Loc Gov Digests Comelec.docx

MAQUILING VS. COMMISSION ON ELECTIONS G.R. No. 195649 / April 16, 2013 / SERENO, C.J. / Qualifications / EFHDy NATURE PETITION for certiorari PETITIONERS Casan Macode Maquiling RESPONDENTS Commission on Elections, Rommel Arnado y Cagoco, Linog G. Balua SUMMARY. Arnado was a natural born Filipino who subsequently gained US citizenship through naturalization, losing his PH citizenship in the process. However, in order to be qualified to run for the position of Mayor of Kauswagan, Lanao del Norte, he gained back his PH citizenship through repatriation, taking 2 oaths of allegiance to the country and renouncing his US citizenship. He won the election, prompting his opponents to file a case of disqualification against him, arguing that he was still a foreigner as evidenced by his continuous use of his US passport even after his Oath of Allegiance to the PH. The SC ruled that Arnado was indeed disqualified. The use of a foreign passport after renouncing one’s foreign citizenship is a positive and voluntary act of representation as to one’s nationality. Arnado did not lose his Filipino citizenship, but regained his US citizenship and became a dual citizen. Under sec. 40(d) of the LGC, those with dual citizenships are expressly disqualified from running for local gov’t positions. The effect of this is that Maquiling, the losing candidate with the highest number of votes, should be declared Mayor. As ruled in Jalosjos v. COMELEC, when there are participants who turn out to be ineligible, their victory is voided and the next qualified candidate with the most votes wins the election. In cases like this, the winner is not considered a second-placer, but the “firstplacer” amongst the qualified candidates. DOCTRINE. The use of a foreign passport after renouncing one’s foreign citizenship is a positive and voluntary act of representation as to one’s nationality. Under sec. 40(d) of the LGC, those with dual citizenships are expressly disqualified from running for local gov’t positions. DISSENT, BRION, J.: Arnado’s use of a foreign passport was just an isolated act and it cannot be considered as an express renunciation of his PH citizenship. FACTS.  Background – Respondent Arnado is a natural born Filipino citizen. He subsequently lost his PH citizenship when he underwent naturalization as a US citizen. He then regained his PH citizenship under RA 9225 by taking two Oaths of Allegiance to the RP (one on July 10, 2008 and one on April 3, 2009). These oaths were accepted, and an Order of Approval of his Citizenship Retention and Reacquisition was issued in his favor. He also executed an Affidavit of Renunciation of his US citizenship. >>> All this made him qualified to file his Certificate of Candidacy for Mayor of Kauswagan, Lanao del Norte for the 2010 local elections.  Case for DQ – Another candidate for mayor, Balua, filed a petition to disqualify Arnado and/or to cancel his CoC. He contended that Arnado was not a resident of Kauswagan, and that he was still a foreigner based on the following: (a) certification by the Bureau of Immigration indicating that his nationality was “USAAmerican”; and (b) Arnado’s travel record indicating that he had been using his US Passport even after his Oath to the PH.  COMELEC ordered Arnado to file his answer >> Arnado failed to file ansser >> Balua filed motion to declare him in default  COMELEC did not act on the motions in time, so the elections pushed through before petition was decided.

 Result of Elections – Arnado won and was proclaimed Mayor.  Continuation of DQ case – Arnado only filed his answer after winning. He submitted the following documents to show he was qualified: (a) Affidavit of Renunciation and Oath of Allegiance; (b) a Join-Affidavit of City Engineer and other neighbors of Arnado, attesting that he was a long-time resident of Kauswagan; (c) certification from Punong Barangay of Kauswagan stating he was a bona-fide resident; (d) certification from Municipal Local Gov’t that Arnado’s father was also a resident, and even served as Mayor; (e) Voter Certification showing that Arnado had been a registered voter in Kauswagan since April 3, 2009  COMELEC First Division – Ruled against Arnado. It treated the case as one for disqualification, not as one of cancellation of CoC. First ruled that Arnado was not a US resident because Balua was not able to present sufficient evidence. However, in terms of citizenship, the COMELEC ruled that Arnado was not Filipino because of his act of consistently using his US passport (used it six times) after renouncing his US citizenship. Thus, they annulled his proclamation as Mayor and ruled that the winner of Vice-Mayor should succeed in his place pursuant to Sec. 44 of the LGC.  Intervention by petitioner Maquiling – Petitioner was another candidate for Mayor and garnered the second highest number of votes. He intervened and argued that while COMELEC was correct in DQing Arnado, they were wrong in ruling that Vice-Mayor should succeed as Mayor under Sec. 44 LGC. He argues that he should be proclaimed winner for being the qualified candidate who garnered the most votes.  COMELEC En Banc – Reversed the First Division’s ruling and stated that Arnado was qualified. Ruled that the use of a US passport does not operate to revert back his status as a US/dual citizen since no law provides such.  The principle of continuity of citizenship, which provides that once a person becomes a citizen, it is assumed that he desired to continue to be one until he voluntarily denationalizes or expatriates himself. In this case, Arnado should be presumed to have remained Filipino despite his use of the US passport absent any clear and unequivocal proof of expatriation.  Furthermore, Arnado’s claim that he had no choice but to use his US passport because he had not been given notice of the issuance of his PH passport yet was a valid excuse. He was only able to claim his PH passport 3 months after its issuance, and he used it ever since. ISSUES & RATIO. 1. WON the intervention of a rival candidate in a DQ case is proper when there has been no proclamation of a winner yet. – YES.  In this case, Maquiling intervened at the stage when Arnado filed an MR of the COMELEC First Division ruling before the COMELEC En Banc. The COMELEC decided to treat the case as one for Disqualification, so the applicable law is Sec. 6 of RA 6646 (Electoral Reform Law of 1987), which allows interventions during DQ proceedings even after the election, as long as there has been no final judgment on the eligibility of the candidate yet.  The fact that the COMELEC En Banc had already ruled that Maquiling had not shown the requisites for the exemption to the “second-placer rule” and therefore would not be prejudiced by the outcome of the case is of no moment, and does not deprive him the right to elevate the matter to the SC.



Arnado argues that the case has attained finality because the original petitioner and respondents did not appeal the En Banc decision >>> SC = no finality precisely because Maquiling elevated it to SC. It is only after SC has ruled upon issues that DQ case originally filed by Balua will attain finality.

2. WON Arnado was qualified to run for local office. – NO. His use of a US passport after renouncing US citizenship amounts to an undoing of such renunciation.  The use of foreign passport after renouncing one’s foreign citizenship is a positive and voluntary act of representation as to one’s citizenship. It does not divest PH citizenship regained by repatriation, but recants the Oath of Renunciation of foreign citizenship, which is required to run for elective position.  Renunciation of foreign citizenship: Initially, Arnado complied with the twin requirements of Oath of Allegiance + Renunciation under RA9225 Sec. 5(2) to be eligible to run for an elective position. By renouncing his foreign citizenship, he was deemed to be solely a PH citizen.  However, this legal presumption of citizenship is not permanent, and may be open to attack when, after such renunciation, the person performs positive acts showing his continued possession of foreign citizenship.  APPLIED: The important thing to determine is WoN Arnado was solely a PH citizen when he filed his CoC. In this case, between the date he renounced his US citizenship and the date he filed his CoC, he used his US passport to travel six times. By using his foreign passport, Arnado positively and voluntarily represented himself as an American, in effect declaring before immigration authorities of both countries that he is an American citizen, with all attendant rights and privileges granted by the USA.  The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time, only to be violated the next day. It requires an absolute and perpetual renunciation of the foreign citizenship and a full divestment of all civil and political rights granted by the foreign country which granted the citizenship.  Even if the act of using a foreign passport is not one of the acts enumerated in CA631 constituting loss of PH citizenship, it nevertheless is an act which repudiates the very oath of renunciation required by a dual citizen to be qualified to run for a local elective position. He was therefore under the disqualification under Sec. 40 (d) of the LGC.

1

Under Commonwealth Act No. 63, a Filipino citizen may lose his citizenship: (1) By naturalization in a foreign country; (2) By express renunciation of citizenship; (3) By subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining twenty-one years of age or more; (4) By accepting commission in the military, naval or air service of a foreign country; (5) By cancellation of the certificate of naturalization; (6) By having been declared by competent authority, a deserter of the Philippine armed forces in time of war, unless subsequently, a plenary pardon or amnesty has been granted: and (7) In case of a woman, upon her marriage, to a foreigner if, by virtue of the laws in force in her husband’s country, she acquires his nationality.

 







 

Dual Citizenship: COMELEC was correct in ruling that Arnado did not lose his PH citizenship. All that happened was a reversion to his status as a dual citizen, which was fatal to his eligibility. There are two classes of dual citizens: (a) those who acquired foreign citizenship through positive act of naturalization; (b) those who are considered dual citizens by virtue of birth. >>> Those in the first class need to take both an Oath of Allegiance to PH and an Oath of Renunciation of foreign citizenship. Those in the second class only need to take an Oath of Allegiance because the mere act of filing for a CoC carries with it an implied renunciation of foreign citizenship. >>> Arnado belongs to the first class. Basically, Arnado actually complied with the twin requirements under RA9225, but lost it subsequently. The purpose of the LGC in disqualifying dual citizens from running for any elective public office would be thwarted if we were to allow a person who has earlier renounced his foreign citizenship, but who subsequently represents himself as a foreign citizen, to hold any public office. Qualification Requirements are continuing in nature: In this case, the citizenship requirement must be possessed not just at the time of renunciation of the foreign citizenship, but continuously. Therefore, Arnado’s act of using his US passport stopped this continuity. The case of Yu v. Defensor-Santiago can be compared to this case: Yu was a Portugese dude who sought naturalization as a Filipino and later renewed his Portugal passport. In the case at hand, Arnado’s act of using his US passport was also a positive act of representation as a US citizen. COMELEC En Banc, in ruling in favor of Arnado, stated that he had a justifiable excuse because he used his PH passport as soon as he got it, which was 3 months after its issuance. >>> SC said this was erroneous. His PH Passport was issued on June. Three months from June is only September. If indeed Arnado used his PH passport continuously once he got it, he would not have used his US passport on November 2009. Also, his subsequent use of a PH passport will not cure the defect caused by the use of his US passport.

3. WON Maquiling should be proclaimed Mayor as the recipient of the 2 nd highest number of votes. – YES.  First of all, Topacio v. Paredes, the case that provided for the principle that a second-placer cannot be proclaimed winner in an election must be re-examined  This case involved the 1912 elections in the town of Imus, Cavite for the position of municipal president between Abad and Topacio. Topacio received the most votes while Abad was the second-placer. Abad then contested the election on the ground that Topacio was ineligible because he was running for a second time without observing the four-year interruption rule under Act No. 2045.  Said case contained the oft-quoted phrase of “the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots.”  >>> First, the SC said that this phrase was only obiter dictum because the issue in that case was NOT WoN Abad can be proclaimed the winner as second-placer because of Topacio’s disqualification. The issue that the court











actually ruled on was WoN the CFI has jurisdiction to try a DQ case based on the eligibility of the person who obtained the most votes. The ruling was that since a CFI’s jurisdiction is confined “to determine which of the contestants as been duly elected”, the judge exceeded his jurisdiction when he “declared that no one had been legally elected president of the municipality” where the only question raised was whether or not Topacio was eligible to be elected and to hold the office of municipal president. Second, we have to look at the context upon which the phrase was used. The phrase was located in a paragraph that was comparing (a) the situation where a candidate is not entitled to a position because of fraud in the elections itself, and (b) the situation where a candidate is ineligible because of his own qualifications. In the first situation, a winner can be proclaimed because there was a contest in the strict sense of the word. For instance, if it is found that one candidate won because fraud in vote-counting, and that it is clear that another other candidate should have won, such rightful candidate can be proclaimed the winner. On the other hand, in the second situation, there is no actual contest, as the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality. The popular vote does not cure the ineligibility of a candidate: The ballot cannot override the constitutional and statutory requirements for qualifications and disqualifications of candidates. When a person who is not qualified is voted for and eventually garners the highest number of votes, even the will of the electorate expressed through the ballot cannot cure the defect in the qualifications of the candidate. To rule otherwise is to trample upon the very law that sets forth the qualifications and disqualifications of candidates. To allow the sovereign voice spoken through the ballot to trump mandatory provisions is not democracy nor republicanism, but electoral anarchy. This principle has been laid down by several cases such as Frivaldo v. COMELEC, Quizon v. COMELEC, and Velasco v. COMELEC. Maquiling is not a second-placer, but the first-placer among the qualified candidates and should thus be proclaimed winner: As ruled in the cases of Jalosjos v. COMELEC and Aratea v. COMELEC, a void CoC cannot produce any legal effect. Thus, all the votes cast in favor of the ineligible candidate are not considered at all in determine the winner of an election. However, this does not mean that the entire elections are rendered void. Votes cast in favor of an ineligible candidate do not constitute the sole and total expression of sovereign voice, and the votes cast in favor of the other legitimate candidates should also be respected. When there are participants who turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank who does not possess any of the disqualifications There is no need to apply the rule cited in Labo v. COMELEC that when the voters are well aware within the realm of notoriety of a candidate’s disqualification and still cast their votes in favor said candidate, then the eligible candidate obtaining the next higher number of votes may be deemed elected. That rule is also a mere obiter that further complicated the rules affecting qualified candidates who placed second to ineligible ones. The electorate’s awareness of a candidate’s disqualification is not a prerequisite for the DQ to attach to the candidate. The very existence of disqualifying circumstance makes the candidate ineligible.



That the disqualified candidate has already been proclaimed and has assumed office is of no moment. The subsequent disqualification based on a substantive ground that existed prior to the filing of the certificate of candidacy voids not only the CoC but also the proclamation. Sec. 6 of RA 66462 provides that when a candidate has not been declared DQ’d by final judgment yet, but is subsequently proclaimed the winner, the COMELEC or Court shall continue with the trial and may suspend the proclamation of such candidate when evidence of guilt is strong. In this case, the only reason Arnado was able to continue with his candidacy without suspension was because he only filed his answer to the DQ case against him when the elections were already conducted.

DECISION. Petition GRANTED. Respondent ROMMEL ARNADO y CAGOCO is disqualified from running for any local elective position. CASAN MACODE MAQUILING is hereby DECLARED the duly elected Mayor of Kauswagan, Lanao del Norte in the 10 May 2010 elections. NOTES. DISSENT, BRION, J. Arnado’s use of US passport on November 24, 2009 was an isolated act and a matter of practicability, since he was returning to the PH, having used US passport before. (Risky daw na gumamit siya ng US passport palabas ng PH tapos pagbalik niya PH passport na siya)  Arnado’s Philippine passport was issued on June 18, 2009, but he was not immediately notified of the issuance so that and he only received his passport three months after or sometime in September 2009. Clearly, when Arnado travelled on April 14, 2009, June 25, 2009 and July 29, 2009, he had no Philippine passport that he could have used to travel to the United States to attend to the winding up of his business and other affairs in America.  A travel document issued by the proper Philippine government agency (e.g., a Philippine consulate office in the US) would not suffice because travel documents could not be used; they are issued only in critical instances, as determined by the consular officer, and allow the bearer only a direct, oneway trip to the Philippines.  Although Arnado received his Philippine passport by the time he returned to the Philippines on November 24, 2009, he could not use this without risk of complications with the US immigration authorities for using a travel document different from what he used in his entry into the US on July 29, 2009. Plain practicality then demanded that the travel document

2

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 his guilt is strong.



that he used to enter the US on July 29, 2009 be the same travel document he should use in leaving the country on November 24, 2009. Given these circumstances, Arnado’s use of his US passport in travelling back to the Philippines on November 24, 2009 was an isolated act that could not, by itself, be an express renunciation of the Philippine citizenship he adopted as his sole citizenship under RA 9225.

What the law requires in an express renunciation, not mere inference from conduct  I loathe to rule that Arnado’s use of his US passport amounts to an express renunciation of his Filipino citizenship, when its use was an isolated act that he sufficiently explained and fully justified.  I emphasize that the law requires express renunciation in order to lose Philippine citizenship. The term means a renunciation that is made distinctly and explicitly and is not left to inference or implication; it is a renunciation manifested by direct and appropriate language, as distinguished from that which is inferred from conduct.  Other than the use of his US passport in two trips to and from the United States, the record does not bear out any indication, supported by evidence, of Arnado’s intention to reacquire US citizenship.  To my mind, in the absence of clear and affirmative acts of reacquiring US citizenship either by naturalization or by express acts (such as the reestablishment of permanent residency in the United States), Arnado’s use of his US passport cannot but be considered an isolated act that did not undo his renunciation of his US citizenship. What he might in fact have done was to violate American law on the use of passports, but this is a matter irrelevant to the present case.  Thus, Arnado remains to be a “pure” Filipino citizen and the loss of his Philippine citizenship cannot be presumed or inferred from his isolated act of using his US passport for travel purposes. The People of Kauswagan have spoken and any doubt should be resolved in favor of their verdict. *Digester’s note: Hindi sakto yung argument’s ni J. Brion sa ponencia. Ang sabi ng ponencia DQ si Arnado dahil dual citizen siya (fact of using foreign passport means he represented himself as US citizen also.) Argument ni J. Brion ay he did not lose his Filipino Citizenship, w/c is totoo naman in the case of dual citizenship.

Risos-Vidal vs. Comelec Facts: In September 12, 2007, the Sandiganbayan convicted former President Estrada for the crime of plunder and was sentenced to suffer the penalty of Reclusion Perpetua and the accessory penalties of civil interdiction during the period of sentence and perpetual absolute disqualification. On October 25, 2007, however, former President Gloria Macapagal Arroyo extended executive clemency, by way of pardon, to former President Estrada, explicitly stating that he is restored to his civil and political rights. In 2009, Estrada filed a Certificate of Candidacy for the position of President. None of the disqualification cases against him prospered but he only placed second in the results. In 2012, Estrada once more ventured into the political arena, and filed a Certificate of Candidacy, this time vying for a local elective post, that of the Mayor of the City of Manila. Petitioner Risos-Vidal filed a Petition for Disqualification against Estrada before the Comelec stating that Estrada is disqualified to run for public office because of his conviction for plunder sentencing him to suffer the penalty of reclusion perpetua with perpetual absolute disqualification. Petitioner relied on Section 40 of the Local Government Code (LGC), in relation to Section 12 of the Omnibus Election Code (OEC). The Comelec dismissed the petition for disqualification holding that President Estrada’s right to seek public office has been effectively restored by the pardon vested upon him by former President Gloria M. Arroyo. Estrada won the mayoralty race in May 13, 2013 elections. Alfredo Lim, who garnered the second highest votes, intervened and sought to disqualify Estrada for the same ground as the contention of Risos-Vidal and praying that he be proclaimed as Mayor of Manila. Issue: May former President Joseph Estrada run for public office despite having been convicted of the crime of plunder which carried an accessory penalty of perpetual disqualification to hold public office? Held: Yes. Estrada was granted an absolute pardon that fully restored all his civil and political rights, which naturally includes the right to seek public elective office, the focal point of this controversy. The wording of the pardon extended to former President Estrada is complete, unambiguous, and unqualified. It is likewise unfettered by Articles 36 and 41 of the Revised Penal Code. The only reasonable, objective, and constitutional interpretation of the language of the pardon is that the same in fact conforms to Articles 36 and 41 of the Revised Penal Code.

