the second term from July 1, 1998 to June 30, 2001 only as a "caretaker of the office" or as a "de facto officer" because of the following reasons:

a. He was not validly elected for the second term 1998 to 2001 since his proclamation as mayor was declared void by the Regional Trial Court (RTC), Branch 57, Angeles City in its Decision dated April 2, 2001 in Election Protest Case (EPC) No. 98-131. The Decision became final and executory on August 6, 2001; and b. He was preventively suspended by the Ombudsman in an anti-graft case from January 16, 1999 to July 15, 1999.

On May 6, 2004, the COMELEC Second Division rendered its Resolution finding respondent Morales disqualified to run for the position of municipal mayor on the ground that he had already served three (3) consecutive terms. Accordingly, his Certificate of Candidacy was cancelled. On May 7, 2004, he filed with the COMELEC En Banc a motion for reconsideration. On March 14, 2005, the COMELEC En Banc issued a Resolution granting respondent Morales’ motion for reconsideration and setting aside that of the Second Division. The COMELEC En Banc held that since the Decision in EPC No. 98-131 of the RTC, Branch 57, Angeles City declared respondent Morales’ proclamation void, his discharge of the duties in the Office of the Mayor in Mabalacat is that of a de facto officer or a de facto mayor. Therefore, his continuous service for three consecutive terms has been severed. Hence, this petition for certiorari.

G.R. No. 170577 ANTHONY DEE v. COMMISSION ON ELECTIONS and MARIO "BOKING" MORALES

On May 24, 2004, after respondent Morales was proclaimed the duly elected mayor of Mabalacat for the term commencing July 1, 2004 to June 30, 2007, petitioner Anthony Dee, also a candidate for mayor, filed with the RTC, Branch 61, Angeles City a petition for quo warranto against the said respondent. Petitioner alleged that respondent Morales, having served as mayor for three consecutive terms, is ineligible to run for another term or fourth term. The case was docketed as Civil Case No. 11503. In his answer, respondent Morales raised the following defenses:

a. He was not validly elected for the term 1998 to 2001 since the RTC, Branch 57, Angeles City declared in its Decision that his proclamation as mayor of Mabalacat was void. Petitioner Dee was then proclaimed the duly elected mayor; and b. He was preventively suspended for six months by the Ombudsman, during the same term in an anti-graft case, an interruption in the continuity of his service as municipal mayor of Mabalacat.1

In its Decision dated November 22, 2004, the RTC dismissed petitioner Dee’s petition for quo warranto on the ground that respondent Morales did not serve the three-term limit since he was not the duly elected mayor of Mabalacat, but petitioner Dee in the May 1998 elections for the term 1998 to 2001, thus: Respondent, Marino Morales, was not the duly elected mayor of Mabalacat, Pampanga in the May 1998 elections for the term 1998 to 2001 because although he was proclaimed as the elected mayor of Mabalacat, Pampanga by the Municipal Board of Canvassers, had assumed office and discharged the duties of mayor, his close rival, the herein petitioner, Anthony D. Dee, was declared the duly elected Mayor of Mabalacat, Pampanga in the Decision promulgated on April 2, 2001 in Election Protest EPC No. 98-131 filed by Anthony Dee against herein respondent, Marino Morales, and decided by RTC, Br. 57, Angeles City. x x x. Petitioner Dee interposed an appeal to the COMELEC First Division, alleging that respondent Morales violated the three-term limit rule when he ran for re-election (fourth time) as mayor in the 2004 elections. Consequently, his proclamation as such should be set aside. In a Resolution dated July 29, 2005 the COMELEC First Division issued a Resolution dismissing the appeal. It held that respondent Morales cannot be deemed to have served as mayor of Mabalacat during the term 1998 to 2001 because his proclamation was declared void by the RTC, Branch 57 of Angeles City. He only served as a caretaker, thus, his service during that term should not be counted. On August 12, 2005, petitioner Dee filed with the COMELEC En Banc a motion for reconsideration. In a Resolution dated November 8, 2005, the COMELEC En Banc affirmed the questioned Resolution of the Second Division. Hence, petitioner Dee’s instant petition for certiorari. Both cases may be decided based on the same facts and issues. It is undisputed that respondent Morales was elected to the position of mayor of Mabalacat for the following consecutive terms:

a) July 1, 1995 to June 30, 1998 b) July 1, 1998 to June 30, 2001 c) July 1, 2001 to June 30, 2004 d) July 1, 2004 to June 30, 2007

THE PRINCIPAL ISSUE. – Respondent Morales argued and the Comelec held that the July 1, 2003 to June 30, 2007 term is not his fourth because his second term, July 1, 1998 to June 30, 2001 to which he was elected and which he served, may not be counted since his proclamation was declared void by the RTC, Branch 57 of Angeles City. Respondent Morales is wrong. This Court, through Mr. Justice Cancio C. Garcia, resolved the same issue in Ong v. Alegre2 with identical facts, thus: To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the office of mayor of San Vicente, Camarines Norte, with the latter being subsequently proclaimed by the COMELEC winner in the contest. Alegre subsequently filed an election protest, docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet, Camarines Norte. In it, the RTC declared Alegre as the duly elected mayor in that 1998 mayoralty contest, albeit the decision came out only on July 4, 2001, when Francis had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term as mayor-elected for the municipality of San Vicente.

x x x A resolution of the issues thus formulated hinges on the question of whether or not petitioner Francis’ assumption of office as mayor of San Vicente, Camarines Norte for the mayoralty term 1998 to 2001 should be considered as full service for the purpose of the three-term limit rule. Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other hand, disagrees. He argues that, while he indeed assumed office and discharged the duties as Mayor of San Vicente for three consecutive terms, his proclamation as mayor-elected in the May 1998 election was contested and eventually nullified per the Decision of the RTC of Daet, Camarines Norte dated July 4, 2001. Pressing the point, petitioner argues, citing Lonzanida v. Comelec, that a proclamation subsequently declared void is no proclamation at all and one assuming office on the strength of a protested proclamation does so as a presumptive winner and subject to the final outcome of the election protest.

x x x For the three-term limit for elective local government officials to apply, two conditions or requisites must concur, to wit: (1) that the official concerned has been elected for three (3) consecutive terms in the same local government post, and (2) that he has fully served three (3) consecutive terms. With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring petitioner Francis from running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. There can be no dispute about petitioner Francis Ong having been duly elected mayor of that municipality in the May 1995 and again in the May 2001 elections and serving the July 1, 1995-June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein controversy revolves around the 1998-2001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a proclamation initially declaring him mayor-elect of the municipality of San Vicente. The question that begs to be addressed, therefore, is whether or not Francis’ assumption of office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may be considered as one full term service in the context of the consecutive three-term limit rule. We hold that such assumption of office constitutes, for Francis, "service for the full term," and should be counted as a full term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions, supra, barring local elective officials from being elected and serving for more than three consecutive terms for the same position. It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, that it was Francis’ opponent (Alegre) who "won" in the 1998 mayoralty race and, therefore, was the legally elected mayor of San Vicente. However, that disposition, it must be stressed, was without practical and legal use and value, having been promulgated after the term of the contested office has expired. Petitioner Francis’ contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term rule. The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that Alegre would-under the three-term rule-be considered as having served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served such term pursuant to a proclamation made in due course after an election. Petitioner cites, but, to our mind, cannot seek refuge from the Court’s ruling in Lonzanida v. Comelec, citing Borja v. Comelec. In Lonzanida, petitioner Lonzanida was elected and served for two consecutive terms as mayor of San Antonio, Zambales prior to the May 8, 1995 elections. He then ran again for the same position in the May 1995 elections, won and discharged his duties as Mayor. However, his opponent contested his proclamation and filed an election protest before the RTC of Zambales, which, in a decision dated January 8, 1997, ruled that there was a failure of elections and declared the position vacant. The COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate the post. Lonzanida assumed the office and performed his duties up to March 1998 only. Now, during the May 1998 elections, Lonzanida again ran for mayor of the same town. A petition to disqualify, under the three-term rule, was filed and was eventually granted. There, the Court held that Lonzanida cannot be considered as having been duly elected to the post in the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term by reason of involuntary relinquishment of office. As the Court pointedly observed, Lonzanida "cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate [and in fact vacated] his post before the expiration of the term."

The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the mayoralty elections was declared a nullity for the stated reason of "failure of election," and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of the mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result of legal processes. In fine, there was an effective interruption of the continuity of service. On the other hand, the failure-of-election factor does not obtain in the present case. But more importantly, here, there was actually no interruption or break in the continuity of Francis’ service respecting the 1998-2001 term. Unlike Lonzanida, Francis was never unseated during the term in question; he never ceased discharging his duties and responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering the 1998-2001 term. It bears stressing that in Ong v. Alegre cited above, Francis Ong was elected and assumed the duties of the mayor of San Vicente, Camarines Norte for three consecutive terms. But his proclamation as mayor in the May 1998 election was declared void by the RTC of Daet, Camarines Norte in its Decision dated July 4, 2001. As ruled by this Court, his service for the term 1998 to 2001 is for the full term. Clearly, the three-term limit rule applies to him. Indeed, there is no reason why this ruling should not also apply to respondent Morales who is similarly situated. Here, respondent Morales invoked not only Lonzanida v. COMELEC,3 but also Borja, Jr. v. Commission on Elections4 which is likewise inapplicable. The facts in Borja are: Private respondent Jose T. Capco was elected vice-mayor of Pateros on January 18, 1998 for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law, upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor for a term of three years which ended on June 30, 1995. On May 8, 1995, he was reelected mayor for another term of three years ending June 30, 1998. On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of Pateros relative to the May 11, 1998 elections, Petitioner Benjamin U. Borja, Jr., who was also a candidate for mayor, sought Capco’s disqualification on the theory that the latter would have already served as mayor for three consecutive terms by June 30, 1998 and would therefore be ineligible to serve for another term after that. On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of petitioner and declared private respondent Capco disqualified from running for reelection as mayor of Pateros. However, on motion of private respondent, the COMELEC en banc, voting 5-2, reversed the decision and declared Capco eligible to run for mayor in the May 11, 1998 elections. x x x This Court held that Capco’s assumption of the office of mayor upon the death of the incumbent may not be regarded as a "term" under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code). He held the position from September 2, 1989 to June 30, 1992, a period of less than three years. Moreover, he was not elected to that position. Similarly, in Adormeo v. COMELEC,5 this Court ruled that assumption of the office of mayor in a recall election for the remaining term is not the "term" contemplated under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code). As the Court observed, there was a "break" in the service of private respondent Ramon T. Talanga as mayor. He was a "private citizen" for a time before running for mayor in the recall elections. Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the position. He served as mayor until June 30, 2001. He was mayor for the entire period notwithstanding the Decision of the RTC in the electoral protest case filed by petitioner Dee ousting him (respondent) as mayor. To reiterate, as held in Ong v. Alegre,6 such circumstance does not constitute an interruption in serving the full term. Section 8, Article X of the Constitution can not be more clear and explicit – The term of the office of elected local officials x x x, shall be three years and no such official shall serve for more than three consecutive terms. x x x Upon the other hand, Section 43 (b) of R.A. No. 7160 (the Local Government Code) clearly provides: No local official shall serve for more than three consecutive terms in the same position. x x x Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously without any break since July 1, 1995. In just over a month, by June 30, 2007, he will have been mayor of Mabalacat for twelve (12) continuous years. In Latasa v. Comelec,7 the Court explained the reason for the maximum term limit, thus: The framers of the Constitution, by including this exception, wanted to establish some safeguards against the excessive accumulation of power as a result of consecutive terms. As Commissioner Blas Ople stated during the deliberations:

