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G.R. No. 92299

April 19, 1991

REYNALDO R. SAN JUAN, petitioner,

vs.
CIVIL SERVICE COMMISSION, DEPARTMENT OF BUDGET AND
MANAGEMENT and CECILIA ALMAJOSE,respondents.

Director Abella to endorse the appointment of the said Ms. Dalisay Santos
to the contested position of PBO of Rizal. Ms. Dalisay Santos was then
Municipal Budget Officer of Taytay, Rizal before she discharged the
functions of acting PBO.

Legal Services Division for petitioner.

Sumulong, Sumulong, Paras & Abano Law Offices for private respondent.

In a Memorandum dated July 26, 1988 addressed to the DBM Secretary,

then Director Abella of Region IV recommended the appointment of the
private respondent as PBO of Rizal on the basis of a comparative study of
all Municipal Budget Officers of the said province which included three
nominees of the petitioner. According to Abella, the private respondent was
the most qualified since she was the only Certified Public Accountant
among the contenders.

GUTIERREZ, JR., J.:

On August 1, 1988, DBM Undersecretary Nazario S. Cabuquit, Jr. signed the

appointment papers of the private respondent as PBO of Rizal upon the
aforestated recommendation of Abella.

In this petition for certiorari pursuant to Section 7, Article IX (A) of the

present Constitution, the petitioner Governor of the Province of Rizal, prays
for the nullification of Resolution No. 89-868 of the Civil Service
Commission (CSC) dated November 21, 1989 and its Resolution No. 90-150
dated February 9, 1990.
The dispositive portion of the questioned Resolution reads:
WHEREFORE, foregoing premises considered, the Commission
resolved to dismiss, as it hereby dismisses the appeal of Governor
Reynaldo San Juan of Rizal. Accordingly, the approved appointment
of Ms. Cecilia Almajose as Provincial Budget Officer of Rizal, is
upheld. (Rollo, p. 32)
The subsequent Resolution No. 90-150 reiterates CSC's position upholding
the private respondent's appointment by denying the petitioner's motion
for reconsideration for lack of merit.
The antecedent facts of the case are as follows:
On March 22, 1988, the position of Provincial Budget Officer (PBO) for the
province of Rizal was left vacant by its former holder, a certain Henedima
del Rosario.
In a letter dated April 18, 1988, the petitioner informed Director Reynaldo
Abella of the Department of Budget and Management (DBM) Region IV that
Ms. Dalisay Santos assumed office as Acting PBO since March 22, 1988
pursuant to a Memorandum issued by the petitioner who further requested

In a letter dated August 3, 1988 addressed to Secretary Carague, the

petitioner reiterated his request for the appointment of Dalisay Santos to
the contested position unaware of the earlier appointment made by
Undersecretary Cabuquit.
On August 31, 1988, DBM Regional Director Agripino G. Galvez wrote the
petitioner that Dalisay Santos and his other recommendees did not meet
the minimum requirements under Local Budget Circular No. 31 for the
position of a local budget officer. Director Galvez whether or not through
oversight further required the petitioner to submit at least three other
qualified nominees who are qualified for the position of PBO of Rizal for
evaluation and processing.
On November 2, 1988, the petitioner after having been informed of the
private respondent's appointment wrote Secretary Carague protesting
against the said appointment on the grounds that Cabuquit as DBM
Undersecretary is not legally authorized to appoint the PBO; that the
private respondent lacks the required three years work experience as
provided in Local Budget Circular No. 31; and that under Executive Order
No. 112, it is the Provincial Governor, not the Regional Director or a
Congressman, who has the power to recommend nominees for the position
of PBO.
On January 9, 1989 respondent DBM, through its Director of the Bureau of
Legal & Legislative Affairs (BLLA) Virgilio A. Afurung, issued a Memorandum
ruling that the petitioner's letter-protest is not meritorious considering that
public respondent DBM validly exercised its prerogative in filling-up the

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contested position since none of the petitioner's nominees met the
prescribed requirements.
On January 27, 1989, the petitioner moved for a reconsideration of the
BLLA ruling.
On February 28, 1989, the DBM Secretary denied the petitioner's motion
for reconsideration.
On March 27, 1989, the petitioner wrote public respondent CSC protesting
against the appointment of the private respondent and reiterating his
position regarding the matter.
Subsequently, public respondent CSC issued the questioned resolutions
which prompted the petitioner to submit before us the following
assignment of errors:
A. THE CSC ERRED IN UPHOLDING THE APPOINTMENT BY DBM
ASSISTANT SECRETARY CABUQUIT OF CECILIA ALMAJOSE AS PBO
OF RIZAL.
B. THE CSC ERRED IN HOLDING THAT CECILIA ALMA JOSE
POSSESSES ALL THE REQUIRED QUALIFICATIONS.
C. THE CSC ERRED IN DECLARING THAT PETITIONER'S NOMINEES
ARE NOT QUALIFIED TO THE SUBJECT POSITION.
D. THE CSC AND THE DBM GRAVELY ABUSED THEIR DISCRETION IN
NOT ALLOWING PETITIONER TO SUBMIT NEW NOMINEES WHO
COULD MEET THE REQUIRED QUALIFICATION (Petition, pp. 78,Rollo, pp. 15-16)
All the assigned errors relate to the issue of whether or not the private
respondent is lawfully entitled to discharge the functions of PBO of Rizal
pursuant to the appointment made by public respondent DBM's
Undersecretary upon the recommendation of then Director Abella of DBM
Region IV.
The petitioner's arguments rest on his contention that he has the sole right
and privilege to recommend the nominees to the position of PBO and that
the appointee should come only from his nominees. In support thereof, he
invokes Section 1 of Executive Order No. 112 which provides that:
Sec. 1. All budget officers of provinces, cities and municipalities
shall be appointed henceforth by the Minister of Budget and

Management upon recommendation of the local chief executive

concerned, subject to civil service law, rules and regulations, and
they shall be placed under the administrative control and technical
supervision of the Ministry of Budget and Management.
The petitioner maintains that the appointment of the private respondent to
the contested position was made in derogation of the provision so that
both the public respondents committed grave abuse of discretion in
upholding Almajose's appointment.
There is no question that under Section 1 of Executive Order No. 112 the
petitioner's power to recommend is subject to the qualifications prescribed
by existing laws for the position of PBO. Consequently, in the event that
the recommendations made by the petitioner fall short of the required
standards, the appointing authority, the Minister (now Secretary) of public
respondent DBM is expected to reject the same.
In the event that the Governor recommends an unqualified person, is the
Department Head free to appoint anyone he fancies ? This is the issue
before us.
Before the promulgation of Executive Order No. 112 on December 24,
1986, Batas Pambansa Blg. 337, otherwise known as the Local Government
Code vested upon the Governor, subject to civil service rules and
regulations, the power to appoint the PBO (Sec. 216, subparagraph (1), BP
337). The Code further enumerated the qualifications for the position of
PBO. Thus, Section 216, subparagraph (2) of the same code states that:
(2) No person shall be appointed provincial budget officer unless
he is a citizen of the Philippines, of good moral character, a holder
of a degree preferably in law, commerce, public administration or
any related course from a recognized college or university, a first
grade civil service eligibility or its equivalent, and has acquired at
least five years experience in budgeting or in any related field.
The petitioner contends that since the appointing authority with respect to
the Provincial Budget Officer of Rizal was vested in him before, then, the
real intent behind Executive Order No. 112 in empowering him to
recommend nominees to the position of Provincial Budget Officer is to
make his recommendation part and parcel of the appointment process. He
states that the phrase "upon recommendation of the local chief executive
concerned" must be given mandatory application in consonance with the
state policy of local autonomy as guaranteed by the 1987 Constitution
under Art. II, Sec. 25 and Art. X, Sec. 2 thereof. He further argues that his
power to recommend cannot validly be defeated by a mere administrative
issuance of public respondent DBM reserving to itself the right to fill-up any

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existing vacancy in case the petitioner's nominees do not meet the
qualification requirements as embodied in public respondent DBM's Local
Budget Circular No. 31 dated February 9, 1988.
The questioned ruling is justified by the public respondent CSC as follows:
As required by said E.O. No. 112, the DBM Secretary may choose
from among the recommendees of the Provincial Governor who are
thus qualified and eligible for appointment to the position of the
PBO of Rizal. Notwithstanding, the recommendation of the local
chief executive is merely directory and not a condition sine qua
non to the exercise by the Secretary of DBM of his appointing
prerogative. To rule otherwise would in effect give the law or E.O.
No. 112 a different interpretation or construction not intended
therein, taking into consideration that said officer has been
nationalized and is directly under the control and supervision of the
DBM Secretary or through his duly authorized representative. It
cannot be gainsaid that said national officer has a similar role in
the local government unit, only on another area or concern, to that
of a Commission on Audit resident auditor. Hence, to preserve and
maintain the independence of said officer from the local
government unit, he must be primarily the choice of the national
appointing official, and the exercise thereof must not be unduly
hampered or interfered with, provided the appointee finally
selected meets the requirements for the position in accordance
with prescribed Civil Service Law, Rules and Regulations. In other
words, the appointing official is not restricted or circumscribed to
the list submitted or recommended by the local chief executive in
the final selection of an appointee for the position. He may
consider other nominees for the position vis a vis the nominees of
the local chief executive. (CSC Resolution No. 89-868, p. 2; Rollo, p.
31)

They deny or water down what little grants of autonomy have so far been
given to municipal corporations.
President McKinley's Instructions dated April 7, 1900 to the Second
Philippine Commission ordered the new Government "to devote their
attention in the first instance to the establishment of municipal
governments in which natives of the Islands, both in the cities and rural
communities, shall be afforded the opportunity to manage their own local
officers to the fullest extent of which they are capable and subject to the
least degree of supervision and control which a careful study of their
capacities and observation of the workings of native control show to be
consistent with the maintenance of law, order and loyalty.
In this initial organic act for the Philippines, the Commission which
combined both executive and legislative powers was directed to give top
priority to making local autonomy effective.
The 1935 Constitution had no specific article on local autonomy. However,
in distinguishing between presidential control and supervision as follows:
The President shall have control of all the executive departments,
bureaus, or offices, exercise general supervision over all local
governments as may be provided by law, and take care that the
laws be faithfully executed. (Sec. 11, Article VII, 1935 Constitution)
the Constitution clearly limited the executive power over local
governments to "general supervision . . . as may be provided by law." The
President controls the executive departments. He has no such power over
local governments. He has only supervision and that supervision is both
general and circumscribed by statute.
In Tecson v. Salas, 34 SCRA 275, 282 (1970), this Court stated:

The issue before the Court is not limited to the validity of the appointment
of one Provincial Budget Officer. The tug of war between the Secretary of
Budget and Management and the Governor of the premier province of Rizal
over a seemingly innocuous position involves the application of a most
important constitutional policy and principle, that of local autonomy. We
have to obey the clear mandate on local autonomy. Where a law is capable
of two interpretations, one in favor of centralized power in Malacaang and
the other beneficial to local autonomy, the scales must be weighed in favor
of autonomy.
The exercise by local governments of meaningful power has been a
national goal since the turn of the century. And yet, inspite of constitutional
provisions and, as in this case, legislation mandating greater autonomy for
local officials, national officers cannot seem to let go of centralized powers.

. . . Hebron v. Reyes, (104 Phil. 175 [1958]) with the then Justice,
now Chief Justice, Concepcion as theponente, clarified matters. As
was pointed out, the presidential competence is not even
supervision in general, but general supervision as may be provided
by law. He could not thus go beyond the applicable statutory
provisions, which bind and fetter his discretion on the matter.
Moreover, as had been earlier ruled in an opinion penned by Justice
Padilla in Mondano V. Silvosa, (97 Phil. 143 [1955]) referred to by
the present Chief Justice in his opinion in the Hebron case,
supervision goes no further than "overseeing or the power or
authority of an officer to see that subordinate officers perform their
duties. If the latter fail or neglect to fulfill them the former may
take such action or step as prescribed by law to make them

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perform their duties." (Ibid, pp. 147-148) Control, on the other
hand, "means the power of an officer to alter or modify or nullify or
set aside what a subordinate had done in the performance of their
duties and to substitute the judgment of the former for that of the
latter." It would follow then, according to the present Chief Justice,
to go back to the Hebron opinion, that the President had to abide
by the then provisions of the Revised Administrative Code on
suspension and removal of municipal officials, there being no
power of control that he could rightfully exercise, the law clearly
specifying the procedure by which such disciplinary action would
be taken.
Pursuant to this principle under the 1935 Constitution, legislation
implementing local autonomy was enacted. In 1959, Republic Act No.
2264, "An Act Amending the Law Governing Local Governments by
Increasing Their Autonomy and Reorganizing Local Governments" was
passed. It was followed in 1967 when Republic Act No. 5185, the
Decentralization Law was enacted, giving "further autonomous powers to
local governments governments."
The provisions of the 1973 Constitution moved the country further, at least
insofar as legal provisions are concerned, towards greater autonomy. It
provided under Article II as a basic principle of government:
Sec. 10. The State shall guarantee and promote the autonomy of
local government units, especially the barangay to ensure their
fullest development as self-reliant communities.
An entire article on Local Government was incorporated into the
Constitution. It called for a local government code defining more
responsive and accountable local government structures. Any creation,
merger, abolition, or substantial boundary alteration cannot be done
except in accordance with the local government code and upon approval
by a plebiscite. The power to create sources of revenue and to levy taxes
was specifically settled upon local governments.
The exercise of greater local autonomy is even more marked in the present
Constitution.
Article II, Section 25 on State Policies provides:
Sec. 25. The State shall ensure the autonomy of local governments
The 14 sections in Article X on Local Government not only reiterate earlier
doctrines but give in greater detail the provisions making local autonomy
more meaningful. Thus, Sections 2 and 3 of Article X provide:

Sec. 2. The territorial and political subdivisions shall enjoy local

autonomy.
Sec. 3. The Congress shall enact a local government code which
shall provide for a more responsive and accountable local
government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and
referendum, allocate among the different local government units
their powers, responsibilities, and resources, and provide for the
qualifications, election, appointment and removal, term, salaries,
powers and functions and duties of local officials, and all other
matters relating to the organization and operation of the local
units.
When the Civil Service Commission interpreted the recommending power
of the Provincial Governor as purely directory, it went against the letter and
spirit of the constitutional provisions on local autonomy. If the DBM
Secretary jealously hoards the entirety of budgetary powers and ignores
the right of local governments to develop self-reliance and resoluteness in
the handling of their own funds, the goal of meaningful local autonomy is
frustrated and set back.
The right given by Local Budget Circular No. 31 which states:
Sec. 6.0 The DBM reserves the right to fill up any existing
vacancy where none of the nominees of the local chief executive
meet the prescribed requirements.
is ultra vires and is, accordingly, set aside. The DBM may appoint only from
the list of qualified recommendees nominated by the Governor. If none is
qualified, he must return the list of nominees to the Governor explaining
why no one meets the legal requirements and ask for new recommendees
who have the necessary eligibilities and qualifications.
The PBO is expected to synchronize his work with DBM. More important,
however, is the proper administration of fiscal affairs at the local level.
Provincial and municipal budgets are prepared at the local level and after
completion are forwarded to the national officials for review. They are
prepared by the local officials who must work within the constraints of
those budgets. They are not formulated in the inner sanctums of an allknowing DBM and unilaterally imposed on local governments whether or
not they are relevant to local needs and resources. It is for this reason that
there should be a genuine interplay, a balancing of viewpoints, and a
harmonization of proposals from both the local and national officials. It is
for this reason that the nomination and appointment process involves a
sharing of power between the two levels of government.

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It may not be amiss to give by way of analogy the procedure followed in
the appointments of Justices and Judges.1wphi1Under Article VIII of the
Constitution, nominations for judicial positions are made by the Judicial and
Bar Council. The President makes the appointments from the list of
nominees submitted to her by the Council. She cannot apply the DBM
procedure, reject all the Council nominees, and appoint another person
whom she feels is better qualified. There can be no reservation of the right
to fill up a position with a person of the appointing power's personal
choice.

G.R. No. 104732 June 22, 1993

The public respondent's grave abuse of discretion is aggravated by the fact

that Director Galvez required the Provincial Governor to submit at least
three other names of nominees better qualified than his earlier
recommendation. It was a meaningless exercise. The appointment of the
private respondent was formalized before the Governor was extended the
courtesy of being informed that his nominee had been rejected. The
complete disregard of the local government's prerogative and the smug
belief that the DBM has absolute wisdom, authority, and discretion are
manifest.

Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio

E. Acierto for petitioners.

In his classic work "Philippine Political Law" Dean Vicente G. Sinco stated
that the value of local governments as institutions of democracy is
measured by the degree of autonomy that they enjoy. Citing Tocqueville,
he stated that "local assemblies of citizens constitute the strength of free
nations. . . . A people may establish a system of free government but
without the spirit of municipal institutions, it cannot have the spirit of
liberty." (Sinco, Philippine Political Law, Eleventh Edition, pp. 705-706).
Our national officials should not only comply with the constitutional
provisions on local autonomy but should also appreciate the spirit of liberty
upon which these provisions are based.
WHEREFORE, the petition is hereby GRANTED. The questioned resolutions
of the Civil Service Commission are SET ASIDE. The appointment of
respondent Cecilia Almajose is nullified. The Department of Budget and
Management is ordered to appoint the Provincial Budget Officer of Rizal
from among qualified nominees submitted by the Provincial Governor.
SO ORDERED.

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO,

DOMINGO A. JADLOC, CARLITO T. CRUZ and MANUEL P.
REYES, petitioner,
vs.
HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J.
GORDON, respondents.

BELLOSILLO, J.:
The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise known as
the "Bases Conversion and Development Act of 1992," under which
respondent Mayor Richard J. Gordon of Olongapo City was appointed
Chairman and Chief Executive Officer of the Subic Bay Metropolitan
Authority (SBMA), is challenged in this original petition with prayer for
prohibition, preliminary injunction and temporary restraining order "to
prevent useless and unnecessary expenditures of public funds by way of
salaries and other operational expenses attached to the
office . . . ." 2 Paragraph (d) reads
(d) Chairman administrator The President shall appoint a
professional manager as administrator of the Subic
Authority with a compensation to be determined by the
Board subject to the approval of the Secretary of Budget,
who shall be the ex oficio chairman of the Board and who
shall serve as the chief executive officer of the Subic
Authority: Provided, however, That for the first year of its
operations from the effectivity of this Act, the mayor of the
City of Olongapo shall be appointed as the chairman and
chief executive officer of the Subic Authority (emphasis
supplied).
Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the
Subic, Zambales, and officers and members of the Filipino Civilian
Employees Association in U.S. Facilities in the Philippines, maintain that
the proviso in par. (d) of Sec. 13 herein-above quoted in italics infringes on

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the following constitutional and statutory provisions: (a) Sec. 7, first par.,
Art. IX-B, of the Constitution, which states that "[n]o elective official shall
be eligible for appointment or designation in any capacity to any public
officer or position during his tenure," 3 because the City Mayor of Olongapo
City is an elective official and the subject posts are public offices; (b) Sec.
16, Art. VII, of the Constitution, which provides that "[t]he President shall . .
. . appoint all other officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be authorized by
law to appoint", 4 since it was Congress through the questioned proviso and
not the President who appointed the Mayor to the subject posts; 5 and, (c)
Sec. 261, par. (g), of the Omnibus Election Code, which says:
Sec. 261. Prohibited Acts. The following shall be guilty of
an election offense: . . . (g) Appointment of new
employees, creation of new position, promotion, or giving
salary increases. During the period of forty-five days
before a regular election and thirty days before a special
election, (1) any head, official or appointing officer of a
government office, agency or instrumentality, whether
national or local, including government-owned or controlled
corporations, who appoints or hires any new employee,
whether provisional, temporary or casual, or creates and
fills any new position, except upon prior authority of the
Commission. The Commission shall not grant the authority
sought unless it is satisfied that the position to be filled is
essential to the proper functioning of the office or agency
concerned, and that the position shall not be filled in a
manner that may influence the election. As an exception to
the foregoing provisions, a new employee may be
appointed in case of urgent need: Provided, however, That
notice of the appointment shall be given to the
Commission within three days from the date of the
appointment. Any appointment or hiring in violation of this
provision shall be null and void. (2) Any government official
who promotes, or gives any increase of salary or
remuneration or privilege to any government official or
employee, including those in government-owned or
controlled corporations . . . .
for the reason that the appointment of respondent Gordon to the subject
posts made by respondent Executive Secretary on 3 April 1992 was within
the prohibited 45-day period prior to the 11 May 1992 Elections.
The principal question is whether the proviso in Sec. 13, par. (d), of R.A.
7227 which states, "Provided, however,That for the first year of its
operations from the effectivity of this Act, the mayor of the City of
Olongapo shall be appointed as the chairman and chief executive officer of

the Subic Authority," violates the constitutional proscription against

appointment or designation of elective officials to other government posts.
In full, Sec. 7 of Art. IX-B of the Constitution provides:
No elective official shall be eligible for appointment or
designation in any capacity to any public office or position
during his tenure.
Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold
any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries.
The section expresses the policy against the concentration of several
public positions in one person, so that a public officer or employee may
serve full-time with dedication and thus be efficient in the delivery of public
services. It is an affirmation that a public office is a full-time job. Hence, a
public officer or employee, like the head of an executive department
described in Civil Liberties Union v. Executive Secretary, G.R. No. 83896,
and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico, as
Secretary of Agrarian Reform, G.R. No. 83815, 6 ". . . . should be allowed to
attend to his duties and responsibilities without the distraction of other
governmental duties or employment. He should be precluded from
dissipating his efforts, attention and energy among too many positions of
responsibility, which may result in haphazardness and inefficiency . . . ."
Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really
is to prevent a situation where a local elective official will work for his
appointment in an executive position in government, and thus neglect his
constituents . . . ." 7
In the case before us, the subject proviso directs the President to appoint
an elective official, i.e., the Mayor of Olongapo City, to other government
posts (as Chairman of the Board and Chief Executive Officer of SBMA).
Since this is precisely what the constitutional proscription seeks to prevent,
it needs no stretching of the imagination to conclude that
the proviso contravenes Sec. 7, first par., Art. IX-B, of the Constitution.
Here, the fact that the expertise of an elective official may be most
beneficial to the higher interest of the body politic is of no moment.
It is argued that Sec. 94 of the Local Government Code (LGC) permits the
appointment of a local elective official to another post if so allowed by law
or by the primary functions of his office. 8 But, the contention is fallacious.

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Section 94 of the LGC is not determinative of the constitutionality of Sec.
13, par. (d), of R.A. 7227, for no legislative act can prevail over the
fundamental law of the land. Moreover, since the constitutionality of Sec.
94 of LGC is not the issue here nor is that section sought to be declared
unconstitutional, we need not rule on its validity. Neither can we invoke a
practice otherwise unconstitutional as authority for its validity.
In any case, the view that an elective official may be appointed to another
post if allowed by law or by the primary functions of his office, ignores the
clear-cut difference in the wording of the two (2) paragraphs of Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph authorizes holding of
multiple offices by an appointive official when allowed by law or by the
primary functions of his position, the first paragraph appears to be more
stringent by not providing any exception to the rule against appointment or
designation of an elective official to the government post, except as are
particularly recognized in the Constitution itself, e.g., the President as head
of the economic and planning agency; 9 the Vice-President, who may be
appointed Member of the Cabinet; 10 and, a member of Congress who may
be designated ex officio member of the Judicial and Bar Council. 11
The distinction between the first and second paragraphs of Sec. 7, Art. IXB, was not accidental when drawn, and not without reason. It was
purposely sought by the drafters of the Constitution as shown in their
deliberation, thus
MR. MONSOD. In other words, what then Commissioner is
saying, Mr. Presiding Officer, is that the prohibition is more
strict with respect to elective officials, because in the case
of appointive officials, there may be a law that will allow
them to hold other positions.
MR. FOZ. Yes, I suggest we make that difference, because
in the case of appointive officials, there will be certain
situations where the law should allow them to hold some
other positions. 12
The distinction being clear, the exemption allowed to appointive officials in
the second paragraph cannot be extended to elective officials who are
governed by the first paragraph.
It is further argued that the SBMA posts are merely ex officio to the
position of Mayor of Olongapo City, hence, an excepted circumstance,
citing Civil Liberties Union v. Executive Secretary, 13 where we stated that
the prohibition against the holding of any other office or employment by
the President, Vice-President, Members of the Cabinet, and their deputies
or assistants during their tenure, as provided in Sec. 13, Art. VII, of the

Constitution, does not comprehend additional duties and

functions required by the primary functions of the officials concerned, who
are to perform them in an ex officio capacity as provided by law, without
receiving any additional compensation therefor.
This argument is apparently based on a wrong premise. Congress did not
contemplate making the subject SBMA posts as ex officio or automatically
attached to the Office of the Mayor of Olongapo City without need of
appointment. The phrase "shall be appointed" unquestionably shows the
intent to make the SBMA posts appointive and not merely adjunct to the
post of Mayor of Olongapo City. Had it been the legislative intent to make
the subject positions ex officio, Congress would have, at least, avoided the
word "appointed" and, instead, "ex officio" would have been used. 14
Even in the Senate deliberations, the Senators were fully aware that
subject proviso may contravene Sec. 7, first par., Art. IX-B, but they
nevertheless passed the bill and decided to have the controversy resolved
by the courts. Indeed, the Senators would not have been concerned with
the effects of Sec. 7, first par., had they considered the SBMA posts as ex
officio.
Cognizant of the complication that may arise from the way the
subject proviso was stated, Senator Rene Saguisag remarked that "if the
Conference Committee just said "the Mayor shall be the Chairman" then
that should foreclose the issue. It is a legislative choice." 15 The Senator
took a view that the constitutional proscription against appointment of
elective officials may have been sidestepped if Congress attached the
SBMA posts to the Mayor of Olongapo City instead of directing the
President to appoint him to the post. Without passing upon this view of
Senator Saguisag, it suffices to state that Congress intended the posts to
be appointive, thus nibbling in the bud the argument that they are ex
officio.
The analogy with the position of Chairman of the Metro Manila Authority
made by respondents cannot be applied to uphold the constitutionality of
the challenged proviso since it is not put in issue in the present case. In the
same vein, the argument that if no elective official may be appointed or
designated to another post then Sec. 8, Art. IX-B, of the Constitution
allowing him to receive double compensation 16 would be useless, is non
sequitur since Sec. 8 does not affect the constitutionality of the
subject proviso. In any case, the Vice-President for example, an elective
official who may be appointed to a cabinet post under Sec. 3, Art. VII, may
receive the compensation attached to the cabinet position if specifically
authorized by law.
Petitioners also assail the legislative encroachment on the appointing
authority of the President. Section 13, par. (d), itself vests in the President

8
the power to appoint the Chairman of the Board and the Chief Executive
Officer of SBMA, although he really has no choice under the law but to
appoint the Mayor of Olongapo City.
As may be defined, an "appointment" is "[t]he designation of a person, by
the person or persons having authority therefor, to discharge the duties of
some office or trust," 17 or "[t]he selection or designation of a person, by
the person or persons having authority therefor, to fill an office or public
function and discharge the duties of the same. 18 In his treatise,Philippine
Political
Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as
"the selection, by the authority vested with the power, of an individual who
is to exercise the functions of a given office."
Considering that appointment calls for a selection, the appointing power
necessarily exercises a discretion. According to Woodbury,
J., 20 "the choice of a person to fill an office constitutes the essence of his
appointment," 21 and Mr. Justice Malcolm adds that an "[a]ppointment to
office is intrinsically an executive act involving the exercise of
discretion."22 In Pamantasan ng Lungsod ng Maynila v. Intermediate
Appellate Court 23 we held:
The power to appoint is, in essence, discretionary. The
appointing power has the right of choice which he may
exercise freely according to his judgment, deciding for
himself who is best qualified among those who have the
necessary qualifications and eligibilities. It is a prerogative
of the appointing power . . . .

In the case at bar, while Congress willed that the subject posts be filled
with a presidential appointee for the first year of its operations from the
effectivity of R.A. 7227, the proviso nevertheless limits the appointing
authority to only one eligible, i.e., the incumbent Mayor of Olongapo City.
Since only one can qualify for the posts in question, the President is
precluded from exercising his discretion to choose whom to appoint. Such
supposed power of appointment, sans the essential element of choice, is
no power at all and goes against the very nature itself of appointment.
While it may be viewed that the proviso merely sets the qualifications of
the officer during the first year of operations of SBMA, i.e., he must be the
Mayor of Olongapo City, it is manifestly an abuse of congressional
authority to prescribe qualifications where only one, and no other, can
qualify. Accordingly, while the conferment of the appointing power on the
President is a perfectly valid legislative act, the proviso limiting his choice
to one is certainly an encroachment on his prerogative.
Since the ineligibility of an elective official for appointment remains all
throughout his tenure or during his incumbency, he may however resign
first from his elective post to cast off the constitutionally-attached
disqualification before he may be considered fit for appointment. The
deliberation in the Constitutional Commission is enlightening:
MR. DAVIDE. On Section 4, page 3, line 8, I propose the
substitution of the word "term" with TENURE.
MR. FOZ. The effect of the proposed amendment is to make
possible for one to resign from his position.

Indeed, the power of choice is the heart of the power to appoint.

Appointment involves an exercise of discretion of whom to appoint; it is not
a ministerial act of issuing appointment papers to the appointee. In other
words, the choice of the appointee is a fundamental component of the
appointing power.

MR. DAVIDE. Yes, we should allow that prerogative.

Hence, when Congress clothes the President with the power to appoint an
officer, it (Congress) cannot at the same time limit the choice of the
President to only one candidate. Once the power of appointment is
conferred on the President, such conferment necessarily carries the
discretion of whom to appoint. Even on the pretext of prescribing the
qualifications of the officer, Congress may not abuse such power as to
divest the appointing authority, directly or indirectly, of his discretion to
pick his own choice. Consequently, when the qualifications prescribed by
Congress can only be met by one individual, such enactment effectively
eliminates the discretion of the appointing power to choose and constitutes
an irregular restriction on the power of appointment. 24

MR. DAVIDE. Besides, it may turn out in a given case that

because of, say, incapacity, he may leave the service, but
if he is prohibited from being appointed within the term for
which he was elected, we may be depriving the
government of the needed expertise of an individual. 25

MR. FOZ. Resign from his position to accept an executive

position.

Consequently, as long as he is an incumbent, an elective official remains

ineligible for appointment to another public office.
Where, as in the case of respondent Gordon, an incumbent elective official
was, notwithstanding his ineligibility, appointed to other government posts,

9
he does not automatically forfeit his elective office nor remove his
ineligibility imposed by the Constitution. On the contrary, since an
incumbent elective official is not eligible to the appointive position, his
appointment or designation thereto cannot be valid in view of his
disqualification or lack of eligibility. This provision should not be confused
with Sec. 13, Art. VI, of the Constitution where "(n)o Senator or Member of
the House of Representatives may hold any other office or employment in
the Government . . . during his term without forfeiting his seat . . . ." The
difference between the two provisions is significant in the sense that
incumbent national legislators lose their elective posts only after they have
been appointed to another government office, while other incumbent
elective officials must first resign their posts before they can be appointed,
thus running the risk of losing the elective post as well as not being
appointed to the other post. It is therefore clear that ineligibility is not
directly related with forfeiture of office. ". . . . The effect is quite different
where it is expressly provided by law that a person holding one office shall
be ineligible to another. Such a provision is held to incapacitate the
incumbent of an office from accepting or holding a second office (State ex
rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal,
130 Ga 733, 61 SE 721) and to render his election or appointment to the
latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65 NW 262.
Annotation: 40 ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p
388, 40 ALR 941)." 26 "Where the constitution, or statutes declare that
persons holding one office shall be ineligible for election or appointment to
another office, either generally or of a certain kind, the prohibition has
been held to incapacitate the incumbent of the first office to hold the
second so that any attempt to hold the second is void (Ala. State ex rel.
Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)." 27
As incumbent elective official, respondent Gordon is ineligible for
appointment to the position of Chairman of the Board and Chief Executive
of SBMA; hence, his appointment thereto pursuant to a legislative act that
contravenes the Constitution cannot be sustained. He however remains
Mayor of Olongapo City, and his acts as SBMA official are not necessarily
null and void; he may be considered a de facto officer, "one whose acts,
though not those of a lawful officer, the law, upon principles of policy and
justice, will hold valid so far as they involve the interest of the public and
third persons, where the duties of the office were exercised . . . . under
color of a known election or appointment, void because the officer was not
eligible, or because there was a want of power in the electing or appointing
body, or by reason of some defect or irregularity in its exercise, such
ineligibility, want of power or defect being unknown to the public . . . .
[or] under color of an election, or appointment, by or pursuant to a public
unconstitutional law, before the same is adjudged to be such (State vs.
Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec.,
213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)." 28

Conformably with our ruling in Civil Liberties Union, any and all per diems,
allowances and other emoluments which may have been received by
respondent Gordon pursuant to his appointment may be retained by him.
The illegality of his appointment to the SBMA posts being now evident,
other matters affecting the legality of the questioned proviso as well as the
appointment of said respondent made pursuant thereto need no longer be
discussed.
In thus concluding as we do, we can only share the lament of Sen. Sotero
Laurel which he expressed in the floor deliberations of S.B. 1648, precursor
of R.A. 7227, when he articulated
. . . . (much) as we would like to have the present Mayor of
Olongapo City as the Chief Executive of this Authority that
we are creating; (much) as I, myself, would like to because
I know the capacity, integrity, industry and dedication of
Mayor Gordon; (much) as we would like to give him this
terrific, burdensome and heavy responsibility, we cannot
do it because of the constitutional prohibition which is very
clear. It says: "No elective official shall be appointed or
designated to another position in any capacity." 29
For, indeed, "a Constitution must be firm and immovable, like a mountain
amidst the strife of storms or a rock in the ocean amidst the raging of the
waves." 30 One of the characteristics of the Constitution is
permanence, i.e., "its capacity to resist capricious or whimsical change
dictated not by legitimate needs but only by passing fancies, temporary
passions or occasional infatuations of the people with ideas or personalities
. . . . Such a Constitution is not likely to be easily tampered with to suit
political expediency, personal ambitions or ill-advised agitation for
change." 31
Ergo, under the Constitution, Mayor Gordon has a choice. We have no
choice.
WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". .
. Provided, however, That for the first year of its operations from the
effectivity of this Act, the Mayor of the City of Olongapo shall be appointed
as the chairman and chief executive officer of the Subic Authority," is
declared unconstitutional; consequently, the appointment pursuant thereto
of the Mayor of Olongapo City, respondent Richard J. Gordon, is INVALID,
hence NULL and VOID.
However, all per diems, allowances and other emoluments received by
respondent Gordon, if any, as such Chairman and Chief Executive Officer

10
may be retained by him, and all acts otherwise legitimate done by him in
the exercise of his authority as officer de facto of SBMA are hereby
UPHELD.