It is insisted that, since a textual examination of the pardon given to and accepted by former President Estrada does not actually specify which political right is restored, it could be inferred that former President Arroyo did not deliberately intend to restore former President Estrada’s rights of suffrage and to hold public office, orto otherwise remit the penalty of perpetual absolute disqualification. Even if her intention was the contrary, the same cannot be upheld based on the pardon’s text. The pardoning power of the President cannot be limited by legislative action. The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IXC, provides that the President of the Philippines possesses the power to grant pardons, along with other acts of executive clemency, to wit: Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. xxxx Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission. It is apparent from the foregoing constitutional provisions that the only instances in which the President may not extend pardon remain to be in: (1) impeachment cases; (2) cases that have not yet resulted in a final conviction; and (3) cases involving violations of election laws, rules and regulations in which there was no favorable recommendation coming from the COMELEC. Therefore, it can be argued that any act of Congress by way of statute cannot operate to delimit the pardoning power of the President. The proper interpretation of Articles 36 and 41 of the Revised Penal Code. A close scrutiny of the text of the pardon extended to former President Estrada shows that both the principal penalty of reclusion perpetua and its accessory penalties are included in the pardon. The sentence which states that “(h)e is hereby restored to his civil and political rights,” expressly remitted the accessory penalties that attached to the principal penalty of reclusion perpetua. Hence, even if we apply Articles 36 and 41 of the Revised Penal Code, it is indubitable from the text of the pardon that the accessory penalties of civil interdiction and perpetual absolute disqualification were expressly remitted together with the principal penalty of reclusion perpetua. The disqualification of former President Estrada under Section 40 of the LGC in relation to Section 12 of the OEC was removed by his acceptance of the absolute pardon granted to him While it may be apparent that the proscription in Section 40(a) of the LGC is worded in absolute terms, Section 12 of the OEC provides a legal escape from the prohibition – a plenary pardon or amnesty. In other words, the latter provision allows any person who has been granted plenary pardon or amnesty after conviction by final judgment of

an offense involving moral turpitude, inter alia, to run for and hold any public office, whether local or national position. The third preambular clause of the pardon did not operate to make the pardon conditional. Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e., "[w]hereas, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office," neither makes the pardon conditional, nor militate against the conclusion that former President Estrada’s rights to suffrage and to seek public elective office have been restored. This is especially true as the pardon itself does not explicitly impose a condition or limitation, considering the unqualified use of the term "civil and political rights"as being restored. Jurisprudence educates that a preamble is not an essential part of an act as it is an introductory or preparatory clause that explains the reasons for the enactment, usually introduced by the word "whereas." Whereas clauses do not form part of a statute because, strictly speaking, they are not part of the operative language of the statute. In this case, the whereas clause at issue is not an integral part of the decree of the pardon, and therefore, does not by itself alone operate to make the pardon conditional or to make its effectivity contingent upon the fulfilment of the aforementioned commitment nor to limit the scope of the pardon. Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is clear and unambiguous, the preamble can neither expand nor restrict its operation much less prevail over its text. If former President Arroyo intended for the pardon to be conditional on Respondent’s promise never to seek a public office again, the former ought to have explicitly stated the same in the text of the pardon itself. Since former President Arroyo did not make this an integral part of the decree of pardon, the Commission is constrained to rule that the 3rd preambular clause cannot be interpreted as a condition to the pardon extended to former President Estrada. (Risos-Vidal vs. Comelec, G.R. No. 206666, January 21, 2015)

ARNADO v COMELEC GR 210164 / AUG 18 2015 / DEL CASTILLO, J. / LocGov – Qualifications / BUNYI  NATURE Petition for Certiorari assailing COMELEC decision PETITIONERS Rommel C. Arnado RESPONDENTS COMELEC SUMMARY. While the case (Maquiling v. Comelec) involving his supposed disqualification in the 2010 elections was pending, Arnado filed COC for the 2013 elections. SC then decided Maquiling case and ruled that Arnado should be disqualified for the 2010 elections because his use of his US passport negated his 2009 Affidavit of Renunciation of his US Citizenship. Arnado executed an Affidavit Affirming his 2009 Affidavit of Renunciation. COMELEC disqualified him again ruling that at the time he filed his COC for the 2013 elections, his 2009 Affidavit of Renunciation was deemed recalled by his use of his US passport, pursuant to SC decision of Maquiling, and his subsequent Affidavit Affirming the 2009 AOR was too late and should have been filed before the filing of his COC for the 2013 elections. SC affirmed his disqualification saying he did not satisfy the requirements in RA 9225, Sec.5(2) at the time he filed the aforementioned COC and that his landslide victory cannot override eligibility requirements. DOCTRINE. Election victory cannot be used as a magic formula to bypass election eligibility requirements; otherwise, certain provisions of laws pertaining to elections will become toothless, one of which is LGC Sec. 39 which specifies the basic positive qualifications of local government officials (Velasco v CA). There is no reason why the Court should not follow the same policy when it comes to disqualifications enumerated under Sec. 40 of the same law. After all, "the qualifications set out in Sec. 39 are roughly half of the requirements for election to local public offices. The other half is contained in the succeeding section which lays down the circumstances that disqualify local candidates." FACTS.  PET Arnado is a natural-born Filipino citizen who lost his Philippine citizenship after he was naturalized as a US citizen. Arnado applied for repatriation under RA 9225. Jul 10 2008, he took an Oath of Allegiance and an Order of Approval of Citizenship Retention and Re-acquisition was issued in his favor. Apr 3 2009, he executed an Affidavit of Renunciation (AOR) of his foreign citizenship. Nov 30 2009, he filed his Certificate of Candidacy (COC) for the mayoralty post of Kauswagan, Lanao del Norte for the May 2010 elections.  Balua, another mayoralty candidate, filed a petition to disqualify Arnado on the ground that he remained a US citized because he continued to use his US passport for entry to and exit from the Philippines after executing his AOR. While the petition was pending, Arnado won the May 2010 elections.  Oct 5 2010, Comelec First Division issued a resolution holding that Arnado’s continued use of his US passport negated his AOR and he was disqualified. Comelec nullified his proclamation and held that the rule on succession should be followed. Arnado filed MR while Maquiling, another mayoralty candidate who got the 2nd highest amount of votes, intervened and assailed the application of the rule on succession.  Comelec En Banc reversed and ruled that Arnado's use of his US passport did not revert his status to dual citizenship. It appreciated Arnado's explanation that he continued to use his US passport because he did not yet know that he had been



 





issued a Philippine passport at the time. Maquiling filed a petition before the SC to assail this. Oct 1 2012, Arnado filed his COC again for the mayoralty post of Kauswagan for the May 2013 elections. RESP Capitan filed his COC for the same position. Apr 6 2013, Court decided the Maquiling case: reversed Comelec En Banc,disqualified Arnado from running for elective position, and declared Maquiling as the duly elected mayor in the May 2010 elections. They ruled that Arnado's act of consistently using his US passport effectively negated his AOR. May 9 2013, Arnado executed an Affidavit Affirming his Apr 3 2009 AOR. May 10 2013, Capital filed a petition to disqualify Arnado based on Maquiling. May 13 2013, however, Arnado won by getting 84% of the votes. May 14 2013, he was proclaimed as the winning candidate. Capitan filed another petition seeking to nullify Arnado’s proclamation. Sep 6 2013, Comelec Second Division disqualified Arnado and held that at the time he filed his COC on Oct 1 2012, Arnado still failed to comply with the requirement of RA 9225 of making a personal and sworn renunciation of any and all foreign citizenship. His Apr 3 2009 AOR was deemed withdrawn or recalled when he subsequently traveled abroad using his US passport, as held in Maquiling. He failed to execute another AOR for the May 13 2013 elections and the Affidavit Affirming his Apr 3 2009 AOR should have been executed before the filing of his COC. Comelec En Banc affirmed. It annulled Arnado’s proclamation and declared Capitan as the duly elected mayor. Dec 26 2013, Arnado filed Urgent Motion for Issuance of Status Quo Ante Order or TRO. Jan 14 2014, Court granted the TRO. Capital filed an Ugent Motion to Dissolve TRO claiming he had already been proclaimed as mayor. Feb 25 2014, Court issued a Status Quo Ante Order directing the parties to allow Arnado to continue performing as mayor pending resolution of case.

ISSUES & RATIO. [MINOR ISSUES]  Arnado: Filed a petition for certiorari. SC: Wrong. Petition for certiorari is limited to the determination of whether the respondent tribunal acted with GADALEJ. In the absence of grave abuse of discretion, a Rule 64 petition will not prosper. There is no showing that the Comelec En Banc acted capriciously or whimsically in issuing its Dec 9 2013 Resolution. Neither did it act contrary to law or jurisprudence.  Arnado: Capitan’s petition was filed late and violated the rule against forumshopping. SC: Arnado failed to substantiate his claim of forum-shopping and has not shown that the petitions involved the same parties, issues, and reliefs. Besides, the petitions had different parties (1st was Capital and Arnado while 2nd included Municipal Board of Canvassers of Kauswagan) and sought different reliefs (1st was to disqualify Arnado, 2nd was to annul Arnado’s proclamation as mayor). Furthermore, the petition for disqualification was seasonably filed because it was filed after filing of the COCs but before Arnado’s proclamation pursuant to Comelec’s Rules of Procedure.  Arnado: Comelec committed GAD when it decided the case before resolving Capitan’s motion to consolidate. SC: Arnado did not attach a copy of the motion to his petition which is sufficient ground of dismissal already. Arnado, not being the movant, is not in a position to





question the alleged inaction of Comelec on the motion. Arnado, in filing an MR of the Comelec En Banc decision and appealing to this court, effectively abandoned said motion for consolidation. Under, CRP3, consolidation is only permissive and not mandatory. Consolidation of cases here is not necessary since the 2 cases do not even involve same parties and reliefs sought. Arnado: Comelec violated its own rules when it decided case without setting it for trial. SC: Proceedings in a special action for disqualification of candidates under CRP Rule 25 are summary in nature where a trial type proceeding may be dispensed with. Technical rules of evidence should not be rigorously applied in administrative proceedings specially where the law calls for the proceeding to be summary in character. When the Comelec En Banc reviews and evaluates a party's petition/answer and the supporting papers attached, the same is tantamount to a fair "hearing" of his case. Arnado: Violation of due process when Commissioner Yusoph was allowed to participate in the deliberation of the Comelec En Banc Resolution. Commisioner Yusoph penned both the Comelec 2nd Division and Comelec En Banc Resolutions. SC: Commissioner Yusoph, with 2 others, signed the 2nd Division Resolution but there is no indication that he wrote it because it is not stated who the ponente is. The same is true for the En Banc Resolution; as a per curiam resolution, it was arrived at by the En Banc as a whole and without any particular ponente.

[MAJOR ISSUES] WON Arnado has satisfied the twin requirements of RA 9225 Sec. 5(2) at the time he filed his COC for May 13 2013 elections – NO  Under LGC Sec. 4(d), a person with "dual citizenship" is disqualified from running for any elective local position. In Mercado v. Manzano, it was clarified that "dual citizenship" must be understood as referring to "dual allegiance.'' Subsequently, Congress enacted RA 9225 allowing natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization abroad to reacquire Philippine citizenship and to enjoy full civil and political rights upon compliance with the requirements of the law. They may now run for public office in the Philippines provided that they: (1) meet the qualifications for holding such public office as required by the Constitution and existing laws; and, (2) make a personal and sworn renunciation of any and all foreign citizenships before any public officer authorized to administer an oath prior to or at the time of filing of their COC.  Comelec ruled that Arnado failed to comply with the second requisite of Sec. 5(2)4 of RA 9225 because, as held in Maquiling v. Comelec, his April 3 2009 Affidavit of Renunciation was deemed withdrawn when he used his US passport after executing said affidavit. Consequently, at the time he filed his COC on October 1 2012 for the May 13 2013 elections, Arnado had yet to comply with said second

Comelec Rules of Procedure 4 Section 5. Civil and Political Rights and Liabilities- Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (2) Those seeking elective public office in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath; 3



requirement. While Arnado submitted an affidavit dated May 9 2013, affirming his April 3 2009 Affidavit of Renunciation, the same would not suffice for having been belatedly executed. Comelec did not commit GAD because the reason for Arnado’s disqualification to run for public office during the 2010 elections — being a candidate without total and undivided allegiance to the Republic of the Philippines – still subsisted when he filed his COC for the 2013 elections on October 1 2012. The Comelec En Banc merely adhered to the ruling of this Court in Maquiling.

WON Arnado should be given the opportunity to correct the deficiency in his COC since Maquiling was promulgated after the lapse of the period for filing a COC for the 2013 elections and, besides, shortly after learning og the Maquiling decision, Arnado substantially complied by executing an affidavit on May 9 2013 affirming his April 3 2009 Affidavit of Renunciation – NO  The ruling in Maquiling is novel in the sense that it was the first case dealing with the effect of the use of a foreign passport on the qualification to run for public office of a natural-born Filipino citizen who was naturalized abroad and subsequently availed of the privileges under RA 9225. It was settled in that case that the use of a foreign passport amounts to repudiation or recantation of the oath of renunciation. However, the Court in Maquiling did not consider the novelty of the issue as to excuse Arnado from strictly complying with the eligibility requirements to run for public office or to simply allow him to correct the deficiency in his qualification by submitting another oath of renunciation.  The circumstances surrounding the qualification of Arnado to run for public office during the May 10 2010 and May 13 2013 elections are the same. Arnado's use of his US passport in 2009 invalidated his oath of renunciation resulting in his disqualification to run for mayor of Kauswagan in the 2010 elections. Since then and up to the time he filed his CoC for the 2013 elections, Arnado had not cured the defect in his qualification. Maquiling, therefore, is binding on and applicable to this case following the salutary doctrine of stare decisis et non quieta movere.  As early as 2010, the year when Balua filed a petition to disqualify him, Arnado has gotten wind that the use of his US passport might pose a problem to his candidacy. Thus, when Arnado filed his COC on October 1 2012, he was not totally unaware that the use of his US passport after he had executed the Affidavit of Renunciation might have an impact on his qualification and candidacy. At that time, Maquiling had already reached this Court. But despite the petitions filed against him questioning his qualification to run for public office in 2010, Arnado filed his COC on October 1 2012 unmindful of any possible legal setbacks in his candidacy for the 2013 elections and without executing another Affidavit of Renunciation. Arnado should be made to face the consequences of his inaction since he could have remedied it at the time he filed his COC on October 1 2012 or even before that. There is no law prohibiting him from executing an Affidavit of Renunciation every election period if only to avert possible questions about his qualifications. WON the alleged November 30 2009 Affidavit of Renunciation with Oath of Allegiance can be given any probative weight – NO  The alleged Affidavit of Renunciation is highly suspect. The original or certified true copy thereof was not presented. In addition, such crucial evidence sufficient to alter the outcome of the case was never presented before the Comelec much less in the Maquiling case. It only surfaced for the first time in this petition. As a





rule, no question will be entertained on appeal unless it has been raised in the proceedings below. Basic considerations of fairness and due process impel this rule. Likewise, this Court does not countenance the late submission of evidence. Arnado should have offered the Affidavit dated 7 February 2007 during the proceedings before the COMELEC. CRP Rule 43, Sec. 1 states that "In the absence of any applicable provisions of these Rules, the pertinent provisions of the ROC shall be applicable by analogy or in suppletory character and effect" and ROC Rule 132, Sec. 34 categorically enjoins the admission of evidence not formally presented. Since the said Affidavit was not formally offered before the COMELEC, respondent had no opportunity to examine and controvert it. To admit this document would be contrary to due process. Additionally, the piecemeal presentation of evidence is not in accord with orderly justice. Moreover, in Maquiling it was mentioned that Arnado used his US passport on January 12 2010 and March 23 2010. Balua likewise presented a certification from the Bureau of Immigration certifying that the name "Arnado, Rommel Cagoco" appears in the available Computer Database/Passenger manifest/IBM listing on file as of 21 April 20105. Despite this statement in Maquiling, Arnado never bothered to correct or refute it.

[PART OF THE DISCUSSION OF THIS ISSUE WAS SPENT ANSWERING THE DISSENTING OPINIONS]  J. Leonen: Dissents and maintains the same position he had taken in Maquiling that Arnado's use of his US passport in 2009 is an isolated act justified by the circumstances at that time. At any rate, Arnado started to use his Philippine passport in his travels abroad beginning December 11 2009 and thenceforth. This is borne out by Arnado's Philippine passport. SC: J. Leonen is not only reviving an issue that had already been settled with finality in the Maquiling case, but he is also going beyond the issues raised in this petition. Arnado's argument in this case-that he is qualified to run for mayor as he has satisfied the requirements of Sec. 5(2) of RA 9225 relative to the May 13 2013 elections- is premised only on the alleged newly discovered November 30, 2009 Affidavit. Nothing more. He does not claim in this case that his use of US passport in his travel abroad in 2009 is an isolated act, as J. Leonen insists. Courts do not have jurisdiction over issues neither raised in the pleading nor tried with the express or implied consent of the parties. Furthermore, points of law, theories, issues, and arguments not brought to the attention of the lower tribunal need not be, and ordinarily will not be, considered by a reviewing court, as these cannot be raised for the first time at such late stage. Basic considerations of due process underlie this rule.  J. Brion: Dissents and states that what was cancelled by virtue of Maquiling was only the April 3 2009 Affidavit of Renunciation where Arnado expressly renounced any foreign citizenship; not the July 10 2008 Oath of Allegiance which carried with it an implied abdication of foreign citizenship. The requirement of an express renunciation does not negate the effect of, or make any less real, the prior implicit renunciation of citizenship and allegiance made upon taking the oath of allegiance. SC: Again, this was never raised in this petition. At any rate, the execution of an Oath of Allegiance is required by Sec. 3 of RA 9225. For those who avail themselves of RA 9225 and intend to run for public office, Sec. 5(2) thereof



provides the additional requirement of making a personal and sworn renunciation of any and all foreign citizenships prior to or at the time of filing of their COC. When the law expressly requires an explicit renunciation, an implicit one would be insufficient. Furthermore, even assuming that Arnado's 2008 implied renunciation is sufficient, the same has also been negated by his use of his US passport in 2009, following the ruling in Maquiling. Otherwise, we would give more weight to an implied renunciation than to an express one specifically required by law. Besides, the Maquiling Decision holding that Arnado's use of his US passport effectively recanted his Affidavit of Renunciation has already become final and immutable. J. Leonen: Maintained that Arnado used his Philippine passport in travelling abroad in early 2010 by relying on the copy attached to the rollo of the Maquiling case. SC: Such copy of Arnado’s Philippine passport is a mere "Certified True Copy From The Macidne Copy On File" as attested to by Comelec Records Officer Ill. A machine copy or photocopy is a mere secondary evidence and cannot be admitted in evidence until and unless the offeror has proven the due execution and the subsequent loss or unavailability of the original. In this case, however, Arnado's Philippine passport is not missing. Thus, said photocopy of Arnado's Philippine passport cannot sway us to depart from the uncontroverted certification of the Bureau of Immigration that Arnado used his US passport on January 12 2010 and March 23 2010. Consequently, even assuming that the recently discovered November 30 2009 Affidavit of Renunciation with Oath of Allegiance is true and authentic, Arnado once more performed positive acts on January 12 2010 and March 23 2010, which effectively negated the alleged November 30 2009 Affidavit resulting in his disqualification to run for office.

WON landslide election victory can override eligibility requirements – NO  In Maquiling, this Court emphasized that popular vote does not cure the ineligibility of a candidate. Thus, while in this case Arnado won by landslide majority (84% of votes) during the 2013 elections, the same "cannot override the constitutional and statutory requirements for qualifications and disqualifications." Garnering the most number of votes does not validate the election of a disqualified candidate because the application of the constitutional and statutory provisions on disqualification is not a matter of popularity.  Election victory cannot be used as a magic formula to bypass election eligibility requirements; otherwise, certain provisions of laws pertaining to elections will become toothless, one of which is LGC Sec. 39 which specifies the basic positive qualifications of local government officials (Velasco v CA). There is no reason why the Court should not follow the same policy when it comes to disqualifications enumerated under Sec. 40 of the same law. After all, "the qualifications set out in Sec. 39 are roughly half of the requirements for election to local public offices. The other half is contained in the succeeding section which lays down the circumstances that disqualify local candidates." DECISION. Petition DISMISSED. Comelec resolutions AFFIRMED. Status Quo Ante Order LIFTED. CONCURRING – C.J. SERENO

5

Travel records provide: “NATIONALITY: USA-AMERICAN PASSPORT”





Considering that the Court had pinpointed the defect in Arnado's oath of renunciation, the simple act of taking the oath anew would have been enough compliance with the requirement of the law. It did not matter that Maquiling was promulgated months after Arnado had filed for candidacy. Since he was not totally unaware that the use of his US passport might have adverse consequences on his candidacy for the 2013 elections, the Decision concludes that he should have been prudent enough to remedy whatever defect there might have been in his citizenship. The certification from the Bureau of Immigration indicated that Arnado arrived in the country using his US passport on 12 January 2010 and 23 March 2010. The Court gave full credence to the certification, not only because it carried with it the presumption of regularity, but more important, Arnado never bothered to refute the contents thereof. On the basis of this finding, the Court rejected the claim that Arnado's use of his US passport several times were mere isolated acts that were done only because he was not yet issued his Philippine passport. To my mind, this is the turning point of Maquiling that regrettably still applies in this case: that whatever professions of faith and allegiance to the Republic that Arnado claims when his citizenship is in question, the fact remains that during the instances that he used his US passport despite having a Philippine passport in his possession, those same professions became hollow. And, that up to the filing of Arnado's Certificate of Candidacy for the 2013 elections, he failed to remedy the fatal blow that such repeated use of his US passport dealt on his electoral qualifications.