x x x I think we want to prevent future situations where, as a result of continuous service and frequent re-elections, officials from the President down to the municipal mayor tend to develop a proprietary interest in their positions and to accumulate these powers and prerequisites that permit them to stay on indefinitely or to transfer these posts to members of their families in a subsequent election. x x x

x x x It is evident that in the abovementioned cases, there exists a rest period or a break in the service of local elective official. In Lonzanida, petitioner therein was a private citizen a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the private respondents therein lived as private citizens for two years and fifteen months respectively. Indeed, the law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit. This Court reiterates that the framers of the Constitution specifically included an exception to the people’s freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive term as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it. This is the very situation in the instant case. Respondent Morales maintains that he served his second term (1998 to 2001) only as a "caretaker of the office" or as a "de facto officer." Section 8, Article X of the Constitution is violated and its purpose defeated when an official serves in the same position for three consecutive terms. Whether as "caretaker" or "de facto" officer, he exercises the powers and enjoys the prerequisites of the office which enables him "to stay on indefinitely". Respondent Morales should be promptly ousted from the position of mayor of Mabalacat. G.R. No. 167591 – Having found respondent Morales ineligible, his Certificate of Candidacy dated December 30, 2003 should be cancelled. The effect of the cancellation of a Certificate of Candidacy is provided under Sections 6 and 7 of R.A. No. 6646, thus: SECTION 6. Effect of Disqualification Case. – Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. – The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881. in relation to Section 211 of the Omnibus Election Code, which provides: SEC. 211. Rules for the appreciation of ballots. – In the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection. The board of election inspectors shall observe the following rules, bearing in mind that the object of the election is to obtain the expression of the voter’s will:

x x x 19. Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot.

x x x In the light of the foregoing, respondent Morales can not be considered a candidate in the May 2004 elections. Not being a candidate, the votes cast for him SHOULD NOT BE COUNTED and must be considered stray votes. G.R. No. 170577 – Since respondent Morales is DISQUALIFIED from continuing to serve as mayor of Mabalacat, the instant petition for quo warranto has become moot.

Going back to G.R. No. 167591, the question now is whether it is the vice-mayor or petitioner Dee who shall serve for the remaining portion of the 2004 to 2007 term. In Labo v. Comelec,8 this Court has ruled that a second place candidate cannot be proclaimed as a substitute winner, thus: The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office.

x x x It is therefore incorrect to argue that since a candidate has been disqualified, the votes intended for the disqualified candidate should, in effect, be considered null and void. This would amount to disenfranchising the electorate in whom sovereignty resides. At the risk of being repetitious, the people of Baguio City opted to elect petitioner Labo bona fide, without any intention to misapply their franchise, and in the honest belief that Labo was then qualified to be the person to whom they would entrust the exercise of the powers of the government. Unfortunately, petitioner Labo turned out to be disqualified and cannot assume the office. Whether or not the candidate whom the majority voted for can or cannot be installed, under no circumstances can minority or defeated candidate be deemed elected to the office. Surely, the 12,602 votes cast for petitioner Ortega is not a larger number than the 27,471 votes cast for petitioner Labo (as certified by the Election Registrar of Baguio City; rollo, p. 109; GR No. 105111).

x x x As a consequence of petitioner’s ineligibility, a permanent vacancy in the contested office has occurred. This should now be filled by the vice-mayor in accordance with Section 44 of the Local Government Code, to wit: Sec. 44. Permanent vacancies in the Offices of the Governor, Vice-Governor, Mayor and Vice-Mayor. – (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or the vice-mayor concerned shall become the governor or mayor. x x x WHEREFORE, the petition in G.R. No. 167591 is GRANTED. Respondent Morales’ Certificate of Candidacy dated December 30, 2003 is cancelled. In view of the vacancy in the Office of the Mayor in Mabalacat, Pampanga, the vice-mayor elect of the said municipality in the May 10, 2004 Synchronized National and Local Elections is hereby declared mayor and shall serve as such for the remaining duration of the term July 1, 2004 to June 30, 2007. The petition in G.R. No. 170577 is DISMISSED for being moot. This Decision is immediately executory. SO ORDERED.

EN BANC

ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR.,

Petitioners,

- versus -

G.R. No. 189698 Present: PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ.

COMMISSION ON ELECTIONS,

Respondent.

Promulgated: February 22, 2010

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

R E S O L U T I O N PUNO, C.J.: Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission on Elections (COMELEC) motion for reconsideration, and the movants-intervenors motions for reconsideration-in-intervention, of this Courts December 1, 2009 Decision (Decision).[1]

The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar P. Quinto and Gerino A. Tolentino, Jr. and declared as unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act No. 9369,[2] Section 66 of the Omnibus Election Code[3] and Section 4(a) of COMELEC Resolution No. 8678,[4]mainly on the ground that they violate the equal protection clause of the Constitution and suffer from overbreadth. The assailed Decision thus paved the way for public appointive officials to continue discharging the powers, prerogatives and functions of their office notwithstanding their entry into the political arena.

In support of their respective motions for reconsideration, respondent COMELEC and movants-intervenors submit the following arguments:

(1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription against the participation of public appointive officials and members of the military in partisan political activity;

(2) The assailed provisions do not violate the equal protection clause when they accord differential treatment to elective and appointive officials, because such differential treatment rests on material and substantial distinctions and is germane to the purposes of the law;

(3) The assailed provisions do not suffer from the infirmity of overbreadth; and (4) There is a compelling need to reverse the assailed Decision, as public safety and interest demand such reversal. We find the foregoing arguments meritorious.

I.

Procedural Issues First, we shall resolve the procedural issues on the timeliness of the COMELECs motion for reconsideration which was filed on December 15, 2009, as

well as the propriety of the motions for reconsideration-in-intervention which were filed after the Court had rendered its December 1, 2009 Decision.

i. Timeliness of COMELECs Motion for Reconsideration Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court,[5] in relation to Section 1, Rule 52 of the same rules,[6] COMELEC had a period of fifteen days from receipt of notice of the assailed Decision within which to move for its reconsideration. COMELEC received notice of the assailed Decision on December 2, 2009, hence, had until December 17, 2009 to file a Motion for Reconsideration.

The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14, 2009. The corresponding Affidavit of Service (in substitution of the one originally submitted on December 14, 2009) was subsequently filed on December 17, 2009 still within the reglementary period.

ii. Propriety of the Motions for Reconsideration-in-Intervention

Section 1, Rule 19 of the Rules of Court provides: A person who has legal interest in the matter in litigation or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenors rights may be fully protected in a separate proceeding.

Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be entertained when the following requisites are satisfied: (1) the

would-be intervenor shows that he has a substantial right or interest in the case; and (2) such right or interest cannot be adequately pursued and protected in another proceeding.[7]

Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a motion for intervention may be filed, viz.: SECTION 2. Time to intervene. The motion for intervention may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (italics supplied)

This rule, however, is not inflexible. Interventions have been allowed even beyond the period prescribed in the Rule, when demanded by the higher

interest of justice. Interventions have also been granted to afford indispensable parties, who have not been impleaded, the right to be heard even after a decision has been rendered by the trial court,[8] when the petition for review of the judgment has already been submitted for decision before the Supreme Court,[9] and even where the assailed order has already become final and executory.[10] In Lim v. Pacquing,[11] the motion for intervention filed by the Republic of the Philippines was allowed by this Court to avoid grave injustice and injury and to settle once and for all the substantive issues raised by the parties.

In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion of the court[12] after consideration of the appropriate

circumstances.[13]We stress again that Rule 19 of the Rules of Court is a rule of procedure whose object is to make the powers of the court fully and completely available for justice.[14] Its purpose is not to hinder or delay, but to facilitate and promote the administration of justice.[15]

We rule that, with the exception of the IBP Cebu City Chapter, all the movants-intervenors may properly intervene in the case at bar. First, the movants-intervenors have each sufficiently established a substantial right or interest in the case. As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1, 2009 Decision, which nullifies a long established law;

as a voter, he has a right to intervene in a matter that involves the electoral process; and as a public officer, he has a personal interest in maintaining the trust and confidence of the public in its system of government.

On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the May 2010 elections running against appointive

officials who, in view of the December 1, 2009 Decision, have not yet resigned from their posts and are not likely to resign from their posts. They stand to be directly injured by the assailed Decision, unless it is reversed.

Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and protected in another proceeding. Clearly, their rights will

be foreclosed if this Courts Decision attains finality and forms part of the laws of the land. With regard to the IBP Cebu City Chapter, it anchors its standing on the assertion that this case involves the constitutionality of elections laws for this

coming 2010 National Elections, and that there is a need for it to be allowed to intervene xxx so that the voice of its members in the legal profession would also be heard before this Highest Tribunal as it resolves issues of transcendental importance.[16]

Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed to present a specific and substantial interest sufficient

to clothe it with standing to intervene in the case at bar. Its invoked interest is, in character, too indistinguishable to justify its intervention. We now turn to the substantive issues.

II.

Substantive Issues The assailed Decision struck down Section 4(a) of Resolution 8678, the second proviso in the third paragraph of Section 13 of Republic Act (RA) 9369,

and Section 66 of the Omnibus Election Code, on the following grounds:

(1) They violate the equal protection clause of the Constitution because of the differential treatment of persons holding appointive offices and those holding elective positions;

(2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding appointive posts: (a) without distinction as to whether or not they occupy high/influential positions in the government, and (b) they limit these civil servants activity regardless of whether they be partisan or nonpartisan in character, or whether they be in the national, municipal or barangay level; and

(3) Congress has not shown a compelling state interest to restrict the fundamental right of these public appointive officials. We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second

proviso in the third paragraph of Section 13 of RA 9369 are not unconstitutional, and accordingly reverse our December 1, 2009 Decision.

III. Section 4(a) of COMELEC Resolution 8678 Compliant with Law

Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law and jurisprudence on the matter, viz.: Incumbent Appointive Official. - Under Section 13 of RA 9369, which reiterates Section 66 of the Omnibus Election Code, any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Incumbent Elected Official. Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair Election Act,[17] which repealed Section 67 of the Omnibus Election Code[18] and rendered ineffective Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only upon the start of the campaign period corresponding to the positions for which they are running,[19] an elected official is not deemed to have resigned from his office upon the filing of his certificate of candidacy for the same or any other elected office or position. In fine, an elected official may run for another position without forfeiting his seat.

These laws and regulations implement Section 2(4), Article IX-B of the 1987 Constitution, which prohibits civil service officers and employees from engaging in any electioneering or partisan political campaign. The intention to impose a strict limitation on the participation of civil service officers and employees in partisan political campaigns is unmistakable. The exchange between Commissioner Quesada and Commissioner Foz during the deliberations of the Constitutional Commission is instructive:

MS. QUESADA.

x x x x Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I quote: "No officer or employee in the civil service shall engage, directly or indirectly, in any partisan political activity." This is almost the same provision as in the 1973 Constitution. However, we in the government service have actually experienced how this provision has been violated by the direct or indirect partisan political activities of many government officials. So, is the Committee willing to include certain clauses that would make this provision more strict, and which would deter its violation?