1. The provisions of Section 2077 of the Revised Administrative Code is not

applicable in the instant case as the power to fill the position of Assistant
Provincial Treasurer rests on the Secretary of Finance.

SO ORDERED.

2. The designation is temporary in nature and does not amount to the

issuance of an appointment as could entitle the designee to receive the
salary of the position to which he is designated (Opinion of the Director,
Office for Legal Affairs, Civil Service Commission dated January 25, 1994).
[G.R. No. 122197. June 26, 1998]

ZOSIMO
M.
DIMAANDAL, petitioner,
AUDIT, respondent.

vs. COMMISSION

ON

DECISION
MARTINEZ, J.:
This petition for certiorari seeks the reversal of the decision of the
Commission on Audit dated September 7, 1995, [1] the dispositive portion of
which reads, to wit:
Foregoing premises considered, the instant appeal cannot be given due
course. Accordingly, the disallowance in question in the total amount
of P52,908.00 is hereby affirmed. Considering that the claim for the RATA
differential in the amount of P8,400.00 is devoid of any legal basis, the
same is also disallowed. Hence, appellant Zosimo M. Dimaandal is hereby
directed to refund the salary and RATA differential in the amount
of P61,308.00 he had received from the Provincial Government of
Batangas.[2]

On August 3, 1994, Governor Mayo wrote to the Provincial Auditor

requesting reconsideration of the subject disallowance, interposing the
following reasons:
1. That Section 2077 of the Revised Administrative Code is applicable in
the instant case as the same provides that the Governor General or the
officer having the power to fill-up a temporary absence or disability in the
provincial office has the power to order or authorize payment of
compensation to any government officer or employee designated or
appointed temporarily to fill the place;
2. That the budget containing an appropriation for the position of Assistant
Provincial Treasurer for Administration was already approved by the
Provincial Board; and
3. That Mr. Dimaandal at the time of his designation as Acting Provincial
Treasurer for Administration was no longer performing the duties and
functions of Supply Officer III."
The Provincial Auditor, however,
reconsideration. Appellant was required
of P52,908.00 which was disallowed.

denied the
to refund

request for
the amount

The undisputed facts:

On November 23, 1992, petitioner Zosimo M. Dimaandal, then holding
the position of Supply Officer III, was designated Acting Assistant Provincial
Treasurer for Administration by then Governor Vicente A. Mayo of
Batangas. Pursuant to the designation, petitioner filed a claim for the
difference in salary and Representation and Transportation Allowance
(RATA) of Assistant Provincial Treasurer and Supply Officer III for the whole
year of 1993 in the total amount of P61,308.00.
However, the Provincial Auditor disallowed in audit P52,908.00 of the
claim. What was allowed was only the amount of P8,400.00 which
corresponds to the difference in the allowances attached to the designation
and the position occupied by the appellant. The disallowance was premised
on the following reasons:

Petitioner appealed to the respondent Commission on Audit which

sustained the stand of the Provincial Auditor of Batangas as valid and
proper. The respondent Commission was of the view that the petitioner
was merely designated as an Assistant Provincial Treasurer for
Administration in addition to his regular duties. As such, he is not entitled
to receive an additional salary. The Commission further opined that
petitioner was likewise not entitled to receive the difference in RATA
provided for under the Local Budget Circular issued by the Department of
Budget and Management considering that the party designating him to
such position is not the duly competent authority, provided for under
Section 471 of the Local Government Code. Notably, petitioner was
appointed as Assistant Provincial Treasurer for Administration by the
Secretary of Finance only on July 8, 1994.

11
Thus, the respondent Commission not only affirmed the disallowance
of the amount of P52,908.00 but likewise disallowed the claim for the RATA
differential in the amount of P8,400.00, for being devoid of any legal
basis. Petitioner was, therefore, directed to refund the salary and RATA
differential in the amount of P61,308.00.
Hence, this petition.
The issue here is whether or not an employee who is designated in an
acting capacity is entitled to the difference in salary between his regular
position and the higher position to which he is designated.
Petitioner avers that the respondent Commissions decision is probably
not in accordance with applicable decisions of the Supreme Court. [3] He
cites the cases of Cui, et. al. vs. Ortiz, et. al., [4] April 29, 1960; and, Menzon
vs. Petilla, May 20, 1991,[5] which laid down the rule that de facto officers
are entitled to salary for services actually rendered. Petitioner contends
that he may be considered as a de facto officer by reason of services
rendered in favor of the Province of Batangas. He then posits the view that
to disallow his compensation and in the process allow the Province of
Batangas to keep and enjoy the benefits derived from his services actually
rendered would be tantamount to deprivation of property without due
process of law, and impairment of obligation of contracts duly enshrined in
the Constitution.
On the other hand, the respondent Commission, through the Office of
the Solicitor General, maintains that the decisions cited by petitioner do
not find application in petitioners case. In the case of Menzon, what was
extended was an appointment to the vacant position of ViceGovernor. Here, what was extended to petitioner was not an appointment
but a mere designation. Thus, the nature of petitioners designation and in
the absence of authority of the Governor to authorize the payment of the
additional salary and RATA without the appropriate resolution from the
Sangguniang Panlalawigan does not make the ruling on de facto officers
applicable in this case.
We find the petition to be without merit.
We are not persuaded by petitioners insistence that he could still
claim the salary and RATA differential because he actually performed the
functions pertaining to the office of Acting Assistant Provincial Treasurer
and, therefore, entitled to the salary and benefits attached to it despite the
fact that the Governor of Batangas had no authority to designate him to
the said position.

The law applicable is Section 471(a) of RA 7160 otherwise known as

the Local Government Code which mandates that:
Sec. 471. Assistant Treasurers. - (a) An assistant treasurer may be
appointed by the Secretary of Finance from a list of at least three (3)
ranking eligible recommendees of the governor or mayor, subject to civil
service law, rules and regulations.
xxxxxxxxx
In fact, the appointing officer is authorized by law to order the
payment of compensation to any government officer or employee
designated or appointed to fill such vacant position, as provided under
Section 2077 of the Revised Administrative Code which states that:
"Section 2077. Compensation for person appointed to temporary service.
xxxxxxxxx
In case of the temporary absence or disability of a provincial officer or in
case of a vacancy in a provincial office, the President of the Philippines or
officer having the power to fill such position may, in his discretion, order
the payment of compensation, or additional compensation, to any
Government officer or employee designated or appointed temporarily to fill
the place, but the total compensation paid shall not exceed the salary
authorized by law for the position filled.
Undoubtedly, the aforecited laws do not authorize the Provincial
Governor to appoint nor even designate one temporarily in cases of
temporary absence or disability or a vacancy in a provincial office. That
power resides in the President of the Philippines or the Secretary of
Finance.
Necessarily, petitioners designation as Assistant Provincial Treasurer
for Administration by Governor Mayo being defective, confers no right on
the part of petitioner to claim the difference in the salaries and allowances
attached to the position occupied by him.
Moreover, what was extended to petitioner by Governor Mayo was
merely a designation not an appointment. The respondent Commission
clearly pointed out the difference between an appointment and
designation, thus:
There is a great difference between an appointment and designation. While
an appointment is the selection by the proper authority of an individual

12
who is to exercise the powers and functions of a given office, designation
merely connotes an imposition of additional duties, usually by law, upon a
person already in the public service by virtue of an earlier appointment
(Santiago vs. COA, 199 SCRA 125).
Designation is simply the mere imposition of new or additional duties on
the officer or employee to be performed by him in a special manner. It does
not entail payment of additional benefits or grant upon the person so
designated the right to claim the salary attached to the position (COA
Decision No. 95-087 dated February 2, 1995). As such, there being no
appointment issued, designation does not entitle the officer designated to
receive the salary of the position. For the legal basis of an employees right
to claim the salary attached thereto is a duly issued and approved
appointment to the position (Opinion dated January 25, 1994 of the Office
for Legal Affairs, Civil Service Commission, Re: Evora, Carlos, A. Jr.,
Designation).[6]
This Court has time and again ruled that:
Although technically not binding and controlling on the courts, the
construction given by the agency or entity charged with the enforcement
of a statute should be given great weight and respect (In re Allen, 2 Phil.
630, 640), particularly so if such construction, as in the case at bar, has
been uniform, and consistent, and has been observed and acted on for a
long period of time (Molina vs. Rafferty, 38 Phil. 167; Madrigal vs. Rafferty,
38 Phil. 414; Philippine Sugar Central vs. Collector of Customs, 51 Phil.
143).[7]
We see no justifiable reason to sustain petitioners argument that nonpayment of his salary differential and RATA would be a violation of his
constitutional right against deprivation of property without due process of
law and the non-impairment of obligation of contracts clause in the
Constitution.
The right to the salary of an Assistant Provincial Treasurer is based on
the assumption that the appointment or designation thereof was made in
accordance with law. Considering that petitioners designation was without
color of authority, the right to the salary or an allowance due from said
office never existed. Stated differently, in the absence of such right, there
can be no violation of any constitutional right nor an impairment of the
obligation of contracts clause under the Constitution.
The nature of petitioners designation and the absence of authority of
the Governor to authorize the payment of the additional salary and RATA
without the appropriate resolution from the Sangguniang Panlalawigan
does not make him a de facto officer.

A de facto officer is defined as one who derives his appointment from

one having colorable authority to appoint, if the office is an appointive
office, and whose appointment is valid on its face. It is likewise defined as
one who is in possession of an office, and is discharging its duties under
color of authority, by which is meant authority derived from an
appointment, however irregular or informal, so that the incumbent be not a
mere volunteer.[8] Then a de facto officer is one who is in possession of an
office in the open exercise of its functions under color of an election or an
appointment, even though such election or appointment may be irregular.
[9]

Petitioner invokes in his favor the ruling in Menzon vs. Petilla,[10] that a
de facto officer is entitled to receive the salary for services actually
rendered. However,
his
reliance
on
theMenzon case
is
misplaced. In Menzon, what was extended was an appointment to
the vacant position of Vice-Governor, in petitioners case, he was
designated. The appointment of Menzon had the color of validity. This
Court said:
And finally, even granting that the President, acting through the Secretary
of Local Government, possesses no power to appoint the petitioner, at the
very least, the petitioner is a de facto officer entitled to
compensation. There is no denying that the petitioner assumed the Office
of the Vice-Governor under a color of a known appointment. As revealed by
the records, the petitioner was appointed by no less than the alter ego of
the President, The Secretary of Local Government, after which he took his
oath of office before Senator Alberto Romulo in the Office of Department of
Local Government Regional Director Res Salvatierra. Concededly, the
appointment has the color of validity.
Likewise, the doctrine in Cui, et. al. vs. Ortiz, et. al.[11] does not apply
in petitioners case. In Cui, this Court held:
Petitioners appointments on December 1 and 12, 1955 by the then mayor
of the municipality were legal and in order, the appointing mayor still in
possession of his right to appoint. For such appointments to be complete,
the approval of the President of the Philippines is required. The law
provides that pending approval of said appointment by the President, the
appointee may assume office and receive salary for services actually
rendered. Accordingly, therefore, in that duration until the appointment is
finally acted upon favorably or unfavorably, the appointees may be
considered as de facto officers and entitled to salaries for services actually
rendered.
Finally, the appointment signed by Finance Undersecretary Juanita D.
Amatong is dated July 8, 1994. Petitioners claim that the appointment

13
retro-acts to his assumption of office is not confirmed by the express
phraseology of the appointment itself, which states:
Kayo ay nahirang na ASSISTANT PROVINCIAL TREASURER FOR
ADMINISTRATION na may katayuang PERMANENT sa OFFICE OF THE
PROVINCIAL TREASURER OF BATANGASsa pasahod na ONE HUNDRED
TWENTY ONE THOUSAND SIX HUNDRED TWENTY ( P121,620.00)
P.A. piso. Ito ay magkakabisa sa petsa ng pagganap ng tungkulin subalit di
aaga sa petsa ng pagpirma ng puno ng tanggapan o appointing authority.
[12]

The subsequent appointment of petitioner to the position on July 8,

1994, cannot justify petitioners retention of the excess amount
of P61,308.00, which corresponds to the amount disallowed and ordered
refunded by COA representing the salary and RATA in excess of what was
due him in 1993.
WHEREFORE, premises considered, the petition is hereby DISMISSED
for lack of merit.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza, Panganiban, Quisumbing and Purisima, JJ., concur.

Panel of the Office

Manila, petitioners,
CASTRO, respondents.

of the City Legal

vs. EVANGELINE

Officer of
C.
DE

DECISION
PANGANIBAN, J.:
The city legal officer of Manila has no disciplinary authority over the
chief of the Legal Affairs and Complaint Services of the Division of City
Schools of Manila. Inasmuch as the said official was appointed by and is a
subordinate of the regional director of the Department of Education,
Culture and Sports, she is subject to the supervision and control of said
director. The power to appoint carries the power to remove or to
discipline. The mere fact that her salary is sourced from city funds does
not ipso facto place her under the city legal officer's disciplinary
jurisdiction, absent any clear statutory basis therefor.
The Case

Before this Court is a Petition for Review on Certiorari [1] under Rule 45
of the Rules of Court seeking reversal of the October 22, 1996 Decision [2] of
the Court of Appeals (CA)[3] in CA-GR SP No. 40183, the dispositive portion
of which reads:
WHEREFORE, premises considered, the petition is GRANTED and the public
respondent City Legal Office of Manila is directed to permanently cease
and desist from further proceeding with Administrative Case CLO No. 2496.[4]
Likewise assailed is the CAs December 23, 1996 Resolution [5]denying
reconsideration.
The Facts

The undisputed facts of the case are summarized by the Court of

Appeals as follows:

[G.R. No. 127631. December 17, 1999]

Atty. ANGEL AGUIRRE JR. as City Legal Officer of Manila; Atty.
DOMINADOR MAGLALANG, Atty. MA. THERESA BALAGTAS
and Atty. ANALYN T. MARCELO, all members of the Legal

[Respondent][6] Atty. Evangeline C. De Castro is the Chief of the Legal

Affairs and Complaint Services of the Division of City Schools of Manila. On
February 1, 1996, [respondent] received a letter from public respondent
Angel Aguirre, Jr., City Legal Officer of Manila accompanied by copies of
alleged complaints against her. [Respondent] was required in the said
letter to explain within seventy two (72) hours upon receipt why no
administrative sanctions shall be imposed upon her for gross misconduct

14
and conduct unbecoming x x x a public officer in violation of the Civil
Service Law, Rules and Regulations.
"On February 6, 1996, [Respondent] Evangeline de Castro filed her answeraffidavit which was received on the same day by the Office of the City
Legal Officer.
"Subsequently, on February 13, 1996, City Legal Officer Angel Aguirre, Jr.
notified the [respondent] that her answer-affidavit was found
unsatisfactory for which reason she was summoned to appear before the
said City Legal Officer for the purpose of conducting a formal investigation.
"Two (2) days later or on February 15, 1996, [respondent] filed a motion to
dismiss. She claimed that she [was] a subordinate of the Secretary of the
Department of Education, Culture and Sports (DECS).Thus, the case should
be endorsed to the Office of the DECS Secretary or its legal division as
nowhere in RA 409, Charter of the City of Manila is there a provision
conferring upon the Office of the City Legal Officer jurisdiction to try and
investigate personnel of the DECS in general, or the Division of City
Schools where petitioner is under, in particular.
"This motion to dismiss of [respondent] was denied in a resolution of the
City Legal Officer dated February 21, 1996 citing Sec. 455 b(1) and (V) of
the Local Government Code and Section 3(c) of the same code. In the said
resolution it was held that the records of the personnel office disclose[d]
that [respondent was] included in the plantilla of the City of Manila and
therefore her salary derived wholly and mainly from the funds of the City
for which reason she [was] subject to the disciplinary authority of the said
City Legal Officer.
"Thereafter, on February 26, 1996, [respondent] was notified to appear
before the panel formed by the City Legal Officer (CLO Panel) to hear
administrative case CLO 24-96 filed against her for grave misconduct and
conduct unbecoming x x x a public officer.