DISSENTING – J. BRION  To be voted upon to an elective office, a natural-born Filipino citizen who has implicitly renounced foreign allegiance when he or she swears allegiance to the Republic under RA 9225 must still make his or her previous implicit renunciation "express” and must "make a personal and sworn renunciation of any and all foreign citizenship (Sec. 5(2) RA 9225)." The requirement of an express renunciation, however, does not negate the effect of, or make any less real, the prior implicit renunciation of citizenship and allegiance made upon taking the oath of allegiance. The oath of allegiance not only allows these natural-born Filipinos to re-acquire Philippine citizenship; thereby, they also implicitly renounce their citizenship and allegiance to any and all foreign country as they assert allegiance to the "supreme authority of the Philippines and maintain true faith and allegiance thereto". The oath of renunciation, on the other hand, complements their oath of allegiance through the express manifestation, for purpose of running for public office, that the candidate is a "pure" Filipino. Arnado became a "pure" Philippine citizen when he took his oath of allegiance to the Philippines on July 10 2008, and his oath of renunciation on April 3 2009.  The Comelec gravely abused its discretion in ruling that the May 9 2013 Confirmation of Oath of Affirmation was out of time. First, at the time the October 1 2012 COC was filed, the prevailing ruling, although then contested before the Court, was the Comelec en banc ruling that did not consider Arnado disqualified. Second, since the Comelec did not accept Arnado's May 9 2013 Affidavit of Renunciation (for the May 2013 Elections) in the light of the Maquiling ruling (affecting the May 2010 elections), he was placed in an impossible situation of being disqualified in the May 2013 Elections for a ruling applicable only to the May 2010 Elections, without being given the opportunity to submit his compliance for the May 2013 Elections. Third, Arnado's May 9, 2013 Affidavit of Renunciation, submitted to comply with his May 2013 candidacy, was rejected because it should





 





have been filed on October 1 2012 when he filed his CoC for the May 2013 elections. If the Maquiling ruling of April 16, 2013, which addressed the separate 2010 disqualification case, was made to retroactively apply to October 1, 2012, in the separate 2013 disqualification case, then a retroactive opportunity should also be given in the 2013 disqualification case to comply with what retroactively applied in Maquiling. To the extent that Arnado was denied the chance to submit a replacement oath of renunciation in 2013, there was an unfair and abusive denial of opportunity equivalent to grave abuse of discretion. If the Maquiling ruling of April 16 2013, which addressed the separate 2010 disqualification case, was made to retroactively apply to October 1 2012, in the separate 2013 disqualification case, then a retroactive opportunity should also be given in the 2013 disqualification case to comply with what retroactively applied in Maquiling. To the extent that Arnado was denied the chance to submit a replacement oath of renunciation in 2013, there was an unfair and abusive denial of opportunity equivalent to grave abuse of discretion. The Maquiling ruling is limited to Arnado's qualification to run for public office and only for the purpose of the May 2010 elections. First, the Maquiling ruling only considered the material facts surrounding the May 2010 Elections. Second, Maquiling declared as recanted only the express renunciation that Arnado executed on April 3, 2009, not the implied renunciation that Arnado made on several occasions when he swore allegiance to the supreme authority of the Republic. Third, Arnado became a "pure" Philippine citizen as of April 3, 2009, a legal consequence that Maquiling recognized and conceded. Fourth, even Maquiling did not perpetually and absolutely disqualify Arnado from running for any elective public office, or from running in any elections as they declared that "he is disqualified from becoming a candidate in the May 2010 elections." Arnado's May 9 2013 Affidavit of Renunciation, affirming his April 3 2009 Affidavit, cured any alleged defect in his qualification to run for public office during the May 2013 Elections. Granting that Arnado's use of his US passport amounted to a withdrawal of the express renunciation he made of his allegiance to the US, this withdrawal does not erase the fact that he did make an express renunciation of his US citizenship. To my mind, this express renunciation, even if recanted, may still be re-affirmed, in the same way a statement already made and subsequently denied, can be reconfirmed. Thus, Arnado's 2013 Affidavit of Renunciation can validly re-affirm the 2009 express renunciation that the Court held to have been recanted in Maquiling. The intervening Maquiling ruling did not and could not have invalidated his status as a ''pure" Philippine citizen who was qualified to run and had filed a valid COC for the May 2013 Elections. Under the circumstances, Arnado had effectively become a "pure" natural-born Philippine citizen again on October 1 2012, when he executed the retroactive and curative May 9 2013 Affidavit of Renunciation, and which status continued well beyond the May 2013 Elections. When Arnado filed his CoC on October 1 2012, the Comelec En Banc, in its February 2 2011 Resolution declared him as qualified to run for the elective office. Hence, Arnado did not need to execute another Affidavit of Renunciation because of this standing Comelec ruling. This Comelec ruling still stood and had not yet been overturned at the time Arnado filed his CoC on October 1 2012 for the May 2013 Elections. Arnado, therefore, had every right and reason to rely on this Comelec ruling and to believe that he was not disqualified to run in the May 2013 Elections. I concede that, as the events have shown, he should, in retrospect, have exercised greater care and have taken every.step to secure his qualification







to run for public office. His failure, however, should not and cannot affect his qualification which then stands and is authoritatively affirmed by the Comelec. Arnado's persistent assertions of his allegiance to the Republic and renunciation of his US citizenship more than sufficiently proved his determined resolve to profess allegiance only to the Republic. These continuing assertions should have resolved any doubt in favor of his qualification. Under the circumstances, the Comelec committed GADALEJ. First, it relied completely and indiscriminately on the Maquiling ruling - the wrong and irrelevant, or at the very least, incomplete - consideration in deciding the underlying disqualification case; and second, it did not make its own finding of facts and evaluation of the evidence, independent of Maquiling, and disregarded relevant facts and evidence subsequent to Maquiling - a clear misapprehension of the facts. At any rate, all doubts should be resolved in favor of Arnado's qualification. The mandate of the people of Kauswagan that twice elected Arnado as their Mayor should be respected and upheld. Court should respect and uphold the will of the electorate.

CONCURRING & DISSENTING – J. LEONEN  Petitioner was already a Filipino citizen at the time he filed his Certificate of Candidacy on October 1 2012. Petitioner has performed all the acts required by RA 9225 in order to reacquire his Filipino citizenship. Petitioner took his Oath of Allegiance to the Republic of the Philippines on July 10 2008. On April 3 2009, he executed his Affidavit of Renunciation of his foreign citizenship. Petitioner alleges that he executed his Affidavit of Renunciation with Oath of Allegiance on November 30 2009. On May 9 2013, he again executed the Affidavit Affirming Arnado's "Affidavit of Renunciation Dated April 3 2009." Petitioner renounced his American citizenship no less than three times before he filed his Certificate of Candidacy on October 1 2012.  Petitioner's use of his American passport was an isolated act required by the circumstances. At that time, he had not yet been issued his Philippine passport. Petitioner could use only his American passport when he traveled on April 14 2009 since the Consulate of the Philippines had not yet issued him a Philippine passport. When petitioner received his Philippine passport sometime in September 2009, he could not immediately use it to exit the United States since he entered the country using an American passport. If he exited using a Philippine passport, one presumably without an American visa, immigration authorities of both the Philippines and the United States would have questioned his travel documents. He would have had no choice but to use his American passport to exit the United States. However, petitioner did use his Philippine passport in his subsequent travels.  Even if the ponencia applied the ruling in Maquiling, Amado should have already been qualified to run in the 2013 Elections. Amado, by using his US passport after renouncing his American citizenship, has recanted the same Oath of Renunciation he took. Therefore, it can be reasonably concluded that, per Maquiling, petitioner's use of his Philippine passport signifies his Philippine citizenship.  Election laws must be interpreted to give effect to the will of the people. Petitioner garnered an overwhelming 8,902 votes, 84% of the total votes case in the 2013 mayoralty elections. If he is disqualified, Florante Capitan, his opponent who garnered 1,707 votes, a mere 16% of the total votes cast, will become the duly elected mayor of Kauswagan, Lanao del Norte. This court will have substituted its

discretion over the sovereign will of the people. In case of doubt, political laws must be so construed as to give life and spirit to the popular mandate freely expressed through the ballot.

AGUSTIN v. COMELEC November 10, 2015 | Bersamin, J. | Disqualification Digester: Valena, Maria Patricia S. SUMMARY: Petitioner Agustin was a dual citizen of both the Philippines and the US, having been naturalized as an American citizen in 1997. He renounced his American citizenship on October 2, 2012. On October 5, 2012, he filed his CoC for the position of Mayor of the Municipality of Marcos, Ilocos Norte. Rival candidate Pillos filed a Petition to Deny Due Course/Cancen the COC, alleging that Agustin made a material representation therein: he stated that he had been a resident of the municipality for 25 years, despite the fact that he registered as a voter there only in May 2012. The COMLEC En Banc cancelled the COC, but on the ground that the same was invalid for Agustin’s failure to prove his compliance with RA 9225 and not on the grounds alleged in the petition. The Supreme Court affirmed the cancellation of the COC, but on a different ground – the COC was valid at the time of filing, as Agustin had already renounced his American citizenship at that time. However, he was subsequently rendered disqualified by his act of using his US passport to travel to Hawaii on October 6, 2012: this operated as a repudiation of his renunciation of his American citizenship, which resulted in his reversion to his previous status of a dual citizen disqualified under the LGC. DOCTRINE: Section 40. Disqualifications.—The following persons are disqualified from running for any elective local position: (d) Those with dual citizenship. FACTS:  1997: Petitioner was naturalized as a citizen of the United States of America (USA).  On October 5, 2012, he filed his CoC for the position of Mayor of the Municipality of Marcos, Ilocos Norte as the official candidate of the Nacionalista Party. o He declared in his CoC that he was eligible for the office he was seeking to be elected to; that he was a natural-born Filipino citizen; and that he had been a resident of the Municipality of Marcos, Ilocos Norte for 25 years.  October 10, 2012: respondent Salvador S. Pillos, a rival mayoralty candidate, filed in the COMELEC a Petition To Deny Due Course and/or to Cancel the Certificate of Candidacy of Arsenio A. Agustin (SPA No. 13-023). o Petitioner made a material misrepresentation in his CoC by stating that he had been a resident of the Municipality of Marcos for 25 years despite having registered as a voter therein only on May 31, 2012. o Prayed for an order to immediately deny due course and or to cancel the certificate of candidacy of Arsenio A. Agustin.  Petitioner’s Answer: o The one-year requirement referred to residency, not to voter registration; o Residency was not dependent on citizenship, such that his travel to Hawaii for business purposes did not violate the residency requirement pursuant to prevailing jurisprudence; o As regards citizenship, he attached a copy of his Affidavit of Renunciation of U.S./American Citizenship executed on October 2, 2012.  COMELEC Second Division denied the petition for lack of merit. o As far as registration as a voter is concerned, it should suffice that they are duly registered upon the filing of their COCs or within the period prescribed by law for such registration.







  



o No evidence presented to prove that petitioner was a resident/citizen of another country. MOTION FOR RECONSIDERATION: o The certification issued by the Bureau of Immigration reflected that the petitioner had voluntarily declared in his travel documents that he was a citizen of the USA; o When he travelled to Hawaii, USA on October 6, 2012, he still used his USA passport despite his renunciation of his USA citizenship on October 2, 2012 and after filing his CoC on October 5, 2012. o The petitioner’s declaration of his eligibility in his CoC constituted material misrepresentation because of his failure to meet the citizenship and residency requirements. April 23, 2013: COMELEC En Banc issued its assailed resolution cancelling and denying due course to the petitioner’s CoC o Having admitted his dual citizenship, Agustin had the burden of proving through his evidence that he complied with the statutory requirements imposed upon dual citizens provided under Republic Act 9225 xxx o Having failed to sufficiently show that he complied with the provisions of RA 9225, Agustin’s COC must be cancelled and/or denied due course. Consequently, the Motion for Reconsideration is only granted as against Respondent Agustin May 3, 2013: petitioner filed a Verified Urgent Motion for Reconsideration with Leave of Court. He attached copies of the Order of Approval dated February 12, 2012 and his Oath of Allegiance dated March 9, 2012, both issued by the Consulate General of the Philippines in Honolulu, Hawaii. He further attached certifications issued by Election Officers in Ilocos Norte attesting that the documents ad been received by the COMELEC and retained in its files. He explained that the documents were not presented during the course of the proceedings because the sole issue raised by Pillos’ Petition had involved only his compliance with the one-year residency requirement. Pillos submitted a Motion for Issuance of Writ of Execution and Comment on the Verified Motion for Reconsideration with Leave of Court to implement the cancellation of the petitioner’s COC. On election day, May 13, 2013, the name of the petitioner remained in the ballot, and he won, obtaining 5,020 votes, the highest among the contending parties. Petitioner then filed an Urgent Motion to Withdraw Verified Urgent Motion for Reconsideration with Leave of Court. He subsequently instituted this case, alleging grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the COMELEC En Banc (for the 23 April 2013 resolution). Meanwhile, the COMELEC En Banc, pointing out that the filing of a motion for reconsideration of an En Banc resolution was not allowed, issued the writ of execution.

RULING: Petition denied. Whether petitioner is eligible as a candidate for the position of Mayor of the Municipality of Marcos, Ilocos Norte – NO.  The Court finds and declares that the petitioner made no material misrepresentation in his CoC; hence, there is no legal or factual basis for

the cancellation of the CoC. Even so, he was disqualified to run as Mayor of the Municipality of Marcos, Ilocos Norte for being a dual citizen. With his disqualification having been determined and pronounced by final judgment before the elections, the votes cast in his favor should not be counted. Accordingly, his rival, respondent Pillos, should be proclaimed duly elected Mayor for obtaining the highest number of votes in the elections. On whether administrative due process was observed - YES  PETITIONER: the COMELEC En Banc gravely abused its discretion in resolving Pillos’ motion for reconsideration based on a ground that was neither the basis of nor raised in the Petition; non-presentation of his Oath of Allegiance should not be fatal to his constitutional right to run for public office especially because the sole ground for the Petition had dealt only with the residency requirement, and Pillos could have included citizenship as a ground by the amendment of his petition, but he did not move for that purpose; he duly complied with the requirements for the reacquisition of his Philippine citizenship pursuant to Republic Act No. 9225, and the proof of the reacquisition had been submitted to the Election Officers in Ilocos Norte; and the COMELEC, by not at least holding a clarificatory hearing to ascertain and confirm such matters, violated his right to due process by denying to him the opportunity to prepare for his defense.  COURT: Petitioner’s citizenship came to the fore because he himself asserted his Philippine citizenship in his answer to Pillos’ petition, in order to bolster his allegation of compliance with the one-year residency requirement. As such, he could not credibly complain about being denied due process, especially considering that he had been able to file an opposition to Pillos’ motion for reconsideration. Election cases: due process is satisfied by giving the opportunity to seek the reconsideration of the action or ruling complained of. Whether the COC was valid – YES, but!!! the use of his USA passport after his renunciation
of foreign citizenship rendered him disqualified from continuing as a mayoralty candidate  A valid CoC arises upon the timely filing of a person’s declaration of his intention to run for public office and his affirmation that he possesses the eligibility for the position he seeks to assume, and it renders the person making the declaration a valid or official candidate.  The petition of Pillos was in the nature of the Sec. 78 petitioni to deny due course to or to cancel the CoC of the petitioner because it contained allegations pertaining to a Sec. 78 petition, namely: (a) the petitioner as a candidate made a representation in his CoC; (b) the representation referred to a material matter that would affect his substantive right as candidate (that is, the right to run for the position for which he filed his CoC); and (c) he made the false representation with the intention to deceive the electorate as to his qualification for public office, or he deliberately attempted to mislead, misinform, or hide a fact that would otherwise render him ineligible. Pillos further challenged the petitioner’s eligibility for public office based on his failure to comply with the one-year residency requirement stated in the LGC, and ultimately specifically prayed that the COMELEC “issue an order to immediately deny due course and or to cancel the certificate of candidacy of respondent Arsenio A. Agustin.”  BUT, the COMELEC En Banc canceled the petitioner’s CoC not because of his failure to meet the residency requirement but because of his failure “to sufficiently show that he complied with the provisions of RA 9225.” Such







basis for cancellation was unwarranted considering that he became eligible to run for public office when he expressly renounced his USA citizenship, by which he fully complied with Section 5(2) of RA 9225.ii Petitioner took his Oath of Allegiance on March 9, 2012 and executed his Affidavit of Renunciation on October 2, 2012. By his Oath of Allegiance and his renunciation of his USA citizenship, he reverted to the status of an exclusively Filipino citizen. On October 5, 2012, the date he filed his CoC he was, therefore, exclusively a Filipino citizen, rendering him eligible to run for public office. His CoC was valid for all intents and purposes of the election laws because he did not make therein any material misrepresentation of his eligibility to run as Mayor of the Municipality of Marcos, Ilocos Norte. BUT, on October 6, 2012, he travelled abroad using his USA passport, thereby representing himself as a citizen of the USA. He continued using his USA passport in his subsequent travels abroad despite having been already issued his Philippine passport. He thereby effectively repudiated his oath of renunciation on October 6, 2012, the first time he used his USA passport after renouncing his USA citizenship on October 2, 2012. Consequently, he could be considered an exclusively Filipino citizen only for the four days from October 2, 2012 until October 6, 2012. Such reversion disqualified him from being elected to public office in the Philippines pursuant to Sec. 40(d) of the LGC.iii A candidate is ineligible if he is disqualified to be elected to office, and he is disqualified if he lacks any of the qualifications for elective office. Even if it made no finding that the petitioner had deliberately attempted to mislead or to misinform as to warrant the cancellation of his CoC, the COMELEC could still declare him disqualified for not meeting the requisite eligibility under the LGC.

On the effect of the disqualification  The effect of the petitioner’s disqualification under the April 23, 2013 resolution depended on when the disqualification attained finality. The distinction exists because of Sec. 6 of RA 6646 (The Electoral Reforms Law of 1987)iv – basically a candidate who is disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted.  Cayat v COMELEC: The law expressly declares that a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. This is a mandatory provision of law xxx Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the disqualification becomes final before the elections, which is the situation covered in the first sentence of Section 6. The second is when the disqualification becomes final after the elections, which is the situation covered in the second sentence of Section 6.  Even if his disqualification did not subvert the validity of his CoC, the petitioner would be reduced to a noncandidate under the terms of Section 6, should it be shown that the disqualification attained finality prior to the 2013 elections. The effect was to render the votes cast in his favor stray, resulting in Pillos being proclaimed the winning candidate.  PILLOS: the April 23, 2013 resolution was already deemed final and executory as of May 4, 2013; hence, the writ of execution was issued on June 18, 2013; and that the petitioner’s disqualification thus attained finality prior to the May 13, 2013 elections.  COURT: Correct! Although petitioner filed his Verified Urgent Motion for Reconsideration with Leave of Court, such filing did not impede the April 23,



2013 resolution from being deemed final and executory because MR’s are not allowed under Section 1(d), Rule 13 of the 1993 COMELEC Rules of Procedure. The April 23, 2013 resolution became final and executory as of May 4, 2013 upon the lapse of five days from its promulgation without a restraining order being issued by the Supreme Court.

declared that the administrative misconduct in 2008 was condoned by people when Limbona was elected in 2010 as Mayor thus not a ground for disqualification for 2013 elections.

Panadero v. COMELEC / 2016 / J. Reyes 3 cases consolidated: 1st case: PETS: USec. Austere Panadero and Regional Dir. Rene Burdeos (DILG) RESPS: COMELEC 2nd case: PETS: USec Austere Panadero and Regional Dir. Rene Burdeos (DILG) RESPS: COMELEC and Mohammad Exchan Gabriel Limbona 3rd case: PET: Mangondaya Asum Tago RESPS: COMELEC and Mohammad Exchan Gabriel Limbona

4.

While RD Burdeos sought clarification from Ombudsman Carpio-Morales on applicability of the Aguinaldo doctrine, USec. Panadero issued a memorandum directing him to proceed with the implementation of Ombudsman’s decision. Limbona sought the Office of the President to revoke the DILG Memo against him. It was dismissed on the ground that petitioners were justified in the implementation of the Ombudsman’s decision. DILG served the dismissal order of Limbona leading to his removal from office and assumption of Vice Mayor Tago to his position. 5.

SUMMARY: Limbona was found guilty of administrative misconduct by the Ombudsman when he was Brgy Chairman. The latter ordered his dismissal from government service. When Limbona ran for mayor, a disqualification case was filed against him in the COMELEC which was resolved in his favor saying the administrative case did not disqualify him from running for Mayor. Meanwhile, The DILG USec. tried implementing their order through the Regional Dir but the camp of Limbona presented them the COMELEC Resolution finding him qualified to run. Through a petition by Limbona, the COMELEC cited petitioners in indirect contempt and imposed penalties of fines and imprisonment. The Petitioners argue that they are beyond the jurisdiction of the COMELEC and cannot be cited in indirect contempt. SC limited the discussion on contempt power of COMELEC and ultimately sided with petitioners.

a.

b.

c.

