Compilation Of Cases Finals.docx

CASES Elective Local Officials A. Qualifications and Disqualifications 1. Maquiling vs. COMELEC, April 16, 2013

FACTS

ISSUE

HELD

Maquiling used his US passport despite the fact that he renounced his US citizenship since he applied for repatriation, wherein he reacquired his original citizenship as a Filipino.

Will the use his US passport revert his citizenship?

What is the effect of using your passport? The use of the passport does not divest his newly acquired Philippine Citizenship. The effect is merely reverted to old status, a repatriation to the earlier status that is, being dual citizen. The effect therefore, once you will use your foreign passport, it will not affect the newly reacquired Philippine Citizenship. But it would be considered as a repatriation, meaning you recant the oath of renunciation required to qualify to run for an elective position. Meaning you will revert back to your old status, a dual citizen and under RA7160, you are disqualified to run for public office. Bear in mind that there is a difference between Armado, who voluntarily applied for naturalization in a foreign country, compared to a person who is a dual citizen by birth, meaning a dual citizen that’s involuntary. Like if your parents are Filipinos and you are born in the states. The US recognizes sui soli, and the Philippines applies sui sanguinis, so you are a dual citizen, involuntarily. If you are a dual citizen by birth, no need for oath of renunciation, the mere fact of filing your COC it already means that you already renounce your current citizenship. (like in the case of Edu Monzano, his citizenship was questioned, so he asked for a media conference where he tore his American Citizenship in front of the cameras. He did not need to do this. The moment you file a COC, you already renounce your foreign citizenship and is choosing to be Filipino.) Another important thing, under Election Law, the primary rule, when interpreting the provisions, you should interpret it to give effect to the will of the electorate. Salus populi est suprema lex. Petitioners aver we should disregard that<meaning the use of his passport>, since Armado got the highest number of votes give effect to the will of the people choosing him to be the mayor in that locality. But the court said the ballot cannot override the Constitutional and statutory requirements for qualifications and disqualifications of candidacy. To allow the sovereign voice spoken through the ballot to trump constitutional and statutory provisions on qualifications and disqualifications of candidates is not democracy or republicanism. It is electoral anarchy. Another question was regarding the Vice Mayor. They aver, the rule on succession should apply because Maquiling is merely a second placer and was not the choice of the people.

Cases for Public Corporation Law 2018- 2019 (Elective Official and Jurisdiction)

1

SC HELD: the court said, that is not the case, Armado’s COC was CANCELLED. Macquiling is not the second placer, he is the candidate who garnered the highest number of votes among the valid candidates. Thus, he should be the Mayor. In the past the court tried to distinguish between a situation where voters already knew that the candidate is disqualified and the finality will happen AFTER the election, in that case the court will say, oh, the voters are already familiar that he is disqualified. So what will apply? The next person will be declared the winner. If the finality is before the election, the rule on succession will apply. It has been held that where a petition for disqualification was filed before election against a candidate but was adversely resolved against him after election, his having obtained the highest number of votes did not make his election valid. His ouster from office does not violate the principle of vox populi suprema est lex because the application of the constitutional and statutory provisions on disqualification is not a matter of popularity. To apply it is to breath[e] life to the sovereign will of the people who expressed it when they ratified the Constitution and when they elected their representatives who enacted the law 2. Alterajos vs. COMELEC, November 10, 2004

Alterajos took his oath of allegiance, Dec 17, 1997. But his certificate of repatriation was registered only after 6 years, with the proper civil registry on Feb 18, 2004 and with the Bureau of Immigration on March 2014. Here, the registration happened AFTER he filed his COC.

WON Alterajos should already be a citizen upon filing his candicacy

REPATRIATION REQUIREMENTS shall be effected by taking the necessary oath of allegiance to the Republic of the Philippines and registration in the proper civil registry and in the Bureau of Immigration. When does citizenship qualification of candidate apply? It becomes important when you run for office. Remember that repatriation takes effect by taking an oath of allegiance with the Philippines and registration in the proper Civil Registry or the Bureau of Immigration. It will never be complete unless you comply with both. The Court in this case, in answer the question, when does the citizenship qualification of candidate apply the court mentioned the case of FRIVALDO V COMELEC, “Now, an official begins to govern or to discharge his functions only upon his proclamation and on the day the law mandates his term of office to begin.” Accordingly, Alterajos’ repatriation retroacted to the day he applied his repatriation in 1997.