Ruling of the Court of Appeals

Citing the Administrative Code of 1987, [8] the Court of Appeals ruled
that the authority to discipline herein respondent rests with the regional
director for the National Capital Region of the Department of Education,
Culture and Sports (DECS), not with the city legal officer of Manila. It also
held that the Local Government Code (LGC) did not repeal the pertinent
provisions of the Administrative Code.Hence, absent any contrary provision
of the LGC, the CA opined that disciplinary authority over petitioner must
remain with the DECS.
The CA also noted that officers and staff members of the Division of
City Schools were not among those whom the city mayor was authorized to
appoint under the LGC. Hence, it ruled that respondent was not an
employee of the City of Manila, and that the city legal officer had no
authority to investigate her for administrative neglect or misconduct in
office.
Assuming arguendo that the city mayor was authorized to make a
subsequent appointment to the respondents position should it become
vacant, the CA held that this power was not retroactive and could not apply
to respondent who had been appointed by the regional director of the
DECS.
Dissatisfied, the city legal officer of Manila lodged this Petition before
this Court on January 21, 1997.[9]
Issue

The solitary issue presented for the Courts consideration is whether or

not the Office of the City Legal Officer of Manila has jurisdiction to
investigate the complaint for grave misconduct filed against the
respondent.[10]
This Courts Ruling

"[Respondent] filed a motion to reconsider the resolution dated February

21, 1996. This motion was again denied by the CLO panel in its order dated
March 6, 1996.
"Again, [respondent] moved to reconsider the above order which was
likewise denied in the resolution of the CLO panel dated March 18, 1996." [7]
Consequently, respondent elevated the matter to the Court of Appeals
via a Petition for Certiorari and Prohibition.

The Petition is bereft of merit.

Sole Issue: Jurisdiction of the City Legal Officer

Petitioners contend that respondent is a city employee under the

supervision of the city mayor, because her salary is paid by the City of
Manila. They base this argument on Section 455 (b-1-v) [11] of the Local
Government Code (LGC), which authorizes the city mayor to appoint city
employees whose salaries and wages are wholly or mainly paid out of city

15
funds; and on Section 455 (b-1-x), [12] which states that the mayor may
institute administrative or judicial proceedings against erring city officials
or employees.
Petitioners contentions are not persuasive. Under Book IV, Chapter V,
Section 7(4) of the Administrative Code of 1987, the power to appoint and
discipline first-level employees, which includerespondent, is specifically
lodged with the regional director of the Department of Education, Culture
and Sports.
xxxxxxxxx
(4) Appoint personnel to positions in the first level and casual and seasonal
employees; and exercise disciplinary actions over them in accordance with
the Civil Service Law."
This is also clear in Book V, Section 47 (2) of the same Code; and in
Section 32, Rule XIV of the Omnibus Rules Implementing Book V of the
Administrative Code of 1987.
SEC. 32. The Secretaries and heads of agencies and instrumentalities,
provinces, cities, and municipalities shall have jurisdiction to investigate
and decide matters involving disciplinary action against officers and
employees under their jurisdiction. x x x.
We agree with the CA that the LGC did not automatically repeal the
provisions in the 1987 Administrative Code, contrary to petitioners
argument. There is no provision in the LGC expressly rescinding the
authority of the DECS regional director to appoint and exercise disciplinary
authority over first-level employees. On the other hand, implied repeals are
not lightly presumed in the absence of a clear and unmistakable showing
of such intention.[13]
Furthermore, respondents position as senior legal officer in the
Division of City Schools is not one of the offices covered by the city mayors
power of appointment under the LGC.
SEC. 454. Officials of the City Government. --- (a) There shall be in each
city a mayor, a vice-mayor, sangguniang panlungsod members, a
secretary to the sangguniang panlungsod, a city treasurer, a city assessor,
a city accountant, a city budget officer, a city planning and development
coordinator, a city engineer, a city health officer, a city civil registrar, a city
administrator, a city legal officer, a city veterinarian, a city social welfare
and development officer, and a city general services officer.

(b) In addition thereto, the city mayor may appoint a city architect, a city
information officer, a city agriculturist, a city population officer, a city
environment and natural resources officer, and a city cooperatives officer.
x x x x x x x x x.[14]
Moreover, petitioners failed to show a specific provision in the LGC
showing that the power to discipline officials in the Division of City Schools
has been devolved from the regional director of the DECS to the city
mayor. All that Section 17 (4) of the Local Government Code states is that
the city must provide support for education and other such services and
facilities.
Likewise, Section 455 (b-1-x) of the Local Government Code, which
provides that the city mayor may cause to be instituted administrative or
judicial proceedings against any official or employee of the city, is not
necessarily incompatible with the provisions of the Administrative Code of
1987 authorizing the regional director to discipline national education
employees. Nothing prohibits the mayor from filing complaints against
respondent before the DECS.
Petitioners cite paragraph 12, Section 2 (a) of Executive Order (EO)
503, which states that devolved personnel are automatically reappointed
by the local chief executive. Since respondent was deemed reappointed by
the city mayor, it follows that the latter can exercise disciplinary authority
over her.
We are not convinced. First, the above provision applies to devolved
personnel, and there is no proof whatsoever that respondent is one of
them. Second, even if respondent can be considered as a devolved
personnel, the cited paragraph of EO 503 must not be read in isolation
from but in conjunction with the other paragraphs in Section 2 (a).
Thus, paragraph 12 -- along with paragraphs 5, 6, 8, 13 and 14 [15]of EO
503 -- deals with safeguards against termination, reduction of pay and
diminution in rank of existing personnel; it is not about the power of the
mayor to discipline personnel of the Division of City Schools. In effect, the
said provision serves more to limit the appointing authority of the city
mayor, whose acts must be circumscribed by the aforecited conditions. It is
not incompatible and can exist with aforecited provisions of the
Administrative Code. Indeed, it cannot be deemed to have divested the
regional director of his disciplining power.
As to petitioners argument that respondents salary is wholly or mainly
paid out of city funds, suffice it to say that the source of the wages is not
the only criteria in determining whether the payor may be deemed the

16
employer. In fact, the most important factor is the control test; that is, who
has the power to supervise and direct the work of the employee
concerned?
Absent any contrary statutory provision, the power to appoint carries
with it the power to remove or to discipline. [16] Since respondent was
appointed by the regional director of DECS, she may be disciplined or
removed by the latter pursuant to law.
Finally, respondents primary duty is to conduct investigations of cases
involving teaching and nonteaching personnel of the Division of City
Schools of Manila. The report on the results of her investigations is then
submitted for final evaluation to the DECS regional director, who may
approve, disapprove or allow respondent to modify it. This fact clearly
shows that supervision over respondent is lodged with the regional
director, not the mayor.
All in all, petitioners have not convinced us that the Court of Appeals
committed any reversible error.
WHEREFORE, the Petition is hereby DISMISSED and the assailed
Decision AFFIRMED. Costs against petitioners.
SO ORDERED.
EN BANC
Melo, (Chairman), Vitug, Purisima, Gonzaga-Reyes, JJ., concur.
CIVIL SERVICE COMMISSION,
Petitioner,

- versus -

G.R. No. 167472

Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
NAZARIO,
GARCIA, and
VELASCO,JJ.
Promulgated:

17
ENGR. ALI P. DARANGINA,
January 31, 2007
Respondent.
x ------------------------------------------------------------------------------------------------------x
On appeal by respondent, the CSC issued Resolution No. 01-1543
dated September 18, 2001 sustaining the termination of his temporary

DECISION

appointment but ordering the payment of his salaries from the time he was
appointed on September 25, 2000 until his separation on October 31,

SANDOVAL-GUTIERREZ, J.:

2000.
For our resolution is the instant Petition for Review on Certiorari under Rule
45 of the 1997 Rules of Civil Procedure, as amended, seeking to reverse
the Resolutions of the Court of Appeals dated October 7, 2004[1] and March
18, 2005[2] in CA-G.R. SP No. 71353.

Respondent filed a motion for reconsideration. On March 20, 2002, the CSC
issued Resolution No. 02-439 granting the same with modification in the
sense that respondent should be paid his backwages from the time his
employment was terminated on October 11, 2000 until September 24,
2001, the expiration of his one year temporary appointment.

The undisputed facts are:

On April 3, 2002, respondent filed a motion for partial reconsideration,
Engr. Ali P. Darangina, respondent, was a development management officer
V in the Office of Muslim Affairs (OMA). On September 25, 2000, he was

praying for his reinstatement as director III and payment of backwages up

to the time he shall be reinstated.

extended a temporary promotional appointment as director III, Plans and

Policy Services, in the same office. On October 11, 2000, the Civil Service
Commission (CSC), petitioner, approved this temporary appointment
effective for one (1) year from the date of its issuance unless sooner

On June 5, 2002,

the CSC issued Resolution No.

02-782 denying

respondents motion for partial reconsideration being a second motion for

reconsideration which is prohibited.

terminated.
Respondent then filed a petition for review with the Court of Appeals,
On October

31,

2000,

newly

Director Acmad Tomawis terminated

appointed
the

temporary

OMA

Executive

appointment

of

respondent on the ground that he is not a career executive service

docketed as CA-G.R. SP No. 71353. But in its Resolution of February 27,

2004, the petition was dismissed for his failure to implead the OMA
Executive Director and the incumbent of the disputed position.

eligible. Tomawis then appointed Alongan Sani as director III. But he is not
also a career executive service eligible. Thus, the CSC disapproved his
appointment, stating that respondent could only be replaced by an eligible.

Respondent filed a motion for reconsideration.

18
In a Resolution dated October 7, 2004, the Court of Appeals reconsidered

It is clear that a permanent appointment can issue only to a person who

its Decision of February 27, 2004, thus:

possesses all the requirements for the position to which he is being

appointed, including the appropriate eligibility.[3] Differently stated, as a

ACCORDINGLY, our Decision of February 27, 2004 is

RECONSIDERED and the assailed CSC resolutions are
hereby MODIFIED in that the petitioner is reinstated to
his post to finish his 12-month term with
backwages from the date of his removal until
reinstatement.
SO ORDERED.

rule, no person may be appointed to a public office unless he or she

possesses the requisite qualifications. The exception to the rule is where, in
the absence of appropriate eligibles, he or she may be appointed to it
merely in a temporary capacity. Such a temporary appointment is not
made for the benefit of the appointee. Rather, an acting or temporary

The CSC filed a motion for reconsideration but it was denied by the Court

appointment seeks to prevent a hiatus in the discharge of official functions

of Appeals in a Resolution dated March 28, 2005.

by authorizing a person to discharge the same pending the selection of a

permanent

appointee.[4] In Cuadra v.

Cordova,[5] this

Court

defined

Section 27, Chapter 5, Subtitle A, Title I, Book V of the Administrative Code

temporary appointment as one made in an acting capacity, the essence of

of 1987, as amended, classifying the appointment status of public officers

which lies in its temporary character and its terminability at pleasure by

and employees in the career service, reads:

the appointing power. Thus, the temporary appointee accepts the position
with the condition that he shall surrender the office when called upon to do

SEC. 27. Employment Status. Appointment in the career

service shall be permanent or temporary.
(1) Permanent status. A permanent appointment
shall be issued to a person who meets all the
requirements for the position to which he is being
appointed,
including
appropriate
eligibility
prescribed, in accordance with the provisions of
law, rules and standards promulgated in
pursuance thereof.
(2) Temporary appointment. In the absence of
appropriate eligibles and it becomes necessary in
the public interest to fill a vacancy, a temporary
appointment shall be issued to a person who
meets all the requirements for the position to
which he is being appointed except the
appropriate civil service eligibility: Provided, That
such temporary appointment shall not exceed
twelve months, but the appointee may be
replaced sooner if a qualified civil service eligible
becomes available.

so by the appointing authority. Under Section 27 (2), Chapter 5, Subtitle A,

Title I, Book V of the same Code, the term of a temporary appointment
shall be 12 months, unless sooner terminated by the appointing
authority. Such pre-termination of a temporary appointment may be with or
without cause as the appointee serves merely at the pleasure of the
appointing power.[6]

Under the Revised Qualifications Standards prescribed by the CSC, career

executive service eligibility is a necessary qualification for the position of
director III in Plans and Policy Services, OMA. It is not disputed that
on September 25, 2000, when respondent was extended an appointment,
he was not eligible to the position, not being a holder of such
eligibility. Hence,

his

appointment

was

properly

designated

as

19
temporary. Then on October 31, 2000, newly-appointed OMA Executive
Director Tomawis recalled
replaced

by

temporary

Court GRANTS the

petition

and REVERSES the

employment was validly terminated on October 31, 2000, he is ordered to

then followed. Sani was subsequently replaced by Tapa Umal, who in turn,

refund the salaries he received from that date up to September 24, 2001.

and

later,

out,

WHEREFORE, this

that Sani is not likewise qualified for the post. A game of musical chairs

by Camad Edres,

turned

and

assailed Resolutions of the Court of Appeals. Considering that respondents

succeeded

appointing Alongan Sani. It

appointment

however,

was

him

respondents

was

replaced

by

Ismael Amod. All these appointees were also disqualified for lack of the

No costs.

required eligibility.
SO ORDERED.
The Court of Appeals ruled that such replacements are not valid as the
persons who replaced respondent are not also eligible. Also, since he was
replaced without just cause, he is entitled to serve the remaining term of
his 12-month term with salaries.

This Court has ruled that where a non-eligible holds a temporary

appointment, his replacement by another non-eligible is not prohibited. [7]

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

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

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

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

20

For our resolution is the instant Petition for Review on Certiorari assailing
EN BANC

the Decision[1] of the Court of Appeals dated September 16, 2003 in CA-

PATRICIO E. SALES, ROGER R. SARIMOS,

AL B. BUSICO, MARIMEL S. SAGARIO,
CAMILA B. BAGCOR, JONAS C. SALON,
LILIBETH O. OBERES, NOEL E. MAWILI,
MARIO C. PAUSAL, JAMES D. TUGAHAN,
MARIBETH C. DANGCALAN, CAMILO P.
RECAMARA, ANDRO H. AGDA, GERALDINE
S. CARIN, MYRNA G. SAGARIO, OSCAR E.
MONCOPA, LOURDIRICO E. GUDMALIN,
EUFEMIO
A. MONTEDERAMOS,
JR.,
CORNELIO E. JUMAWAN, JR., ELBA R.
CASALANG, MERLA E. CAIDIC, RESTY C.
SOCOBOS, JOSE DARRY O. SAGARION,
MARIA LUZ S. SIENES, BOB C. HAYAG,
RONIE L. LABISIG, FRANNIE M. ANTIVO,
RONILO B. RUIZ, ANASTACIA A. PAILAGA,
LERNIE S. FREJOLES, ROMILO D. BAJAS,
ISIDRA T. GALLEPOSO, LEAH S. AUSTER,
JOIEVELYNN E. HERRERA, JOELYALLUZ C.
DOSIDOS, GLADYS M. ADAZA, NICARATA
A.
GALLEPOSO,
MARIA
LIEZEL
S.
CUARESMA,
ARLO
B.
CAGATAN,
JOSEPHINE S. CABILIN, LEA C. ALAG,
PILAR A. JAMOLOD, and BENJAMIN M.
SUMALPONG,
Petitioners,

G.R. No. 160791

Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
*
CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, JR., and
*
NACHURA, JJ.
Promulgated:
February 13, 2007

G.R. SP No. 75515.