2.

7.

Petitioner’s arguments before the SC: a.

In 2013, DILG Sec Panadero was ordered to implement it against Limbona. Meanwhile, Limbona won as Municipal Mayor of Pantar. DILG Sec Panadero directed RD Burdeos of DILG Region X, to cause immediate implementation. In 2014, RD Burdeos reported that he received from Limbona’s camp, a resolution from COMELEC First Division dismissing the petition for disqualification filed by Malik Alingan against Limbona which discussed the eligibility to run after Ombudsman found him guilty in 2009. The resolution

Petitioners not in bad faith as they merely implemented final and executory decision of Ombudsman

COMELEC En Banc said that the condonation was inapplicable to Limbona’s case as he was elected as Mayor (2010-2013), which was different from his position of Brgy. Chairman (2007-2010) when the administrative case was filed. Nonetheless, Limbona was qualified to run because he wasn’t removed from post of Brgy. Chairman and was able to finish the term prior to finality of the Ombudsman decision. Sec 40(b) of LGC disqualified persons running for any elective office when “removed from office as a result of an administrative case” thus petitioners were cited in indirect contempt. Petitioners violated the final and executory decision of the COMELEC finding Limbona qualified to run and ordering Tago to assume his post.

b. 3.

COMELEC Resolution was not yet final because it remained pending with COMELEC En Banc thus petition of Limbona was premature COMELEC had no jurisdiction over petitioner and the decision of Ombudsman

6.

DOCTRINE: Ratio a,b,c. FACTS: 1. In 2009, Office of Deputy Ombudsman for Luzon and approved by Ombudsman Gutierrez found Limbona guilty of grave misconduct, oppression and conduct prejudicial to the best interests of the service while he was Chairman of Brgy. Kalanganan Lower, Pantar, Lanao Del Norte, in relation to the killing of former Municipal Vice Mayor Onos. He was dismissed from public service with accessory penalties of cancellation of eligibility, forfeiture of retirement benefits and perpetual disqualification from re-employment in the government.

Limbona filed with COMELEC a petition to cite petitioners for indirect contempt. DILG now received endorsement from Ombudsman to implement the order against Limbona. Petitioners argue:

1st case (Petition for Certiorari under Rule 64) i.

COMELEC has no jurisdiction over acts of Ombudsman

ii.

No basis to hold them in contempt

iii.

Aguinaldo doctrine doesn’t apply

2nd case (Petition for Certiorari with very urgent application for a writ of preliminary injunction and/or TRO) i.

COMELEC cannot motu proprio amend its decision by imposing fine and imprisonment

c.

ii.

COMELEC had no jurisdiction

iii.

NOTE: COURT issued TRO against issuance of arrest warrants pending determination of merits on the petition

Petitioners did not commit acts constituting indirect contempt as his assumption to office had legal bases (Ombudsman and DILG issuances, LGC provision on succession)

ISSUE: WoN COMELEC committed grave abuse of discretion in finding petitioners in contempt of court and imposing fines and imprisonment? NOTE: The determination of petitions is limited to the COMELEC resolutions on the finding of indirect contempt and penalties imposed. YES. First off, the power of Contempt is given to Comelec by virtue of Art VII, Sec 52(e) of the Omnibus Election Code. In defining indirect contempt, we look at Sec 2, Rule 29 of the COMELEC Rules of Procedure. However, petitioners are not guilty of such act.

e.

f.

3rd case (Petition for Certiorari) i.

1.

the DILG even seeking clarification from Ombudsman which later reiterated instructions to implement the decision.

a.

COMELEC Resolution is different from the Ombudsman’s decision with 2 distinct issues. Former related to Limbona’s qualifications. Implementation of one will not result to the violation of the other.

b.

COMELEC’s decision to allow Limbona’s candidacy did not disregard Ombudsman’s decision. The fact of conviction in the administrative case except no removal as required by law transpired during Limbona’s prior tenure as a public official.

c.

Actions of DILG were mere implementation of Ombudsman’s decision which neither argued nor declared Limbona to be disqualified from the mayoralty. Limbona, even if qualified for 2013 elections, did not mean he could no longer be dismissed from service as a result of the administrative case. Ombudsman’s decision carried other sanctions other than dismissal which couldn’t have been rendered ineffective by the COMELEC’s decision in the disqualification case.

d.

Rivulet Agro-Industrial Corporation v. Parungao says “To be contemptuous, an act must be clearly contrary to or prohibited by the order of the court.”

In any case, even if COMELEC issuances barred DILG from service of dismissal order, petitioners couldn’t be guilty of contempt because records indicate that there was good faith on the part of

2.

Limbona’s recourse to nullify the actions of DILG officials couldn’t be allowed through a petition for contempt. His petition to revoke with OP was dismissed in fact, as to revoke USec. Panadero’s memo would encroach upon disciplining authority of the Ombudsman.

FALLO: Wherefore, the petitions are granted. The resolutions dated November 17, 2004 and January 5, 2015 of the COMELEC en banc are ANNULLED AND SET ASIDE.

Campol vs Balao-As G.R. No. 197634 / November 28, 2016 / Jardeleza, J./ Locgov /JMB NATURE Petition for Review on Certiorari under Rule 45 PETITIONERS Julius B. Campol RESPONDENTS Mayor Ronald S. Balao-As and Vice Mayor Dominador I. Sianen SUMMARY. Campol was illegally dismissed. The CA ruled that reinstatement was no longer possible since Campol has a new job at PAO and his backwages should only be until his employment in PAO. The SC detailed previous jurisprudence to show and explain that the current rule now is to reinstate an illegally dismissed employee despite having new employment and for backwages until reinstatement. DOCTRINE. The reinstatement of an illegally dismissed employee is proper even when another person is already occupying the position. An employee of the civil service who is ordered reinstated is also entitled to the full payment of his or her backwages during the entire period of time that he or she was wrongfully prevented from performing the duties of his or her position and from enjoying its benefits. Any income he may have obtained during the litigation of the case shall not be deducted from this amount. This is consistent with our ruling that an employee illegally dismissed has the right to live and to find employment elsewhere during the pendency of the case. At the same time, an employer who illegally dismisses an employee has the obligation to pay him or her what he or she should have received had the illegal act not be done. It is an employer's price or penalty for illegally dismissing an employee. FACTS.  Campol served the Municipality of Boliney, Abra since 1999 as Secretary to the Sangguniang Bayan (SB). He held the position in a permanent capacity with salary grade 24.  2004 elections: Balao-as and Sianen won as mayor and vice-mayor, respectively and assumed office in July 2004.  The SB passed a resolution terminating Campol as SB Secretary on the ground that he was absent without approved leave from Aug 1 - Sept 30, 2004. However, when the resolution was transmitted to the Sangguniang Panlalawigan (SP), it referred the matter to CSC-Abra. CSC-Abra then wrote Sianen informing him that Campol cannot be removed from his position because he is protected by the Administrative Code. The SP followed this advice. The Department of Interior and Local Government (DILG)-Abra also took the same position. Despite the unanimous position of these three agencies, Sianen issued Memorandum Order No. 001, Series of 2004, which dropped Campol from the rolls. Campol challenged the memorandum.  CSC-CAR: ruled in Campol’s favor.  CSC: Campol was properly dropped from the rolls.  Campol’s Arguments: o Campol contested the allegation that he committed absences without any approved leave. To substantiate his claim, Campol stated that he in fact received his salary for September 2004. He also sought to prove, through the logbook of meetings that he kept as Secretary of the SB, that he was present on August 2, 9, 16, 23, 30 and September 6, 13 and 20, 2004. He also claimed that Sianen denied his application for sick





leave from September 16 to 24, 2004 so as to make it appear that he was absent for more than 30 days. o Campol challenged the propriety of his summary dismissal arguing that he was deprived of his right to due process. CA: no ground to justify Campol’s dismissal, however, because of Campol was already employed with the Public Attorney’s Office (PAO), reinstatement was no longer possible. Campol is entitled to backwages from his dismissal until October 2005, prior to his employment in PAO. Campol contests CA’s ruling. He explained that he was forced to find another job in order to provide for his two young daughters. He relates that during the pendency of this case, his wife, a PAO lawyer, was gunned down on September 5, 2005. Thus, in the face of the loss of his wife and his continuing unemployment, Campol had no choice but to accept a job from the agency that formerly employed his wife. He highlights that his position as SB Secretary falls under salary grade 24 while his employment with PAO as administrative aide IV is only salary grade 4.

ISSUES & RATIO. 4. WON Campol is entitled to reinstatement and to the payment of his backwages from the time of his dismissal until he is reinstated. – YES. Note: Campol’s dismissal was in 2004 and the decision ruling that he was illegally dropped from the rolls was promulgated only in 2010. Had it not been for the improper appreciation of the applicable laws and jurisprudence, Campol should have been reinstated to his rightful position as SB Secretary 5 years ago. Law on Reinstatement  Section 2, paragraph 3 of Article IX-B of the Constitution states No officer or employee of the civil service shall be removed or suspended except for cause provided by law.  The CA did not cite any law or jurisprudence to support its ruling, but it was in the tenor of the 1988 Ginson v. Mun. of Murcia and 1991 Regis, Jr. v. Osmeña, Jr. cases. Both cases ruled that reinstatement was subject to the condition that no other employment has been obtained. None of these cases fully explains the rationale for such condition.  In a 1960 case, Tan v. Gimenez we have pursued the doctrine that an employee of the civil service illegally dismissed from office has the right to reinstatement. Any other employment he or she obtains while waiting for the court to rule on the propriety of his or her dismissal should not be construed as an abandonment of his or her position. This was reiterated in a 1961 case, Gonzales v. Hernandez. In Tañala v. Legaspi, citing Batungbakal v. National Development Company, it was held that the reinstatement of an illegally dismissed employee is proper even when another person is already occupying the position. More recent cases have moved away from the ruling in Ginson and Regis in favor of Tan and Tañala, such as the 2000 case of Salvador v. CA, 2001 case of Canonizado v. Aguirre.  The doctrine in Tan, Tañala, Gonzales, Salvador and Canonizado is the proper rule. It is more in keeping with the constitutional value placed on security of tenure. To follow the ruling in Ginson and Regis is to rule in favor of penalizing an illegally dismissed employee. It will render pointless the right of employees of the civil service to security of tenure. It is a doctrine that values technicalities more than justice. It forces an illegally dismissed employee to choose between



pursuing his or her case and to fight for his or her rights or to simply accept his or her dismissal and find employment elsewhere. This is not the kind of doctrine that rightfully embodies our aspiration to uphold the Constitution and to render justice. In the eyes of the law, the position never became vacant since Campol was illegally dropped from the rolls. Hence, the incumbency of the person who assumed the position is only temporary and must give way to Campol whose right to the office has been recognized by the proper authorities.

The Law on Backwages  Ginson, Regis, Cristobal v. Melchor, Balquidra v. CFI of Capiz, Branch II, Laganapan v. Asedillo, Antiporda v. Ticao, and San Luis v. Court of Appeals: limited backwages to a period of 5 years. All cases do not provide for an exhaustive explanation for this 5-year cap. Except in Cristobal, a 1977 case, where it was held that the award of backwages should be for a fixed period of five years, applying by analogy the then prevailing doctrine in labor law involving employees who suffered unfair labor practice. We highlight that this rule has been rendered obsolete by virtue of RA 6175 which amended the Labor Code. Under the Labor Code, employees illegally dismissed are entitled to the payment of backwages from the time his or her compensation was withheld up to the time of his or her actual reinstatement.  (Correct ruling according to SC) In 2005, jurisprudence on backwages veered away from the Cristobal ruling. In CSC v. Gentallan, an illegally dismissed government employee who is later ordered reinstated is entitled to backwages and other monetary benefits from the time of her illegal dismissal up to her reinstatement. This is only fair and just because an employee who is reinstated after having been illegally dismissed is considered as not having left her office. This ruling was reiterated in the 2005 case of Batangas State University v. Bonifacio, 2007 case Romagos v. Metro Cebu Water District, and 2010 case CSC v. Magnaye, Jr.  This entitlement to full backwages also means that there is no need to deduct Campol's earnings from his employment with PAO from the award. The right to receive full backwages means exactly this-that it corresponds to Campol's salary at the time of his dismissal until his reinstatement. Any income he may have obtained during the litigation of the case shall not be deducted from this amount. This is consistent with our ruling that an employee illegally dismissed has the right to live and to find employment elsewhere during the pendency of the case. At the same time, an employer who illegally dismisses an employee has the obligation to pay him or her what he or she should have received had the illegal act not be done. It is an employer's price or penalty for illegally dismissing an employee.  Note that even in labor law, this is now the prevailing rule. In Bustamante v. NLRC, we reversed the prior doctrine that an employee illegally dismissed is entitled to backwages less the salary he or she received from his or her employment during the pendency of the case. In Equitable Banking Corporation v. Sadac, we added that in arriving at the doctrine in Bustamante, this Court ceased to consider equity as the determining factor in ascertaining the amount of backwages that should be awarded in cases where the illegally dismissed employee obtains employment during the pendency of his or her case. What is determinative is the employer's obligation to pay full backwages.



We said, "[i]t is an obligation of the employer because it is 'the price or penalty the employer has to pay for illegally dismissing his employee." Employees in the Civil Service should be accorded the same right.

DECISION. Petition granted.

MATURAN v COMELEC MARCH 28,2017 | BERSAMIN | DISQUALIFICATION| MIKEE PETITIONERS: JOEL T. MATURAN RESPONDENTS: COMMISSION ON ELECTIONS AND ALLAN PATIÑO SUMMARY: PET filed CoC. RESP Patiño a registered voter moved to disqualify him on ground that he failed to file his SOCE twice in the past (2010 and 2013 elections). PET argues that he already paid fine for 2010 election and that in the 2013 election he had withdrawn from the election so he did not need to file a SOCE. COMELEC disqualifies him saying that he was required to file for both elections and since he did not file more than once according to Sec 14 of RA 7166 he should be perpetually disqualified from running for office. SC agreed with this. His defense of GF with regard the 2013 election is of no moment. Section 14 uses the word “EVERY CANDIDATE” it makes no distinction. It also uses the word “SHALL” making it mandatory. So PET’s failure to file constitutes a violation of said RA. DOCTRINE: Penalty of perpetual disqualification to hold public office may be properly imposed on a candidate for public office who repeatedly fails to submit his Statement of Contributions and Expenditures (SOCE) pursuant to Section 14 of Republic Act No. 7166.1 The penalty does not amount to the cruel, degrading and inhuman punishment proscribed by the Bill of Rights. FACTS: 2. 3.

4.

5.

October 16, 2015, the PET filed his CoC for the position of Provincial Governor of Basilan for 2016 National and Local Elections. RESP Allan Patiño: registered voter of Basilan, filed a petition for the disqualification of the petitioner on the ground that based on the list issued by the COMELEC Campaign Finance Officer the latter had failed to file his SOCE corresponding to the 2010 and 2013 elections. PET Counter: petition had been rendered moot on account of his withdrawal from the mayoralty race during the 2013 elections; and that, consequently, he could only be held accountable for the failure to file his SOCE corresponding to the 2010 elections when he ran for Provincial Governor of Basilan, and for which he had already paid a fine of ₱l5,000.00. June 6, 2016: the COMELEC First Division declared petitioner PERPETUALLY DISQUALIFIED to hold public office. Upon verification from the CFO, Maturan in fact does not have a SOCE on record for the 2010 elections. Accordingly, per COMELEC Resolution No. 15-0495, an administrative fine in the amount of Php 15,000.00 was imposed upon him. Maturan admitted that he paid said fine on 23 November 2015. Likewise, for his 2013 candidacy, Maturan does not have a SOCE on record with the CFO. Maturan argued that by virtue of the withdrawal of his candidacy on 12 May 2013, just a day before the elections, he is not required to file his SOCE. Petitioner argues that he cannot be held liable for failure to file a statement of contributions and expenditures because he was a 'non-candidate,' having withdrawn his certificate of candidacy three days after its filing. Petitioner posits that "it is ... clear from the law that the candidate must have entered the political contest, and should have either won or lost." –WITHOUT MERIT! Section 14 of

6.

R.A. No. 7166 states that "every candidate" has the obligation to file his statement of contributions and expenditures. Law does not make a distinction, it says “every”. COMELEC issued Resolution No. 2348 (sec 13) stating that it pertains to all candidates who filed their candidacy. Section 14 of the law uses the word "shall." As a general rule, the use of the word "shall" in a statute implies that the statute is mandatory, and imposes a duty which may be enforced, particularly if public policy is in favor of this meaning or where public interest is involved. COMELEC EN BANC: AFFIRMED.

ISSUES + RATIO W/N COMELEC committed GADALEJ when it declared that PET. Maturan is perpetually disqualified? –NO 5.

The petitioner's allegation of GAD on the part of the COMELEC for imposing upon him the penalty of perpetual disqualification to hold public office is hollow. In imposing the penalty, the COMELEC clearly acted within the bounds of its jurisdiction in view of the clear language of Section 14 of R.A. No. 7166, viz.: Section 14. Statement of Contributions and Expenditures: Effect of Failure to File Statement. - Every candidate and treasurer of the political party shall, within thirty (30) days after the day of the election, file in duplicate with the offices of the Commission the full, true and itemized statement of all contributions and expenditures in connection with the election. xxxx Except candidates for elective barangay office, failure to file the statements or reports in connection with electoral contributions and expenditures are required herein shall constitute an administrative offense for which the offenders shall be liable to pay an administrative fine ranging from One thousand pesos (₱l,000.00) to Thirty thousand pesos (₱30,000.00), in the discretion of the Commission. The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be enforceable by a writ of execution issued by the Commission against the properties of the offender. xxxx For the commission of a second or subsequent offense under this section, the administrative fine shall be from Two thousand pesos (₱ 2,000.00) to Sixty thousand pesos (₱60,000.00), in the discretion of the Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office.

8.

Nonetheless, the petitioner submits that he only failed to submit his SOCE once, in 2010. He pleads GF because he thought that he was no longer required to submit his SOCE for the 2013 elections because of his

9.

having withdrawn from the mayoral race in that year. His plea of good faith is undeserving of consideration. The petitioner should have paid heed to the 1995 ruling in Pilar v. Commission of Elections,10 which the COMELEC properly cited in its assailed resolution. Based on Pilar, every candidate, including one who meanwhile withdraws his candidacy, is required to file his SOCE by Section 14 of R.A. No. 7166. Accordingly, the petitioner could not invoke good faith on the basis of his having withdrawn his candidacy a day before the 2013 elections.