NO. The court declares that the purpose of citizenship is to insure that no alien would govern us. Consequently, the time a candidate begins to govern on the day of his proclamation to the date the law mandates as the beginning of his term. Thus, he only needs to qualify the citizenship requirement at the time of his proclamation and the beginning of his term.

Cases for Public Corporation Law 2018- 2019 (Elective Official and Jurisdiction)

2

Philippine citizenship is an indispensable requirement for holding an elective public office, and the purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Now, an official begins to govern or to discharge his functions only upon his proclamation and on the day the law mandates his term of office to begin. Since Frivaldo reassumed his citizenship on June 30, 1995the very day the term of office of governor (and other elective officials) began he was therefore already qualified to be proclaimed, to hold such office and to discharge the functions and responsibilities thereof as of said date. In short, at that time, he was already qualified to govern his native Sorsogon. This is the liberal interpretation that should give spirit, life and meaning to our law on qualifications consistent with the purpose for which such law was enacted. x x x Paraphrasing this Courts ruling in Vasquez v. Giap and Li Seng Giap & Sons, if the purpose of the citizenship requirement is to ensure that our people and country do not end up being governed by aliens, i.e., persons owing allegiance to another nation, that aim or purpose would not be thwarted but instead achieved by construing the citizenship qualification as applying to the time of proclamation of the elected official and at the start of his term.[16] (Emphasis supplied.) 3. Mitra vs. COMELEC, July 02, 2010

Mitra, was a congressman of Puerto Princessa. He decided to run for governor, so he transferred his residency. COMELEC voted against Mitra, on the ground of “subjective non-legal standards” to determine WON he complied with residency requirement.

PURPOSE OF RESIDENCE REQUIREMENT = DO NOT USE SUBJECTIVE NON-LEGAL STANDARDS To prevent "stranger[s] or newcomer[s] unacquainted with the conditions and needs of a community from seeking elective offices in that community. The court said, no that is not correct altho the court said, it is correct that the residence he declared in the COC is a feedmill. But the court said, there was an ongoing construction of his house. We should not allow “subjective non-legal standards” to comply with the residency requirement. Looking at the big picture, the court said, his preparatory moves starting in 2008 and initial transfer to his dwelling, the purchase of the lot and the construction of a house in the lot which is adjacent to the feedmill is already enough to prove his intention to transfer. The COMELEC thereby determined the fitness of a dwelling as a persons residence based solely on very personal and subjective assessment standards when the law is replete with standards that can be used. Where a dwelling qualifies as a residence i.e., the dwelling where a person permanently intends to return to and to remain his or her capacity or inclination to decorate the place, or the lack of it, is immaterial.

From these perspectives, we cannot but conclude that the COMELECs approach i.e., the application of subjective non-legal standards and the gross misappreciation of the evidence is tainted with grave abuse of discretion, as the COMELEC used wrong considerations and grossly misread the evidence in arriving at its conclusion. In using subjective standards, the COMELEC committed an act not otherwise within the contemplation of law on an evidentiary point that served as a major basis for its conclusion in the case.

Cases for Public Corporation Law 2018- 2019 (Elective Official and Jurisdiction)

3

We reject this suggested approach outright for the same reason we condemned the COMELECs use of subjective non-legal standards. Mitras feed mill dwelling cannot be considered in isolation and separately from the circumstances of his transfer of residence, specifically, his expressed intent to transfer to a residence outside of Puerto Princesa City to make him eligible to run for a provincial position; his preparatory moves starting in early 2008; his initial transfer through a leased dwelling; the purchase of a lot for his permanent home; and the construction of a house in this lot that, parenthetically, is adjacent to the premises he leased pending the completion of his house. These incremental moves do not offend reason at all, in the way that the COMELECs highly subjective non-legal standards do.

4. Japzon vs. COMELEC, January 19,2009

LENGTH OF RESIDENCE: WHEN DETERMINED The term residence is to be understood not in its common acceptation as referring to dwelling or habitation, but rather to domicile or legal residence, that is, the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi)

As has already been previously discussed by this Court herein, Tys reacquisition of his Philippine citizenship under Republic Act No. 9225 had no automatic impact or effect on his residence/domicile. He could still retain his domicile in the USA, and he did not necessarily regain his domicile in the Municipality of General Macarthur, Eastern Samar, Philippines. Ty merely had the option to again establish his domicile in the Municipality of General Macarthur, Eastern Samar, Philippines, said place becoming his new domicile of choice. The length of his residence therein shall be determined from the time he made it his domicile of choice, and it shall not retroact to the time of his birth. Residency only becomes important when you decide to run for for a public position Requirement FOR NATURAL BORN WHO IS A DUAL CITIZEN: 1. Possess all the qualifications and none of the disqualifications 2. Personal renunciation of other citizenship. Requirement to run for local office: SEC39 of the RA 7160 1. Citizenship, not necessarily a natural-born, whether you are a natural born or naturalized citizen, you are allowed to run. 2. Registered voter 3. Resident of 1 yr, immediately preceding election 4. Able to read and write ANY local dialect, if you only know English, you are n ot allowed to run. 5. 21 yrs for…