During the May 2001 elections, then Mayor Joseph Cedrick O. Ruiz
of Dapitan City, running for re-election, was defeated by respondent
Rodolfo H. Carreon, Jr.

On June 1, 18 and 27, 2001, his last month in office, then Dapitan City
Mayor Ruiz issued 83 appointments, including those of herein petitioners.

On July 1, 2001, the newly elected Mayor, Rodolfo H. Carreon, Jr., herein
respondent, assumed office.

On July 2, 2001, respondent issued Memorandum Orders Nos. 1 and 2

revoking the 83 appointments signed by his predecessor on the ground
that the latter violated Civil Service Commission (CSC) Resolution No. 01988 in relation to CSC Memorandum Circular No. 7, Series of 2001,
imposing a ban on issuing appointments in the civil service during the

- versus -

election period. Thereupon, respondent prohibited the release of the

HON. RODOLFO H. CARREON, JR., and

salaries and benefits of the 83 appointees.
THE CITY GOVERNMENT OFDAPITAN CITY,
represented by its Mayor, Hon. RODOLFO
H. CARREON, JR., Respondents.
On July 10, 2001, Patricio Sales, one of herein petitioners, in his capacity as
x-------------------------------------------------------------------------------------------------------x
president of the Dapitan City Government Employees Association, wrote
the CSC Regional Office No. IX requesting its ruling on the matter.
DECISION
SANDOVAL-GUTIERREZ, J.:

21
Memorandum Circular No. 18 s. 1988, as
amended, CSC Resolution No. 963332 on its
accreditation and CSC Resolution No. 01-0988.

On July 16 and August 3, 2001, respondent sent the said Office a position
paper justifying his action, contending that the questioned appointments
were not only issued in bulk but that there was no urgent need to fill those

2.

All promoted employees are reverted to their

previous position; and

3.

Memorandum Order No. 1 and Memorandum

Order No. 2 issued by incumbent Mayor Rodolfo
H. Carreon, Jr. are hereby declared null and void.

positions.

On August 17, 2001, the CSC Regional Office No. IX issued an Omnibus
Order, the dispositive portion of which reads:
WHEREFORE, all premises considered:
1. The eighty-three (83) appointments issued by
then Mayor Joseph Cedrick O. Ruiz, including
those issued by the herein requesting parties,
are, therefore not considered mass appointments,
as defined under CSC Resolution No. 01-0988 and
are thus, VALID and EFFECTIVE.
2.

Memorandum Orders Nos. 1 and 2, Series of

2001, issued by Mayor Rodolfo H. Carreon, Jr., are
hereby declared NULL and VOID, and accordingly,

The CSC En Banc held that the positions in question were published and
declared vacant prior to the existence of any vacancy.

Petitioners filed a motion for reconsideration but it was denied in

Resolution No. 030049 dated January 16, 2003 by the CSC En Banc.

On February 13, 2003, petitioners filed with the Court of Appeals a petition
for review. On September 16, 2003, the appellate court rendered its

3.

The LGU-Dapitan is hereby directed to pay the

salaries and other emoluments to which the 83
appointments are entitled to pursuant to the
appointments issued to them.

Decision dismissing the petition, sustaining the CSCs finding that the
positions to which the petitioners were appointed were already reported
and published even before they had been declared vacant, in violation of

On appeal by respondent, the CSC En Banc, on June 17, 2002, issued

Sections 2 and 3 of Republic Act (R.A.) No. 7041; [2] and that there was no

Resolution No. 020828 reversing the assailed Omnibus Order of the CSC

first level representative to the Personnel Section Board who should have

Regional Office No. IX, thus:

participated in the screening of candidates for vacancy in the first level.

WHEREFORE, premises considered, the Omnibus Order

dated August 17, 2001of the Civil Service Commission
Regional Office No. IX is

Petitioners filed a motion for reconsideration, but this was denied by the

REVERSED and SET ASIDE. The Commission hereby rules, as

follows:

Hence, the instant petition.

1.

The approval of all 83 appointments issued by

then Mayor J. Cedrick O. Ruiz is revoked for being
violative of Republic Act No. 7041, CSC

Court of Appeals in its Resolution dated November 17, 2003.

22
This case is a typical example of the practice of outgoing local chief
executives

to

issue midnight appointments,

especially

after

their

successors have been proclaimed. It does not only cause animosities

between the outgoing and the incoming officials, but also affects efficiency
in local governance. Those appointed tend to devote their time and energy
in defending their appointments instead of attending to their functions.

until after publication: Provided, however, that vacant

and unfilled positions that are:
a)
b)
c)
d)

primarily confidential;
policy-determining;
highly technical;
co-terminous with
that
of
the
appointing
authority; or
e)
limited to the duration of a particular project,
shall be excluded from the list required by law.

However, not all midnight appointments are invalid.[3] Each appointment

must be judged on the basis of the nature, character, and merits of the
individual appointment and the circumstances surrounding the same. [4] It is
only when the appointments were made en masse by the outgoing
administration and shown to have been made through hurried maneuvers
and under circumstances departing from good faith, morality, and
propriety that this Court has struck down midnight appointments.[5]

It is State policy that opportunities for government employment shall be

open to all qualified citizens and employees shall be selected on the basis
of fitness to perform the duties and assume the responsibilities of the
positions.[6] It was precisely in order to ensure transparency and equal
opportunity in the recruitment and hiring of government personnel, that
Republic Act No. 7041 was enacted. Section 2 provides:
SEC. 2. Duty of Personnel Officers. It shall be the duty of
all Chief Personnel or Administrative Officers of all
branches, subdivisions, instrumentalities and agencies of
the Government, including government-owned or
controlled corporations with original charters, and local
government units, to post in three (3) conspicuous places
of their offices for a period ten (10) days a complete list of
all existing vacant positions in their respective offices
which are authorized to be filled, and to transmit a copy of
such list and the corresponding qualification standards to
the Civil Service Commission not later than the tenth day
of every month. Vacant positions shall not be filled

SEC. 3. Publication of Vacancies. The Chairman and

members of the Civil Service Commission shall publish
once every quarter a complete list of all the existing
vacant positions in the Government throughout the
country, including the qualification standards required for
each position and, thereafter, certify under oath to the
completion of publication. Copies of such publication shall
be sold at cost to the public and distributed free of charge
to the various personnel office of the government where
they shall be available for inspection by the
public:Provided, That said publication shall be posted by
the Chief Personnel or Administrative Officer of all local
government units in at least three (3) public and
conspicuous places in their respective municipalities and
provinces: Provided, further, That any vacant position
published therein shall be open to any qualified person
who does not necessarily belong to the same office with
the vacancy or who occupies a position next-in-rank to the
vacancy: Provided, finally, That the Civil Service
Commission shall not act on any appointment to fill
up a vacant position unless the same has been
reported to and published by the Commission.

The foregoing provisions are clear and need no interpretation. The CSC is
required to publish the lists of vacant positions and such publication shall
be posted by the chief personnel or administrative officer of all local
government units in the designated places. The vacant positions may only
be filled by the appointing authority after they have been reported to the
CSC as vacant and only after publication.

23
Petitioners admitted that after the retirement on April 22, 2000 of Beltran
Here, the publication of vacancies was made even before the positions

Faconete, the first-level representative to the Personnel Selection Board, no

involved actually became vacant. Clearly, respondents action violated

other first-level representative to replace him was chosen by the Dapitan

Section 2 of R.A. No. 7041 cited earlier.

City

Government

Employees

Association. Yet,

the

city

government

Personnel Selection Board proceeded to deliberate and recommend the

Moreover, the CSC found that there was no first-level representative

appointments of applicants to the 43 first-level positions. Petitioners

appointed to the Personnel Selection Board, which deliberated on the

contend, however, that although there was no such representative, the

appointments to first-level positions.

action of the Board is still valid.

CSC Memorandum Circular No. 18, series of 1988, as amended, provides

Petitioners contention lacks merit.

that the Personnel Selection Board shall be composed of the following:

Section 20, Rule VI of the Omnibus Rules Implementing Book V-A of
a.
b.

Official
of
department/agency
responsible for personnel management;

directly

Representative of management;

c.

Representative of organizational unit which

may be an office, department, or division where
the vacancy is;

d.

Representative
of
rank-and-file
employees, one (1) for the first-level and one
(1) for the second-level, who shall both be chosen
by
duly
registered/accredited
employees
association in the department or agency. The
former shall sit during the screening of
candidates for vacancy in the first-level,
while the latter shall participate in the screening
of candidates for vacancy in the second level. In
case where there is no employees association in
the department or agency, the representative
shall be chosen at large by the employees
through a general election to be called for the
purpose.

the Administrative Code of 1987 (also known as the Civil Service Law),
provides:
SEC. 20. Notwithstanding the initial approval of an
appointment, the same may be recalled on any of the
following grounds:
a)

non-compliance with the procedures/criteria

provided in the agencys Merit Promotion Plan;

b)

failure
to
pass
through
Selection/Promotion Board;

c)

violation of the existing collective bargaining

agreement between management and employees
relative to promotion; or

d)

violation of other existing civil service

laws, rules and regulations.

the

agencys

Verily, in deliberating and recommending to former Mayor Ruiz the

appointments of herein petitioners to the vacant positions sans the

24
required representation, the Board violated the above CSC Rules. Hence,
the appointments he issued are not valid. They may be recalled. In Mathay,
Jr. v. Civil Service Commission,[7] this Court upheld the authority of the CSC
to take appropriate action on all appointments, including its authority

OFFICE OF THE OMBUDSMAN, RICARDO AGON,

RAMON
VILLASANTA,
ELMER
DIZON,SALVADOR ADUL, and AGNES FABIAN,
Respondents,

to recall appointments made in disregard of the applicable

provisions of Civil Service Law and regulations.

Promulgated:

In sum, for being in violation of Section 2, R.A. No. 7041, CSC Memorandum

April 23, 2010

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

Circular No. 18, as amended, and Section 20, Rule VI of the Omnibus Rules
Implementing Book V-A of

LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.

the Administrative Code of 1987, the

DECISION
CARPIO MORALES, J.:

appointments of the above-named petitioners are declared void.

Petitioners Vicente Salumbides, Jr. (Salumbides) and Glenda Araa (Glenda)
WHEREFORE, the Court DENIES the petition and AFFIRMS the assailed
Decision of the Court of Appeals in CA-G.R. SP No. 755151.

challenge the October 11, 2007 Decision and the December 13, 2007
Resolution of the Court of Appeals[1] in CA-G.R. SP No. 96889 affirming the
Office of the Ombudsmans decision finding them guilty of Simple Neglect

SO ORDERED.

of Duty.

Salumbides and Glenda were appointed in July 2001 as Municipal

Legal Officer/Administrator and Municipal Budget Officer, respectively, of
Tagkawayan, Quezon.
EN BANC
ATTY.
VICENTE
E.
and GLENDA ARAA,
Petitioners,

- versus -

SALUMBIDES,

Towards the end of 2001, Mayor Vicente Salumbides III (the mayor)
JR.,

G.R. No. 180917

Present:

saw the urgent need to construct a two-classroom building with fence (the
projects) for the Tagkawayan Municipal High School[2] (TMHS) since the

PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,

public school in the poblacion area would no longer admit high school
freshmen starting school year 2002-2003. On how to solve the classroom
shortage, the mayor consulted Salumbides who suggested that the
construction of the two-classroom building be charged to the account of

25
the Maintenance and Other Operating Expenses/ Repair and Maintenance
of Facilities (MOOE/RMF) and implemented by administration, as had been
done in a previous classroom building project of the former mayor.

Upon consultation, Glenda advised Salumbides in December 2001,

that there were no more available funds that could be taken from the
MOOE/RMF, but the savings of the municipal government were adequate to
fund

the

projects. She

added,

however,

that

the

approval

by

the Sangguniang Bayan of a proposed supplemental budget must be

secured.

x x x It was my thinking that even if a bidder

emerges and gets these 2 projects which were at the time
on-going (although it was also my thinking then that no
bidder would possibly bid for these 2 projects as these were
cost-estimated very low-P150,000 for the 2-room school
building P72,000 for the fencing) he (bidder) would be
reasonable enough to reimburse what I had so far spen[t]
for the project. I said I because up to the time of the failed 2
biddings I have shouldered the vale of the laborers and I
requisitioned some materials on credit on my own personal
account, and not a single centavo was at the time disbursed
by our municipal treasury until all requirements for
negotiated purchase of the materials for the project had
been accomplished. As a matter of fact, payments for the
expenses on these 2 projects have been made only
starting 19 March 2002. x x x[4] (underscoring supplied)

The members of the Sangguniang Bayan having already gone on

recess for the Christmas holidays, Glenda and Salumbides advised the

The construction of the projects commenced without any approved

mayor to source the funds from theP1,000,000 MOOE/RMF allocation in the

appropriation and ahead of the public bidding. Salumbides was of the

approved Municipal Annual Budget for 2002.[3]

opinion that the projects were regular and legal, based on an earlier project
that was implemented in the same manner, using the same source of fund

The mayor thus ordered on January 8, 2002 Municipal Engineer

and for the same reason of urgency which was allowed because the

Jose Aquino (Aquino) to proceed with the construction of the projects based

building was considered merely temporary as the TMHS is set to be

on the program of work and bill of materials he (Aquino) prepared with a

transferred to an 8-hectare lot which the municipal government is

total cost estimate of P222,000.

presently negotiating to buy.[5]

Meanwhile,

Aquino

suggested

to

the Sangguniang

Bayan the

Upon advice of Municipal Planning and Development Officer

adoption of model guidelines in the implementation of infrastructure

Hernan Jason (Jason), the mayor included the projects in the list of local

projects to be executed by administration, while Councilor Coleta Sandro

government projects scheduled for bidding on January 25, 2002 which,

(Coleta) sponsored a Resolution to ratify the projects and to authorize the

together with the January 31, 2002 public bidding, failed.

mayor to enter into a negotiated procurement. Both actions did not merit
the approval of the Sangguniang Bayan.

The mayor was to admit later his expectation or assumption of risk

on reimbursement:

26
On May 13, 2002, herein respondents Ricardo Agon, Ramon
Villasanta, Elmer Dizon, Salvador Adul and Agnes Fabian, all members of

On October 17, 2005, the Office of the Ombudsman approved the

the Sangguniang Bayan of Tagkawayan, filed with the Office of the

September 9, 2005 Memorandum absolving Jason and Aquino, and finding

Ombudsman a complaint[6] against Salumbides and Glenda (hereafter

petitioners guilty of Simple Neglect of Duty, for which they were meted the

petitioners), the mayor, Coleta, Jason and Aquino.

penalty of suspension from office for a maximum period of six months with
a stern warning against a similar repetition. It also approved on November

The administrative aspect of the case, docketed as Case No. OMBL-A-02-0276-E,

charged

petitioners et

al.

with

Dishonesty,

Grave

2,

2006 the March

27,

2006 Order[7] denying

the

motion

for

reconsideration.

Misconduct, Gross Neglect of Duty, Conduct Prejudicial to the Best Interest

of the Service, and violation of the Commission on Audit (COA) Rules and
the Local Government Code.

Their recourse to the appellate court having failed, petitioners

come before this Court via Rule 45 of the Rules of Court.