W/N PET. for disqualification is moot with re: 2013 grounds? No. He still liable for it as the COMELEC explained that all candidates are required to file. (SEE COMELEC decision above which is underlines and in bold) W/N imposition of perpetual disqualification for those who failed to file their SOCE more than once is gracely excessive? b

c

d

PET: invoking Section 19(1), Article III of the 1987 Constitution, which provides: Section 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. x x x . i. He contends that the failure to file the SOCE is an offense far less grave than the serious crimes under the Revised Penal Code and the grave offenses under the civil service laws. SC: We have always deferred to the wisdom of Congress in enacting a law. We can only enforce a statute like R.A. No. 7166 unless there is a clear showing that it contravenes the Constitution. The petitioner has not demonstrated herein how R.A. No. 7166 could have transgressed the Constitution. On the contrary, a review of R.A. No. 7166 convincingly indicates that perpetual disqualification from public office has been prescribed as a penalty for the repeated failure to file the SOCE and does not constitute cruel, degrading and inhuman punishment. Penalty is intended to underscore the need to file the SOCE as another means of ensuring the sanctity of the electoral process. We have already settled that the constitutional proscription under the Bill of Rights extends only to situations of extreme corporeal or psychological punishment that strips the individual of his humanity. NOT flagrantly and plainly oppressive and wholly disproportionate to the nature of the offense as to shock the moral sense of the community

NATURE PETITIONERS RESPONDENTS

ALBANIA v. COMELEC G.R. No. 226792 / 6 Jun 2017 / Peralta, J. / MATConejero Rule 64 petition for certiorari Sofronio Albania COMELEC, Edgardo Tallado

SUMMARY. Edgardo Tallado served for the last three months of the 2007-2010 term after filing a petition for correction of manifest error against the proclaimed Governor of Camarines Norte, Jesus Typoco. Tallado then ran and won the gubernatorial races in 2010 and 2013, after which he filed COC for the same position in the 2016 election. Albania as a registered taxpayer filed a case for disqualification against Tallado for violating the three-term limit and for having been suspended by the Ombudsman. The COMELEC 2nd division dismissed the case as the case was for denial/cancellation of COC and was filed out of time; moreover, Tallado did not fully serve his first term which did not count as part of the three terms, and was not disqualified by suspension. The COMELEC en banc’s resolution affirmed this decision, and is herein assailed by Albania. SC affirmed the en banc as the involuntary interruption of his service as Governor by Typoco’s assumption of office meant no full term served and no violation of the three-term limit rule when Tallado ran again. DOCTRINE. An involuntarily interrupted term cannot be considered as one term for purposes of counting the three-term limit rule that is embodied in Section 8 of Article X of the Constitution and Section 43 of the LGC.1 FACTS. 7. Edgardo Tallado’s petition for correction of a manifest error against co-candidate Jesus Typoco’s proclamation as Governor of Camarines Norte was granted 5 Mar 2010. Tallado assumed his duly-elected gubernatorial office for the last three months of the 2007-2010 term from 22 Mar to 30 June 2010. 8. Tallado ran and won as Governor of Camarines Norte in the 2010 and 2013 elections after which he filed COC for the fourth time on 16 Oct 2015 for the 2016 race. 9. Sofronio Albania as registered voter of Poblacion Sta. Elena filed on 13 Nov 2015 a petition to disqualify Tallado based on Rule 25 of COMELEC Resn. 9523 and on 2 grounds: o Violation of the three term limit rule under Section 43 LGC o Tallado’s suspension by a 2 Oct 2015 Ombudsman order for one year without pay, together with its accessory penalties, for oppression and grave abuse of authority 10. Tallado in his verified Answer argued four points: 6. the petition should have been one to deny due course to or cancel COC under Rule 23 of COMELEC Resn. 9523, in relation to Section 78 OEC on eligibility, as it was primarily based on alleged ineligibility through violation of the three-term limit rule 10. this petition has prescribed based on Section 23 Rule 23 where the petition should be filed 25 days after he filed COC or on 10 Nov 2015 and not 13 Nov

Section 8. The term of office of elective local officials… three years and no … more than three consecutive terms. Voluntary renunciation of the office … not considered as interruption in continuity of service for the full elective term; Section 43. Term of Office. - (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation … f Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. - … may be filed … exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false… not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided … not later than fifteen days before the election. e

ii. he did not violate the three-term limit as he did not fully serve the 2007-2010 term o his suspension from office is not a ground for a petition for disqualification as Section 40(b) LGC refers to removal and not suspension by administrative case d. The COMELEC Second Division on 22 Apr 2016 dismissed the petition and agreed with all Tallado’s arguments. The COMELEC en banc in its assailed 24 Aug 2016 resolution dismissed Albania’s MR and echoed the Division’s findings, hence this petition where Albania alleges GADALEJ on the four issues corresponding to Tallado’s arguments.

of the assailed COC, or later than 5 days if the COC is by a substitute candidate Rule 25 - Disqualification of Candidates, Section 1. Grounds…. declared by final decision of a competent court.. or Commission … disqualification provided by law or the Constitution. g. Rule 23 - Petition to Deny Due Course to r Cancel COC, Section 1. Ground for Denial or Cancellation of COC - … any elective office … exclusive ground that any material representation contained therein as required by law is false. f.

ISSUES & RATIO. 2. Whether the COMELEC erred in treating this disqualification petition as one for denial or cancellation of COC based on the grounds invoked—NO. The COMELEC was correct in doing so as the two grounds invoked by Albania are not found within the applicable provisions of Secs. 12 and 68 of BP 881 OEC or in Sec. 40 LGC. Suspension from office is not a ground for a petition for disqualification as Section 40 (b) clearly speaks of removal and not suspension as a result of an administrative offense for disqualification from an elective local position. The alleged violation of the three-term limit rule is an ineligibility which is a proper ground for a petition to deny or cancel COC under Section 78 OEC. o Section 74 of the OEC provides that the candidate shall state his candidacy and eligibility in his COC, “eligible” meaning having no ineligibilities to run o A violation of the three-term limit rule is an ineligibility which by false material representation is a proper ground for a petition to deny due course to or to cancel a COC under Section 78 OEC2. The Constitution has vested in the COMELEC broad powers of enforcement and administration of election laws, authority to promulgate rules of procedure, and power to resolve controversies, including determine the true nature of the cases filed before it based on its averments

3. Whether Tallado violated the three-term limit rule on running for office—NO. Since Tallado did not serve the full 2007-2010 term as governor, such cannot be considered as one term for purposes of assessing a violation of the three-term threshold.

3.

• Tallado did not hold the full term of three years to which he was supposedly entitled to based on the definition of the term ”term”

Whether the petition was filed out of time—YES. A petition under Section 78 of the OEC must comply with the period prescribed under Rule 23 and not Rule 25 as argued by Albania. Since Tallado filed COC on 16 Oct 2015, the petition should have been filed not later than 25 days from that date or on 10 Nov 2015 and not 28 days after or on 13 Nov. Petition for disqualification Under Rule 25, COMELEC Resn. 95233 Filing period under Sec. 3 is any day after the last day for filing of COC, but not later than the date of proclamation

Petition for denial/cancellation of COC Under Rule 23, COMELEC Resn. 95234 Filing period under Sec. 2 is within five 5 days from the last day for filing of COC; but not later than 25 days from the filing

• The second of two conditions was missing for disqualification of a candidate based on violation of the three-term limit rule o the official concerned has been elected for three consecutive terms in the same local government post o he has fully served three consecutive terms • The Court applied Abundo v. COMELEC, which has similar facts, in ruling that an involuntary interrupted term is not considered as one term for the three-term limit. o Abundo won an election protest and assumed the mayoralty post for around a year and a month from 9 May 2006 until 30 June 2007. Abundo was not considered to have served the full 2004-2007 term as his full term was substantially reduced. The almost two-year period during which Abundo 's opponent served as Mayor was considered an involuntary interruption of o Here, Tallado did not serve the full 2007-2010 term since he did not win as Governor of Camarines Norte in the 2007 elections, but served three months after a petition for correction of manifest error which cannot be considered as one term for purposes of the three-term threshold.

o Aldovino Jr. v. COMELEC: Art. X, Sec. 8 refers to a "term" as a 3-year period of time during which a local official has title to office and can serve. o Appari v. CA (2007 resn): "term" in a legal sense means a fixed and definite period of time which the law describes that an officer may hold an office. According to Mechem, the term of office is the period during which an office may be held. Upon term expiry, rights, duties and authority of a public officer must ipso facto cease, unless authorized by law to holdover. The most natural, frequent method by which a public officer ceases to be such is by expiration of elective/appointive term. o Gaminde v. COA: term means the time during which the officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another.

4. Whether Tallado’s suspension disqualified him from office—NO. The penalty of suspension cannot be a bar to his candidacy so long as he meets the qualifications for the office as provided under Section 66(b) of R.A. No. 7160. DECISION. Petition denied. COMELEC en banc resolution affirmed.

TAN VS. CRISOLOGO November 8, 2017 | Martires, J PETITIONER: VIVIENNE TAN RESPONDENT: VINCENT “BINGBONG” CRISOLOGO SUMMARY: Vivienne Tan was a naturalized US citizen who sought to run for QC 1 st district representative. However, she only took her Oath of Allegiance to the PH, as required by RA 9225, after she had applied to be a registered voter. Crisologo challenged her inclusion in the voter’s list, saying she was not a citizen at the time of her registration, and that she failed to meet the residency requirement. SC held that she was not a PH citizen at the time she registered. DOCTRINE 1. RA 9225 makes a distinction between 1) those who lost PH citizenship before RA 9225 and reacquired it under the same and 2) those who lost PH citizenship after RA 9225 and retained citizenship. 2. Tan took her Oath of Allegiance to the US on 19 Jan 2003, before the enactment of RA 9225. If retroactive application is permitted, then the distinction is RA 9225 is rendered futile. 3. To consider that the reacquisition of the PH citizenship retroacts to the date it was lost = absurd scenario where the person would still be considered a PH citizen when he had renounced his citizenship. FACTS 1. 19 Jan 1993: Vivienne Tan became a naturalized US citizen. 2. 20 August 2003: RA 9225 was enacted. 3. 26 Oct 2009: Tan applied to be a registered voter in Quezon City. She indicated that she was a Filipino by birth. The Election Registration Board approved her application on 16 Nov 2009. 4. 30 Nov 2009: Tan took her Oath of Allegiance to the PH in Makati. 5. 1 Dec 2009: Tan filed a petition before the Bureau of Immigration for the reacquisition of her PH citizenship and executed a declaration renouncing allegiance to the US. The BI confirmed her reacquisition. 6. 1 Dec 2009: Tan filed her Certificate of Candidacy to run as QC 1st District representative. 7. 28 Dec 2009: Bingbong Crisologo filed a petition before the MeTC seeking to exclude Tan from the voter’s list, alleging 1) she was not a PH citizen when she registered as a voter and 2) she failed to meet the residency requirement. 8. MeTC ruled to exclude Tan from the voter’s list, holding that she was not a PH citizen at the time she registered as a voter. 9. Tan appealed to the RTC. RTC reversed the MeTC and dismissed Crisologo’s petition. RTC opined that the question of her citizenship was cured by Tan’s subsequent Oath, Petition for Reacquisition, the BI’s Order granting the said petition, and Sworn Declaration re: renouncing her allegiance to the US. 10. The RTC decision became final and executory due to RA 8189. Hence, Crisologo filed for certiorari before the CA. 11. The CA held that the RTC committed GADALEJ in reversing the MeTC decision, hence this Petition.

ISSUE/HELD W/N Tan can be considered a PH citizen at the time she registered as a voter – NO. Basically, no legal basis for the retroactive application of RA 9225. Her inclusion in the voter’s list is highly irregular. W/N when PH citizenship is reacquired after taking the Oath as required by RA 9225, the effect on citizenship status retroacts to period before taking said oath - NO RATIO 1. The reacquisition of PH citizenship under RA 9225 requires only the taking of an oath of allegiance to the PH. 2. RA 9225 makes a distinction between 1) those who lost PH citizenship before RA 9225 and reacquired it under the same and 2) those who lost PH citizenship after RA 9225 and retained citizenship. 3. Tan took her Oath of Allegiance to the US on 19 Jan 2003, before the enactment of RA 9225. If retroactive application is permitted, then the distinction is RA 9225 is rendered futile. 4. An interpretation giving RA 9225 retroactive effect as contemplated by Tan would cause confusion, especially with respect to Sec. 3, RA 9225. Verba legis. 5. The Court also used the holistic approach, citing Mactan-Cebu Intl Airport Authority vs. Urgello. The law must not be read in truncated parts; its provisions must be read in relation to the whole law. 6. RA 9225 contains to provision regarding the retroactivity of its effects as regards natural-born citizens who became naturalized citizens of a foreign country before RA 9225. 7. To consider that the reacquisition of the PH citizenship retroacts to the date it was lost = absurd scenario where the person would still be considered a PH citizen when he had renounced his citizenship. 8. Rule is also that statutes are to be construed as having only a prospective operation, unless legislature intended to tive them a retroactive effect. 9. Citing Maquiling vs COMELEC (penned by CJ Sereno): the renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time, only to be violated the next day. It requires an absolute and perpetual renunciation of the foreign citizenship and a full divestment of all civil and political rights granted by the foreign country which granted the citizenship. 10. We cannot consider one a Filipino citizen unless and until his or her allegiance to the Republic of the PH is reaffirmed. NOTES

GARCIA ET AL. VS COMELEC Posted by kaye lee on 10:58 AM G.R. No. 111511 October 5, 1993 [Initiative and Referendum; Recall proceeding] FACTS: Enrique T. Garcia was elected governor of Bataan in the 1992 elections. Some mayors, vice-mayors and members of the Sangguniang Bayan of the twelve (12) municipalities of the province constituted themselves into a Preparatory Recall Assembly to initiate the recall election of petitioner Garcia. They issued Resolution No. 1 as formal initiation of the recall proceedings. COMELEC scheduled the recall election for the gubernatorial position of Bataan. Petitioners then filed a petition for certiorari and prohibition with writ of preliminary injunction to annul the Resolution of the COMELEC because the PRAC failed to comply with the "substantive and procedural requirement" laid down in Section 70 of R.A. 7160 (Local Government Code 1991). They pointed out the most fatal defect of the proceeding followed by the PRAC in passing the Resolution: the deliberate failure to send notices of the meeting to 65 members of the assembly. ISSUES: 1) Whether or not the people have the sole and exclusive right to initiate recall proceedings. 2) Whether or not the procedure for recall violated the right of elected local public officials belonging to the political minority to equal protection of the law. RULING: 1) No. There is nothing in the Constitution that will remotely suggest that the people have the "sole and exclusive right to decide on whether to initiate a recall proceeding." The Constitution did not provide for any mode, let alone a single mode, of initiating recall elections. The mandate given by section 3 of Article X of the Constitution is for Congress to "enact a local government code which shall provide for a more responsive and accountable local government structure through a system of decentralization with effective mechanisms of recall, initiative, and referendum . . ." By this constitutional mandate, Congress was clearly given the power to choose the effective mechanisms of recall as its discernment dictates. What the Constitution simply required is that the mechanisms of recall, whether one or many, to be chosen by Congress should be effective. Using its constitutionally granted discretion, Congress deemed it wise to enact an alternative mode of initiating recall elections to supplement the former mode of initiation by direct action of the people. The legislative records reveal there were two (2) principal reasons why this alternative mode of initiating the recall process thru an assembly was adopted, viz: (a) to diminish the difficulty of initiating recall thru the direct action of the people; and (b) to cut down on its expenses. 2) No. Under the Sec. 70 of the LGC, all mayors, vice-mayors and sangguniang members of the municipalities and component cities are made members of the preparatory recall assembly at the provincial level. Its membership is not apportioned to political parties. No significance is given to the political affiliation of its members. Secondly, the preparatory recall assembly, at the provincial level includes all the elected officials in the province concerned. Considering their number, the greater

probability is that no one political party can control its majority. Thirdly, sec. 69 of the Code provides that the only ground to recall a locally elected public official is loss of confidence of the people. The members of the PRAC are in the PRAC not in representation of their political parties but as representatives of the people. By necessary implication, loss of confidence cannot be premised on mere differences in political party affiliation. Indeed, our Constitution encourages multi-party system for the existence of opposition parties is indispensable to the growth and nurture of democratic system. Clearly then, the law as crafted cannot be faulted for discriminating against local officials belonging to the minority. Moreover, the law instituted safeguards to assure that the initiation of the recall process by a preparatory recall assembly will not be corrupted by extraneous influences. We held that notice to all the members of the recall assembly is a condition sine qua non to the validity of its proceedings. The law also requires a qualified majority of all the preparatory recall assembly members to convene in session and in a public place. Needless to state, compliance with these requirements is necessary, otherwise, there will be no valid resolution of recall which can be given due course by the COMELEC.

PARAS v. COMELEC November 4, 1996 | Francisco, J. | Removal/Recall Digester: Sumagaysay, Rev SUMMARY: Petitioner Paras is the Punong Barangay of Pula, Cabanatuan who won in 1994. A petition for recall was made and during the first recall election on November 13, 1995, more than 25% of the voters signed the petition. Petitioner opposed this so a second recall election was scheduled on December 16, 1995. Petitioner filed a TRO with the RTC which was initially granted but dismissed (he misrepresented that the recall election was without COMELEC approval). Petitioner now opposes this third recall election scheduled saying that the SK elections were coming up on May 1996 and that the LGC states that no recall one year shall take place preceding a local election. The Court rejected petitioner’s arguments invoking LegMeth principles on harmonizing the laws and that if the SK election which is set by R.A. No. 7808 to be held every three years from May 1996 were to be deemed within the purview of the phrase regular local election, as erroneously insisted by petitioner, then no recall election can be conducted rendering inutile the recall provision of the Local Government Code. Nevertheless, the petition is now moot and academic as it is only 7 months from the next elections. DOCTRINE: *from the book: “Regular local elction” refers to an election where the office held by the local official sought to be recalled will be contested and be filled by the electorate. Hence, a recall for the punong barangay is not barred when a sangguniang kabataan election is scheduled within one year. The law prohibits recall election during the last year of the term of a local official because of the proximity of the next regular election for the office of the local elective official concerned. The electorate could choose the official’s replacement in the said election who certainly has a longer tenure in office than a successor elected through a recall election. FACTS:  Petitioner Danilo E. Paras is the incumbent Punong Barangay of Pula, Cabanatuan City who won during the last regular barangay election in 1994. A petition for his recall as Punong Barangay was filed by the registered voters of the barangay. Acting on the petition for recall, COMELEC resolved to approve the petition, scheduled the petition signing and set the recall election on November 13, 1995. At least 29.30% of the registered voters signed the petition, well above the 25% requirement provided by law.  The COMELEC, however, deferred the recall election in view of petitioners opposition. COMELEC set anew the recall election, this time on December 16, 1995. To prevent the holding of the recall election, petitioner filed before the RTC Cabanatuan a petition for injunction, with the trial court issuing a TRO. After conducting a summary hearing, the trial court lifted the this, dismissed the petition and required petitioner and his counsel to explain why they should not be cited for contempt for misrepresenting that the barangay recall election was without COMELEC approval.  In a resolution, the COMELEC, for the third time, re-scheduled the recall election on January 13, 1996; hence, the instant petition for certiorari with urgent prayer for injunction.  Petitioner’s argument: Section 74 (b) of Republic Act No. 7160 states that no recall shall take place within one (1) year from the date of the officials assumption

to office or one (1) year immediately preceding a regular local election. Petitioner insists that the scheduled January 13, 1996 recall election is now barred as the Sangguniang Kabataan (SK) election was set by Republic Act No. 7808 on the first Monday of May 1996, and every three years thereafter. In support thereof, petitioner cites Associated Labor Union v. Letrondo-Montejo, where the Court considered the SK election as a regular local election. Petitioner maintains that as the SK election is a regular local election, hence no recall election can be had for barely four months separate the SK election from the recall election. RULING: Petition dismissed for having become moot and academic. Whether petitioner’s interpretation is correct – NO. But recall couldn’t be made anyway cause next election is near.  It is a rule in statutory construction that every part of the statute must be interpreted with reference to the context, i.e., that every part of the statute must be considered together with the other parts, and kept subservient to the general intent of the whole enactment.  The evident intent of Section 74 is to subject an elective local official to recall election once during his term of office. Paragraph (b) construed together with paragraph (a) merely designates the period when such elective local official may be subject of a recall election, that is, during the second year of his term of office.  Thus, subscribing to petitioners interpretation of the phrase regular local election to include the SK election will unduly circumscribe the novel provision of the Local Government Code on recall, a mode of removal of public officers by initiation of the people before the end of his term. And if the SK election which is set by R.A. No. 7808 to be held every three years from May 1996 were to be deemed within the purview of the phrase regular local election, as erroneously insisted by petitioner, then no recall election can be conducted rendering inutile the recall provision of the Local Government Code.  In the interpretation of a statute, the Court should start with the assumption that the legislature intended to enact an effective law, and the legislature is not presumed to have done a vain thing in the enactment of a statute. An interpretation should, if possible, be avoided under which a statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant, meaningless, inoperative or nugatory.  It is likewise a basic precept in statutory construction that a statute should be interpreted in harmony with the Constitution. Thus, the interpretation of Section 74 of the Local Government Code, specifically paragraph (b) thereof, should not be in conflict with the Constitutional mandate of Section 3 of Article X of the Constitution to enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum x x x.  Moreover, petitioners too literal interpretation of the law leads to absurdity which we cannot countenance. Thus, in a case, the Court made the following admonition: o We admonish against a too-literal reading of the law as this is apt to constrict rather than fulfill its purpose and defeat the intention of its

 





authors. That intention is usually found not in the letter that killeth but in the spirit that vivifieth. The spirit, rather than the letter of a law determines its construction; hence, a statute, as in this case, must be read according to its spirit and intent. Finally, recall election is potentially disruptive of the normal working of the local government unit necessitating additional expenses, hence the prohibition against the conduct of recall election one year immediately preceding the regular local election. The proscription is due to the proximity of the next regular election for the office of the local elective official concerned. The electorate could choose the officials replacement in the said election who certainly has a longer tenure in office than a successor elected through a recall election. It would, therefore, be more in keeping with the intent of the recall provision of the Code to construe regular local election as one referring to an election where the office held by the local elective official sought to be recalled will be contested and be filled by the electorate. Nevertheless, recall at this time is no longer possible because of the limitation stated under Section 74 (b) of the Code considering that the next regular election involving the barangay office concerned is barely seven (7) months away, the same having been scheduled on May 1997.