Cases for Public Corporation Law 2018- 2019 (Elective Official and Jurisdiction)

4

5. Torayno, Sr. vs. COMELEC, August 09, 2000

6. Bautista vs. COMELEC, October 23, 2003

Emano, who was the provincial governor of Misamis Oriental. Who was already on his 3rd term as provincial gov, he decided to run for Mayor of CDO, an independent component city, which is not allowed to vote for provincial officials. Some people questioned this, he should not be allowed to run, since he is still the governor. He is still exercising the functions of the governor in the province of MisOr, he should be a resident in another place, not in CDO. Under the RA 7160, he must not only be a qualified voter but he must also be a REGISTERED VOTER.

PURPOSE OF RESIDENCE REQUIREMENT In other words, the actual, physical and personal presence of herein private respondent in Cagayan de Oro City is substantial enough to show his intention to fulfill the duties of mayor and for the voters to evaluate his qualifications for the mayorship. Petitioners' very legalistic, academic and technical approach to the residence requirement does not satisfy this simple, practical and common-sense rationale for the residence requirement.

Remember that the capital of MisOr is in CDO. The court said, it is enough that he is there.

REGISTERED VOTER It is not enough that you are a qualified elector, you must be a registered voter Here, Bautista admitted in his affidavit that he was not a registered voter. Bautista made a material misrepresentation in his COC that he was a registered voter when he was not. An elective office is a public trust. Material Misrepresentation is a ground for denial of due course or cancellation of COC. Indeed, the electorate cannot amend or waive the qualifications prescribed by law for elective office. The will of the people as expressed through the ballot cannot cure the vice of ineligibility. The fact that Bautista, a non-registered voter, was elected to the office of Punong Barangay does not erase the fact that he lacks one of the qualifications for Punong Barangay. Bautista was aware when he filed his certificate of candidacy for the office of Punong Barangay that he lacked one of the qualifications that of being a registered voter in the barangay where he ran for office. He therefore made a misrepresentation of a material fact when he made a false statement in his certificate of candidacy that he was a registered voter in Barangay Lumbangan.[42] An elective office is a public trust. He who aspires for elective office should not make a mockery of the electoral process by falsely representing himself.

Cases for Public Corporation Law 2018- 2019 (Elective Official and Jurisdiction)

5

However, under the Local Government Code of 1991, [38] which took effect on 1 January 1992, an elective local official, including a Punong Barangay, must not only be a qualified elector or a qualified voter, he must also be a registered voter.[39] Section 39 of the Local Government Code provides: SEC. 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filpino or any other local language or dialect. xxx (e) Candidates for the position of punong barangay or member of the sangguniang barangay must be at least eighteen (18) years of age on election day. xxx These qualifications were reiterated in Section 2 of COMELEC Resolution No. 4801 dated 23 May 2002 which prescribed the guidelines on the filing of certificates of candidacy in connection with the 15 July 2002 elections. Section 2 reads: Sec. 2. Qualifications. (a) Candidates for Punong Barangay and Sangguniang Barangay Kagawad must be: (1) Filipino citizens; (2) At least 18 years old on election day; (3) Able to read and write Pilipino or any local language or dialect; and (4) Registered voters of the barangay where they intend to run for office and residents thereof for at least one (1) year immediately preceding the day of the election. (Emphasis supplied) What was filed is NOT a Petition for Disqualification, what was filed was a Petition for Cancellation on the ground of Material Misrepresentation. 7. Aratea vs. COMELEC, October 09, 2012

WHAT ACTION SHOULD BE FILED AND EFFECTS Sec 68 – all refer to election offenses under the Omnibus election code, not the RPC. You may file “Petition for Disqualification”

Cases for Public Corporation Law 2018- 2019 (Elective Official and Jurisdiction)

6

Sec 78 – COC may be denied due course of cancelled if there is FALSE MATERIAL REPRESENTATION of the contents of the COC. A candidate for mayor in the 2010 local elections was thus required to provide 12 items of information in the certificate of candidacy: 1. name; 2. nickname or stage name; 3. gender; 4. age; 5. place of birth; 6. political party that nominated the candidate; 7. civil status; 8. residence/address; 9. profession or occupation; 10. post office address for election purposes; 11. locality of which the candidate is a registered voter; 12. and period of residence in the Philippines before 10 May 2010. The candidate also certifies 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. The certificate of candidacy should also be under oath, and filed within the period prescribed by law. So the conviction of Don with final judgement, with the penalty of prision mayor, disqualifies him PERPETUALLY from holding public office. His perpetual disqualification took effect upon the finality of the judgement, before he filed his COC.