MR. FOZ. Madam President, the existing Civil Service Law and the implementing rules on the matter are more than exhaustive enough to really prevent officers and employees in the public service from engaging in any form of partisan political activity. But the problem really lies in implementation because, if the head of a ministry, and even the superior officers of offices and agencies of government will themselves violate the constitutional injunction against partisan political activity, then no string of words that we may add to what is now here in this draft will really implement the constitutional intent against partisan political activity. x x x[20] (italics supplied) To emphasize its importance, this constitutional ban on civil service officers and employees is presently reflected and implemented by a number of

statutes. Section 46(b)(26), Chapter 7 and Section 55, Chapter 8 both of Subtitle A, Title I, Book V of the Administrative Code of 1987 respectively provide in relevant part:

Section 44. Discipline: General Provisions:

x x x x

(b) The following shall be grounds for disciplinary action:

x x x x

(26) Engaging directly or indirectly in partisan political activities by one holding a non-political office.

x x x x

Section 55. Political Activity. No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of his candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code.

Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention by civil service officers and employees in partisan political activities an election offense, viz.:

SECTION 261. Prohibited Acts. The following shall be guilty of an election offense:

x x x x (i) Intervention of public officers and employees. Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay self-

defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer.

The intent of both Congress and the framers of our Constitution to limit the participation of civil service officers and employees in partisan political

activities is too plain to be mistaken. But Section 2(4), Article IX-B of the 1987 Constitution and the implementing statutes apply only to civil servants holding apolitical offices. Stated

differently, the constitutional ban does not cover elected officials, notwithstanding the fact that [t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of theGovernment, including government-owned or controlled corporations with original charters.[21] This is because elected public officials, by the very nature of their office, engage in partisan political activities almost all year round, even outside of the campaign period.[22] Political partisanship is the inevitable essence of a political office, elective positions included.[23]

The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as express their views on political issues, or mention

the names of certain candidates for public office whom they support. This is crystal clear from the deliberations of the Constitutional Commission, viz.: MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2, Section 1, subparagraph 4, lines 13 and 14. On line 13, between the words "any" and "partisan," add the phrase ELECTIONEERING AND OTHER; and on line 14, delete the word "activity" and in lieu thereof substitute the word CAMPAIGN. May I be allowed to explain my proposed amendment? THE PRESIDING OFFICER (Mr. Treas): Commissioner Aquino may proceed. MS. AQUINO: The draft as presented by the Committee deleted the phrase "except to vote" which was adopted in both the 1935 and 1973 Constitutions. The phrase "except to vote" was not intended as a guarantee to the right to vote but as a qualification of the general prohibition against taking part in elections. Voting is a partisan political activity. Unless it is explicitly provided for as an exception to this prohibition, it will amount to disenfranchisement. We know that suffrage, although plenary, is not an unconditional right. In other words, the Legislature can always pass a statute which can withhold from any class the right to vote in an election, if public interest so required. I would only like to reinstate the qualification by specifying the prohibited acts so that those who may want to vote but who are likewise prohibited from participating in partisan political campaigns or electioneering may vote. MR. FOZ: There is really no quarrel over this point, but please understand that there was no intention on the part of the Committee to disenfranchise any government official or employee. The elimination of the last clause of this provision was precisely intended to protect the members of the civil service in the sense that they are not being deprived of the freedom of expression in a political contest. The last phrase or clause might have given the impression that a government employee or worker has no right whatsoever in an election campaign except to vote, which is not the case. They are still free to express their views although the intention is not really to allow them to take part actively in a political campaign.[24]

IV. Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not Violate the

Equal Protection Clause

We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal protection clause of the Constitution.

i. Farias, et al. v. Executive Secretary, et al. is Controlling

In truth, this Court has already ruled squarely on whether these deemed-resigned provisions challenged in the case at bar violate the equal protection

clause of the Constitution in Farias, et al. v. Executive Secretary, et al.[25] In Farias, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, was assailed on

the ground, among others, that it unduly discriminates against appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-resigned provision in respect of elected officials) of the Omnibus Election Code, elected officials are no longer considered ipso facto resigned from their respective offices upon their filing of certificates of candidacy. In contrast, since Section 66 was not repealed, the limitation on appointive officials continues to be operative they are deemed resigned when they file their certificates of candidacy.

The petitioners in Farias thus brought an equal protection challenge against Section 14, with the end in view of having the deemed-resigned provisions

apply equally to both elected and appointive officials. We held, however, that the legal dichotomy created by the Legislature is a reasonable classification, as there are material and significant distinctions between the two classes of officials. Consequently, the contention that Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, infringed on the equal protection clause of the Constitution, failed muster. We ruled:

The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue

benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous.

The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.

Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.

Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take (sic) part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities.

By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification.

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis--vis appointive officials, is anchored upon

material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.[26]

The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed Decision gave it new life. We ought to be guided by the

doctrine of stare decisis et non quieta movere. This doctrine, which is really adherence to precedents, mandates that once a case has been decided one way, then another case involving exactly the same point at issue should be decided in the same manner.[27] This doctrine is one of policy grounded on the necessity for securing certainty and stability of judicial decisions. As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial Process:

It will not do to decide the same question one way between one set of litigants and the opposite way between another. If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights." Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.[28]

Our Farias ruling on the equal protection implications of the deemed-resigned provisions cannot be minimalized as mere obiter dictum. It is trite to state

that an adjudication on any point within the issues presented by the case cannot be considered as obiter dictum.[29] This rule applies to all pertinent questions that are presented and resolved in the regular course of the consideration of the case and lead up to the final conclusion, and to any statement as to the matter on which the decision is predicated.[30] For that reason, a point expressly decided does not lose its value as a precedent because the disposition of the case is, or might have been, made on some other ground; or even though, by reason of other points in the case, the result reached might have been the same if the court had held, on the particular point, otherwise than it did.[31] As we held inVillanueva, Jr. v. Court of Appeals, et al.:[32]

A decision which the case could have turned on is not regarded as obiter dictum merely because, owing to the disposal of the contention, it was necessary to consider another question, nor can an additional reason in a decision, brought forward after the case has been disposed of on one

ground, be regarded as dicta. So, also, where a case presents two (2) or more points, any one of which is sufficient to determine the ultimate issue, but the court actually decides all such points, the case as an authoritative precedent as to every point decided, and none of such points can be regarded as having the status of a dictum, and one point should not be denied authority merely because another point was more dwelt on and more fully argued and considered, nor does a decision on one proposition make statements of the court regarding other propositions dicta.[33] (italics supplied)

ii. Classification Germane to the Purposes of the Law The Farias ruling on the equal protection challenge stands on solid ground even if reexamined. To start with, the equal protection clause does not require the universal application of the laws to all persons or things without distinction.[34] What it

simply requires is equality among equals as determined according to a valid classification.[35] The test developed by jurisprudence here and yonder is that of reasonableness,[36] which has four requisites:

(1) The classification rests on substantial distinctions; (2) It is germane to the purposes of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class.[37] Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first, third and fourth requisites of reasonableness. It,

however, proffers the dubious conclusion that the differential treatment of appointive officials vis--vis elected officials is not germane to the purpose of the law, because whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain, viz.:

For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their [Certificates of Candidacy] for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, retains his position during the entire election period and can still use the resources of his office to support his campaign.[38] Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the Legislature need not address every manifestation

of the evil at once; it may proceed one step at a time.[39] In addressing a societal concern, it must invariably draw lines and make choices, thereby creating some inequity as to those included or excluded.[40] Nevertheless, as long as the bounds of reasonable choice are not exceeded, the courts must defer to the legislative judgment.[41] We may not strike down a law merely because the legislative aim would have been more fully achieved by expanding the class.[42] Stated differently, the fact that a legislative classification, by itself, is underinclusive will not render it unconstitutionally arbitrary or invidious.[43] There is no constitutional requirement that regulation must reach each and every class to which it might be applied;[44] that the Legislature must be held rigidly to the choice of regulating all or none.

Thus, any person who poses an equal protection challenge must convincingly show that the law creates a classification that is palpably arbitrary or

capricious.[45] He must refute all possible rational bases for the differing treatment, whether or not the Legislature cited those bases as reasons for the enactment,[46] such that the constitutionality of the law must be sustained even if the reasonableness of the classification is fairly debatable.[47] In the case at bar,

the petitioners failed and in fact did not even attempt to discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on this point even while we submitted the following thesis:

... [I]t is not sufficient grounds for invalidation that we may find that the statutes distinction is unfair, underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find that there is no reasonably rational reason for the differing treatment.[48]

In the instant case, is there a rational justification for excluding elected officials from the operation of the deemed resigned provisions?

I submit that there is. An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people.[49] It involves

the choice or selection of candidates to public office by popular vote.[50] Considering that elected officials are put in office by their constituents for a definite term, it may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in utmost respect for the mandate of the sovereign will. In other words, complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned.

The dichotomized treatment of appointive and elective officials is therefore germane to the purposes of the law. For the law

was made not merely to preserve the integrity, efficiency, and discipline of the public service; the Legislature, whose wisdom is outside the rubric of judicial scrutiny, also thought it wise to balance this with the competing, yet equally compelling, interest of deferring to the sovereign will.[51] (emphasis in the original)

In fine, the assailed Decision would have us equalize the playing field by invalidating provisions of law that seek to restrain the evils from running riot.

Under the pretext of equal protection, it would favor a situation in which the evils are unconfined and vagrant, existing at the behest of both appointive and elected officials, over another in which a significant portion thereof is contained. The absurdity of that position is self-evident, to say the least.

The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected officials (vis--vis appointive officials) have greater

political clout over the electorate, is indeed a matter worth exploring but not by this Court. Suffice it to say that the remedy lies with the Legislature. It is the Legislature that is given the authority, under our constitutional system, to balance competing interests and thereafter make policy choices responsive to the exigencies of the times. It is certainly within the Legislatures power to make the deemed-resigned provisions applicable to elected officials, should it later decide that the evils sought to be prevented are of such frequency and magnitude as to tilt the balance in favor of expanding the class. This Court cannot and should not arrogate unto itself the power to ascertain and impose on the people the best state of affairs from a public policy standpoint.

iii. Mancuso v. Taft Has Been Overruled

Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision adverted to, and extensively cited, Mancuso v.

Taft.[52] This was a decision of the First Circuit of the United States Court of Appeals promulgated in March 1973, which struck down as unconstitutional a similar statutory provision. Pathetically, our assailed Decision, relying on Mancuso, claimed:

(1) The right to run for public office is inextricably linked with two fundamental freedoms freedom of expression and association; (2) Any legislative classification that significantly burdens this fundamental right must be subjected to strict equal protection review; and

(3) While the state has a compelling interest in maintaining the honesty and impartiality of its public work force, the deemed-resigned provisions pursue their objective in a far too heavy-handed manner as to render them unconstitutional.

It then concluded with the exhortation that since the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit. Our assailed Decisions reliance on Mancuso is completely misplaced. We cannot blink away the fact that the United States Supreme Court effectively overruled Mancuso three months after its promulgation by the United States Court of Appeals. In United States Civil Service Commission, et al. v. National Association of Letter Carriers AFL-CIO,et al.[53] and Broadrick, et al. v. State of Oklahoma, et al.,[54] the United States Supreme Court was faced with the issue of whether statutory provisions prohibiting federal[55] and state[56] employees from taking an active part in political management or in political campaigns were unconstitutional as to warrant facial invalidation. Violation of these provisions results in dismissal from employment and possible criminal sanctions.