NOTES:  LGC, SEC. 74. Limitations on Recall. (a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. o (b) No recall shall take place within one (1) year from the date of the officials assumption to office or one (1) year immediately preceding a regular local election.

CLAUDIO v. COMELEC and PREPARATORY RECALL ASSEMBLY OF PASAY CITY v. COMELEC May 4, 2000 | Mendoza, J. | Removal Digester: Santos, Ihna SUMMARY: Claudio is the Mayor of Pasay City. Various barangay officials of Pasay convened to create the Preparatory Recall Assembly of Pasay City. Claudio argued that preparations for his recall were laid down prior to the 1-year prohibition stated in Sec. 74, LGC. He contends that “recall” as stated in said provision refers to all the initiatory acts of recall to the filing to the election. SC otherwise and said that “recall” refers to the actual day of recall election. As long as the election is held outside the 1year period from assumption to office of the local official sought to be recalled, the preliminary proceedings to initiate a recall can be held even before the end of the 1 st year in office of said local official. DOCTRINE: A recall is a process which begins with the convening of the preparatory recall assembly (PRA) or the gathering of the signatures at least 25% of the registered voters of a local government unit, and then proceeds to the filing of a recall resolution or petition with the COMELEC, the verification of such resolution or petition, the fixing of the date of the recall election, and the holding of the election on the scheduled date. As used in of Sec. 74(b) of the LGC, “recall” refers to the election itself by means of which voters decide whether they should retain their local official or elect his replacement. Sec. 74 deals with restrictions on the power of recall while Sec. 69 provides that “the power of recall shall be exercised by the registered voters of a local government unit to which the local elective official belongs.” Since the power vested on the electorate is not the power to initiate recall proceedings but the power to elect an official into office, the limitations in Sec. 74 cannot be deemed to apply to the entire recall proceedings. In other words, the term “recall” in paragraph (b) refers only to the recall election, excluding the convening of the PRA and the filing of a petition for recall with the COMELEC, or the gathering of the signatures of at least 25% of the voters for a petition for recall. FACTS:  This is a consolidated petition of: 1. Petition for certiorari and prohibition filed by Claudio, seeking the nullification of the resolution giving due course to the petition for his recall as Mayor of Pasay City 2. Petition for mandamus filed by the Preparatory Recall Assembly (PRA) of Pasay City to compel Comelec to set the date for the holding of recall elections in Pasay pursuant to the resolution of the Comelec (In the matter of the preparatory recall assembly resolution no. 01, S-1999 adopted on May 29, 1999 for the recall of Mayor Jovito Claudio of Pasay City)  Jovito Clausio was the duly elected mayor of Pasay City in the 1998 elections. He assumed office on July 1, 1998.  Sometime during May 1999, the chairs of several barangays in Pasay gathered to discuss the possibility of filing a petition for recall against Claudio for loss of confidence.  On May 19, 1999, at the residence of barangay chair Benjamin Lim, Jr., several barangay chairs formed an ad hoc committee for the purpose of convening the PRA. Richard Advincula was designated chair.



 





On May 29, 1999, 1,073 members of the PRA composed of barangay chairs, kagawads and sangguniang kabataan chairs of Pasay, adopted Resolution No. 01, S-1999 (Resolution to initiate the recall of Jovito Claudio as Mayor of Pasay for loss of confidence). Said resolution was formally submitted to the As scheduled, the petition for recall was filed on July 2, 1999 at the Office of the Election Officer. This was accompanied by an affidavit of service of the petition on the Office of the City Mayor. Pursuant to the rules of the Comelec, copies of the petition were posted on the bulletin boards of the local Comelec Office, the City Hall, the Police Department, the public market, and the church in Pasay. Subsequently, a verification of the authenticity of the signatures on the resolution was conducted by the election officer of Pasay designated by the Comelec. Oppositions to the petition was filed by Claudio, Langub, and Angeles, alleging procedural and substantive defects: 1. the signatures affixed to the resolution were actually meant to show attendance at the PRA meeting 2. most of the signatories were only representatives of the parties concerned who were sent there merely to observe the proceedings 3. the convening of the PRA took place within the 1-year prohibited period 4. the election case filed by Trinidad in SC, seeking the annulment of the proclamation of Claudio as mayor of Pasay, should first be decided before recall proceedings against Claudio could be filed 5. the recall resolution failed to obtain the majority of all the members of the PRA, considering that 10 were actually double entries, 14 were not duly accredited members of the barangays, 40 sangguniang kabataan officials had withdrawn their support, and 60 barangay chairs executed affidavits of retraction In its Oct. 18, 1999 resolution, Comelec granted the petition for recall and dismissed the oppositions against it. o On the issue of whether the PRA was constituted by a majority of its members: COMELEC held that the 1,073 members who attended the May 29, 1999 meeting were more than necessary to constitute the PRA, considering that its records showed the total membership of the PRA was 1,790, while the statistics of the DILG showed that the total membership of the PRA was 1,876. In either case, since only a majority is required to constitute the PRA, clearly, a majority had been obtained in support of the recall resolution. Based on the verification made by the election officer, COMELEC found the signatures of 958 members of the PRA sufficient. o On whether the pendency of the case questioning the proclamation of Claudio was a prejudicial question which must first be decided before any recall election could be held: COMELEC ruled that it was not and that Claudio was merely using the pendency of the case to delay the recall proceedings. o On whether the petition for recall violated the bar on recall within 1 year from the elective official’s assumption of office: COMELEC ruled in the negative, holding that recall is a process which starts with the filing of the petition for recall. Since the petition was filed on July 2, 1999, exactly one year and a day after petitioner Claudio’s assumption of office, it was held that the petition was filed on time.

RULING: 1st petition dismissed for lack of merit; 2nd petition dismissed for being moot and academic Whether the petition for mandamus (2nd case) should prosper – NO, moot and academic  In its Resolution No. 3121, dated March 9, 2000, the COMELEC set the date of the recall elections in Pasay City on April 15, 2000. Consequently, the petition for mandamus in to compel the COMELEC to fix a date for the recall elections in Pasay City is no longer tenable. Whether the word “recall” in Sec. 74(b) of the LGC includes the convening of the Preparatory Recall Assembly and the filing by it of a recall resolution – NO.  Sec. 74 – Limitations on Recall. (a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. (b) No recall shall take place within one (1) year from the date of the official’s assumption to office or one (1) year immediately preceding a regular local election.  Claudio: Contends that the term “recall” in Sec. 74(b) refers to a process, in contrast to the term “recall election” found in Sec. 74(a), which obviously refers to an election. He claims that when several barangay chairmen met and convened on May 19, 1999 and unanimously resolved to initiate the recall, followed by the taking of votes by the PRA on May 29, 1999 for the purpose of adopting a resolution to initiate his recall as Mayor of Pasay for loss of confidence, the process of recall began and, since May 29, 1999 was less than a year after he had assumed office, the PRA was illegally convened and all proceedings held thereafter, including the filing of the recall petition on July 2, 1999, were null and void.  Comelec: The process of recall starts with the filing of the petition for recall and ends with the conduct of the recall election. Since the petition for recall in this case was filed on July 2, 1999, exactly 1 year and a day after Claudio’s assumption of office, the recall was validly initiated outside the 1-year prohibited period.  Both Claudio and the COMELEC thus agree that the term “recall” as used in Sec. 74 refers to a process. They disagree only as to when the process starts for purposes of the 1-year limitation in paragraph (b) of Sec. 74.  SC: Recall is a process which begins with the convening of the preparatory recall assembly or the gathering of the signatures at least 25% of the registered voters of a local government unit, and then proceeds to the filing of a recall resolution or petition with the COMELEC, the verification of such resolution or petition, the fixing of the date of the recall election, and the holding of the election on the scheduled date. However, as used in Sec. 74(b), “recall” refers to the election itself by means of which voters decide whether they should retain their local official or elect his replacement.  Reasons in support of this conclusion: 1. Sec.74 deals with restrictions on the power of recall. It is in fact entitled “Limitations on Recall.” On the other hand, Sec. 69 provides that “the power of recall shall be exercised by the registered voters of a local government unit to which the local elective official belongs.” Since the power vested on the electorate is not the power to initiate recall proceedings but the power to elect an official into office, the

2.

3.

limitations in Sec. 74 cannot be deemed to apply to the entire recall proceedings. In other words, the term “recall” in Sec. 74(b) refers only to the recall election, excluding the convening of the PRA and the filing of a petition for recall with the COMELEC, or the gathering of the signatures of at least 25 % of the voters for a petition for recall. The second reason why the term “recall” in Sec. 74(b) refers to recall election is to be found in the purpose of the limitation itself. There are two limitations in Sec. 74(b) on the holding of recalls: (1) that no recall shall take place within one year from the date of assumption of office of the official concerned, and (2) that no recall shall take place within 1 year immediately preceding a regular local election. The purpose of the first limitation is to provide a reasonable basis for judging the performance of an elective local official.  In the Bower case cited by SC in Angobung v. COMELEC, it was held that “The only logical reason which we can ascribe for requiring the electors to wait one year before petitioning for a recall election is to prevent premature action on their part in voting to remove a newly elected official before having had sufficient time to evaluate the soundness of his policies and decisions.”  The one-year limitation was reckoned as of the filing of a petition for recall because the Municipal Code involved in that case expressly provided that “no removal petition shall be filed against any officer or until he has actually held office for at least twelve months.” But however the period of prohibition is determined, the principle announced is that the purpose of the limitation is to provide a reasonable basis for evaluating the performance of an elective local official.  Hence, in this case, as long as the election is held outside the 1-year period, the preliminary proceedings to initiate a recall can be held even before the end of the first year in office of a local official.  As already stated, it is not the holding of PRA nor the adoption of recall resolutions that produces a judgment on the performance of the official concerned; it is the vote of the electorate in the election that does. Therefore, as long as the recall election is not held before the official concerned has completed one year in office, he will not be judged on his performance prematurely. To construe the term “recall” in Sec. 74(b) as including the convening of the PRA for the purpose of discussing the performance in office of elective local officials would be to unduly restrict the constitutional right of speech and of assembly of its members. The people cannot just be asked on the day of the election to decide on the performance of their officials. The crystallization and formation of an informed public opinion takes time. To hold, therefore, that the first limitation in paragraph (b) includes the holding of assemblies for the exchange of ideas and opinions among citizens is to unduly curtail one of the most cherished rights in a free society. Indeed, it is wrong to assume that such assemblies will always





eventuate in a recall election. To the contrary, they may result in the expression of confidence in the incumbent. SUMMARY: The term “recall” in Sec. 74(b) refers to the recall election and not to the preliminary proceedings to initiate recall – 1. Because Sec. 74 speaks of limitations on “recall” which, according to Sec. 69, is a power which shall be exercised by the registered voters of a local government unit. Since the voters do not exercise such right except in an election, it is clear that the initiation of recall proceedings is not prohibited within the one-year period provided in paragraph (b); 2. Because the purpose of the first limitation in paragraph (b) is to provide voters a sufficient basis for judging an elective local official, and final judging is not done until the day of the election; 
 3. Because to construe the limitation in paragraph (b) as including the initiation of recall proceedings would unduly curtail freedom of speech and of assembly guaranteed in the Constitution. 
 In this case, as the recall election in Pasay City is set on April 15, 2000, more than 1 year after Claudio assumed office as mayor of that city, we hold that there is no bar to its holding on that date.

Whether the phrase “regular local election” in Sec. 74(b) of the LGC includes the election period for that regular election or simply the date of such election – simply the date of such election; election/campaign period of 45 days prior to election day not included  Claudio: Contends that the date set by the COMELEC for the recall election is within the second period of prohibition in Sec. 74(b). He argues that the phrase “regular local elections” in Sec. 74(b) does not only mean “the day of the regular local election” which, for the year 2001 is May 14, but the election period as well, which is normally at least forty five (45) days immediately before the day of the election. Hence, he contends that beginning March 30, 2000, no recall election may be held.  SC: The law is unambiguous in providing that “no recall shall take place within 1 year immediately preceding a regular local election.” Had Congress intended this limitation to refer to the campaign period, which period is defined in the Omnibus Election Code, it could have expressly said so.  Moreover, Claudio’s interpretation would severely limit the period during which a recall election may be held. Actually, because no recall election may be held until 1 year after the assumption of office of an elective local official, presumably on June 30 following his election, the free period is only the period from July 1 of the following year to about the middle of May of the succeeding year. This is a period of only 9 months and 15 days, more or less. To construe the second limitation in Sec. 74(b) as including the campaign period would reduce this period to 8 months. Such an interpretation must be rejected, because it would devitalize the right of recall which is designed to make local government units “more responsive and accountable.”  Indeed, there is a distinction between election period and campaign period. Under the Omnibus Election Code, unless otherwise fixed by the COMELEC, the election period commences 90 days before the day of the election and ends thirty (30) days thereafter. Thus, to follow Claudio’s interpretation that the second limitation in Sec. 74(b) includes the “election period” would emasculate even more a vital right of the people.

Whether the recall resolution was signed by majority of the PRA and duly verified – YES.  Claudio: Contends that a majority of the signatures of the members of the PRA was not obtained because 74 members did not really sign the recall resolution. The 74 merely signed their names on pages 94-104 of the resolution to signify their attendance and not their concurrence. Claudio claims that this is shown by the word “Attendance” written by hand at the top of the page on which the signatures of the 74 begin.  SC: Contention has no basis. This claim is being raised for the first time in this case. It was not raised before the COMELEC, in which the claim made by Claudio was that some of the names in the petition were double entries, that some members had withdrawn their support for the petition, and that Trinida’d pending election protest was a prejudicial question which must first be resolved before the petition for recall could be given due course. The order of the COMELEC embodying the stipulations of the parties and defining the issues to be resolved does not include the issue now being raised by Claudio.  Although the word “Attendance” appears at the top of the page, it is apparent that it was written by mistake because it was crossed out by two parallel lines drawn across it. Apparently, it was mistaken for the attendance sheet which is a separate document. It is absurd to believe that the 74 members of the PRA who signed the recall resolution signified their attendance at the meeting twice. It is more probable to believe that they signed pages 94-104 to signify their concurrence in the recall resolution of which the pages in question are part.  As to the issue of verification: This issue was not raised before the COMELEC itself. It cannot, therefore, be raised now. Dissenting Opinion, J. Puno:  The right of recall is a double-edged sword· rightly used, it can promote the greater good, but when wrongly used, it can result in greater evil.  2 kinds of recall: 1. recall initiated directly by the people 2. recall initiated by the people thru the Preparatory Recall Assembly  There are recalls as pointed out in the case of Angobung that should be avoided: (1) recalls borne by the ill motive of a few; (2) recalls that disrupt the smooth running of government; and (3) recalls that destabilize the local government unit.  The standard mechanisms in recall statutes to avoid these evils are: (1) the setting of a waiting period before a petition for recall can be initiated, and (2) the fixing of a minimum percentage of voters’ signatures to kick-start a petition for recall. 1-year waiting period:  As clearly explained in the case of Bowers, the reason for fixing a waiting period is “to prevent premature action on their part in voting to remove a newly elected official before having had sufficient time to evaluate the soundness of his political policies and decisions.” On the other hand, the reason for requiring a minimum number of voters’ signatures is “to insure that an official will not have to defend his policies against frivolous attacks launched by a small percentage of disenchanted electors.” It will further avoid expenditure of public funds for frivolous elections.









Beyond debate, the ideal interpretation of the waiting period must bring about this pristine purpose – to give the voters a sound basis for their decision to recall or not to recall an official whom they have elected just a year ago. That sound basis cannot exist in a vacuum. “Sound basis” requires affording the official concerned a fair and reasonable opportunity to accomplish his program for the people. By no means will there be a reasonable opportunity if from Day One after assumption of office, the process of recall can already be initiated against said official. To allow early recall initiative is to encourage divisive, expensive, wasteful politics. It will also put a premium on the politics of compromise – the politics where public interest always comes out second best. On why why J. Puno do not share the majority ruling that the one-year waiting period is a limitation on the right of the people to judge an incumbent on election day itself but not a limitation on their right to initiate the recall process: The rationale for fixing the election day one year after the assumption of office is different from the rationale for prohibiting premature recall initiative. The rationale of the first is for the benefit of the people, to give them sufficient time to assess intelligently the performance of the incumbent, while the rationale of the second is for the benefit of the incumbent, to give him a fair chance to govern well, to serve the people minus the unnecessary distractions from the itch of too much politics.  The ruling of the majority recognizes the rationale of the first but not the rationale of the second. Its ruling that sanctions too early a recall initiative, and worse, that allows endless recall initiatives will deprive an incumbent a fair opportunity to prove himself thru the politics of performance. Recall is a powerful weapon given to our people but, like any power, it can be abused. For this reason, the legislature carefully defined its limitations for its misuse can bring about the disuse of a valuable means to terminate the misrule of misfits in government. Our lawmakers know that the paradox of power is that to be effective it must be restrained from running riot. Section 74 of the LGC spelled out these restraints. Section 74(a) limits the number of times an official can be subjected to recall during his term of office to only one time. Section 74(b) limits the periods when the power can be exercised. It sets two periods: the first, sets the beginning, i.e., one year after an officials’ assumption of office; the second, sets the end, i.e., one year immediately preceding a regular election. These limitations should be strictly followed considering the short 3-year term of office of local officials. Majority ruling’s failures: o By holding that recall initiatives can start right after day one of an official’s assumption to office, the majority failed to recognize the need for stability of a public office. o By holding that these initiatives can be undertaken not once, not twice but endlessly within one year after an official’s assumption to office, the majority exposed our people to an overdose of politics. o By holding that recall initiatives can be done prematurely, the majority forgot that such initiatives are meaningful only if they are used to adjudge an official’s performance in office. o By holding that recall initiatives can be done even without giving an official a fair chance to serve the people, the majority has induced incumbents to play the politics of compromise instead of the politics of performance.



o By holding that recall initiatives can be done at any one’s caprice, the majority has cast a blind eye on the expenses that accompany such exercise. These expenses have to be repaid later, an undeniable cause of cronyism and corruption in government. The bottomline is that our law intends recall as a mechanism of good government. It can never fulfill that intent if we allow its use to foment too much politics. We need not be adepts in the alleyways of politics to say that too much politics is the root of a lot of evils in our country. Our 1987 Constitution sought to check this bad political cholesterol plaguing our government. Any attempt to restore this fiat should draw more than a phlegmatic posture.

Majority’s reaction to J. Puno’s dissent:  J. Puno: The purpose of the one-year period in Sec. 74(b) is to provide the local official concerned a “period of repose” during which “his attention should not be distracted by any impediment, especially by disturbance due to political partisanship.”  Majority: Unfortunately, the law cannot really provide for a period of honeymoon or moratorium in politics. From the day an elective official assumes office, his acts become subject to scrutiny and criticism, and it is not always easy to determine when criticism of his performance is politically motivated and when it is not. The only safeguard against the baneful and enervating effects of partisan politics is the good sense and self-restraint of the people and its leaders against such shortcomings of our political system. A respite from partisan politics may have the incidental effect of providing respite from partisanship, but that is not really the purpose of the limitation on recall under the law. The limitation is only intended to provide a sufficient basis for evaluating and judging the performance of an elected local official. o J. Puno’s comment: The ruling of the majority that the law cannot really provide for a period of honeymoon or moratorium in politics betrays historical amnesia. This legal mechanism has long been installed to regulate our labor-management relations, a volatile relationship, then and now. o Remember: Certification year rule pursuant to which no petition for certification election can be ordered in the same bargaining unit more often than once in twelve months. Hence, for one year, the employee representative is shielded from any initiative calling for a certification election to change representative. This progressive mechanism is still contained in Article 231 of our Labor Code. To jog our memory, this legal mechanism was taken from the Wagner Act of the United States which had a provision that no election can be directed in any bargaining unit or in any subdivision, where in the preceding 12-months period, a valid election has been held. This 12- month ban on certification election of the Wagner Act has never been challenged as violative of freedom of speech and of assembly of members of minority unions who wish to be elected as employee bargaining representative.  J. Puno: The judgments of PRAs are not “as politically unassailable as recalls initiated directly by the people.” o Cited the “embarrassing repudiation by the people of Caloocan City’s Preparatory Recall Assembly” when, instead of ousting Mayor Rey Malonzo, they reelected him.