Labaw Jr. v COMELEC

FUGITIVE OF JUSTICE What is included? Limited only to those who flee after conviction? The court said, NO. it includes those who flee AFTER conviction, to avoid PUNISHMENT, but likewise include, those who flee to avoid PROSECUTION. Rodriguez v COMELEC: 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

Cases for Public Corporation Law 2018- 2019 (Elective Official and Jurisdiction)

7

an intent to evade prosecution or punishment when there is knowledge by the fleeing subject of an already instituted indictment, or a promulgated judgement of conviction. It is a condition sine qua non that is PRIOR KNOWLEDGE of the instituted indictment or a judgement or conviction. Because again, it means fleeing AFTER conviction, to avoid PUNISHMENT, or, fleeing to avoid PROSECUTION.

Jalosjos v COMELEC

FORMER CONVICT Here the court said, when Sec 48 (a) allows for a former CONVICT after the lapse of 2 years after the service of his sentence, (remember you will reacquire your right to vote and be voted) should not be deemed to include cases where the court includes an accessory penalty of perpetual disqualification. In relation to article 30 of the RPC, the penalty of perpetual absolute disqualification has the effect of depriving a convicted felon of the privilege to run for effective office. So, do not conclude right away that he can run right away after the lapse of 2 yrs, because if the penalty, principal or accessory, carries a penalty of perpetual disqualification to run for public office, then he is disqualified, barred from running for ANY local position.

B. Inhibitions and Prohibitions 1. Catu vs. Atty. Rellosa, A.C. No. 5738, February 19, 2008

This is about practice of profession. Who was involved is a person who ran and declared as Punong Barangay, Brgy Chairman.

PROHIBITION ON PRACTICE OF PROFESSION What is important here, is Sec 90 RA7160, which governs the practice of professions of elective local govt officials and employees, and not RA6713, that’s the general law. The more specific law is RA7160 which govern local officials. Section 7(b)(2) of RA 6713 prohibits public officials and employees, during their incumbency, from engaging in the private practice of their profession unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions. This is the general law which applies to all public officials and employees. Sec 90 of RA 7160 is a special provision that applies specifically to the practice of profession by elective local officials. As a special law with a definite scope (that is, the practice of profession by elective local officials), it constitutes an exception to Section 7(b)(2) of RA 6713, the general law on engaging in the private practice of profession by public officials and employees. Lex specialibus derogat generalibus What is important is RA 7160, it provides, governors, Moyor, Municipal Mayor, are prohibited from practicing their profession or engaging in any occupation other than their functions as local chief executive.

Cases for Public Corporation Law 2018- 2019 (Elective Official and Jurisdiction)

8

Meaning, the governor, mayor (city or municipal) are TOTALLY prohibited from practicing their professions. They must concentrate and exercise their functions as local chief executive. On the other hand the Sanggunian Members, may practice their professions, occupation or teach, except during the session hours. Is there a requirement for them to ask for permission from the head of their department? NO. Because the law expressly allows them to practice subject to the limitation that they can do this not in session hours. Now let’s go to the Barangay, the Chairman of the Barangay and the Sanggunian members. Are they allowed to practice their profession? Remember, the Chairman is the local chief executive of the b arangay. Is he absolutely prohibited? NO. Who is prohibited is only the city, municipal MAYOR and GOVERNOR. As Punong Barangay, he was not prohibited to practice his profession but civil service rules require him to ask prior permission from his superior So, there is a need therefore, for the Chairman and the members of the Sanggunian PRIOR PERMISSION from the head of their department. Provinces Governor

Cities Mayor

Municipalities Municipal Mayor

Sangguniang Panlalawigan

Panlungsod

Bayan

Remarks They are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives. This is because they are required to render full time service. May practice their professions, engage in any occupation, or teach in any school. No need to ask permission from their superior, except when in session.