The Court declared these provisions compliant with the equal protection clause. It held that (i) in regulating the speech of its employees, the state as employer has interests that differ significantly from those it possesses in regulating the speech of the citizenry in general; (ii) the courts must therefore balance the legitimate interest of employee free expression against the interests of the employer in promoting efficiency of public services; (iii) if the employees expression interferes with the maintenance of efficient and regularly functioning services, the limitation on speech is not unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in ascertaining which positions are to be covered by any statutory restrictions.[57] Therefore, insofar as government employees are concerned, the correct standard of review is an interest-balancing approach, a means-end scrutiny that examines the closeness of fit between the governmental interests and the prohibitions in question.[58]

Letter Carriers elucidated on these principles, as follows:

Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in representative government, and employees themselves are to be sufficiently free from improper influences. The restrictions so far imposed on federal employees are not aimed at particular parties, groups, or points of view, but apply equally to all partisan activities of the type described. They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere with or influence anyone's vote at the polls.

But, as the Court held in Pickering v. Board of Education,[59] the government has an interest in regulating the conduct and the speech

of its employees that differ(s) significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the (government), as an employer, in promoting the efficiency of the public services it performs through its employees. Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act.

It seems fundamental in the first place that employees in the Executive Branch of the Government, or those working for any of its

agencies, should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political

party. They are expected to enforce the law and execute the programs of the Government without bias or favoritism for or against any political party or group or the members thereof. A major thesis of the Hatch Act is that to serve this great end of Government-the impartial execution of the laws-it is essential that federal employees, for example, not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the hazards to fair and effective government.

There is another consideration in this judgment: it is not only important that the Government and its employees in fact avoid practicing

political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.

Another major concern of the restriction against partisan activities by federal employees was perhaps the immediate occasion for

enactment of the Hatch Act in 1939. That was the conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns convinced Congress that these dangers were sufficiently real that substantial barriers should be raised against the party in power-or the party out of power, for that matter-using the thousands or hundreds of thousands of federal employees, paid for at public expense, to man its political structure and political campaigns.

A related concern, and this remains as important as any other, was to further serve the goal that employment and advancement in the

Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs. It may be urged that prohibitions against coercion are sufficient protection; but for many years the joint judgment of the Executive and Congress has been that to protect the rights of federal employees with respect to their jobs and their political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or coerce another. For example, at the hearings in 1972 on proposed legislation for liberalizing the prohibition against political activity, the Chairman of the Civil Service Commission stated that the prohibitions against active participation in partisan political management and partisan political campaigns constitute the most significant safeguards against coercion . . .. Perhaps Congress at some time will come to a different view of the realities of political life and Government service; but that is its current view of the matter, and we are not now in any position to dispute it. Nor, in our view, does the Constitution forbid it.

Neither the right to associate nor the right to participate in political activities is absolute in any event.[60] x x x

x x x x

As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations. (italics supplied)

Broadrick likewise definitively stated that the assailed statutory provision is constitutionally permissible, viz.:

Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political conduct of state employees. Appellants freely concede that such restrictions serve valid and important state interests, particularly with respect to attracting greater numbers of

qualified people by insuring their job security, free from the vicissitudes of the elective process, and by protecting them from political extortion. Rather, appellants maintain that however permissible, even commendable, the goals of s 818 may be, its language is unconstitutionally vague and its prohibitions too broad in their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be permitted. For these and other reasons, appellants assert that the sixth and seventh paragraphs of s 818 are void in toto and cannot be enforced against them or anyone else. We have held today that the Hatch Act is not impermissibly vague.[61] We have little doubt that s 818 is similarly not so vague that men of common intelligence must necessarily guess at its meaning.[62] Whatever other problems there are with s 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out explicit standards' for those who must apply it. In the plainest language, it prohibits any state classified employee from being an officer or member of a partisan political club or a candidate for any paid public office. It forbids solicitation of contributions for any political organization, candidacy or other political purpose and taking part in the management or affairs of any political party or in any political campaign. Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in s 818 as partisan, or take part in, or affairs of political parties. But what was said in Letter Carriers, is applicable here: there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.' x x x

x x x x [Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as well as unprotected conduct, and must therefore be struck down on its face and held to be incapable of any constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked in this manner here.

x x x x

The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute

thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. x x x x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct and that conduct-even if expressive-falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect-at best a prediction-cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that s 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.

Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its terms, at political expression

which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments. But at the same time, s 818 is not a censorial statute, directed at particular groups or viewpoints. The statute, rather, seeks to regulate political activity in an even-handed and neutral manner. As indicted, such statutes have in the past been subject to a less exacting overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal trespass. This much was established in United Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter Carriers. Under the decision in Letter Carriers, there is no question that s 818 is valid at least insofar as it forbids classified employees from: soliciting contributions for partisan candidates, political parties, or other partisan political purposes; becoming members of national, state, or local committees of political parties, or officers or committee members in partisan political clubs, or candidates for any paid public office; taking part in the management or affairs of any political party's partisan political campaign; serving as delegates or alternates to caucuses or conventions of political parties; addressing or taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of partisan campaign literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan political candidate.

x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of some other improper applications. But, as

presently construed, we do not believe that s 818 must be discarded in toto because some persons arguably protected conduct may or may not be caught or chilled by the statute. Section 818 is not substantially overbroad and it not, therefore, unconstitutional on its face. (italics supplied)

It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be interpreted to mean a reversal of Mancuso, since they pertain to different types of laws and were decided based on a different set of facts, viz.:

In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Acts

prohibition against active participation in political management or political campaigns. The plaintiffs desired to campaign for candidates for public office, to encourage and get federal employees to run for state and local offices, to participate as delegates in party conventions, and to hold office in a political club.

In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the (sic) Oklahomas Merit System of

Personnel Administration Act restricting the political activities of the States classified civil servants, in much the same manner as the Hatch Act proscribed partisan political activities of federal employees. Prior to the commencement of the action, the appellants actively participated in the 1970 reelection campaign of their superior, and were administratively charged for asking other Corporation Commission employees to do campaign work or to give referrals to persons who might help in the campaign, for soliciting money for the campaign, and for receiving and distributing campaign posters in bulk.

Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth Mancuso, a full time police officer

and classified civil service employee of the City of Cranston, filed as a candidate for nomination as representative to the Rhode Island General Assembly. The Mayor of Cranston then began the process of enforcing the resign-to-run provision of the City Home Rule Charter.

Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a reversal of Mancuso. x x x (italics in the original) We hold, however, that his position is belied by a plain reading of these cases. Contrary to his claim, Letter Carriers,

Broadrick and Mancuso all concerned the constitutionality of resign-to-run laws, viz.: (1) Mancuso involved a civil service employee who filed as a candidate for nomination as representative to the Rhode Island General Assembly. He

assailed the constitutionality of 14.09(c) of the City Home Rule Charter, which prohibits continuing in the classified service of the city after becoming a candidate for nomination or election to any public office.

(2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Acts prohibition against active participation in political management or political campaigns[63] with respect to certain defined activities in which they desired to engage. The plaintiffs relevant to this discussion are:

(a) The National Association of Letter Carriers, which alleged that its members were desirous of, among others, running in local

elections for offices such as school board member, city council member or mayor; (b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for the office of Borough Councilman in his local

community for fear that his participation in a partisan election would endanger his job; and (c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in the 1971 partisan election for the mayor of West

Lafayette, Indiana, and that he would do so except for fear of losing his job by reason of violation of the Hatch Act. The Hatch Act defines active participation in political management or political campaigns by cross-referring to the rules made by the Civil Service Commission. The rule pertinent to our inquiry states:

30. Candidacy for local office: Candidacy for a nomination or for election to any National, State, county, or municipal office is not permissible. The prohibition against political activity extends not merely to formal announcement of candidacy but also to the preliminaries leading to such announcement and to canvassing or soliciting support or doing or permitting to be done any act in furtherance of candidacy. The fact that candidacy, is merely passive is immaterial; if an employee acquiesces in the efforts of friends in furtherance of such candidacy such acquiescence constitutes an infraction of the prohibitions against political activity. (italics supplied)

Section 9(b) requires the immediate removal of violators and forbids the use of appropriated funds thereafter to pay compensation to these persons.[64]

(3) Broadrick was a class action brought by certain Oklahoma state employees seeking a declaration of unconstitutionality of two sub-paragraphs of Section 818 of Oklahomas Merit System of Personnel Administration Act. Section 818 (7), the paragraph relevant to this discussion, states that [n]o employee in the classified service shall be a candidate for nomination or election to any paid public office Violation of Section 818 results in dismissal from employment, possible criminal sanctions and limited state employment ineligibility.

Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled Mancuso. By no stretch of the imagination could Mancuso still be held operative, as Letter Carriers and Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided by a superior court, the United States Supreme Court. It was thus not surprising for the First Circuit Court of Appeals the same court that decided Mancuso to hold categorically and emphatically in Magill v. Lynch[65] thatMancuso is no longer good law. As we priorly explained:

Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtuckets Little Hatch Act prohibits city employees from engaging in a broad range of political activities. Becoming a candidate for any city office is specifically proscribed,[66] the violation being punished by removal from office or immediate dismissal. The firemen brought an action against the city officials on the ground that that the provision of the city charter was unconstitutional. However, the court, fully cognizant of Letter Carriers and Broadrick, took the position that Mancuso had since lost considerable vitality. It observed that the view that political candidacy was a fundamental interest which could be infringed upon only if less restrictive alternatives were not available, was a position which was no longer viable, since the Supreme Court (finding that the governments interest in regulating both the conduct and speech of its employees differed significantly from its interest in regulating those of the citizenry in general) had given little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of Congress, and applying a balancing test to determine whether limits on political activity by public employees substantially served government interests which were important enough to outweigh the employees First Amendment rights.[67]

It must be noted that the Court of Appeals ruled in this manner even though the election in Magill was characterized as nonpartisan,

as it was reasonable for the city to fear, under the circumstances of that case, that politically active bureaucrats might use their official power to help political friends and hurt political foes. Ruled the court:

The question before us is whether Pawtucket's charter provision, which bars a city employee's candidacy in even a

nonpartisan city election, is constitutional. The issue compels us to extrapolate two recent Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and Broadrick v. Oklahoma. Both dealt with laws barring civil servants from partisan political activity. Letter Carriers reaffirmed United Public Workers v. Mitchell, upholding the constitutionality of the Hatch Act as to federal employees. Broadrick sustained Oklahoma's Little Hatch Act against constitutional attack, limiting its holding to Oklahoma's construction that the Act barred only activity in partisan politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy in nonpartisan elections would not be constitutional. Letter Carriers and Broadrick compel new analysis.

x x x x

What we are obligated to do in this case, as the district court recognized, is to apply the Courts interest balancing approach to the kind of nonpartisan election revealed in this record. We believe that the district court found more residual vigor in our opinion in Mancuso v. Taft than remains after Letter Carriers. We have particular reference to our view that political candidacy was a fundamental interest which could be trenched upon only if less restrictive alternatives were not available. While this approach may still be viable for citizens who are not government employees, the Court in Letter Carriers recognized that the government's interest in regulating both the conduct and speech of its employees differs significantly from its interest in regulating those of the citizenry in general. Not only was United Public Workers v. Mitchell "unhesitatingly" reaffirmed, but the Court gave little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of the Congress. We cannot be

more precise than the Third Circuit in characterizing the Court's approach as "some sort of 'balancing' process".[68] It appears that the government may place limits on campaigning by public employees if the limits substantially serve government interests that are "important" enough to outweigh the employees' First Amendment rights. x x x (italics supplied)