By Order of June 14, 2002, the Office of the Ombudsman, denied the

For non-compliance with the rule on certification against forum

prayer to place petitioners et al. under preventive suspension pending

shopping, the petition merits outright dismissal. The verification portion of

investigation. By Order datedFebruary 1, 2005, approved on April 11, 2005,

the petition does not carry a certification against forum shopping. [8]

it denied the motion for reconsideration but dropped the mayor and Coleta,
both elective officials, as respondents in the administrative case, the 2004

The Court has distinguished the effects of non-compliance with the

elections having mooted the case. The parties were thereupon directed to

requirement of verification and that of certification against forum

submit their respective verified position papers to which petitioners, Jason

shopping. A defective

and Aquino complied by submitting a consolidated position paper on May

pleading and thus produces no legal effect, subject to the discretion of the

19, 2005.

court to allow the deficiency to be remedied, while the failure to certify

Meanwhile, in response to the subpoena duces tecum issued by the Office

against forum shopping shall be cause for dismissal without prejudice,

of the Ombudsman on February 18, 2005 requiring the regional officer of

unless otherwise provided, and is not curable by amendment of the

the COA to submit the post-audit report on the projects, Celerino Alviar,

initiatory pleading.[9]

verification shall

be

treated

as

an

unsigned

COA State Auditor II claimed by Affidavit of May 23, 2005 that the required

Petitioners disregard of the rules was not the first. Their motion for

documents were among those razed by fire on April 14, 2004 that hit the

extension of time to file petition was previously denied by Resolution

Office of the Municipal Accountant where they were temporarily stored due

of January 15, 2008[10] for non-compliance with the required showing of

to lack of space at the Provincial Auditors Office.

competent proof of identity in the Affidavit of Service. The Court, by

27
Resolution

of March

4,

2008,[11] later

granted

their

motion

for

preceding term of office. The Court explained that [t]he underlying theory

reconsideration with motion to admit appeal (Motion with Appeal) that was

is that each term is separate from other terms, and that the reelection to

filed on February 18, 2008 or the last day of filing within the extended

office operates as a condonation of the officers previous misconduct to the

period.

extent of cutting off the right to remove him therefor.[18]

Moreover, in their Manifestation/Motion [12] filed a day later, petitioners

prayed only for the admission of nine additional copies of the Motion with
Appeal due to honest inadvertence in earlier filing an insufficient number
of copies. Petitioners were less than candid when they surreptitiously
submitted a Motion with Appeal which is different from the first set they
had submitted. The second set of Appeal includes specific Assignment of
Errors[13] and
shopping

already

contains

certification

against

The Court should never remove a public officer for acts

done prior to his present term of office. To do otherwise
would be to deprive the people of their right to elect their
officers. When the people elect[e]d a man to office, it must
be assumed that they did this with knowledge of his life and
character, and that they disregarded or forgave his faults or
misconduct, if he had been guilty of any. It is not for the
court, by reason of such faults or misconduct[,] to
practically overrule the will of the people. [19] (underscoring
supplied)

forum

embedded in the Verification. The two different Verifications

Lizares v. Hechanova, et al. [20] replicated the doctrine. The Court

were notarized by the same notary public and bear the same date and

dismissed the petition in that case for being moot, the therein petitioner

document number.[15] The rectified verification with certification, however,

having been duly reelected, is no longer amenable to administrative

was filed beyond the reglementary period.

sanctions.[21]

[14]

Its lapses aside, the petition just the same merits denial.
Ingco v. Sanchez, et al.[22] clarified that the condonation doctrine
Petitioners

urge

of

does not apply to a criminal case.[23] Luciano v. The Provincial Governor, et

were

al.,[24] Olivarez v. Judge Villaluz,[25] and Aguinaldo v. Santos[26] echoed the

administratively charged along with the reelected official/appointing

qualified rule that reelection of a public official does not bar prosecution for

authority with infractions allegedly committed during their preceding term.

crimes committed by him prior thereto.

condonation[16] to

this
cover

Court

to

expand

coterminous

the

appointive

settled
officials

doctrine
who

The Court rejects petitioners thesis.

Consistently, the Court has reiterated the doctrine in a string of

recent jurisprudence including two cases involving a Senator and a

More than 60 years ago, the Court in Pascual v. Hon. Provincial Board of
Nueva Ecija[17] issued the landmark ruling that prohibits the disciplining of
an elective official for a wrongful act committed during his immediately

Member of the House of Representatives.[27]

28
Salalima

v.

Guingona,

Jr.[28] and Mayor

Garcia

v.

Hon.

Contrary

to

petitioners

asseveration,

the

non-application

of

the

Mojica[29] reinforced the doctrine. The condonation rule was applied even if

condonation doctrine to appointive officials does not violate the right to

the administrative complaint was not filed before the reelection of the

equal protection of the law.

public official, and even if the alleged misconduct occurred four days
before the elections, respectively. Salalima did not distinguish as to the

In the recent case of Quinto v. Commission on Elections,[32] the Court

date of filing of the administrative complaint, as long as the alleged

applied the four-fold test in an equal protection challenge [33] against the

misconduct was committed during the prior term, the precise timing or

resign-to-run provision, wherein it discussed the material and substantive

period of which Garcia did not further distinguish, as long as the

distinctions between elective and appointive officials that could well apply

wrongdoing that gave rise to the public officials culpability was committed

to the doctrine of condonation:

prior to the date of reelection.

Petitioners theory is not novel.

parallel

question

was

involved

in Civil

Service

Commission

v.

Sojor[30] where the Court found no basis to broaden the scope of the
doctrine of condonation:
Lastly, We do not agree with respondents
contention that his appointment to the position of president
of NORSU, despite the pending administrative cases against
him, served as a condonation by the BOR of the alleged
acts imputed to him. The doctrine this Court laid down
in Salalima v. Guingona, Jr. and Aguinaldo v. Santos are
inapplicable to the present circumstances.Respondents in
the mentioned cases are elective officials, unlike
respondent here who is an appointed official. Indeed,
election expresses the sovereign will of the people. Under
the principle ofvox populi est suprema lex, the re-election
of a public official may, indeed, supersede a pending
administrative case. The same cannot be said of a reappointment to a non-career position. There is no
sovereign will of the people to speak of when the BOR reappointed respondent Sojor to the post of university
president.[31] (emphasis and underscoring supplied)

The equal protection of the law clause is against undue

favor and individual or class privilege, as well as hostile
discrimination or the oppression of inequality. It is not
intended to prohibit legislation which is limited either in the
object to which it is directed or by territory within which it is
to operate. It does not demand absolute equality among
residents; it merely requires that all persons shall be treated
alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced. The equal
protection clause is not infringed by legislation which
applies only to those persons falling within a specified class,
if it applies alike to all persons within such class, and
reasonable grounds exist for making a distinction between
those who fall within such class and those who do not.
Substantial
distinctions
clearly
exist between
elective officials and appointive officials. The former
occupy their office by virtue of the mandate of the
electorate. They are elected to an office for a definite term
and may be removed therefrom only upon stringent
conditions. On the other hand, appointive officials hold their
office by virtue of their designation thereto by an appointing
authority. Some appointive officials hold their office in a
permanent capacity and are entitled to security of tenure
while others serve at the pleasure of the appointing
authority.

xxxx
An election is the embodiment of the popular will, perhaps
the purest expression of the sovereign power of the

29
people. It involves the choice or selection of candidates to
public office by popular vote. Considering that elected
officials are put in office by their constituents for a definite
term, x x x complete deference is accorded to the will of the
electorate that they be served by such officials until the end
of the term for which they were elected. In contrast, there is
no such expectation insofar as appointed officials are
concerned. (emphasis and underscoring supplied)

Asserting want of conspiracy, petitioners implore this Court to sift through

the evidence and re-assess the factual findings. This the Court cannot do,
for being improper and immaterial.

Under Rule 45 of the Rules of Court, only questions of law may be raised,
since the Court is not a trier of facts. [34] As a rule, the Court is not to review

The electorates condonation of the previous administrative infractions of

evidence on record and assess the probative weight thereof. In the present

the reelected official cannot be extended to that of the reappointed

case, the appellate court affirmed the factual findings of the Office of the

coterminous employees, the underlying basis of the rule being to uphold

Ombudsman, which rendered the factual questions beyond the province of

the will of the people expressed through the ballot. In other words, there is

the Court.

neither subversion of the sovereign will nor disenfranchisement of the

electorate to speak of, in the case of reappointed coterminous employees.

Moreover, as correctly observed by respondents, the lack of conspiracy

cannot be appreciated in favor of petitioners who were found guilty of

It is the will of the populace, not the whim of one person who happens to

simple neglect of duty, for if they conspired to act negligently, their

be the appointing authority, that could extinguish an administrative

infraction becomes intentional. [35] There can hardly be conspiracy to

liability. Since petitioners hold appointive positions, they cannot claim the

commit negligence.[36]

mandate of the electorate. The people cannot be charged with the

Simple neglect of duty is defined as the failure to give proper attention to a

presumption of full knowledge of the life and character of each and every

task expected from an employee resulting from either carelessness or

probable appointee of the elective official ahead of the latters actual

indifference.[37] In the present case, petitioners fell short of the reasonable

reelection.

diligence required of them, for failing to exercise due care and prudence in
ascertaining the legal requirements and fiscal soundness of the projects

Moreover, the unwarranted expansion of the Pascual doctrine would set a

before stamping their imprimatur and giving their advice to their superior.

dangerous precedent as it would, as respondents posit, provide civil

servants, particularly local government employees, with blanket immunity

The appellate court correctly ruled that as municipal legal officer,

from administrative liability that would spawn and breed abuse in the

petitioner Salumbides failed to uphold the law and provide a sound legal

bureaucracy.

assistance and support to the mayor in carrying out the delivery of basic
services and provisions of adequate facilities when he advised [the mayor]
to proceed with the construction of the subject projects without prior

30
competitive bidding.[38] As pointed out by the Office of the Solicitor General,
to absolve Salumbides is tantamount to allowing with impunity the giving

Simple neglect of duty is classified as a less grave offense punishable by

of erroneous or illegal advice, when by law he is precisely tasked to advise

suspension without pay for one month and one day to six months. Finding

the mayor on matters related to upholding the rule of law. [39] Indeed, a

no alleged or established circumstance to warrant the imposition of the

legal officer who renders a legal opinion on a course of action without any

maximum penalty of six months, the Court finds the imposition of

legal basis becomes no different from a lay person who may approve the

suspension without pay for three months justified.

same because it appears justified.

When a public officer takes an oath of office, he or she binds himself or
As regards petitioner Glenda, the appellate court held that the improper

herself to faithfully perform the duties of the office and use reasonable skill

use of government funds upon the direction of the mayor and prior advice

and diligence, and to act primarily for the benefit of the public. Thus, in the

by the municipal legal officer did not relieve her of liability for willingly

discharge of duties, a public officer is to use that prudence, caution, and

cooperating rather than registering her written objection [40] as municipal

attention which careful persons use in the management of their affairs. [43]

budget officer.
Public service requires integrity and discipline. For this reason, public
Aside from the lack of competitive bidding, the appellate court, pointing to

servants must exhibit at all times the highest sense of honesty and

the improper itemization of the expense, held that the funding for the

dedication to duty. By the very nature of their duties and responsibilities,

projects should have been taken from the capital outlays that refer to the

public officers and employees must faithfully adhere to hold sacred and

appropriations for the purchase of goods and services, the benefits of

render inviolate the constitutional principle that a public office is a public

which extend beyond the fiscal year and which add to the assets of the

trust; and must at all times be accountable to the people, serve them with

local government unit. It added that current operating expenditures like

utmost responsibility, integrity, loyalty and efficiency. [44]

MOOE/RMF refer to appropriations for the purchase of goods and services

for the conduct of normal local government operations within the fiscal
year.[41]

WHEREFORE, the assailed Decision and Resolution of the Court of

Appeals in CA-G.R. SP No. 96889 are AFFIRMED with MODIFICATION, in
that petitioners, Vicente Salumbides, Jr. and Glenda Araa, are suspended

In Office of the Ombudsman v. Tongson,[42] the Court reminded the therein

from office for three (3) months without pay.

respondents, who were guilty of simple neglect of duty, that government

funds must be disbursed only upon compliance with the requirements
provided by law and pertinent rules.

SO ORDERED.

31
Upon a careful review of the case at bar, this Court resolves to grant the
respondent

Commission

on

Elections

(COMELEC)

motion

for

reconsideration, and the movants-intervenors motions for reconsiderationin-intervention, of this Courts December 1, 2009 Decision (Decision). [1]
The assailed Decision granted the Petition for Certiorari and
Prohibition filed by Eleazar P. Quinto and Gerino A. Tolentino, Jr. and
declared as unconstitutional the second proviso in the third paragraph of
Section 13 of Republic Act No. 9369,[2] Section 66 of the Omnibus Election
Code[3] and Section 4(a) of COMELEC Resolution No. 8678, [4]mainly on the

EN BANC
ELEAZAR P. QUINTO and
GERINO A. TOLENTINO, JR.,
Petitioners,

ground that they violate the equal protection clause of the Constitution and
G.R. No. 189698 suffer from overbreadth. The assailed Decision thus paved the way for
public appointive officials to continue discharging the powers, prerogatives
Present:
and functions of their office notwithstanding their entry into the political
arena.
PUNO, C.J.,
CARPIO,
In support of their respective motions for reconsideration,
CORONA,
CARPIO MORALES, respondent COMELEC and movants-intervenors submit the following
VELASCO, JR.,
arguments:
NACHURA,
LEONARDO-DE CASTRO,
BRION,
(1) The assailed Decision is contrary to, and/or violative of, the
PERALTA,
constitutional proscription against the participation of public
BERSAMIN,
appointive officials and members of the military in partisan
DEL CASTILLO,
ABAD,
political activity;
VILLARAMA, JR.,
(2)
The
assailed provisions do not violate the equal protection
PEREZ, and
MENDOZA, JJ.
clause when they accord differential treatment to elective and

versus -

COMMISSION ON
ELECTIONS,

Promulgated:
Respondent.

February 22, 2010

x ----------------------------------------------------------------------------------------x
RESOLUTION
PUNO, C.J.:

appointive officials, because such differential treatment rests

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

32
original parties, and whether or not the intervenors rights
may be fully protected in a separate proceeding.

I.
Procedural Issues

Pursuant to the foregoing rule, this Court has held that a motion for

First, we shall resolve the procedural issues on the timeliness of the

intervention shall be entertained when the following requisites are

COMELECs motion for reconsideration which was filed on December 15,

satisfied: (1) the would-be intervenor shows that he has a substantial right

2009, as well as the propriety of the motions for reconsideration-in-

or interest in the case; and (2) such right or interest cannot be adequately

intervention which were filed after the Court had rendered its December 1,

pursued and protected in another proceeding.[7]

2009 Decision.
Upon the other hand, Section 2, Rule 19 of the Rules of Court
i.

Timeliness of COMELECs Motion for Reconsideration

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

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

This rule, however, is not inflexible. Interventions have been

allowed even beyond the period prescribed in the Rule, when demanded by
the higher interest of justice. Interventions have also been granted to

The Motion for Reconsideration of COMELEC was timely filed. It was

afford indispensable parties, who have not been impleaded, the right to be

filed on December 14, 2009. The corresponding Affidavit of Service (in

heard even after a decision has been rendered by the trial court, [8] when

substitution of the one originally submitted on December 14, 2009) was

the petition for review of the judgment has already been submitted for

subsequently filed on December 17, 2009 still within the reglementary

decision before the Supreme Court, [9] and even where the assailed order

period.

has already become final and executory. [10] In Lim v.

Pacquing,[11] the

motion for intervention filed by the Republic of the Philippines was allowed
ii.

Propriety of the Motions for Reconsideration-in-Intervention

by this Court to avoid grave injustice and injury and to settle once and for
all the substantive issues raised by the parties.

Section 1, Rule 19 of the Rules of Court provides:

In fine, the allowance or disallowance of a motion for intervention
A person who has legal interest in the matter in litigation or
in the success of either of the parties, or an interest
against both, or is so situated as to be adversely affected
by a distribution or other disposition of property in the
custody of the court or of an officer thereof may, with leave
of court, be allowed to intervene in the action. The court
shall consider whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the

rests on the sound discretion of the court [12] after consideration of the
appropriate circumstances.[13]We stress again that Rule 19 of the Rules of
Court is a rule of procedure whose object is to make the powers of the
court fully and completely available for justice. [14] Its purpose is not to
hinder or delay, but to facilitate and promote the administration of justice.
[15]

33
sufficient to clothe it with standing to intervene in the case at bar. Its
We rule that, with the exception of the IBP Cebu City Chapter, all
the movants-intervenors may properly intervene in the case at bar.
First, the movants-intervenors have each sufficiently established a

invoked interest is, in character, too indistinguishable to justify its

intervention.
We now turn to the substantive issues.

substantial right or interest in the case.

As a Senator of the Republic, Senator Manuel A. Roxas has a right

II.

to challenge the December 1, 2009 Decision, which nullifies a long

Substantive Issues

established law; as a voter, he has a right to intervene in a matter that

involves the electoral process; and as a public officer, he has a personal

The assailed Decision struck down Section 4(a) of Resolution 8678,

interest in maintaining the trust and confidence of the public in its system

the second proviso in the third paragraph of Section 13 of Republic Act (RA)

of government.

9369, and Section 66 of the Omnibus Election Code, on the following

grounds:

On the other hand, former Senator Franklin M. Drilon and Tom V.