PUNONG BARANGAY AND SUNGGUNIANG BARANGAY the presumption is that they are allowed to practice their profession. And this stands to reason because they are not mandated to serve full time. In fact, the sangguniang barangay is supposed to hold regular sessions only twice a month

Cases for Public Corporation Law 2018- 2019 (Elective Official and Jurisdiction)

9

2. Flores vs. Hon. Drilon, G.R. No. 104732, June 22, 1993

This is about Section 7 Art 19 of the Consti

PROTECTION AGAINST MULTIPLE OFFICES In full, Sec. 7 of Art. IX-B of the Constitution provides: No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. In this case, the law allows the president to appoint an elective official like a mayor of olongapo city, to other govt posts like a chairman of board and chief executive officer of SBMA (subic bay metropolitan authority). Here, the fact that the expertise of an elective official may be most beneficial to the higher interest of the body politic is of no moment. It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local elective official to another post if so allowed by law or by the primary functions of his office.8 But, the contention is fallacious. Section 94 of the LGC is not determinative of the constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail over the fundamental law of the land. Because Section 7 of Art 19 of the Constitution is very clear that no elective official shall be appointed for ANY office during his tenure. Sec. 7, Art.IX-B of the Constitution: While the second paragraph authorizes holding of multiple offices by an appointive official when allowed by law or by the primary functions of his position, the first paragraph appears to be more stringent by not providing any exception to the rule against appointment or designation of an elective official to the government post, except as are particularly recognized in the Constitution itself. There is therefore a difference between an appointive position and an elective position. Because in the second paragraph, it allows holding of multiple offices by an appointive official may be hold another office when allowed by law or by the primary function of his position. But in cases of elective position, there is no exception EXCEPT when the consti itself allows him to hold another office.

Cases for Public Corporation Law 2018- 2019 (Elective Official and Jurisdiction)

10

C. Term of Office, include the Three (3)-Term Limit Rule

Remember the Constitution is clear, the term of local officials, except, Barangay officials is 3 years. For barangay officials, it shall be determined by law. And they shall serve 3 consecutive terms. That’s the 3 term limit rule. That the local official shall only be allowed to serve 3 consecutive terms, at most! Now let’s apply those rules.

ASSUMPTION OF OFFICE BY OPERATION OF LAW (YES) When a permanent vacancy occurs in an elective position and the official merely assumed pursuant to the rules of succession, his service for the unexpired portion of the term, cannot be completed as one whole term. So when the vice-mayor will die, the 1st council will assume the VM and he will serve for the UNEXPIRED term that assumption is not considered one whole term. The 3 term rule only applies when you FULLY serve the term. That there is NO INTERUPTION. You fully serve the term for which you were elected for. Assumption of office by operation of law is considered an involuntary severance or interruption. So meaning the councilor who assumed office as VM, when he starts his 3rd term, the VM died, so he assumed the office, that assumption byv operation of law is considered an INTERUPTION of term, meaning he can run again as councilor in the next election. That’s a case in TUBURAN <so feeling nako mao ni question ni sir na katong gi handle niya na kaso>

RECALL ELECTION (YES) There was a mayor of Puerto Princessa. Since he can no longer run, he allowed his VM to run and was declared the winner. But a year after, a recall election was held and former mayor ran. It was opposed. SC, if you won in a recall, is an interruption if his service, FOR HE HAD BECOME, IN THE INTERIM, FROM THE END OF HIS 3RD TERM UP TO THE RECALL ELECTION, A PRIVATE CITIZEN. So there is an interruption.

CONVERSION FROM MUNICIPALITY TO A CITY (NO) It cannot be considered an interruption because he is still the incumbent local chief executive of the said LGU. So, it does not interrupt. Latasa v COMELEC PERIOD OF PREVENTIVE SUSPENSION (NO) The elective officers continue to stay and the title to the office remains unaffected. What is merely suspended is the exercise of the functions of his office during the preventive suspension. Therefore, there is no interruption. Aldovino Case ELECTION PROTEST (YES) BUT, if you fully served your term during the pendency of the case, then it is not an interruption. Ong v Rivera

Cases for Public Corporation Law 2018- 2019 (Elective Official and Jurisdiction)

11

1. Abundo, Sr. vs. COMELEC, January 08, 2013

LIST OF RULES To constitute a disqualification to run for an elective local office pursuant to the aforequoted constitutional and statutory provisions, the following 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 has fully served three consecutive terms. RULES: valid interruption? Yes, may reset term. No, will not interrupt continuity of 3 yrs term. 1. Assumption of Office by Operation of Law (YES) 2. Recall Elections (YES) 3. Conversion of a Municipality to a City (NO) never ceased from discharging his duties and responsibilities as chief executive of Digos 4. Period of Preventive Suspension (NO) A preventive suspension cannot simply be a term interruption because the suspended official continues to stay in office although he is barred from exercising the functions and prerogatives of the office within the suspension period. 5. Election Protest (YES) BUT, if you fully served your term during the pendency of the case, then it is not an interruption.