Upholding thus the constitutionality of the law in question, the Magill court detailed the major governmental interests discussed

in Letter Carriers and applied them to the Pawtucketprovision as follows:

In Letter Carriers[,] the first interest identified by the Court was that of an efficient government, faithful to the Congress rather than to party. The district court discounted this interest, reasoning that candidates in a local election would not likely be committed to a state or national platform. This observation undoubtedly has substance insofar as allegiance to broad policy positions is concerned. But a different kind of possible political intrusion into efficient administration could be thought to threaten municipal government: not into broad policy decisions, but into the particulars of administration favoritism in minute decisions affecting welfare, tax assessments, municipal contracts and purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter Carriers identified a second governmental interest in the avoidance of the appearance of "political justice" as to policy, so there is an equivalent interest in avoiding the appearance of political preferment in privileges, concessions, and benefits. The appearance (or reality) of favoritism that the charter's authors evidently feared is not exorcised by the nonpartisan character of the formal election process. Where, as here, party support is a key to successful campaigning, and party rivalry is the norm, the city might reasonably fear that politically active bureaucrats would use their official power to help political friends and hurt political foes. This is not to say that the city's interest in visibly fair and effective administration necessarily justifies a blanket prohibition of all employee campaigning; if parties are not heavily involved in a campaign, the danger of favoritism is less, for neither friend nor foe is as easily identified.

A second major governmental interest identified in Letter Carriers was avoiding the danger of a powerful political

machine. The Court had in mind the large and growing federal bureaucracy and its partisan potential. The district court felt this was only a minor threat since parties had no control over nominations. But in fact candidates sought party endorsements, and party endorsements proved to be highly effective both in determining who would emerge from the primary election and who would be elected in the final election. Under the prevailing customs, known party affiliation and support were highly significant factors in Pawtucket elections. The charter's authors might reasonably have feared that a politically active public work force would give the incumbent party, and the incumbent workers, an unbreakable grasp on the reins of power. In municipal elections especially, the small size of the electorate and the limited powers of local government may inhibit the growth of interest groups powerful enough to outbalance the weight of a partisan work force. Even when nonpartisan issues and candidacies are at stake, isolated government employees may seek to influence voters or their co-workers improperly; but a more real danger is that a central party structure will mass the scattered powers of government workers behind a single party platform or slate. Occasional misuse of the public trust to pursue private political ends is tolerable, especially because the political views of individual employees may balance each other out. But party discipline eliminates this diversity and tends to make abuse systematic. Instead of a handful of employees pressured into advancing their immediate superior's political ambitions, the entire government work force may be expected to turn out for many candidates in every election. In Pawtucket, where parties are a continuing presence in political campaigns, a carefully orchestrated use of city employees

in support of the incumbent party's candidates is possible. The danger is scarcely lessened by the openness of Pawtucket's nominating procedure or the lack of party labels on its ballots.

The third area of proper governmental interest in Letter Carriers was ensuring that employees achieve advancement

on their merits and that they be free from both coercion and the prospect of favor from political activity. The district court did not address this factor, but looked only to the possibility of a civil servant using his position to influence voters, and held this to be no more of a threat than in the most nonpartisan of elections. But we think that the possibility of coercion of employees by superiors remains as strong a factor in municipal elections as it was in Letter Carriers. Once again, it is the systematic and coordinated exploitation of public servants for political ends that a legislature is most likely to see as the primary threat of employees' rights. Political oppression of public employees will be rare in an entirely nonpartisan system. Some superiors may be inclined to ride herd on the politics of their employees even in a nonpartisan context, but without party officials looking over their shoulders most supervisors will prefer to let employees go their own ways.

In short, the government may constitutionally restrict its employees' participation in nominally nonpartisan elections

if political parties play a large role in the campaigns. In the absence of substantial party involvement, on the other hand, the interests identified by the Letter Carriers Court lose much of their force. While the employees' First Amendment rights would normally outbalance these diminished interests, we do not suggest that they would always do so. Even when parties are absent, many employee campaigns might be thought to endanger at least one strong public interest, an interest that looms larger in the context of municipal elections than it does in the national elections considered in Letter Carriers. The city could reasonably fear the prospect of a subordinate running directly against his superior or running for a position that confers great power over his superior. An employee of a federal agency who seeks a Congressional seat poses less of a direct challenge to the command and discipline of his agency than a fireman or policeman who runs for mayor or city council. The possibilities of internal discussion, cliques, and political bargaining, should an employee gather substantial political support, are considerable. (citations omitted)

The court, however, remanded the case to the district court for further proceedings in respect of the petitioners overbreadth charge.

Noting that invalidating a statute for being overbroad is not to be taken lightly, much less to be taken in the dark, the court held:

The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a closely analogous case. Under Broadrick, when one who challenges a law has engaged in constitutionally unprotected conduct (rather than unprotected speech) and when the challenged law is aimed at unprotected conduct, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Two major uncertainties attend the doctrine: how to distinguish speech from conduct, and how to define "substantial" overbreadth. We are spared the first inquiry by Broadrick itself. The plaintiffs in that case had solicited support for a candidate, and they were subject to discipline under a law proscribing a wide range of activities, including soliciting contributions for political candidates and becoming a candidate. The Court found that this combination required a substantial overbreadth approach. The facts of this case are so similar that we may reach the same result without worrying unduly about the sometimes opaque distinction between speech and conduct.

The second difficulty is not so easily disposed of. Broadrick found no substantial overbreadth in a statute restricting partisan campaigning. Pawtucket has gone further, banning participation in nonpartisan campaigns as well. Measuring the substantiality of a statute's overbreadth apparently requires, inter alia, a rough balancing of the number of valid applications compared to the number of potentially invalid applications. Some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. The question is a matter of degree; it will never be possible to say that a ratio of one invalid to nine valid applications makes a law substantially overbroad. Still, an overbreadth challenger has a duty to provide the court with some idea of the number of potentially invalid applications the statute permits. Often, simply reading the statute in the light of common experience or litigated cases will suggest a number of probable invalid applications. But this case is different. Whether the statute is overbroad depends in large part on the number of elections that are insulated from party rivalry yet closed to Pawtucket employees. For all the record shows, every one of the city, state, or federal elections in Pawtucket is actively contested by political parties. Certainly the record suggests that parties play a major role even in campaigns that often are entirely nonpartisan in other cities. School committee candidates, for example, are endorsed by the local Democratic committee.

The state of the record does not permit us to find overbreadth; indeed such a step is not to be taken lightly, much

less to be taken in the dark. On the other hand, the entire focus below, in the short period before the election was held, was on the constitutionality of the statute as applied. Plaintiffs may very well feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate that the charter forecloses access to a significant number of offices, the candidacy for which by municipal employees would not pose the possible threats to government efficiency and integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, we remand for consideration of plaintiffs' overbreadth claim. (italics supplied, citations omitted)

Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft, heavily relied upon by

the ponencia, has effectively been overruled.[69] As it is no longer good law, the ponencias exhortation that [since] the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit is misplaced and unwarranted.[70]

Accordingly, our assailed Decisions submission that the right to run for public office is inextricably linked with two fundamental freedoms those of expression and association lies on barren ground. American case law has in fact never recognized a fundamental right to express ones political views through candidacy,[71] as to invoke a rigorous standard of review.[72] Bart v. Telford[73] pointedly stated that [t]he First Amendment does not in terms confer a right to run for public office, and this court has held that it does not do so by implication either. Thus, ones interest in seeking office, by itself, is not entitled to constitutional protection.[74] Moreover, one cannot bring ones action under the rubric of freedom of association, absent any allegation that, by running for an elective position, one is advancing the political ideas of a particular set of voters.[75] Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar, are not violative of the equal protection clause. The deemed-resigned provisions substantially serve governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather than to party; (ii) avoidance of the appearance of political justice as to policy; (iii) avoidance of the danger of a powerful political machine; and (iv) ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity). These are interests that are important enough to outweigh the non-fundamental right of appointive officials and employees to seek elective office.

En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing[76] and Morial, et al. v. Judiciary Commission of the State of Louisiana, et al.[77] to buttress his dissent. Maintaining that resign-to-run provisions are valid only when made applicable to specified officials, he explains:

U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions when applied to specified or particular officials, as distinguished from all others,[78] under a classification that is germane to the purposes of the law. These resign-to-run legislations were not expressed in a general and sweeping provision, and thus did not violate the test of being germane to the purpose of the law, the second requisite for a valid classification. Directed, as they were, to particular officials, they were not overly encompassing as to be overbroad. (emphasis in the original) This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run provisions in these cases were upheld not because they

referred to specified or particular officials (vis--vis a general class); the questioned provisions were found valid precisely because the Court deferred to legislative judgment and found that a regulation is not devoid of a rational predicate simply because it happens to be incomplete. In fact, the equal protection challenge in Clements revolved around the claim that the State of Texas failed to explain why some public officials are subject to the resign-to-run provisions, while others are not. Ruled the United States Supreme Court:

Article XVI, 65, of the Texas Constitution provides that the holders of certain offices automatically resign their positions if they become candidates for any other elected office, unless the unexpired portion of the current term is one year or less. The burdens that 65 imposes on candidacy are even less substantial than those imposed by 19. The two provisions, of course, serve essentially the same state interests. The District Court found 65 deficient, however, not because of the nature or extent of the provision's restriction on candidacy, but because of the manner in which the offices are classified. According to the District Court, the classification system cannot survive equal protection scrutiny, because Texas has failed to explain sufficiently why some elected public officials are subject to 65 and why others are not. As with the case of 19, we conclude that 65 survives a challenge under the Equal Protection Clause unless appellees can show that there is no rational predicate to the classification scheme.

The history behind 65 shows that it may be upheld consistent with the "one step at a time" approach that this Court has undertaken with regard to state regulation not subject to more vigorous scrutiny than that sanctioned by the traditional principles. Section 65 was enacted in 1954 as a transitional provision applying only to the 1954 election. Section 65 extended the terms of those offices enumerated in the provision from two to four years. The provision also staggered the terms of other offices so that at least some county and local offices would be contested at each election. The automatic resignation proviso to 65 was not added until 1958. In that year, a similar automatic resignation provision was added in Art. XI, 11, which applies to officeholders in home rule cities who serve terms longer than two years. Section 11 allows home rule cities the option of extending the terms of municipal offices from two to up to four years.

Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms of 1958. That the State did not go further in applying the automatic resignation provision to those officeholders whose terms were not extended by 11 or 65, absent an invidious purpose, is not the sort of malfunctioning of the State's lawmaking process forbidden by the Equal Protection Clause. A regulation is not devoid of a rational predicate simply because it happens to be incomplete. The Equal Protection Clause does not forbid Texas to restrict one elected officeholder's candidacy for another elected office unless and until it places similar restrictions on other officeholders. The provision's language and its history belie any notion that 65 serves the invidious purpose of denying access to the political process to identifiable classes of potential candidates. (citations omitted and italics supplied)

Furthermore, it is unfortunate that the dissenters took the Morial line that there is no blanket approval of restrictions on the right of public employees to become candidates for public office out of context. A correct reading of that line readily shows that the Court only meant to confine its ruling to the facts of that case, as each equal protection challenge would necessarily have to involve weighing governmental interests vis--vis the specific prohibition assailed. The Court held:

The interests of public employees in free expression and political association are unquestionably entitled to the protection of the first and fourteenth amendments. Nothing in today's decision should be taken to imply that public employees may be prohibited from expressing their private views on controversial topics in a manner that does not interfere with the proper performance of their public duties. In today's decision, there is no blanket approval of restrictions on the right of public employees to become candidates for public office. Nor do we approve any general restrictions on the political and civil rights of judges in particular. Our holding is necessarily narrowed by the methodology employed to reach it. A requirement that a state judge resign his office prior to becoming a candidate for non-judicial office bears a reasonably necessary relation to the achievement of the state's interest in preventing the actuality or appearance of judicial impropriety. Such a requirement offends neither the first amendment's guarantees of free expression and association nor the fourteenth amendment's guarantee of equal protection of the laws. (italics supplied)

Indeed, the Morial court even quoted Broadrick and stated that:

In any event, the legislature must have some leeway in determining which of its employment positions require restrictions on partisan political activities and which may be left unregulated. And a State can hardly be faulted for attempting to limit the positions upon which such restrictions are placed. (citations omitted)

V.

Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code

Do Not Suffer from Overbreadth

Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code on equal protection ground, our assailed Decision struck them down for being overbroad in two respects, viz.:

(1) The assailed provisions limit the candidacy of all civil servants holding appointive posts without due regard for the type of position being held by the

employee seeking an elective post and the degree of influence that may be attendant thereto;[79] and (2) The assailed provisions limit the candidacy of any and all civil servants holding appointive positions without due regard for the type of office being

sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level.

Again, on second look, we have to revise our assailed Decision.

i. Limitation on Candidacy Regardless of Incumbent Appointive Officials Position, Valid

According to the assailed Decision, the challenged provisions of law are overly broad because they apply indiscriminately to all civil servants holding appointive posts, without due regard for the type of position being held by the employee running for elective office and the degree of influence that may be attendant thereto.

Its underlying assumption appears to be that the evils sought to be prevented are extant only when the incumbent appointive official running for elective

office holds an influential post. Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the government posed by the partisan potential of a large and

growing bureaucracy: the danger of systematic abuse perpetuated by a powerful political machine that has amassed the scattered powers of government workers so as to give itself and its incumbent workers an unbreakable grasp on the reins of power.[80] As elucidated in our prior exposition:[81]

Attempts by government employees to wield influence over others or to make use of their respective positions (apparently) to promote

their own candidacy may seem tolerable even innocuous particularly when viewed in isolation from other similar attempts by other government employees. Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on the part of an emerging central party structure to advance its own agenda through a carefully orchestrated use of [appointive and/or elective] officials coming from various levels of the bureaucracy.

[T]he avoidance of such a politically active public work force which could give an emerging political machine an unbreakable grasp

on the reins of power is reason enough to impose a restriction on the candidacies of all appointive public officials without further distinction as to the type of positions being held by such employees or the degree of influence that may be attendant thereto. (citations omitted)

ii. Limitation on Candidacy Regardless of Type of Office Sought, Valid

The assailed Decision also held that the challenged provisions of law are overly broad because they are made to apply indiscriminately to all civil

servants holding appointive offices, without due regard for the type of elective office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangaylevel.

This erroneous ruling is premised on the assumption that the concerns of a truly partisan office and the temptations it fosters are sufficiently different

from those involved in an office removed from regular party politics [so as] to warrant distinctive treatment,[82] so that restrictions on candidacy akin to those imposed by the challenged provisions can validly apply only to situations in which the elective office sought is partisan in character. To the extent, therefore, that such restrictions are said to preclude even candidacies for nonpartisan elective offices, the challenged restrictions are to be considered as overbroad.

Again, a careful study of the challenged provisions and related laws on the matter will show that the alleged overbreadth is more apparent than real. Our

exposition on this issue has not been repudiated, viz.:

A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein refer to the filing of certificates of candidacy and nomination of official candidates of registered political parties, in connection with the May 10, 2010 National and Local Elections.[83] Obviously, these rules and guidelines, including the restriction in Section 4(a) of Resolution 8678, were issued specifically for

purposes of the May 10, 2010 National and Local Elections, which, it must be noted, are decidedly partisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678 applies only to the candidacies of appointive officials vying for partisan elective posts in the May 10, 2010 National and Local Elections. On this score, the overbreadth challenge leveled against Section 4(a) is clearly unsustainable.

Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus Election Code, in conjunction with other

related laws on the matter, will confirm that these provisions are likewise not intended to apply to elections for nonpartisan public offices. The only elections which are relevant to the present inquiry are the elections for barangay offices, since these are the only elections in this country which involve nonpartisan public offices.[84]

In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code in 1985, Congress has intended that these nonpartisan barangay elections be governed by special rules, including a separate rule on deemed resignations which is found in Section 39 of the Omnibus Election Code. Said provision states:

Section 39. Certificate of Candidacy. No person shall be elected punong barangay or kagawad ng sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from the commencement of the election period but not later than the day before the beginning of the campaign period in a form to be prescribed by the Commission. The candidate shall state the barangay office for which he is a candidate.

x x x x

Any elective or appointive municipal, city, provincial or national official or employee, or those in the civil or military service, including those in government-owned or-controlled corporations, shall be considered automatically resigned upon the filing of certificate of candidacy for a barangay office. Since barangay elections are governed by a separate deemed resignation rule, under the present state of law, there would be no

occasion to apply the restriction on candidacy found in Section 66 of the Omnibus Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to any election other than a partisan one. For this reason, the overbreadth challenge raised against Section 66 of the Omnibus Election Code and the pertinent proviso in Section 13 of RA 9369 must also fail. [85] In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus Election Code and the corresponding provision in

Section 13 of RA 9369 are general rules that apply also to elections for nonpartisan public offices, the overbreadth challenge would still be futile. Again, we explained:

In the first place, the view that Congress is limited to controlling only partisan behavior has not received judicial imprimatur, because the general proposition of the relevant US cases on the matter is simply that the government has an interest in regulating the conduct and speech of its employees that differs significantly from those it possesses in connection with regulation of the speech of the citizenry in general.[86]

Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly broad, particularly where, as in this case, conduct and not pure speech is involved, the overbreadth must not only be real, but substantial as well, judged in relation to the statutes plainly legitimate sweep.[87]

In operational terms, measuring the substantiality of a statutes overbreadth would entail, among other things, a rough balancing of the

number of valid applications compared to the number of potentially invalid applications.[88] In this regard, some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable.[89] The question is a matter of degree.[90] Thus, assuming for the sake of argument that the partisan-nonpartisan distinction is valid and necessary such that a statute which fails to make this distinction is susceptible to an overbreadth attack, the overbreadth challenge presently mounted must demonstrate or provide this Court with some idea of the number of potentially invalid elections (i.e. the number of elections that were insulated from party rivalry but were nevertheless closed to appointive employees) that may in all probability result from the enforcement of the statute.[91]

The state of the record, however, does not permit us to find overbreadth. Borrowing from the words of Magill v. Lynch, indeed, such a step is not to be taken lightly, much less to be taken in the dark,[92] especially since an overbreadth finding in this case would effectively prohibit the State from enforcing an otherwise valid measure against conduct that is admittedly within its power to proscribe.[93]

This Court would do well to proceed with tiptoe caution, particularly when it comes to the application of the overbreadth doctrine in the analysis of

statutes that purportedly attempt to restrict or burden the exercise of the right to freedom of speech, for such approach is manifestly strong medicine that must be used sparingly, and only as a last resort.[94]

In the United States, claims of facial overbreadth have been entertained only where, in the judgment of the court, the possibility that protected speech of

others may be muted and perceived grievances left to fester (due to the possible inhibitory effects of overly broad statutes) outweighs the possible harm to society in allowing some unprotected speech or conduct to go unpunished.[95] Facial overbreadth has likewise not been invoked where a limiting construction could be placed on the challenged statute, and where there are readily apparent constructions that would cure, or at least substantially reduce, the alleged overbreadth of the statute.[96]

In the case at bar, the probable harm to society in permitting incumbent appointive officials to remain in office, even as they actively pursue elective

posts, far outweighs the less likely evil of having arguably protected candidacies blocked by the possible inhibitory effect of a potentially overly broad statute. In this light, the conceivably impermissible applications of the challenged statutes which are, at best, bold predictions cannot justify invalidating these

statutes in toto and prohibiting the State from enforcing them against conduct that is, and has for more than 100 years been, unquestionably within its power and interest to proscribe.[97] Instead, the more prudent approach would be to deal with these conceivably impermissible applications through case-by-case adjudication rather than through a total invalidation of the statute itself.[98]

Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for Reconsideration, intervenor Drilon stated that a number of

high-ranking Cabinet members had already filed their Certificates of Candidacy without relinquishing their posts.[99] Several COMELEC election officers had likewise filed their Certificates of Candidacy in their respective provinces.[100] Even the Secretary of Justice had filed her certificate of substitution for representative of the first district of Quezon province last December 14, 2009[101] even as her position as Justice Secretary includes supervision over the City and Provincial Prosecutors,[102] who, in turn, act as Vice-Chairmen of the respective Boards of Canvassers.[103] The Judiciary has not been spared, for a Regional Trial Court Judge in the South has thrown his hat into the political arena. We cannot allow the tilting of our electoral playing field in their favor.

For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of RA 9369, which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally overbroad.

IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondents and the intervenors Motions for Reconsideration; REVERSE and SET

ASIDE this Courts December 1, 2009 Decision; DISMISS the Petition; and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1) Section 4(a) of COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, and (3) Section 66 of the Omnibus Election Code.

SO ORDERED.

Republic of the Philippines SUPREME COURT

Manila EN BANC

G.R. No. 185740 July 23, 2013 THE PROVINCIAL GOVERNMENT OF CAMARINES NORTE, represented by GOVERNOR JESUS O. TYPOCO, JR., Petitioner, vs. BEATRIZ O. GONZALES, Respondent.

D E C I S I O N BRION, J.: We resolve the Provincial Government of Camarines Norte's (petitioner) petition for review on certiorari1 assailing the Decision2 dated June 25, 2008 and the Resolution3 dated December 2, 2008 of the Court of Appeals (CA) in CA-G.R. SP No. 97425, reinstating respondent Beatriz O. Gonzales as the Province of Camarines Norte’s provincial administrator, or to an equivalent position.