Apacible are candidates in the May 2010 elections running against

(1) They violate the equal protection clause of the Constitution

appointive officials who, in view of the December 1, 2009 Decision, have

because of the differential treatment of persons holding

not yet resigned from their posts and are not likely to resign from their

appointive offices and those holding elective positions;

posts. They stand to be directly injured by the assailed Decision, unless it

(2) They are overbroad insofar as they prohibit the candidacy of all

is reversed.

civil servants holding appointive posts: (a) without distinction

as to whether or not they occupy high/influential positions in

Moreover, the rights or interests of said movants-intervenors

the government, and (b) they limit these civil servants activity

cannot be adequately pursued and protected in another proceeding.

regardless of whether they be partisan or nonpartisan in

Clearly, their rights will be foreclosed if this Courts Decision attains finality

character, or whether they be in the national, municipal

and forms part of the laws of the land.

or barangay level; and

(3) Congress has not shown a compelling state interest to restrict

With regard to the IBP Cebu City Chapter, it anchors its standing on

the fundamental right of these public appointive officials.

the assertion that this case involves the constitutionality of elections laws
for this coming 2010 National Elections, and that there is a need for it to be

We grant the motions for reconsideration. We now rule that

allowed to intervene xxx so that the voice of its members in the legal

Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code,

profession would also be heard before this Highest Tribunal as it resolves

and the second proviso in the third paragraph of Section 13 of RA 9369 are

issues of transcendental importance.

not unconstitutional, and accordingly reverse our December 1, 2009

[16]

Decision.
Prescinding from our rule and ruling case law, we find that the IBPCebu City Chapter has failed to present a specific and substantial interest

III.

34
Section 4(a) of COMELEC Resolution 8678 Compliant with Law

xxxx

Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of

the present state of the law and jurisprudence on the matter, viz.:
Incumbent Appointive Official. - Under Section 13 of RA 9369,
which reiterates Section 66 of the Omnibus Election Code, any
person holding a public appointive office or position, including
active members of the Armed Forces of the Philippines, and officers
and employees in government-owned or -controlled corporations,
shall be considered ipso facto resigned from his office upon the
filing of his certificate of candidacy.
Incumbent Elected Official. Upon the other hand, pursuant to
Section 14 of RA 9006 or the Fair Election Act, [17] which repealed
Section

67

of

the

Omnibus

Election

Code [18] and

rendered

ineffective Section 11 of R.A. 8436 insofar as it considered an

elected official as resigned only upon the start of the campaign
period corresponding to the positions for which they are running,
[19]

an elected official is not deemed to have resigned from his

office upon the filing of his certificate of candidacy for the same or

Secondly, I would like to address the issue here as provided

in Section 1 (4), line 12, and I quote: "No officer or
employee in the civil service shall engage, directly or
indirectly, in any partisan political activity." This is almost
the same provision as in the 1973 Constitution. However,
we in the government service have actually experienced
how this provision has been violated by the direct or
indirect partisan political activities of many government
officials.
So, is the Committee willing to include certain clauses that
would make this provision more strict, and which would
deter its violation?
MR. FOZ. Madam President, the existing Civil Service Law
and the implementing rules on the matter are more than
exhaustive enough to really prevent officers and
employees in the public service from engaging in any form
of partisan political activity. But the problem really lies in
implementation because, if the head of a ministry, and
even the superior officers of offices and agencies of
government will themselves violate the constitutional
injunction against partisan political activity, then no string
of words that we may add to what is now here in this draft
will really implement the constitutional intent against
partisan political activity. x x x[20] (italics supplied)

any other elected office or position. In fine, an elected official may

To emphasize its importance, this constitutional ban on civil service

run for another position without forfeiting his seat.

officers and employees is presently reflected and implemented by a

These laws and regulations implement Section 2(4), Article IX-B of the 1987

number of statutes. Section 46(b)(26), Chapter 7 and Section 55, Chapter 8

Constitution, which prohibits civil service officers and employees from

both of Subtitle A, Title I, Book V of the Administrative Code of 1987

engaging in any electioneering or partisan political campaign.

respectively provide in relevant part:

The intention to impose a strict limitation on the participation of civil

service

officers

and

employees

unmistakable.

The

exchange

Commissioner

Foz

during

Commission is instructive:
MS. QUESADA.

in

partisan

between

the

political

Commissioner

deliberations

of

the

campaigns
Quesada

is

and

Section 44. Discipline: General Provisions:

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

Constitutional
xxxx

35
(26) Engaging directly or indirectly in partisan
political activities by one holding a non-political
office.
xxxx
Section 55. Political Activity. No officer or employee in the
Civil Service including members of the Armed Forces, shall
engage directly or indirectly in any partisan political
activity or take part in any election except to vote nor shall
he use his official authority or influence to coerce the
political activity of any other person or body. Nothing
herein provided shall be understood to prevent any officer
or employee from expressing his views on current political
problems or issues, or from mentioning the names of his
candidates for public office whom he supports: Provided,
That public officers and employees holding political offices
may take part in political and electoral activities but it shall
be unlawful for them to solicit contributions from their
subordinates or subject them to any of the acts involving
subordinates prohibited in the Election Code.

But Section 2(4), Article IX-B of the 1987 Constitution and the
implementing

statutes apply

only

to

civil

servants holding apolitical offices. Stated differently, the constitutional

ban does not cover elected officials, notwithstanding the fact that [t]he
civil

service

and agencies

embraces

all

branches,

of theGovernment,

subdivisions,

including

instrumentalities,

government-owned

or

controlled corporations with original charters.[21] This is because elected

public officials, by the very nature of their office, engage in partisan
political activities almost all year round, even outside of the campaign
period.[22] Political partisanship is the inevitable essence of a political office,
elective positions included.[23]
The

prohibition

notwithstanding,

civil

service

officers

and

employees are allowed to vote, as well as express their views on political

issues, or mention the names of certain candidates for public office whom

Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code)

they support. This is crystal clear from the deliberations of the

further makes intervention by civil service officers and employees in

Constitutional Commission, viz.:

partisan political activities an election offense, viz.:

SECTION 261. Prohibited Acts. The following shall be guilty
of an election offense:
xxxx
(i) Intervention of public officers and employees. Any
officer or employee in the civil service, except those
holding political offices; any officer, employee, or member
of the Armed Forces of the Philippines, or any police force,
special forces, home defense forces, barangay self-defense
units and all other para-military units that now exist or
which may hereafter be organized who, directly or
indirectly, intervenes in any election campaign or engages
in any partisan political activity, except to vote or to
preserve public order, if he is a peace officer.
The intent of both Congress and the framers of our Constitution to
limit the participation of civil service officers and employees in partisan
political activities is too plain to be mistaken.

MS.
AQUINO: Mr.
Presiding
Officer,
my
proposed
amendment is on page 2, Section 1, subparagraph 4, lines
13 and 14. On line 13, between the words "any" and
"partisan," add the phrase ELECTIONEERING AND OTHER;
and on line 14, delete the word "activity" and in lieu
thereof substitute the word CAMPAIGN.
May I be allowed to explain my proposed amendment?
THE PRESIDING OFFICER (Mr. Treas): Commissioner Aquino
may proceed.
MS. AQUINO: The draft as presented by the Committee
deleted the phrase "except to vote" which was adopted in
both the 1935 and 1973 Constitutions. The phrase "except
to vote" was not intended as a guarantee to the right to
vote but as a qualification of the general prohibition
against taking part in elections.
Voting is a partisan political activity. Unless it is explicitly
provided for as an exception to this prohibition, it will

36
amount to disenfranchisement. We know that suffrage,
although plenary, is not an unconditional right. In other
words, the Legislature can always pass a statute which can
withhold from any class the right to vote in an election, if
public interest so required. I would only like to reinstate the
qualification by specifying the prohibited acts so that those
who may want to vote but who are likewise prohibited from
participating
in
partisan
political
campaigns
or
electioneering may vote.

In Farias, the constitutionality of Section 14 of the Fair Election

Act, in relation to Sections 66 and 67 of the Omnibus Election Code, was
assailed on the ground, among others, that it unduly discriminates against
appointive officials. As Section 14 repealed Section 67 (i.e., the deemedresigned provision in respect of elected officials) of the Omnibus Election
Code, elected officials are no longer considered ipso facto resigned from

MR. FOZ: There is really no quarrel over this point, but

please understand that there was no intention on the part
of the Committee to disenfranchise any government
official or employee. The elimination of the last clause of
this provision was precisely intended to protect the
members of the civil service in the sense that they are not
being deprived of the freedom of expression in a political
contest. The last phrase or clause might have given the
impression that a government employee or worker has no
right whatsoever in an election campaign except to vote,
which is not the case. They are still free to express their
views although the intention is not really to allow them to
take part actively in a political campaign.[24]

their respective offices upon their filing of certificates of candidacy. In

contrast, since Section 66 was not repealed, the limitation on appointive
officials continues to be operative they are deemed resigned when they file
their certificates of candidacy.
The

petitioners

in Farias thus

brought

an

equal

protection

challenge against Section 14, with the end in view of having the deemedresigned provisions apply equally to both elected and appointive officials.
We held, however, that the legal dichotomy created by the Legislature is a
reasonable classification, as there are material and significant distinctions

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

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

Controlling

In truth, this Court has already ruled squarely on whether these

deemed-resigned provisions challenged in the case at bar violate the equal
protection clause of the Constitution in Farias, et al. v. Executive
Secretary, et al.

[25]

between the two classes of officials. Consequently, the contention that

Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the
Omnibus Election Code, infringed on the equal protection clause of the
Constitution, failed muster. We ruled:
The petitioners' contention, that the repeal of
Section 67 of the Omnibus Election Code pertaining to
elective officials gives undue benefit to such officials as
against the appointive ones and violates the equal
protection clause of the constitution, is tenuous.
The equal protection of the law clause in the
Constitution is not absolute, but is subject to reasonable
classification. If the groupings are characterized by
substantial distinctions that make real differences, one
class may be treated and regulated differently from the
other. The Court has explained the nature of the equal
protection guarantee in this manner:
The equal protection of the law clause is
against undue favor and individual or class
privilege, as well as hostile discrimination

37
or the oppression of inequality. It is not
intended to prohibit legislation which is
limited either in the object to which it is
directed or by territory within which it is to
operate. It does not demand absolute
equality among residents; it merely
requires that all persons shall be treated
alike, under like circumstances and
conditions both as to privileges conferred
and
liabilities
enforced.
The
equal
protection clause is not infringed by
legislation which applies only to those
persons falling within a specified class, if it
applies alike to all persons within such
class, and reasonable grounds exist for
making a distinction between those who
fall within such class and those who do not.
Substantial distinctions clearly exist between
elective officials and appointive officials. The former
occupy their office by virtue of the mandate of the
electorate. They are elected to an office for a definite term
and may be removed therefrom only upon stringent
conditions. On the other hand, appointive officials hold
their office by virtue of their designation thereto by an
appointing authority. Some appointive officials hold their
office in a permanent capacity and are entitled to security
of tenure while others serve at the pleasure of the
appointing authority.
Another substantial distinction between the two
sets of officials is that under Section 55, Chapter 8, Title I,
Subsection A. Civil Service Commission, Book V of the
Administrative Code of 1987 (Executive Order No. 292),
appointive officials, as officers and employees in the civil
service, are strictly prohibited from engaging in any
partisan political activity or take (sic) part in any election
except to vote. Under the same provision, elective officials,
or officers or employees holding political offices, are
obviously expressly allowed to take part in political and
electoral activities.
By repealing Section 67 but retaining Section 66 of
the Omnibus Election Code, the legislators deemed it
proper to treat these two classes of officials differently with
respect to the effect on their tenure in the office of the
filing of the certificates of candidacy for any position other
than those occupied by them. Again, it is not within the

power of the Court to pass upon or look into the wisdom of

this classification.
Since the classification justifying Section 14 of Rep.
Act No. 9006, i.e., elected officials vis--vis appointive
officials, is anchored upon material and significant
distinctions and all the persons belonging under the same
classification are similarly treated, the equal protection
clause of the Constitution is, thus, not infringed. [26]
The case at bar is a crass attempt to resurrect a dead issue. The
miracle is that our assailed Decision gave it new life. We ought to be guided
by the doctrine of stare decisis et non quieta movere. This doctrine, which
is really adherence to precedents, mandates that once a case has been
decided one way, then another case involving exactly the same point at
issue should be decided in the same manner. [27] This doctrine is one of
policy grounded on the necessity for securing certainty and stability of
judicial decisions. As the renowned jurist Benjamin Cardozo stated in his
treatise The Nature of the Judicial Process:
It will not do to decide the same question one way between
one set of litigants and the opposite way between another.
If a group of cases involves the same point, the parties
expect the same decision. It would be a gross injustice to
decide alternate cases on opposite principles. If a case was
decided against me yesterday when I was a defendant, I
shall look for the same judgment today if I am plaintiff. To
decide differently would raise a feeling of resentment and
wrong in my breast; it would be an infringement, material
and moral, of my rights." Adherence to precedent must
then be the rule rather than the exception if litigants are to
have faith in the even-handed administration of justice in
the courts.[28]

Our Farias ruling on the equal protection implications of the

deemed-resigned provisions cannot be minimalized as mere obiter dictum.
It is trite to state that an adjudication on any point within the issues
presented by the case cannot be considered as obiter dictum.[29] This rule
applies to all pertinent questions that are presented and resolved in the
regular course of the consideration of the case and lead up to the final

38
conclusion, and to any statement as to the matter on which the decision is

(4) It applies equally to all members of the same class. [37]

predicated.[30] For that reason, a point expressly decided does not lose its
value as a precedent because the disposition of the case is, or might have

Our assailed Decision readily acknowledged that these deemed-

been, made on some other ground; or even though, by reason of other

resigned provisions satisfy the first, third and fourth requisites of

points in the case, the result reached might have been the same if the court

reasonableness. It, however, proffers the dubious conclusion that the

had held, on the particular point, otherwise than it did.

differential treatment of appointive officials vis--vis elected officials is not

inVillanueva, Jr. v. Court of Appeals, et al.:

[31]

As we held

[32]

A decision which the case could have turned on is not

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

germane to the purpose of the law, because whether one holds an

appointive office or an elective one, the evils sought to be prevented by
the measure remain, viz.:
For example, the Executive Secretary, or any Member of
the Cabinet for that matter, could wield the same influence
as the Vice-President who at the same time is appointed to
a Cabinet post (in the recent past, elected Vice-Presidents
were appointed to take charge of national housing, social
welfare development, interior and local government, and
foreign affairs). With the fact that they both head executive
offices, there is no valid justification to treat them
differently when both file their [Certificates of Candidacy]
for the elections. Under the present state of our law, the
Vice-President, in the example, running this time, let us
say, for President, retains his position during the entire
election period and can still use the resources of his office
to support his campaign.[38]

Classification Germane to the Purposes of the Law

Sad to state, this conclusion conveniently ignores the long-

The Farias ruling on the equal protection challenge stands on solid

ground even if reexamined.

standing rule that to remedy an injustice, the Legislature need not address
every manifestation of the evil at once; it may proceed one step at a time.

To start with, the equal protection clause does not require the
universal application of the laws to all persons or things without distinction.
[34]

What it simply requires is equality among equals as determined

[39]

In addressing a societal concern, it must invariably draw lines and make

choices, thereby creating some inequity as to those included or excluded.

[40]

Nevertheless, as long as the bounds of reasonable choice are not

according to a valid classification.[35] The test developed by jurisprudence

exceeded, the courts must defer to the legislative judgment. [41] We may not

here and yonder is that of reasonableness,[36] which has four requisites:

strike down a law merely because the legislative aim would have been
more fully achieved by expanding the class.[42] Stated differently, the fact

(1) The classification rests on substantial distinctions;

that a legislative classification, by itself, is underinclusive will not render it

(2) It is germane to the purposes of the law;

unconstitutionally arbitrary or invidious. [43] There is no constitutional

(3) It is not limited to existing conditions only; and

requirement that regulation must reach each and every class to which it

39
discipline of the public service; the Legislature,
whose wisdom is outside the rubric of judicial
scrutiny, also thought it wise to balance this with
the competing, yet equally compelling, interest of
deferring to the sovereign will.[51] (emphasis in the
original)

might be applied;[44] that the Legislature must be held rigidly to the choice
of regulating all or none.
Thus, any person who poses an equal protection challenge must
convincingly show that the law creates a classification that is palpably
arbitrary or capricious.[45] He must refute all possible rational bases for the

In fine, the assailed Decision would have us equalize the playing

differing treatment, whether or not the Legislature cited those bases as

field by invalidating provisions of law that seek to restrain the evils from

reasons for the enactment,[46] such that the constitutionality of the law

running riot. Under the pretext of equal protection, it would favor a

must be sustained even if the reasonableness of the classification is fairly

situation in which the evils are unconfined and vagrant, existing at the

debatable.[47] In the case at bar, the petitioners failed and in fact did not

behest of both appointive and elected officials, over another in which a

even attempt to discharge this heavy burden. Our assailed Decision was

significant portion thereof is contained. The absurdity of that position is

likewise silent as a sphinx on this point even while we submitted the

self-evident, to say the least.