6. Aldovino, Jr. vs. COMELEC, December 23, 2009 7. COMELEC vs. Cruz, November 20, 2009 8. Montebon vs. COMELEC, April 08, 2008 9. Ong vs. Alegre, January 23, 2006 10. Borja, Jr. vs. COMELEC, September 03, 1998 D. Holdover Principle 1. Kida vs. Senate of the Philippines, October 18, 2011

Synchronization of ARMM Regional elections with the National Elections. Since there is synchronization, either you allow a holdover period, hold a Special

The Holdover Option is unconstitutional, it violates Sec 8, Art X of the Constitution. In the case of the terms of local officials, their term has been fixed clearly and unequivocally, allowing no room for any implementing legislation with respect to the fixed term itself and no vagueness that would allow an interpretation from this Court. Thus, the term of three years for local officials should stay at three (3) years as fixed by the Constitution and cannot be extended by holdover by Congress.

Cases for Public Corporation Law 2018- 2019 (Elective Official and Jurisdiction)

12

Election or allow the president to appoint officials,

The second option, the Congress cannot compel COMELEC to conduct a special election. Third, the president can allow to appoint. It is possible since the President has the power to appoint. Appointment is essentially executive in nature.

2. Sambarani COMELEC, 15, 2004

vs. September

A law was passed and the bryg officials continued to hold office, until a new set will be elected.

BRGY HOLDOVER PERIOD IS OK Since there was a failure of elections in the 15 July 2002 regular elections and in the 13 August 2002 special elections, petitioners can legally remain in office as barangay chairmen of their respective barangays in a hold-over capacity. They shall continue to discharge their powers and duties as punong barangay, and enjoy the rights and privileges pertaining to the office. True, Section 43(c) of the Local Government Code limits the term of elective barangay officials to three years. However, Section 5 of RA 9164 explicitly provides that incumbent barangay officials may continue in office in a hold over capacity until their successors are elected and qualified. It is possible because the barangay elections are determined by LAW and not like the other local officials which is determined by the CONSTITUTION.

E. Substitution, Vacancies and Succession

There are 2 available remedies to prevent a candidate from running in an electoral race 1. Petition for disqualification 2. Petition to deny due course to or cancel his COC While a person who is disqualified under Sec.68 is merely prohibited to continue as a candidate. In case one’s COC is cancelled (petition for cancellation), it will be as if he has never filed a COC. A COC which is denied due course to or cancel his COC under Sec.78 is not treated as a candidate. As if he has never filed his COC. Why is that relevant? It is relevant because in case of petition to deny due course to or cancel his COC, you are treated as not a candidate, as if you never filed your COC, then there is no substitution. Substitution is therefore not allowed unlike in petition for disqualification.

1. Talaga vs. COMELEC, October 09, 2012

A cancelled COC does not give rise to a valid candidacy. There can be no valid substitution of the candidate. DIFFERENCE IN PETITION FOR DISQUAL v CANCELLATION There are two remedies available to prevent a candidate from running in an electoral race. One is through a petition for disqualification and the other through a petition to deny due course to or cancel a certificate of candidacy. The Court differentiated the two remedies in Fermin v. Commission on Elections, thuswise:

Cases for Public Corporation Law 2018- 2019 (Elective Official and Jurisdiction)

13

x x x A petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the Omnibus Election Code, or Section 40 of the Local Government Code. On the other hand, a petition to deny due course to or cancel a CoC can only be grounded on a statement of a material representation in the said certificate that is false. The petitions also have different effects. While a person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the person whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC. the Court has recognized in Miranda v. Abaya that the following circumstances may result from the granting of the petitions, to wit: (1) A candidate may not be qualified to run for election but may have filed a valid CoC; (2) A candidate may not be qualified and at the same time may not have filed a valid CoC; and (3) A candidate may be qualified but his CoC may be denied due course or cancelled. Remember Sec 77 of the Omnibus provides the option of Substitution. However, in case of Petition to Deny Due Course or Petition to Cancel COC, there is no option of substitution, coz again as if you did not file a valid it’s as if you did not file a COC. Considering that a cancelled COC does not give rise to a valid candidacy, there can be no valid substitution of a candidate. 2. Jalosjos, Jr. vs. COMELEC, October 09, 2012