Factual Antecedents Gonzales was appointed as the provincial administrator of the Province of Camarines Norte by then Governor Roy A. Padilla, Jr. on April 1, 1991. Her appointment was on a permanent capacity. On March 8, 1999, Governor Jess B. Pimentel sent Gonzales a memorandum directing her to explain in writing why no administrative charges should be filed against her for gross insubordination/gross discourtesy in the course of official duties, and conduct grossly prejudicial to the best interest of the service; this was later on captioned as Administrative Case No. 001. After Gonzales submitted her comment, an Ad Hoc Investigation Committee found her guilty of the charges against her, and recommended to Governor Pimentel that she be held administratively liable.4 On September 30, 1999, Governor Pimentel adopted the Ad Hoc Investigation Committee’s recommendation and dismissed Gonzales.5 Proceedings before the Civil Service Commission Gonzales appealed Governor Pimentel’s decision to the Civil Service Commission (CSC). The CSC issued Resolution No. 0014186 modifying Governor Pimentel’s decision, finding Gonzales guilty of insubordination and suspending her for six months. This decision was appealed by Governor Pimentel, which the CSC denied in its Resolution No. 001952.7 Gonzales then filed a motion for execution and clarification of Resolution No. 001418, in which she claimed that she had already served her six-month suspension and asked to be reinstated. The CSC issued Resolution No. 002245,8 which directed Gonzales’ reinstatement. Governor Pimentel reinstated Gonzales as provincial administrator on October 12, 2000, but terminated her services the next day for lack of confidence. He then wrote a letter9 to the CSC reporting his compliance with its order, and Gonzales’ subsequent dismissal as a confidential employee. In his letter, Governor Pimentel cited Resolution No. 0001158,10 where the CSC ruled that the provincial administrator position is highly confidential and is coterminous in nature. The CSC responded through Resolution No. 030008,11 which again directed Gonzales’ reinstatement as provincial administrator. It clarified that while the Local Government Code of 1991 (Republic Act No. RA 7160) made the provincial administrator position coterminous and highly confidential in nature, this conversion cannot operate to prejudice officials who were already issued permanent appointments as administrators prior to the new law’s effectivity. According to the CSC, Gonzales has acquired a vested right to her permanent appointment as provincial administrator and is entitled to continue holding this office despite its subsequent classification as a coterminous position. The conversion of the provincial administrator position from a career to a non-career service should not jeopardize Gonzales’ security of tenure guaranteed to her by the Constitution. As a permanent appointee, Gonzales may only be removed for cause, after due notice and hearing. Loss of trust and confidence is not among the grounds for a permanent appointee’s dismissal or discipline under existing laws. In a letter12 dated February 17, 2005, Gonzales wrote the CSC alleging that Governor Jesus O. Typoco, Jr., Camarines Norte’s incumbent governor, refused to reinstate her. The CSC responded with Resolution No. 061988,13 which ordered Gonzales’ reinstatement to the provincial administrator position, or to an equivalent position.Thus, the petitioner, through Governor Typoco, filed a petition for review before the CA, seeking to nullify the CSC’s Resolution No. 030008 and Resolution No. 061988.

The Appellate Court’s Ruling The CA supported the CSC’s ruling that reinstated Gonzales as provincial administrator or to an equivalent position.14 Citing Aquino v. Civil Service Commission,15 the CA emphasized that an appointee acquires a legal right to his position once he assumes a position in the civil service under a completed appointment. This legal right is protected both by statute and the Constitution, and he cannot be removed from office without cause and previous notice and hearing. Appointees cannot be removed at the mere will of those vested with the power of removal, or without any cause. The CA then enumerated the list of valid causes for a public officer’s removal under Section 46,16 Book V, Title I, Subtitle A of the Revised Administrative Code (Administrative Code), and noted that lack of confidence was not in the list. Thus, the CA concluded that Gonzales’ dismissal on the ground of loss of confidence violated her security of tenure, and that she has the right to be reinstated with payment of backwages. The CA further held that Gonzales’ dismissal was illegal because it was done without due process. The proceedings under Administrative Case No. 001 cannot be the basis for complying with the requirements of due process because they are separate and distinct from the proceedings in the present controversy. Thus, Gonzales was illegally terminated when she was dismissed for lack of confidence, without any hearing, the day after she was reinstated. Lastly, the CA noted that Resolution No. 002245, which modified Governor Pimentel’s decision, has long been final and executory. The petitioner did not file any petition for reconsideration against Resolution No. 002245, and hence, it is no longer alterable. The petitioner sought a reconsideration17 of the CA’s Decision, which the CA denied in a Resolution18 dated December 2, 2008. The Present Petition In its present petition for review on certiorari, the petitioner argues that the provincial administrator position has been converted into a highly confidential, coterminous position by RA 7160. Hence, Gonzales no longer enjoyed security of tenure to the position she held prior to RA 7160’s enactment. In her Comment19 and Memorandum,20 Gonzales maintained that the provincial administrator remained a career service position. Section 721 of Presidential Decree No. 807, which was one of the bases of the Court in Laurel V v. Civil Service Commission22 to declare the provincial administrator as a career service position, is a verbatim copy of Section 7,23 Chapter 2 of the Administrative Code. This classification, established by law and jurisprudence, cannot be altered by the mere implementing rules and regulations of RA 7160. And assuming arguendo that the provincial administrator position has indeed become a primarily confidential position, this reclassification should not apply retroactively to Gonzales’ appointment on a permanent capacity prior to RA 7160’s effectivity.

Issues The parties’ arguments, properly joined, present to us the following issues:

1) Whether Congress has re-classified the provincial administrator position from a career service to a primarily confidential, non-career service position; and 2) Whether Gonzales has security of tenure over her position as provincial administrator of the Province of Camarines Norte.

The Court’s Ruling We find the petition meritorious. Congress has reclassified the provincial administrator position as a primarily confidential, non-career position We support the CSC’s conclusion that the provincial administrator position has been classified into a primarily confidential, non-career position when Congress, through RA 7160, made substantial changes to it. First, prior to RA 7160, Batas Pambansa Blg. 337, the old Local Government Code (LGC), did not include a provincial administrator position among the listing of mandatory provincial officials,24 but empowered the Sangguniang Panlalawigan to create such other offices as might then be necessary to carry out the purposes of the provincial government.25 RA 7160 made the position mandatory for every province.26 Thus, the creation of the provincial administrator position under the old LGC used to be a prerogative of the Sangguniang Panlalawigan. Second, in introducing the mandatory provincial administrator position, RA 7160 also amended the qualifications for the provincial administrator position. While Section 48027 of RA 7160 retained the requirement of civil service eligibility for a provincial administrator, together with the educational requirements, it shortened the six-year work experience requirement to five years.28 It also mandated the additional requirements of residence in the local government concerned, and imposed a good moral character requirement.

Third, RA 7160 made the provincial administrator position coterminous with its appointing authority, reclassifying it as a non-career service position that is primarily confidential. Before RA 7160 took effect, Laurel classified the provincial administrator position as an open career position which required qualification in an appropriate examination prior to appointment. Laurel placed the provincial administrator position under the second major level of positions in the career service under Section 7 of Presidential Decree No. 807. This provision reads: Section 7. Classes of Positions in the Career Service. (a) Classes of positions in the career service appointment to which requires examinations shall be grouped into three major levels as follows:

x x x x 2. 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 Division Chief level. Section 480 of RA 7160 made the provincial administrator’s functions closely related to the prevailing provincial administration by identifying the incumbent with the provincial governor to ensure the alignment of the governor’s direction for the province with what the provincial administrator would implement. In contrast with the general direction provided by the provincial governor under the Manual of Position Descriptions cited in Laurel, Section 480(b) of RA 7160 now mandates constant interaction between the provincial administrator and the provincial governor, to wit: (b) The administrator shall take charge of the office of the administrator and shall:

(1) Develop plans and strategies and upon approval thereof by the governor or mayor, as the case may be, implement the same particularly those which have to do with the management and administration-related programs and projects which the governor or mayor is empowered to implement and which the sanggunian is empowered to provide for under this Code; (2) In addition to the foregoing duties and functions, the administrator shall:

(i) Assist in the coordination of the work of all the officials of the local government unit, under the supervision, direction, and control of the governor or mayor, and for this purpose, he may convene the chiefs of offices and other officials of the local government unit;

x x x x (4) Recommend to the sanggunian and advise the governor and mayor, as the case may be, on all other matters relative to the management and administration of the local government unit. [emphases and italics ours] As the CSC correctly noted in Resolution No. 0001158,29 the administrator position demands a close intimate relationship with the office of the governor (its appointing authority) to effectively develop, implement and administer the different programs of the province. The administrator’s functions are to recommend to the Sanggunian and to advise the governor on all matters regarding the management and administration of the province, thus requiring that its occupant enjoy the governor’s full trust and confidence. To emphasize the close relations that the provincial administrators’ functions have with the office of the governor, RA 7160 even made the provincial administrator position coterminous with its appointing authority.30 This provision, along with the interrelations between the provincial administrator and governor under Section 480, renders clear the intent of Congress to make the provincial administrator position primarily confidential under the non-career service category of the civil service. Congress’ reclassification of the provincial administrator position in RA 7160 is a valid exercise of legislative power that does not violate Gonzales’ security of tenure Having established that Congress has changed the nature of the provincial administrator position to a primarily confidential employee, the next question to address would be its impact on Gonzales’ security of tenure. According to the petitioner, Gonzales lost her security of tenure when the provincial administrator position became a primarily confidential position. Gonzales, on the other hand, retorted that the conversion of the position should not be retroactively applied to her, as she is a permanent appointee. Both the CA and the CSC ruled in favor of the latter, and gave premium to Gonzales’ original permanent appointment under the old LGC. They posit that Gonzales acquired a vested legal right over her position from the moment she assumed her duties as provincial administrator. Thus, she cannot be removed from office except for cause and after due hearing; otherwise such removal would amount to a violation of her security of tenure.

The arguments presented by the parties and ruled upon by the CA reflect a conceptual entanglement between the nature of the position and an employee’s right to hold a position. These two concepts are different. The nature of a position may change by law according to the dictates of Congress. The right to hold a position, on the other hand, is a right that enjoys constitutional and statutory guarantee, but may itself change according to the nature of the position. Congress has the power and prerogative to introduce substantial changes in the provincial administrator position and to reclassify it as a primarily confidential, non-career service position. Flowing from the legislative power to create public offices is the power to abolish and modify them to meet the demands of society;31 Congress can change the qualifications for and shorten the term of existing statutory offices. When done in good faith, these acts would not violate a public officer’s security of tenure, even if they result in his removal from office or the shortening of his term.32 Modifications in public office, such as changes in qualifications or shortening of its tenure, are made in good faith so long as they are aimed at the office and not at the incumbent.33 In Salcedo and Ignacio v. Carpio and Carreon,34 for instance, Congress enacted a law modifying the offices in the Board of Dental Examiners. The new law, RA 546, raised the qualifications for the board members, and provided for a different appointment process. Dr. Alfonso C. Salcedo and Dr. Pascual Ignacio, who were incumbent board members at the time RA 546 took effect, filed a special civil action for quo warranto against their replacements, arguing that their term of office under the old law had not yet expired, and neither had they abandoned or been removed from office for cause. We dismissed their petition, and held that Congress may, by law, terminate the term of a public office at any time and even while it is occupied by the incumbent. Thus, whether Dr. Salcedo and Dr. Ignacio were removed for cause or had abandoned their office is immaterial. More recently, in Dimayuga v. Benedicto II,35 we upheld the removal of Chona M. Dimayuga, a permanent appointee to the Executive Director II position, which was not part of the career executive service at the time of her appointment. During her incumbency, the CSC, by authority granted under Presidential Decree No. 1, classified the Executive Director II position to be within the career executive service. Since Dimayuga was not a career executive service officer, her initially permanent appointment to the position became temporary; thus, she could be removed from office at any time. In the current case, Congress, through RA 7160, did not abolish the provincial administrator position but significantly modified many of its aspects. It is now a primarily confidential position under the non-career service tranche of the civil service. This change could not have been aimed at prejudicing Gonzales, as she was not the only provincial administrator incumbent at the time RA 7160 was enacted. Rather, this change was part of the reform measures that RA 7160 introduced to further empower local governments and decentralize the delivery of public service. Section 3(b) of RA 7160 provides as one of its operative principles that: (b) There shall be established in every local government unit an accountable, efficient, and dynamic organizational structure and operating mechanism that will meet the priority needs and service requirements of its communities. Thus, Gonzales’ permanent appointment as provincial administrator prior to the enactment of RA 7160 is immaterial to her removal as provincial administrator. For purposes of determining whether Gonzales’ termination violated her right to security of tenure, the nature of the position she occupied at the time of her removal should be considered, and not merely the nature of her appointment at the time she entered government service. In echoing the CSC and the CA’s conclusion, the dissenting opinion posits the view that security of tenure protects the permanent appointment of a public officer, despite subsequent changes in the nature of his position. Citing Gabriel v. Domingo,36 the dissenting opinion quotes our categorical declaration that "a permanent employee remains a permanent employee unless he is validly terminated," and from there attempts to draw an analogy between Gabriel and the case at hand. The very first sentence of Gabriel spells out its vast difference from the present case. The sole and main issue in Gabriel is whether backwages and other monetary benefits could be awarded to an illegally dismissed government employee, who was later ordered reinstated. From this sentence alone can be discerned that the issues involved related to the consequences of illegal dismissal rather than to the dismissal itself. Nowhere in Gabrielwas there any mention of a change in the nature of the position held by the public officer involved. Further, key factual differences make Gabriel inapplicable to the present case, even if only by analogy: first, the public officer in Gabriel received a Memorandum stating that he would be appointed as Transportation District Supervisor III under their office reorganization. Second, the Court in Gabriel clearly pointed out that the reason for his eventual appointment as a casual employee, which led to his termination from service, was due to a pending protest he filed before the CSC – indicating that there was no ground for him to not receive the appointment earlier promised. In contrast, the issue of Gonzales is whether the