Majority: It is no disparagement of the PRA that in the ensuing election the local official whose recall is sought is actually reelected. Laws converting municipalities into cities and providing for the holding of plebiscites during which the question of cityhood is submitted to the people for their approval are not always approved by the people. Yet, no one can say that Congress is not a good judge of the will of the voters in the locality. o In the case of recall elections in Caloocan City, had it been shown that the PRA was resorted to only because those behind the move to oust the incumbent mayor failed to obtain the signatures of 25% of the voters of that city to a petition for his recall, there may be some plausibility for the claim that PRAs are not as good a gauge of the people’s will as are the 25% of the voters. o Indeed, recalls initiated directly by 25% of the registered voters of a local government unit cannot be more representative of the sentiments of the people than those initiated by PRAs whose members represent the entire electorate in the local government unit. Voters who directly initiate recalls are just as vulnerable to political maneuverings or manipulations as are those composing PRAs. The other point regarding J. Puno’s claim is that the question here is not whether recalls initiated by 25% of the voters are better. The issue is whether the oneyear period of limitation in paragraph (b) includes the convening of the PRA.

Separate and Dissenting Opinion, J. Kapunan:  Disagrees with the main opinion that the term “recall” under Sec. 74(b) of LGC refers to the recall election alone.  “Recall” under Sec. 74(b) is not limited to the election itself, but, rather, it is a process which begins once the PRA makes its first affirmative acts towards the recall of the elective local official concerned, i.e. the convening of the PRA and the passing by the PRA of a recall resolution during a session called for the said purpose, and culminates with the holding of the recall election. o Majority: The power of recall can be exercised solely by the electorate and not by the PRA through the filing of a petition for recall with the COMELEC, or the gathering of the signatures of at least 25% of the voters for a petition for recall.  This is so since the majority equates the power of recall with the electorate’s power to replace or retain the local official concerned during the recall elections. In furtherance of this premise, the majority concludes that since the power vested on the electorate is not the power to initiate the recall proceedings but the power to elect an official into office, the limitations in Sec. 74 cannot be deemed to apply to the entire recall proceedings. o Why J. Kapunan disagrees: Since our form of government is a representative democracy, it cannot be claimed that the initiation of the recall process by the PRA is not an initiation by the people. o Garcia v. Comelec: Initiation by the PRA is also initiation by the people, albeit done indirectly through their representatives. It is not constitutionally impermissible for the people to act through their elected representatives. Nothing less than the paramount task of drafting our Constitution is delegated by the people to their representatives, elected either to act as a constitutional convention or as a congressional constituent assembly. The









initiation of a recall process is a lesser act and there is no rhyme or reason why it cannot be entrusted to and exercised by the elected representatives of the people. The recall process may be considered as composed of 2 distinct but continuous phases: (1) the initiatory phase and (2) the election phase. As such, for purposes of determining whether the recall was instituted within the allowable period under Sec. 74(b), the reckoning point should be the initiatory phase which is the time of convening and passing of the recall resolution. This should be so since it is from this moment that the process of recall comes into being. It is at this precise moment when the PRA, as representatives of the electorate, concretizes its stand and makes an affirmative act of its intent to recall the elected local official. Nonetheless, it is still up to the people to affirm or reject the move to recall the incumbent official during the election called for the purpose. It can readily be observed that Senator Pimentel used the phrase “move to recall” in describing the activity which can only be undertaken during the freedom period. This is significant because the use of the phrase “move to recall” is instructive of the concept envisioned by the primary author of the law in providing for the limitations on recall. It connotes a progressive course of action or a stepby-step process. As such, the word “move,” when used in conjunction with the word “recall,” can pertain to no other than the entire recall process which begins with the convening of the PRA and the passing of the recall resolution and ending with the recall election. It cannot, by any stretch of imagination, be construed as referring to the election alone. J. Kapunan also disagrees to the observation of the majority that to construe the limitation in Sec. 74(b) as including the initiation of recall proceedings would unduly curtail freedom of speech and of assembly guaranteed by the Constitution. - Reason: The people can assemble and discuss their opinions and grievances against the incumbent official, at any time during his term and as often as they would like, because it is their right to do so. An exercise of their right to peaceably assemble and exchange views about the governance of the local official would not be violative of the limitations set forth in Sec. 74(b).  However, once notice is sent, during the prohibited period, stating that the purpose of the meeting is to convene the PRA and to pass a recall resolution, and the same is actually approved, then Sec. 74(b) is transgressed. In this instance, the limitation of the electorate’s freedom of speech and assembly is not violated since the time bar provision is imposed by the legislature in the exercise of its police power. The limitation in Sec. 74(b) is analogous to the prohibition under Sec. 80 of BP 881 (Omnibus Election Code), which prohibits a person from engaging in any election campaign or partisan political activity except during the campaign period. The limitation on the freedom of speech and assembly imposed by Sec. 80 has never been questioned as being unconstitutional. There is no logical reason to support the view that the recall process should be counted only from the time of the filing of the recall resolution or petition with the COMELEC. Although the filing of the petition for recall with the COMELEC is, admittedly, an important component in the recall process, it, however, cannot be considered as the starting point of the same. The filing of the petition being merely a consequential mechanical act, is just a next step in the process of recall after PRA’s acts of convening the recall assembly and passing the recall resolution. Once a petition for recall is filed, the only role of the Comelec is the verification of its authenticity and genuineness. After such verification the Comelec is mandated by law to set the date of the recall election. Clearly, the

role of the Comelec in the recall process under Sec. 70 of LGC is merely ministerial in nature. Such being the case, it cannot be correctly argued that the crucial moment in the recall process is the actual filing of the petition with the Comelec.

Adormeo v. COMELEC GR No. 147927, 4 February 2002, Quisumbing, J. Digested by Paula Filart • Law 154 – Local Government Topic: Recall 

Tagala was elected Mayor in the ’92-’95 elections and re- elected in ’95-’98 elections. He lost in 1998 election however was elected into the office of Mayor in the recall election and served unexpired term of the former mayor. He now runs as a candidate for Mayor of Lucena. His rival contends that he is disqualified because he has already served 3 consecutive terms. SC holds that he has not.



FACTS  RESP Ramon Talaga Jr. was elected mayor of Lucena City in May 2002 for which he served the full term (1st term). He was re-elected in 1995, and served the full term again (2nd term). o In the 1998 elections, he lost to Bernard Tagarao. o May 2000 – A recall election was held in and RESP won. He served the unexpired term of Tagarao until June 2001.  In the May 2001 elections, PET Adormeo and RESP ran for the position of mayor of Lucena City.  PET filed a Petition to Deny Due Course to or Cancel Certificate of Candidacy and/or Disqualification of RESP. o He alleged that RESP was elected and had served as city mayor for 3 consecutive terms, the 3rd term being the unexpired term of Tagarao after winning the recall elections in 2000. Serving the unexpired term of office is considered 1 term. o Art. VIII of the Constitution speaks of “term” and does not mention “tenure” o PET’s candidacy constituted a violation of Sec. 8, Art. X of the 1987 Constitution.  RESP argues that he was not elected for 3 consecutive terms but only for 2. o His defeat in the 1998 elections interrupted the consecutiveness of his years as mayor, and thus his mayorship was not for 3 consecutive terms of 3 years each. o “3 consecutive terms” means continuous service for 9 years and that the 2 years from 1998-2000 by Tagarao prevented him from having 3 consevutive years of service.  CEMELEC 1st division disqualified RESP. COMELEC en banc reversed and ruled in favor of RESP.  RESP was proclaimed as the duly elected Mayor.



1.157That the official concerned has been elected for 3 consecutive terms in the same local government post; and 2. That he has fully served 3 consecutive terms. (Lonzanida v COMELEC) In this case, RESP was not elected for 3 consecutive terms. o For nearly 2 years, he was a private citizen. The continuity of his mayorship was disrupted by his defeat in the 1998 elections. His victory in the recall election cannot be deemed a violation of Sec. 8 Art. X as “voluntary renunciation”6 for clearly it is not. o 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 provided by law amounts to an interruption of continuity of service. o Purpose of the provision is to bar any attempt to circumvent the 3term limit by a voluntary renunciation of office. PET’s invocation of Fr. Bernas’ comment that “if one is elected representative to serve the unexpired term of another, that unexpired term, no matter how short, will be considered one term for the purpose of computing the number of successive terms allowed” is untenable. o Fr. Bernas’ comment is pertinent only to members of the House of Representatives. Unlike local government officials, there is not recall election provided for members of Congress.

DISPOSITIVE Petition DISMISSED.

ISSUES & HOLDING  W/N RESP was disqualified to run for mayor. – NO. He did not serve for 3 consecutive terms. RATIO The term limit for elective local officials must be taken to refer to the right to be elected as well as the right to service in the same elective position. (Borja Jr. v COMELEC)  Two conditions for the application of the disqualification:

6

“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.”

Socrates v COMELEC G.R. No. 154512, 12 Nov 1992, Carpio, J. Digested by Janelle Gomendoza • Law 154 – Local Government Topic: Term of Office/3 Term Limit Rule; Recall Hagedorn ran in the recall election during the interim of his prohibitive period (aka supposed 4th term). Court held that the limitation in the Constitution and LGC is not a strict 3 yr limit or entire term, but only that there is a certain interruption. He became qualified when Socrates was recalled as incumbent. FACTS  In 2002, 312 of 528 members of the incumbent barangay officers of Puerto Princesa convened themselves into a Preparatory Recall Assembly (PRA) from 9am to 12nn o It was convened to initiate a recall of incumbent Mayor Socrates who assumed office on June 30, 2011. o The members of the PRA designated Mark Hagedorn, president of the Association of Brgy. Captains, as interim chair of the PRA.  On the same date, PRA passed a recall resolution which declared its loss of confidence in Socrates and called for his recall. PRA requested COMELEC to conduct the recall election  While Socrates filed a petition to deny the recall, the COMELEC gave due course and scheduled it.  Aug. 23, 2002: Edward Hagedorn (Hagedorn) filed his certificate of candidacy (CoC) for mayor in the recall election o Subsequently, Adovo and Gilo (and others) filed a petition before the COMELEC to disqualify Hagedorn from running in the recall election and to cancel his CoC  This case is a consolidation of several petitions: o Socrates sought to nullify the COMELEC Resolution which gave due course to the recall because not all members of the PRA were allegedly notified o Sandoval sought an extension of the recall campaign period since the COMELEC resolution only gave 10 days. He prayed for at least 15 days. (SC granted additional 15 days on top of the 10 days, thus this has become moot) o Adovo and Gilo assailed the COMELEC Resolution which declared Hagedorn qualified to run. They prayed for a TRO to enjoin the proclamation  In the meantime, Hagedorn garnered the highest number of votes in the recall election as against Socrates and Sandoval. o Hagedorn filed a motion to lift the order restraining the COMELEC from proclaiming the winning candidate and to allow him to assume office. ISSUES & HOLDING

1.

WON the 129/158 COMELEC Resolution giving due course to the PRA Recall Resolution is valid? YES. COMELEC findings showed compliance with notice and majority required were obtained.

2.

[Relevant] WON COMELEC committed GAD in upholding Hagedorn’s qualification to run for mayor in the recall election despite the constitutional and statutory prohibitions against a 4th consecutive term? NO. The period before the recall election is an interruption RATIO 1. COMELEC findings of fact are accorded finality by the SC in absence of patently erroneous findings.  Proponents for the recall sent notices of convening of the PRA to the members as shown by the Proof of Notice attached to each notice sent  Notices were also posted in conspicuous places particularly at the Brgy. Hall. The proponents also utilized broadcast mass media in the dissemination.  City Election Officer of Puerto Princesa City certified that majority of PRA members approved the Recall Resolution. o Not a single member/signatory of the PRA complained or objected as to the veracity and authenticity of the signatures  Provincial Election Supervisor found everything to be in order.  Acting Director IV of Region IV recommended that the “PRA was validly constituted and that majority of all members approved the Recall Resolution against Mayor Socrates.”  SC: we do not find any valid reason to hold that the COMELEC’s findings of fact are patently erroneous  Socrates’s constitutional right to information was not violated since he was notified through notice of the PRA meeting. He even sent his representative and counsel who were present during the entire PRA proceedings 2.

Hagedorn was qualified to run for mayor in the recall election of Sept. 24, 2002  Legal Basis of 3 term limit: Sec. 8, Art. X of 1987 Constitution7 and Sec. 43 of 1991 LGC

7

Section 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 official 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. Term of Office. – (a) x x x (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall













These provisions have 2 parts: o 1st: elective local official cannot serve for more than 3 consecutive terms. The clear intent is that only consecutive terms count. o 2nd: voluntary renunciation of office for any length of time does NOT interrupt the continuity of service. The clear intent is that involuntary severance for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service or consecutive terms. After 3 consecutive terms, an elective local official cannot seek immediate re-election for a 4th term. o The prohibited election refers to the next regular election for the same office following the end of the 3rd consecutive term o Any subsequent election, like a recall election, is no longer covered by the prohibition for 2 reasons:  A subsequent election, like a recall election is no longer an immediate re-election after 3 consecutive terms  The intervening period constitutes an involuntary interruption Intention of the framers is only to prohibit an immediate re-election for a 4th term following 3 consecutive terms. o The Constitution does NOT prohibit a subsequent re-election for a 4th term as long as it is not immediately after the end of the 3 rd consecutive term. o A recall election, midway in the term following the 3rd consecutive term, is a subsequent election but NOT an immediate re-election after the 3rd term Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same term of office o What the Constitution prohibits is a consecutive 4th term Hagedorn’s candidacy in the recall on Sept. 24, 2002 is not an immediate reelection after his 3rd consecutive term which ended on June 30, 2001. o The immediate re-election that the Constitution barred Hagedorn referred to the regular elections in 2001 o Hagedorn was elected consecutively in ’92, ’95, ’98 and served his full 3 consecutive terms as mayor of Puerto Princesa. Thus under the law, he could no longer run in 2001. From June 30, 2001 until the recall election on Sept. 24, 2002, the mayor was Socrates. During the same period Hagedorn was a private citizen.

not be considered as an interruption in the continuity of service for the full term for which the elective official was elected.”

o











This period is clearly an interruption in the continuity of service not because of voluntary renunciation but because of a legal prohibition. o Hagedorn’s new recall term from Sept. 24, 2002 to Jun. 30, 2004 is NOT a seamless continuation of his previous 3 consecutive terms. o One cannot stitch it together as to make the recall a 4 th consecutive term because factually it is not. An involuntary interruption broke the continuity. “Voluntary renunciation rule” in the Constitution is to bar any attempt to circumvent the limit by voluntarily renouncing the office and at the same time respect the people’s choice and grant their elected official full service of a term. o Voluntary renunciation does not cancel the renounced term. Conversely, involuntary severance from office for any length of time short of full term amounts to an interruption of continuity. CAB: Hagedorn was out of office for 15 months. Although short of the full 3 years, the Constitution did not intend the hiatus to be the full 3 years (a term). o The clear intent is that the interruption “for any length of time” as long as the cause is involuntary is sufficient to break an elective local official’s continuity of service. o Citing Adormeo v COMELEC, SC held that Hagedorn’s recall term does not retroact to include Socrates’s tenure. The concept of term limits is in derogation of the sovereign will of the people to elect leaders of their own choosing. Term limits must be construed strictly to give the fullest possible effect to the sovereign will of the people. HOWEVER, an official elected in recall election serves the unexpired term of the recalled official. This unexpired term is in itself one term for purposes of counting the 3 term limit although less than 3 years. In summary: 1. Hagedorn is not running for immediate reelection following his three consecutive terms as mayor which ended on June 30, 2001; 2. Hagedorn’s continuity of service as mayor was involuntarily interrupted from June 30, 2001 to September 24, 2002 during which time he was a private citizen; 3. Hagedorn’s recall term from September 24, 2002 to June 30, 2004 cannot be made to retroact to June 30, 2001 to make a fourth consecutive term because factually the recall term is not a fourth consecutive term; and 4. Term limits should be construed strictly to give the fullest possible effect to the right of the electorate to choose their leaders DISPOSITIVE WHERERFORE, the petitions are DISMISSED.

C.J. Davide Concurring & Dissenting  Concurs on the COMELEC giving due course to the Recall election but dissents in allowing Hagedorn to run as Mayor  The term of office covered by the recall is from May 2001 to June 2004 which is his prohibited 4th term  For one to be able to run again after three consecutive terms, he has to rest for the entire immediately succeeding fourth term.  Hagedorn cannot have suffered involuntary severance from office because there was nothing to be severed. Disqualification is not synonymous with involuntary severance.  Involuntary severance should be one that took place during any of his 3 terms to be excluded in the computation. In Hagedorn’s case, no such took place during his 3 terms.  Voluntary renunciation is also one that should take place at any time during any of the 3 consecutive terms.  A declaration allowing Hagedorn to be re-elected in a special election (also considered a term) is to subvert the rationale of the limit.  An elective official who is qualified to seek a 4th term because of the limit but obsessed to hold on to power would spend the first part of the 4 th term campaigning for the recall of the incumbent especially if he has a solid following and strong political machinery.  Note that the President of the Association of Brgy. Captains is one Mark Hagedorn who was also designated by PRA as interim Chairman. -

“May the 4th be with you” -

Goh v. Bayron November 25, 2014| Carpio, J| Recall Digester: Mercado, Carlo Robert M. SUMMARY: COMELEC issued Resolutions 9864 and 9882, the first raising an issue as to the funding of recall elections in Puerto Princesa City for the position of City Mayor (a post currently held by Mayor Bayron.), and the second suspending recall elections on the ground that the COMELEC does not have appropriations to conduct said election. In essence, COMELEC is arguing that since there is no specific lineitem appropriation, the COMELEC cannot have funds to conduct the recall election. Petitioner Goh assailed these provisions before the SC. The SC, in ruling for Goh, said that the 2014 GAA provides the line item appropriation to allow the COMELEC to perform its constitutional mandate of conducting recall elections This is found in the Programs category of its 2014 budget.Moreover, in the discharge of its functions, among which is to conduct recall elections, the item named “Current Operating Expenditures” may be used. More importantly, the COMELEC admits in its Resolution No. 9882 that the COMELEC has “a line item for the” Conduct and supervision of elections, referenda, recall votes and plebiscites” Thus, there is no need for supplemental legislation to authorize the COMELEC to conduct recall elections for 2014. Moreover, should the funds appropriated in the 2014 GAA be deemed insufficient, then the COMELEC Chairman may exercise his authority to augment such line item appropriation from the COMELEC’s existing savings, as this augmentation is expressly authorized in the 2014 GAA. DOCTRINE: Specific appropriation To be valid, an appropriation must indicate a specific amount and a specific purpose. However, the purpose may be specific even if it is broken down into different related sub-categories of the same nature. For example, the purpose can be to “conduct elections,” which even if not expressly spelled out covers regular, special, or recall elections. The purpose of the appropriation is still specific - to fund elections, which naturally and logically include, even if not expressly stated, not only regular but also special or recall elections. The Constitution only requires a corresponding appropriation for a specific purpose or program, not for the sub-set of projects or activities Authority to augment through savings This (an actual deficiency in its operating funds for the current year) is a situation that allows for the exercise of the COMELEC Chairman’ss power to augment actual deficiencies in the item for the “Conduct and supervision of recall votes” in its budget appropriation. FACTS  This case is about the COMELEC Resolutions No. 9864 and 9882 o 9864 found the petition seeking the recall (recall petition) of Mayor Lucilo R. Bayron (Mayor Bayron)8, the incumbent mayor of Puerto

 

Princesa City, sufficient in form and substance. However, Resolution No. 9864 suspended all proceedings under the recall petition because the Financial Services Department raised an issue as to the funding of the entire process of recall o 9882 suspended any proceeding relative to recall as the recall process, as stated in said Resolution, does not have an appropriation in the General Appropriations Act of 2014 and the 2014 GAA does not provide the COMELEC with legal authority to commit public funds for the recall process In other words, COMELEC is of the position that they do not have funds to conduct the recall election In this petition, Alroben J. Goh assails the aforementioned resolutions on the ff points: o The 2014 GAA provides for an appropriation or line item budget to serve as a contingency fund for the conduct of recall elections. o COMELEC may lawfully augment any supposed insufficiency in funding for the conduct of recall elections by utilizing its savings. o The proper, orderly and lawful exercise of the process of recall is within the exclusive power and authority of the respondent commission.