SUCCESSION OR 2ND PLACER? The denial of due course or cancellation is not based on the LACK of QUALIFICATIONS, but on the finding that the candidate has made a MATERIAL MISREPRESENTATION, in the COC, which may relate to the qualification of the public office he or she is running for. His COC is VOID ab initio. Succession will NOT apply if his COC is VOID. Decisions of this Court holding that the second-placer cannot be proclaimed winner if the firstplacer 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 A denial of due course to or cancellation of the COC is not based on lack of qualification. But is based on the finding that the candidate made a material representation that is false, which may relate to the qualifications required to hold public office for which he is running.

Cases for Public Corporation Law 2018- 2019 (Elective Official and Jurisdiction)

14

Section 68 refers only to election offenses under the Omnibus Election Code and not to crimes under the RPC. When the COC of Jalosjos mentioned that he made a material misrepresentation, COMELEC properly cancelled his COC. A void COC on the ground of eligibility that existed at the time of the filing of the COC can never give rise to a valid candidacy and much less to valid votes. Whether his COC is cancelled before or after the election is immaterial because the cancellation alone on such grounds mean he was never a valid candidate from the very beginning. His COC being void ab initio. Therefore, the remaining candidate who garnered the highest number of votes will be declared the winner. VERY IMPORTANT PART: decisions of this court holding that the 2nd placer cannot be proclaimed the winner if the 1st placer was disqualified or declared eligible should be limited to certain situations. Because as a whole, the SC already abandoned this rule, in case the candidate is disqualified or the COC is cancelled, the 2 nd placer or the candidate who garnered the highest number of votes among the valid candidates shall be proclaimed as a winner. When is this rule not applicable or when is the rule on succession applicable? The court said, this is limited to situations where the COC of the 1st placer was valid at the time of the filing but subsequently had to be cancelled because of a violation of law took place or a legal impediment that to effect after the filing of the COC. Example: You file a COC because you are qualified. You have a valid COC. But before the election, you applied for foreign citizenship. You took an oath renouncing your Filipino citizenship and now you are a foreign citizen. You are no longer a Filipino, so what rule will apply? The rule on succession will apply. Because at the time of the filing of the COC you are a qualified candidate and your COC is valid. Therefore the 2nd placer will not be declared as the winning candidate.

3. Damasen vs. Tumamao, February 17, 2010

WHO CAN SUBSTITUTE As can be gleaned from the above provision, the law provides for conditions for the rule of succession to apply: 1. the appointee shall come from the same political party as that of the Sanggunian member who caused the vacancy. 2. The appointee must have a nomination and a Certificate of Membership from the highest official of the political party concerned.

Cases for Public Corporation Law 2018- 2019 (Elective Official and Jurisdiction)

15

The reason behind the right given to a political party to nominate a replacement where a permanent vacancy occurs in the Sanggunian is to maintain the party representation as willed by the people in the election. (Navarro v CA)

4. Navarro vs. CA, March 28, 2001

WHEN IS THE LAST VACANCY The "last vacancy" in the Sanggunian refers to that created by the elevation of the member formerly occupying the next higher in rank which in turn also had become vacant by any of the causes already enumerated. The reason behind the right given to a political party to nominate a replacement where a permanent vacancy occurs in the Sanggunian is to maintain the party representation as willed by the people in the election. To preserve political party affiliation and to preserve the ratio of the parties. Independent: local chief executive, upon recommendation of the sanggunian concerned, appoint a qualified person to fill the vacancy (Sec 45 (b) RA 7160) In case the vice mayor dies or there is vacancy in the office of the vice mayor, what is the last vacancy? Why is it important? Remember when the vice mayor dies or there is permanent vacancy in the office of the vice mayor the first councilor will assume office by operation of law as the vice mayor, assuming he comes from party A, the 2nd councilor will become the 1st councilor, the 3rd councilor will become the 2nd councilor, and so on and so forth. Meaning the 7th councilor will become the 6th councilor. Where is the last vacancy? Because under the LGC the last vacancy will be the basis of the political party that will be appointed for that vacant position. The SC said that the last vacancy is when the 1st councilor assumes office as the vice mayor. This to maintain party representation. To ensure that the will of the voters as to who will be the party representation in the Sangguniang will be maintained. If it is an independent party, it is still the local chief executive (governor or the mayor, coming from the recommendations of the concerned Sanggunian) who will appoint. In one case involving Ilocos Norte, an independent candidate died. Under the LGC it is the governor who will appoint the independent councilor in that municipality. The provincial governor, coming from the list of recommendation of the Sangguniang (SB). The problem now is the governor appointed from the recommendation of the Sangguniang Panlalawigan a replacement for that independent candidate, the municipal mayor also appointed another person from the recommendation of the SB. Whose appointment is valid? None, because the proper authority is the provincial governor but it must come from the recommendation of the concerned Sangguniang. The municipal mayor is not the appointing