appointing authority’s lack of trust and confidence in the appointee was sufficient cause for the termination of employment of a primarily confidential employee. And third, there was a change in the position held by the public officer in Gabriel. He was a permanent employee who was extended a different appointment, which was casual in nature, because of a protest that he earlier filed. In contrast, the current case involves a public officer who held the same position whose nature changed because of the passage of RA 7160. The dissent also quotes the penultimate paragraph of Civil Service Commission v. Javier37 to support its contention that permanent appointees could expect protection for their tenure and appointments in the event that the Court determines that the position is actually confidential in nature: The Court is aware that this decision has repercussions on the tenure of other corporate secretaries in various GOCCs. The officers likely assumed their positions on permanent career status, expecting protection for their tenure and appointments, but are now re-classified as primarily confidential appointees. Such concern is unfounded, however, since the statutes themselves do not classify the position of corporate secretary as permanent and career in nature. Moreover, there is no absolute guarantee that it will not be classified as confidential when a dispute arises. As earlier stated, the Court, by legal tradition, has the power to make a final determination as to which positions in government are primarily confidential or otherwise. In the light of the instant controversy, the Court's view is that the greater public interest is served if the position of a corporate secretary is classified as primarily confidential in nature.38 The quoted portion, however, even bolsters our theory. Read together with its succeeding paragraph, the quoted portion in Civil Service Commission v. Javier39 actually stands for the proposition that other corporate secretaries in government-owned and –controlled corporations cannot expect protection for their tenure and appointments upon the reclassification of their position to a primarily confidential position. There, the Court emphasized that these officers cannot rely on the statutes providing for their permanent appointments, if and when the Court determines these to be primarily confidential. In the succeeding paragraph after the portion quoted by the dissent, we even pointed out that there is no vested right to public office, nor is public service a property right. Thus: Moreover, it is a basic tenet in the country's constitutional system that "public office is a public trust," and that there is no vested right in public office, nor an absolute right to hold office. No proprietary title attaches to a public office, as public service is not a property right. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office. The rule is that offices in government, except those created by the constitution, may be abolished, altered, or created anytime by statute. And any issues on the classification for a position in government may be brought to and determined by the courts.40 (emphases and italics ours) Executive Order No. 503 does not grant Gonzales security of tenure in the provincial administrator position on a permanent capacity In extending security of tenure to Gonzales’ permanent appointment as provincial administrator, the dissenting opinion cites as authority Executive Order No. (EO) 503 which provided certain safeguards against the termination of government employees affected by the implementation of RA 7160. According to the dissenting opinion, EO 503 is an obvious indication of the executive department’s intent to protect and uphold both the national government and the local government employees’ security of tenure. It cites Section 2(a), paragraph 8 (providing for the tenure of an administrator) to prove its point: 8. Incumbents of positions, namely administrator, legal officer, and information officer declared by the Code as coterminous, who hold permanent appointments, shall continue to enjoy their permanent status until they vacate their positions. At first glance, EO 503 does seem to extend the provincial administrators’ security of tenure in their permanent appointments even beyond the effectivity of RA 7160. EO 503, however, does not apply to employees of the local government affected by RA 7160’s enactment. The title of EO 503 clearly provides for its scope of application, to wit: Executive Order No. 503. Providing for the Rules and Regulations Implementing the Transfer of Personnel and Assets, Liabilities and Records of National Government Agencies whose Functions are to be Devolved to the Local Government Units and for other Related Purposes. [underscore, italics and emphases ours] A reading of EO 503’s whereas clauses confirms that it applies only to national government employees whose functions are to be devolved to local governments: WHEREAS, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, hereinafter referred to as the Code, transfers the responsibility for the delivery of basic services and facilities from the national government agencies (NGAs) concerned to the local government units (LGUs); WHEREAS, the Code stipulated that the transfer of basic services and facilities shall be accompanied by the transfer of the national personnel concerned and assets to ensure continuity in the delivery of such services and facilities;

WHEREAS, responsive rules and regulations are needed to affect the required transfer of national personnel concerned and assets to the LGUs. [underscores, italics and emphases ours] Thus, paragraph 8, section 2(a) of EO 503 cannot apply to Gonzales, a provincial administrator. As explained earlier, the existence of the provincial administrator position was a prerogative of the Sanggunian Panlalawigan, and was not even a mandatory public office under the old LGC. It is clearly not a national government position whose functions are to be devolved to the local governments. The dissenting opinion, on the other hand, argues that EO 503 does not apply to national government employees only. According to the dissent, the phrase "and for related purposes" in EO 503’s title could encompass personnel not necessarily employed by national government agencies but by local government units such as the administrator, the legal officer and the information officer, as enumerated in Section 2(a), paragraph 8 thereof. This provision, according to the dissent, fills the crucial gap left by RA 7160 which did not provide whether the term of an incumbent provincial administrator would automatically become coterminous with that of the appointing authority upon RA 7160’s effectivity. This kind of construction effectively adds to EO 503’s object matters that it did not explicitly provide for. The phrase "and for other related purposes" can only add to EO 503 matters related to the devolution of personnel, basic services and facilities to local government units. The impact of the change in a local government position’s nature is clearly different from the implementation of devolution and its ancillary effects: the former involves a change in a local government position’s functions and concept of tenure, while the latter involves (among other things) the transfer of national government employees to local government units. This difference is highlighted by the fact that EO 503, as reflected by its whereas clauses, was issued to implement Section 17 of RA 7160. In contrast, the change in the nature of the provincial administrator position may be gleaned from Section 480 of RA 7160. Hence, by no stretch of reasonable construction can the phrase "and for other related purposes" in EO 503’s title be understood to encompass the consequences of the change in the local government position’s nature. Furthermore, construing that the administrator position in Section 2(a), paragraph 8 pertains to city, municipal and/or provincial administrators would result in a legal infirmity. EO 503 was issued pursuant to the President’s ordinance powers to provide for rules that are general or permanent in character for the purpose of implementing the President’s constitutional or statutory powers.41 Exercising her constitutional duty to ensure that all laws are faithfully executed, then President Corazon Aquino issued EO 503 to ensure the executive’s compliance with paragraph (i), Section 17 of RA 7160, which requires local government units to absorb the personnel of national agencies whose functions shall be devolved to them.42 This is reflected in EO 503’s title and whereas clauses, and its limited application as discussed earlier. Thus, the dissenting opinion’s interpretation would result in the judicial recognition of an act of the Executive usurping a legislative power. The grant of permanent status to incumbent provincial administrators, despite the clear language and intent of RA 7160 to make the position coterminous, is an act outside the President’s legitimate powers. The power to create, abolish and modify public offices is lodged with Congress.43 The President cannot, through an Executive Order, grant permanent status to incumbents, when Congress by law has declared that the positions they occupy are now confidential. Such act would amount to the President’s amendment of an act of Congress – an act that the Constitution prohibits. Allowing this kind of interpretation violates the separation of powers, a constitutionally enshrined principle that the Court has the duty to uphold.44 The dissent counters this argument by pointing out that Section 2(a), paragraph 8 of EO 503 enjoys the legal presumption of validity. Unless the law or rule is annulled in a direct proceeding, the legal presumption of its validity stands. The EO’s validity, however, is not in question in the present case. What is at issue is a proper interpretation of its application giving due respect to the principle of separation of powers, and the dissenting opinion’s interpretation does violence to this principle. Gonzales has security of tenure, but only as a primarily confidential employee To be sure, both career and non-career service employees have a right to security of tenure.1âwphi1 All permanent officers and employees in the civil service, regardless of whether they belong to the career or non-career service category, are entitled to this guaranty; they cannot be removed from office except for cause provided by law and after procedural due process.45 The concept of security of tenure, however, labors under a variation for primarily confidential employees due to the basic concept of a "primarily confidential" position. Serving at the confidence of the appointing authority, the primarily confidential employee’s term of office expires when the appointing authority loses trust in the employee. When this happens, the confidential employee is not "removed" or "dismissed" from

office; his term merely "expires"46 and the loss of trust and confidence is the "just cause" provided by law that results in the termination of employment. In the present case where the trust and confidence has been irretrievably eroded, we cannot fault Governor Pimentel’s exercise of discretion when he decided that he could no longer entrust his confidence in Gonzales. Security of tenure in public office simply means that a public officer or employee shall not be suspended or dismissed except for cause, as provided by law and after due process. It cannot be expanded to grant a right to public office despite a change in the nature of the office held. In other words, the CSC might have been legally correct when it ruled that the petitioner violated Gonzales’ right to security of tenure when she was removed without sufficient just cause from her position, but the situation had since then been changed. In fact, Gonzales was reinstated as ordered, but her services were subsequently terminated under the law prevailing at the time of the termination of her service; i.e., she was then already occupying a position that was primarily confidential and had to be dismissed because she no longer enjoyed the trust and confidence of the appointing authority. Thus, Gonzales’ termination for lack of confidence was lawful. She could no longer be reinstated as provincial administrator of Camarines Norte or to any other comparable position. This conclusion, however, is without prejudice to Gonzales’ entitlement to retirement benefits, leave credits, and future employment in government service. WHEREFORE, all premises considered, we hereby GRANT the petition, and REVERSE and SET ASIDE the Decision dated June 25, 2008 and the Resolution dated December 2, 2008 of the Court of Appeals in CAG.R. SP No. 97425. SO ORDERED.