HELD The 2014 GAA provides the line item appropriation to allow the COMELEC to perform its constitutional mandate of conducting recall elections. There is no need for supplemental legislation to authorize the COMELEC to conduct recall elections for 2014. W/N COMELEC has the authority to a Intro which is also the summary  The 1987 Constitution expressly provides the COMELEC with the power to “[e]nforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.”  The 1987 Constitution not only guaranteed the COMELEC’s fiscal autonomy, but also granted its head, as authorized by law, to augment items in its appropriations from its savings o The 2014 GAA provides such authorization to the COMELEC Chairman The COMELEC’s budget in the 2014 GAA Goh  Goh asserts that the 2014 GAA provided COMELEC with an appropriation for the conduct of recall elections in the total amount of Php2,735,321,000.  As evidence, Goh o Reproduced the COMELEC’s budget allocation in the 2014 GAA o Pointed out that the COMELEC has Php1,483,087,000 appropriated under Operations, and that the Php1,401,501,000 for current operating expenditure is allocated per region o Further states that COMELEC’s personnel themselves admitted to the existence of funds in the ff situations:

8

The grounds of the petition for recall was loss of trust and confidence brought about by gross violation of pertinent provisions of the Anti-Graft and Corrupt Practices Act, gross violation of pertinent provisions of the Code of Conduct and Ethical Standards for Public Officials, Incompetence, and other related gross

inexcusable negligence/dereliction of duty, intellectual dishonesty and emotional immaturity

o

o

o

Atty. Maria Lea R. Alarkon, Acting Director III of the COMELEC’s FSD, during the 3 September 2013 budget hearing before the Senate’s Subcommittee A of the Committee on Finance,  for the specifics of our MFO [Major Final Output] budget, x x x conduct and supervision of elections, referenda, recall and plebiscites, 1,527,815,000; Online news article which quoted COMELEC spokesperson James Jimenez  saying that “lack of budget (should) not (be) an issue. x x x We always have a ‘standby’ budget for recall, plebiscite, etc.” Letter dated 28 May 2014 from Rep. Isidro T. Ungab, Chairman of the House of Representative’ Committee on Appropriations, addressed to Hon. Douglas S. Hagedorn, Representative of the Third District of Palawan  “[t]he FY 2014 budget of the COMELEC as authorized in the FY 2014 General Appropriations Act amounts to P2,735,321,000, of which P1,401,501,000 is appropriated for the conduct and supervision of elections, referenda, recall votes and plebiscites

COMELEC  There is a lack of appropriation or line item for a contingency fund for the conduct of recall elections in the 2014 GAA  The amount of Php1,483,087,000 referred to by [Goh] allegedly for the conduct and supervision of election, referenda, recall votes and plebiscites, actually refers to operating expenditures for “Personnel Services” under the program “Regulation of Elections.”  The amount of Php1,401,501,000, on the other hand, is the total amount allotted for “Personnel Services” (Php1,360,975,000) and “Maintenance and Other Operating Expenses”(Php40,526,000) for Regional Allocation.  I think what COMELEC means here is that the appropriations were not specifically for recall elections SC I. On issue of absence of specific appropriation Rule on appropriations  To be valid, an appropriation must indicate a specific amount and a specific purpose. o However, the purpose may be specific even if it is broken down into different related sub-categories of the same nature.  For example, the purpose can be to “conduct elections,” which even if not expressly spelled out covers regular, special, or recall elections.  The purpose of the appropriation is still specific - to fund elections, which naturally and logically include, even if not expressly stated, not only regular but also special or recall elections.  The Constitution only requires a corresponding appropriation for a specific purpose or program, not for the sub-set of projects or activities As applied







Despite Resolution No. 9882’s statement about the alleged failure of the 2014 GAA to provide for a line item appropriation for the conduct of recall elections, we hold that the 2014 GAA actually expressly provides for a line item appropriation for the conduct and supervision of recall elections. o This is found in the Programs category of its 2014 budget, which the COMELEC admits in its Resolution No. 9882 is a line item for the “Conduct and supervision of elections, referenda, recall votes and plebiscites.” In addition, one of the specific constitutional functions of the COMELEC is to conduct recall elections. When the COMELEC receives a budgetary appropriation for its “Current Operating Expenditures” such appropriation includes expenditures to carry out its constitutional functions, including the conduct of recall elections. o Thus, in Socrates v. COMELEC, recall elections were conducted even without a specific appropriation for recall elections in the 2002 GAA. More importantly, the COMELEC admits in its Resolution No. 9882 that the COMELEC has a line item for the “Conduct and supervision of elections, referenda, recall votes and plebiscites”

II. On issue of authority of COMELEC Chairperson to augment the project of “recall elections” from their savings COMELEC  Despite the Php2 billion to Php10.7 billion savings existing in the COMELEC’s coffers, the COMELEC asserts that it cannot legally fund the exercise of recall elections.  COMELEC is authorized to augment only for deficiency in operating expenses, but in recall elections capital outlay is needed, thus the situation cannot permit the COMELEC to augment the approproation SC  The power to augment from savings lies dormant until authorized by law. Flexibility in the use of public funds operates only upon legislative fiat. As applied  The 2014 GAA provides a line item appropriation for the COMELEC’s conduct of recall elections. Since the COMELEC now admits that it does not have sufficient funds from its current line item appropriation for the “Conduct and supervision of recall votes” to conduct an actual recall election (see last roman numeral), then there is therefore an actual deficiency in its operating funds for the current year.  This (an actual deficiency in its operating funds for the current year) is a situation that allows for the exercise of the COMELEC Chairman’ss power to augment actual deficiencies in the item for the “Conduct and supervision of recall votes” in its budget appropriation. Debunking COMELEC’s arguments  The conduct of recall elections requires only operating expenses, not capital outlays. o The COMELEC’s existing personnel in Puerto Princesa are the same personnel who will evaluate the sufficiency of the recall petitions and conduct the recall elections.  There is no constitutional requirement that the budgetary appropriation must be loaded in “contingent funds”

o

The Congress has plenary power to lodge such appropriation in current operating expenditures

Summary-Conclusion  Considering that there is an existing line item appropriation for the conduct of recall elections in the 2014 GAA, we see no reason why the COMELEC is unable to perform its constitutional mandate to “enforce and administer all laws and regulations relative to the conduct of recall.”  Should the funds appropriated in the 2014 GAA be deemed insufficient, then the COMELEC Chairman may exercise his authority to augment such line item appropriation from the COMELEC’s existing savings, as this augmentation is expressly authorized in the 2014 GAA.

MARMETO v. COMELEC G.R. No. 213953 / SEP. 26, 2017 / DEL CASTILLO, J. / RECALL / ZEDY NATURE Petition for Review on Certiorari and Mandamus PETITIONERS Engr. Oscar A. Marmeto RESPONDENTS COMELEC SUMMARY. Marmeto filed in behalf of the Muntinlupa People Power (MPP) a proposed ordinance with the Sangguniang Panlungsod (SP) of Muntinlupa. The proposal sought the creation of a sectoral council and the appropriation of the amount of ₱200 million for the livelihood programs and projects that would benefit the people of Muntinlupa City. SP failed to act so Marmeto filed a petition to invoke initiative power under LGC. Comelec denied petition for lack of SP’s authority to enact such ordinance. Marmeto refiled proposed ordinance with the newly constituted SP, which again remain unacted. Marmeto filed another petition with Comelec. Comelec denied petition for alleged lack of appropriation to conduct initiatives. SC ruled that the 2014 GAA appropriated funds to Comelec for the “conduct and supervision of elections, referenda, recall votes and plebiscites,” which include the conduct of initiatives. Hence, funds were allocated for the purpose of conducting initiatives. However, SC affirmed Comelec’s dismissal of the first petition for lack of SP’s authority to enact the proposed ordinance. SC ruled that: (A) The creation of a separate local legislative body is ultra vires (B) The sectoral council's proposed function overlaps with the Local Development Council (C) The LGC requires local government funds and monies to be spent solely for public purposes, and provides transparency and accountability measures to ensure this end DOCTRINE. The term "election" in the GAA appropriation is comprehensive enough to include other kinds of electoral exercises, including initiative elections. FACTS. ● Marmeto filed in behalf of the Muntinlupa People Power (MPP) a proposed ordinance with the Sangguniang Panlungsod (SP) of Muntinlupa. The proposal sought the creation of a sectoral council and the appropriation of the amount of ₱200 million for the livelihood programs and projects that would benefit the people of Muntinlupa City. ● For failure of the SP to act on the proposition within 30 days from its filing, Marmeto filed a petition for initiative with the same body to invoke the power of initiative under the LGC. (First Petition) ● (Here’s how the petition ended up with the Comelec) The secretary of SP of Muntinlupa wrote a letter to the COMELEC stating that the proposal could not be acted upon by the Sanggunian because the City's budget for FY 2013 had already been enacted. Thus, a new appropriation ordinance was needed to provide funds for the conduct of the initiative. ● COMELEC issued Resolution No. 13-0904 (First Resolution) setting aside Marmeto's initiative petition because the propositions therein were beyond the powers of the Sanggunian Panglunsod to enact and were not in accordance with the provisions of existing laws and rules. ● Comelec denied Marmeto’s MR. Nonetheless, it noted that Marmeto might opt to

●

●

●

●

re-file his initiative petition, since the then newly-elected members of the Sangguniang Panlungsod of Muntinlupa might be more sympathetic to Marmeto' s propositions. Marmeto filed a second proposed ordinance with the SP. Again, no favorable action was done by the Sanggunian within 30 days from the filing of the proposal, prompting Marmeto file a second initiative petition with the Office of the City Election Officer. (Second Petition) On April 1, 2014, Marmeto filed a Supplemental Petition to comply with the requirements of COMELEC Resolution No. 2300, which provided the Rules and Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum on National and Local Laws. On July 22, 2014, the COMELEC issued the assailed Resolution No. 14- 0509 (Second Resolution) which effectively dismissed Marmeto's second initiative petition for lack of budgetary allocation, considering the absence of any provision in Comelec’s FY 2014 budget for the expenses for local initiative or any other election activity, that the power of local initiative cannot be invoked by Engr. Marmeto will entail expenses on the part of the Comelec. Marmeto filed the present certiorari and mandamus petition.

ISSUES & RATIO. 1. ● ●

●

●

2. ● ●

●

WON COMELEC is mandated to enforce and administer the laws on local initiative and referendum – YES (See notes for the discussion on the concept of initiative) The Constitution mandated the Congress to "provide for a system of initiative and referendum, x x x whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof by the Congress or local legislative body x x x."9 In compliance, the Congress enacted RA No. 6735 on August 4, 1989 which provided for a system of initiative and referendum on national and local laws. Since the LGC codified all laws pertaining to local governments, the provisions on local initiative and referendum found in RA No. 6735 were reiterated, with slight modifications, in Sections 120 to 127 of the LGC; all other provisions in RA No. 6735 not inconsistent within the Sections 120 and 127 of the LGC remained valid and in effect. RA No. 6735 and the LGC are thus the pertinent laws on local initiative and referendum which the COMELEC is mandated to enforce and administer under Article IX-C, Section 2(1) of the Constitution. WON COMELEC committed GAD for dismissing the second petition for alleged lack of budgetary allocation for its conduct – YES SC discussed Goh v. Bayron and applied it to this case. (Dinelete ko na yung extensive discussion ng Goh kasi may digest naman na tayo nung case) There is no reason not to extend the Goh ruling to the present case. In fact, Marmeto's second initiative petition was also filed in 2014; in dismissing Marmeto' s petition for lack of funds, the COMELEC was referring to its budget under the FY 2014 GAA. Although Goh involved the conduct of recall elections, the ₱1.4 billion

9 Article VI, Sec. 32.

●

●

●

3. ● ● ●

●

● ●

appropriation under the FY 2014 GAA was for the "conduct and supervision of elections, referenda, recall votes and plebiscites." The term "election" is comprehensive enough to include other kinds of electoral exercises, including initiative elections. As earlier mentioned, the COMELEC's constitutional mandate is to enforce and administer all laws relative to the conduct of an election, plebiscite, initiative, referendum, and recall. The Constitution further states that the "[f]unds certified by the [COMELEC] as necessary to defray the expenses for holding regular and special elections, plebiscites, initiatives, referenda, and recalls, shall be provided in the regular or special appropriations and, once approved shall be released automatically."10 Thus, the budgetary allocation for the "regulation of elections" identified as the COMELEC's MFO 1 should necessarily also cover expenses for the conduct of initiative elections. The Court also notes that, aside from the ₱1.4 billion appropriation for the "conduct and supervision of elections, referenda, recall votes and plebiscites," the COMELEC was also given ₱1.6 billion in the FY 2014 GAA for the "management and supervision of elections and other electoral exercises." Thus, as in Goh , the COMELEC was provided with budgetary allocation for the conduct of initiative elections. The COMELEC, therefore, committed grave abuse of discretion in dismissing Marmeto' s second initiative petition on the ground that there were no funds allocated for the purpose. WON COMELEC has the power to review whether the propositions in an initiative petition are within the power of the concerned Sanggunian to enact - YES (SC first discussed why it may rule upon this issue) COMELEC: the propositions raised in Marmeto’s second petition were matters that were not within the powers of the SP to enact. Marmeto: The arguments the COMELEC now raises were not the grounds which the COMELEC cited in the Second Resolution that is assailed in the present petition. He points that the second petition dismissed his second initiative petition solely for lack of specific budgetary allocation. There was no mention in the assailed resolution that the propositions in his second initiative petition were not within the powers of the Sanggunian to enact. This ground was instead cited by the COMELEC in its First Resolution which dismissed Marmeto's first initiative petition. Hence, he opines that the propriety of the propositions contained in his second initiative petition, not being covered by the assailed COMELEC resolution, cannot be reviewed in the present petition. SC: In several cases, this Court considered issues which were not raised by either party when these issues are necessary for the complete resolution of the cases. If the Court can review unassigned errors which are necessary to arrive at a just resolution of the case, with all the more reason can it review a matter raised as a defense by a party to uphold the validity of a resolution assailed in the case. (SC now discussed the issue itself) Section 124(b) of the LGC provides that "[i]nitiatives shall extend only to subjects or matters which are within the legal powers of the Sanggunian to enact." Section

10 Art. IX-C Sec. 11.

● ●

●

●

4. ●

● ●

127 of the LGC gives the courts authority to declare "null and void any proposition approved pursuant to this Chapter36 for violation of the Constitution or want of capacity of the Sanggunian concerned to enact the said measure." Significantly, the power of the courts to nullify propositions for being ultra vires extends only to those already approved, i.e. those which have been approved by a majority of the votes cast in the initiative election called for the purpose. In other words, the courts can review the terms only of an approved ordinance. It will be premature for the courts to review the propositions contained in an initiative petition that has yet to be voted for by the people because at that point, there is no actual controversy that the courts may adjudicate. This begs the question of which tribunal can review the sufficiency of an initiative petition? Inasmuch as the COMELEC also has quasi-judicial and administrative functions, it is the COMELEC which has the power to determine whether the propositions in an initiative petition are within the powers of a concerned Sanggunian to enact. In SBMA v. Comelec, the Court ruled that -while regular courts may take jurisdiction over 'approved propositions' per said Sec. 18 of R.A. 6735, the Comelec in the exercise of its quasi-judicial and administrative powers may adjudicate and pass upon such proposals insofar as their form and language are concerned x x x and it may be added, even as to content, where the proposals or parts thereof are patently and clearly outside the 'capacity of the local legislative body to enact.' x x x” The COMELEC's power to review the substance of the propositions is also implied in Section 12 of RA No. 6735, which gives this Court appellate power to review the COMELEC's "findings of the sufficiency or insufficiency of the petition for initiative or referendum x x x." Marmeto 's propositions in his initiative petition are beyond the powers of the Sanggunian Panlungsod ng Muntinlupa to enact – YES Marmeto's initiative petitions propose the following: (1) The creation of a sectoral council composed of 12 members from various sectors who will serve as the people's representatives for the implementation and management of livelihood programs and projects; (2) The sectoral council will also stand as the people's representatives that will directly propose, enact, approve, or reject ordinances through initiative or referendum; (3) An appropriation of ₱200 million to be allocated for livelihood projects of the people and other purposes. The net income from the projects will then be used for the delivery of basic services and facility for Muntinlupa residents; (4) The MPP will create the implementing guidelines and procedure for the utilization of the appropriated funds, and conduct programs and project feasibility studies. It shall comply with the prescribed accounting and auditing rules of, and submit monthly accomplishment report to the local government unit (LGU). It shall also observe transparency and accountability in fund management. These propositions, however, are either sufficiently covered by or violative of the LGC for reasons explained below. (A) The creation of a separate local legislative body is ultra vires o Under the LGC, local legislative power within the city is to be exercised by

o

o

●

●

the Sangguniang Panlungsod,11 which shall be comprised of elected district and sectoral representatives.12 The sectoral representatives, moreover, shall be limited to three members, coming from enumerated/identified sectors.13 Significantly, nothing in the LGC allows the creation of another local legislative body that will enact, approve, or reject local laws either through the regular legislative process or through initiative or referendum. Even Marmeto's claim that the sectoral council will not legislate but will merely "facilitate" the people's exercise of the power of initiative and referendum is rendered unnecessary by the task the COMELEC must assume under the LGC. Section 122(c) of the LGC provides that the COMELEC (or its designated representative) shall extend assistance in the formulation of the proposition.

(B) The sectoral council's proposed function overlaps with the Local Development Council o The LGC requires the establishment in each LGU of a local development council, whose membership includes representatives of POs/NGOs operating within the LGU.14 These local development councils are primarily tasked with developing a "comprehensive multi-sectoral development plan"51 in their respective LGUs. City development councils are specifically tasked to exercise the following functions: (1) Formulate long-term, medium-term, and annual development plans and policies; (2) xxx; (3) Appraise and prioritize socio-economic development programs and projects; (4) x x x; (5) Coordinate, monitor, and evaluate the implementation of development programs and projects; and (6) Perform such other functions as may be provided by law or competent authority. o Given these functions of the city development council, there is a clear overlap with those proposed by Marmeto to be performed by the sectoral council and/or MPP. (C) The LGC requires local government funds and monies to be spent solely for public purposes, and provides transparency and accountability measures to ensure this end o The Court finds disturbing in Marmeto' s initiative petitions the authority of the proposed sectoral council to utilize, manage, and administer public funds as it sees fit. o The fundamental principles in local fiscal administration provided in the LGC state that no money shall be paid out of the local treasury except in

11 Sec. 48. 12 Sec. 41, (a) and (b). 13 Sec. 41, (c). 14 Sec. 107.

o

o

o

pursuance of an appropriations ordinance or law, 15 and that local government funds and monies shall be spent solely for public purposes.16 Marmeto' s petition proposes the appropriation of ₱200 million for the livelihood programs and projects of Muntinlupa residents. Significantly, the utilization of this amount is subject to the guidelines to be later implemented by Marmeto's MPP. That these guidelines will be drafted and implemented subsequent to the initiative elections denies the Muntinlupa residents of the opportunity to assess and scrutinize the utilization of local funds, and gives Marmeto and his organization an almost complete discretion in determining the allocation and disbursement of the funds. It is no justification that the funds will be used for public purposes on the claim these will be applied to programs and projects that will eventually redound to the benefit of the public. Our laws have put in place measures to ensure transparency and accountability in dealing with public funds,17 since "[p]ublic funds are the property of the people and must be used prudently at all times with a view to prevent dissipation and waste."18 These measures may be subverted or rendered inapplicable when the management and utilization of the funds is turned over to private persons or entities. Although comprised of Muntinlupa residents and voters, Marmeto' s MPP remains a private organization and its members cannot be considered as public officers who are burdened with responsibility for public funds and who may be held administratively and criminally liable for the imprudent use thereof.

DECISION. Petition denied. NOTES. ● Initiative has been described as an instrument of direct democracy whereby the citizens directly propose and legislate laws. As it is the citizens themselves who legislate the laws, direct legislation through initiative (along with referendum) is considered as an exercise of original legislative power, as opposed to that of derivative legislative power which has been delegated by the sovereign people to legislative bodies such as the Congress. ● Section 1 of Article VI of the Constitution recognizes the distinction between original and derivative legislative power by declaring that "legislative power shall be vested in the Congress x x x except to the extent reserved to the people by the provision on initiative and referendum." The italicized clause pertains to the original power of legislation which the sovereign people have reserved for their exercise in matters they consider fit. Considering that derivative legislative power is merely delegated by the sovereign people to its elected representatives, it is

15 Sec. 305, (a). 16 Sec. 305 (b). 17 Presidential Decree No. 1445 or the Government Accounting Code of the Philippines, and Sections 335 to 354 of the LGC. 18 Yap v. Commission on Audit, 633 Phil. 174, 188 (2010).

deemed subordinate to the original power of the people.

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. There are two remedies available under existing laws to prevent a candidate from running in an electoral race. One is by petition for disqualification, and the other by petition to deny due course to or to cancel his certificate of candidacy. i

Fermin v COMELEC: A petition for disqualification can be premised on Section 12 or 68 of the OEC, or Section 40 of the LGC. 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. xxx 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. Sec. 78, Omnibus Election Code: Section 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. ii Section 5. Civil and Political Rights and Liabilities.—Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: xxxx (2) Those seeking elective public in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. Section 40. Disqualifications.—The following persons are disqualified from running for any elective local position: xxxx (d) Those with dual citizenship. iii

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 iv