Cases for Public Corporation Law 2018- 2019 (Elective Official and Jurisdiction)

16

authority although the person appointed came from the SB. Both appointments are not valid. Rule 45 (Read all the rules concerning succession) JURISDICTION AND APPEAL 1. Hon Hagad vs. Hon. GozoDadole, December 12, 1995

2. Alejandro vs. Office of the Ombudsman Fact-Finding and Intelligence Bureau, April 3, 2013

3. Don vs. Lacsa, August 7, 2007

REMOVAL They questioned the jurisdiction of the ombudsman, saying that under the LGC, the jurisdiction is with the proper Sangguniang, not the office of the ombudsman (administrative jurisdiction). The court said that there is nothing in the LGC to indicate that it has repealed whether expressly or impliedly the pertinent provisions of the ombudsman. The provisions are not inconsistent let alone irreconcilable as to compel us to uphold one and strike down the other. Therefore, the office of ombudsman and the Sanggunian has concurrent administrative jurisdiction over erring local officials. CONCURRENT JURISDICTION Ombudsman has concurrent jurisdiction over administrative cases which are within the jurisdiction over administrative cases which are within the jurisdiction of the regular courts or administrative agencies. of the Ombudsman, the Ombudsman's exercise of jurisdiction is to the exclusion of the sangguniang bayan whose exercise of jurisdiction is concurrent. The Ombudsman has the power to impose administrative sanctions FINAL AND EXECUTORY Section 61(c), provides that a complaint against any elective official shall be filed before the Sangguniang Panlungsod or Sangguniang Bayan whose decision shall be final and executory. What is meant by final and executory? Does not mean the can no longer appeal it? the answer is no. What is meant is that by final and executory immediately execute it. It does not mean that you can no longer appeal it. In fact, under Sec. 67 of the LGC, Decisions in administrative cases may, within thirty (30) days from receipt thereof, maybe appealed to the following: (a) The sangguniang panlalawigan, in the case of decisions of the sangguniang panlungsod of component cities and the sangguniang bayan; and (b) The Office of the President, in the case of decisions of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities. Final and executory does not preclude taking appeal to the appropriate body. Obviously, the said Code does not preclude the taking of an appeal. On the contrary, it specifically allows a party to appeal to the Office of the President. The [phrase] "final and executory" x x x in Sections 67 and 68, respectively, of the Local Government Code, are not, as erroneously ruled by the trial court, indicative of the appropriate mode of relief from the decision of the Sanggunian concerned. These phrases simply mean that the administrative appeals will not prevent the enforcement of the decisions. The decision is immediately executory

Cases for Public Corporation Law 2018- 2019 (Elective Official and Jurisdiction)

17

but the respondent may nevertheless appeal the adverse decision to the Office of the President or to the Sangguniang Panlalawigan, as the case may be.

Removal 1. SB Mariano Marcos vs. Martinez  This case is about removal  The court mentioned Sec. 60 of the LGC, it provides that an elective official may be removed from office on grounds enumerated above by order of the proper court. The sangguniang or the office of the president cannot impose dismissal from service to erring local officials. It can only be done by the proper court.  But can they designate? Yes, they may designate local erring officials, but the penalty of dismissal can only be ordered by a proper court (jurisdiction).  The court said that this intended as a check against any capriciousness of partisan activity by the disciplining authority. Only the court assumes jurisdiction over the case even if it subsequently part or during the trial the penalty of less than removal from office is appropriate. Even if the penalty is less than removal, the court still has jurisdiction once it entertains the case. They argue that the “sala” is not punishable by removal, in fact the court imposed the penalty of suspension. But that fact will not remove it from the jurisdiction of the court. Once jurisdiction is acquire, it will continue until disposal of the case. 2. Pablico vs. Vilapanio  Penalty for dismissal from service of an erring local officials may be decreed only by a court of law, the office of the president is without any power to remove elected officials. Since such power is exclusively vested in the proper courts as expressly provided under Sec. 60 of the LGC.

Cases for Public Corporation Law 2018- 2019 (Elective Official and Jurisdiction)

18