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

The concern, voiced by our esteemed colleague, Mr. Justice

Nachura, in his dissent, that elected officials (vis--vis appointive officials)
have greater political clout over the electorate, is indeed a matter worth
exploring but not by this Court. Suffice it to say that the remedy lies with
the Legislature. It is the Legislature that is given the authority, under our

In the instant case, is there a rational justification

for excluding elected officials from the operation of the
deemed resigned provisions? I submit that there is.
An election is the embodiment of the popular will,
perhaps the purest expression of the sovereign power of
the people.[49] It involves the choice or selection of
candidates to public office by popular vote.[50] Considering
that elected officials are put in office by their
constituents for a definite term, it may justifiably be said
that they were excluded from the ambit of the deemed
resigned provisions in utmost respect for the mandate of
the sovereign will. In other words, complete deference is
accorded to the will of the electorate that they be served
by such officials until the end of the term for which they
were elected. In contrast, there is no such expectation
insofar as appointed officials are concerned.
The dichotomized treatment of appointive
and elective officials is therefore germane to the
purposes of the law. For the law was made not
merely to preserve the integrity, efficiency, and

constitutional system, to balance competing interests and thereafter make

policy choices responsive to the exigencies of the times. It is certainly
within the Legislatures power to make the deemed-resigned provisions
applicable to elected officials, should it later decide that the evils sought to
be prevented are of such frequency and magnitude as to tilt the balance in
favor of expanding the class. This Court cannot and should not arrogate
unto itself the power to ascertain and impose on the people the best state
of affairs from a public policy standpoint.
iii.

Mancuso v. Taft Has Been Overruled

Finding no Philippine jurisprudence to prop up its equal protection

ruling, our assailed Decision adverted to, and extensively cited, Mancuso
v. Taft.[52] This was a decision of the First Circuit of the United States Court
of

Appeals

promulgated

in

March

1973,

which

struck

down

as

40
unconstitutional a similar statutory provision. Pathetically, our assailed

possesses in regulating the speech of the citizenry in general; (ii) the

Decision, relying on Mancuso, claimed:

courts must therefore balance the legitimate interest of employee free

expression against the interests of the employer in promoting efficiency of

(1) The right to run for public office is inextricably linked with two
fundamental freedoms freedom of expression and association;

public services; (iii) if the employees expression interferes with the

maintenance of efficient and regularly functioning services, the limitation

(2) Any legislative classification that significantly burdens this

on speech is not unconstitutional; and (iv) the Legislature is to be given

fundamental right must be subjected to strict equal protection

some flexibility or latitude in ascertaining which positions are to be covered

review; and

by

any

statutory

restrictions. [57] Therefore,

insofar

as

government

(3) While the state has a compelling interest in maintaining the

employees are concerned, the correct standard of review is an interest-

honesty and impartiality of its public work force, the deemed-

balancing approach, a means-end scrutiny that examines the closeness of

resigned provisions pursue their objective in a far too heavy-

fit between the governmental interests and the prohibitions in question. [58]

handed manner as to render them unconstitutional.

Letter Carriers elucidated on these principles, as follows:
It then concluded with the exhortation that since the Americans, from
whom we copied the provision in question, had already stricken down a
similar measure for being unconstitutional[,] it is high-time that we, too,
should follow suit.
Our assailed Decisions reliance on Mancuso is completely misplaced. We
cannot

blink

away

Court effectively

the

fact

that

the

United

overruled Mancuso three

States

months

Supreme
after

its

promulgation by the United States Court of Appeals. In United States

Civil Service Commission, et al. v. National Association of Letter
Carriers

AFL-CIO,et

Oklahoma, et al.,
issue

of

[54]

whether

al.[53] and Broadrick, et

al.

v. State

of

the United States Supreme Court was faced with the

statutory

provisions prohibiting

federal[55] and

state[56] employees from taking an active part in political management or in

political

campaigns were unconstitutional as

invalidation. Violation

of these

to

provisions results

warrant
in

dismissal

facial
from

employment and possible criminal sanctions.

The Court declared these provisions compliant with the equal
protection clause. It held that (i) in regulating the speech of its employees,
the state as employer has interests that differ significantly from those it

Until now, the judgment of Congress, the

Executive, and the country appears to have been that
partisan political activities by federal employees must be
limited if the Government is to operate effectively and
fairly, elections are to play their proper part in
representative government, and employees themselves
are to be sufficiently free from improper influences. The
restrictions so far imposed on federal employees are not
aimed at particular parties, groups, or points of view, but
apply equally to all partisan activities of the type
described. They discriminate against no racial, ethnic, or
religious minorities. Nor do they seek to control political
opinions or beliefs, or to interfere with or influence
anyone's vote at the polls.
But, as the Court held in Pickering v. Board of
Education,[59] the government has an interest in regulating
the conduct and the speech of its employees that differ(s)
significantly from those it possesses in connection with
regulation of the speech of the citizenry in general. The
problem in any case is to arrive at a balance between the
interests of the (employee), as a citizen, in commenting
upon matters of public concern and the interest of the
(government), as an employer, in promoting the efficiency
of the public services it performs through its employees.
Although Congress is free to strike a different balance than
it has, if it so chooses, we think the balance it has so far
struck is sustainable by the obviously important interests

41
sought to be served by the limitations on partisan political
activities now contained in the Hatch Act.
It seems fundamental in the first place that
employees in the Executive Branch of the Government, or
those working for any of its agencies, should administer
the law in accordance with the will of Congress, rather
than in accordance with their own or the will of a political
party. They are expected to enforce the law and execute
the programs of the Government without bias or favoritism
for or against any political party or group or the members
thereof. A major thesis of the Hatch Act is that to serve this
great end of Government-the impartial execution of the
laws-it is essential that federal employees, for example,
not take formal positions in political parties, not undertake
to play substantial roles in partisan political campaigns,
and not run for office on partisan political tickets.
Forbidding activities like these will reduce the hazards to
fair and effective government.
There is another consideration in this judgment: it
is not only important that the Government and its
employees in fact avoid practicing political justice, but it is
also critical that they appear to the public to be avoiding it,
if confidence in the system of representative Government
is not to be eroded to a disastrous extent.
Another major concern of the restriction against
partisan activities by federal employees was perhaps the
immediate occasion for enactment of the Hatch Act in
1939. That was the conviction that the rapidly expanding
Government work force should not be employed to build a
powerful, invincible, and perhaps corrupt political
machine. The experience of the 1936 and 1938 campaigns
convinced Congress that these dangers were sufficiently
real that substantial barriers should be raised against the
party in power-or the party out of power, for that matterusing the thousands or hundreds of thousands of federal
employees, paid for at public expense, to man its political
structure and political campaigns.
A related concern, and this remains as important
as any other, was to further serve the goal
that employment and advancement in the Government
service not depend on political performance, and at the
same time to make sure that Government employees
would be free from pressure and from express or tacit
invitation to vote in a certain way or perform political

chores in order to curry favor with their superiors rather

than to act out their own beliefs. It may be urged that
prohibitions against coercion are sufficient protection; but
for many years the joint judgment of the Executive and
Congress has been that to protect the rights of federal
employees with respect to their jobs and their political acts
and beliefs it is not enough merely to forbid one employee
to attempt to influence or coerce another. For example, at
the hearings in 1972 on proposed legislation for liberalizing
the prohibition against political activity, the Chairman of
the Civil Service Commission stated that the prohibitions
against
active
participation
in
partisan
political
management and partisan political campaigns constitute
the most significant safeguards against coercion . . ..
Perhaps Congress at some time will come to a different
view of the realities of political life and Government
service; but that is its current view of the matter, and we
are not now in any position to dispute it. Nor, in our view,
does the Constitution forbid it.
Neither the right to associate nor the right to
participate in political activities is absolute in any event.
[60]
xxx
xxxx
As we see it, our task is not to destroy the Act if we
can, but to construe it, if consistent with the will of
Congress, so as to comport with constitutional
limitations. (italics supplied)
Broadrick likewise definitively stated that the assailed statutory provision
is constitutionally permissible, viz.:
Appellants do not question Oklahoma's right to place evenhanded restrictions on the partisan political conduct of
state employees. Appellants freely concede that such
restrictions serve valid and important state interests,
particularly with respect to attracting greater numbers of
qualified people by insuring their job security, free from the
vicissitudes of the elective process, and by protecting
them from political extortion. Rather, appellants maintain
that however permissible, even commendable, the goals of
s 818 may be, its language is unconstitutionally vague and
its prohibitions too broad in their sweep, failing to
distinguish between conduct that may be proscribed and
conduct that must be permitted. For these and other

42
reasons, appellants assert that the sixth and seventh
paragraphs of s 818 are void in toto and cannot be
enforced against them or anyone else.

Application of the overbreadth doctrine in this manner is,

manifestly, strong medicine. It has been employed by the
Court sparingly and only as a last resort. x x x

We have held today that the Hatch Act is not impermissibly

vague.[61] We have little doubt that s 818 is similarly not so
vague that men of common intelligence must necessarily
guess at its meaning.[62] Whatever other problems there are
with s 818, it is all but frivolous to suggest that the section
fails to give adequate warning of what activities it
proscribes or fails to set out explicit standards' for those
who must apply it. In the plainest language, it prohibits any
state classified employee from being an officer or member
of a partisan political club or a candidate for any paid
public office. It forbids solicitation of contributions for any
political organization, candidacy or other political purpose
and taking part in the management or affairs of any
political party or in any political campaign. Words
inevitably contain germs of uncertainty and, as with the
Hatch Act, there may be disputes over the meaning of such
terms in s 818 as partisan, or take part in, or affairs of
political parties. But what was said in Letter Carriers, is
applicable here: there are limitations in the English
language with respect to being both specific and
manageably brief, and it seems to us that although the
prohibitions may not satisfy those intent on finding fault at
any cost, they are set out in terms that the ordinary person
exercising ordinary common sense can sufficiently
understand and comply with, without sacrifice to the public
interest.' x x x

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

xxxx
[Appellants] nevertheless maintain that the statute is
overbroad and purports to reach protected, as well as
unprotected conduct, and must therefore be struck down
on its face and held to be incapable of any constitutional
application. We do not believe that the overbreadth
doctrine may appropriately be invoked in this manner here.
xxxx
The consequence of our departure from traditional
rules of standing in the First Amendment area is that any
enforcement of a statute thus placed at issue is totally
forbidden until and unless a limiting construction or partial
invalidation so narrows it as to remove the seeming threat
or deterrence to constitutionally protected expression.

Unlike ordinary breach-of-the peace statutes or

other broad regulatory acts, s 818 is directed, by its terms,
at political expression which if engaged in by private
persons would plainly be protected by the First and
Fourteenth Amendments. But at the same time, s 818 is
not a censorial statute, directed at particular groups or
viewpoints. The statute, rather, seeks to regulate political
activity in an even-handed and neutral manner. As
indicted, such statutes have in the past been subject to a
less exacting overbreadth scrutiny. Moreover, the fact
remains that s 818 regulates a substantial spectrum of
conduct that is as manifestly subject to state regulation as
the public peace or criminal trespass. This much was
established in United Public Workers v. Mitchell, and has
been
unhesitatingly
reaffirmed
today
in Letter
Carriers. Under the decision in Letter Carriers, there is no
question that s 818 is valid at least insofar as it
forbids classified employees from: soliciting contributions
for partisan candidates, political parties, or other partisan

43
political purposes; becoming members of national, state, or
local committees of political parties, or officers or
committee
members
in
partisan
political
clubs,
or candidates for any paid public office; taking part in the
management or affairs of any political party's partisan
political campaign; serving as delegates or alternates to
caucuses or conventions of political parties; addressing or
taking an active part in partisan political rallies or
meetings; soliciting votes or assisting voters at the polls or
helping in a partisan effort to get voters to the polls;
participating in the distribution of partisan campaign
literature; initiating or circulating partisan nominating
petitions; or riding in caravans for any political party or
partisan political candidate.

as the Hatch Act proscribed partisan political activities of

federal employees. Prior to the commencement of the
action, the appellants actively participated in the 1970
reelection campaign of their superior, and were
administratively charged for asking other Corporation
Commission employees to do campaign work or to give
referrals to persons who might help in the campaign, for
soliciting money for the campaign, and for receiving and
distributing campaign posters in bulk.
Mancuso, on the other hand, involves, as aforesaid,
an automatic resignation provision. Kenneth Mancuso, a
full time police officer and classified civil service employee
of the City of Cranston, filed as a candidate for nomination
as representative to the Rhode Island General Assembly.
The Mayor of Cranston then began the process of enforcing
the resign-to-run provision of the City Home Rule Charter.

x x x It may be that such restrictions are

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

Clearly, as the above-cited US cases pertain to

different types of laws and were decided based on a
different set of facts, Letter Carriers and Broadrick cannot
be interpreted to mean a reversal of Mancuso. x x x (italics
in the original)

It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does

We hold, however, that his position is belied by a plain reading of

not deny the principles enunciated in Letter Carriers and Broadrick. He

these

cases.

Contrary

to

his

would hold, nonetheless, that these cases cannot be interpreted to mean a

Broadrick and Mancuso all concerned

reversal of Mancuso, since they pertain to different types of laws and

resign-to-run laws, viz.:

claim, Letter
the

Carriers,

constitutionality

of

were decided based on a different set of facts, viz.:

(1) Mancuso involved a civil service employee who filed as a
In Letter Carriers, the plaintiffs alleged that the
Civil Service Commission was enforcing, or threatening to
enforce, the Hatch Acts prohibition against active
participation in political management or political
campaigns. The plaintiffs desired to campaign for
candidates for public office, to encourage and get federal
employees to run for state and local offices, to participate
as delegates in party conventions, and to hold office in a
political club.

candidate for nomination as representative to the Rhode Island

General Assembly. He assailed the constitutionality of 14.09(c)
of the City Home Rule Charter, which prohibits continuing in
the classified service of the city after becoming a candidate for
nomination or election to any public office.
(2) Letter Carriers involved plaintiffs who alleged that the Civil

In Broadrick, the appellants sought the invalidation

for being vague and overbroad a provision in
the (sic) Oklahomas
Merit
System
of
Personnel
Administration Act restricting the political activities of the
States classified civil servants, in much the same manner

Service Commission was enforcing, or threatening to enforce,

the Hatch Acts prohibition against active participation in
political management or political campaigns [63] with respect to

44
friends in furtherance of such candidacy
such acquiescence constitutes an infraction
of the prohibitions against political activity.
(italics supplied)

certain defined activities in which they desired to engage. The

plaintiffs relevant to this discussion are:
(a) The National Association of Letter Carriers,
which alleged that its members were desirous

Section 9(b) requires the immediate removal of violators and

of, among others, running in local elections for

forbids the use of appropriated funds thereafter to pay

offices such as school board member, city

compensation to these persons.[64]

council member or mayor;

(b) Plaintiff Gee, who alleged that he desired to,

(3) Broadrick was

class

action

brought

by

but did not, file as a candidate for the office of

certain Oklahoma state employees seeking a declaration of

Borough Councilman in his local community for

unconstitutionality of two sub-paragraphs of Section 818 of

fear that his participation in a partisan election

Oklahomas Merit System of Personnel Administration Act.

would endanger his job; and

Section 818 (7), the paragraph relevant to this discussion,

(c) Plaintiff Myers, who alleged that he desired to

states that [n]o employee in the classified service shall be a

run as a Republican candidate in the 1971

candidate for nomination or election to any paid public

partisan

of West

office Violation of Section 818 results in dismissal from

Lafayette, Indiana, and that he would do so

employment, possible criminal sanctions and limited state

except for fear of losing his job by reason of

employment ineligibility.

election

for

the

mayor

violation of the Hatch Act.

Consequently,
The

Hatch

Act

defines

active

participation

in

political

it

cannot

be

denied

that Letter

Carriers and Broadrick effectively overruled Mancuso. By no stretch of

management or political campaigns by cross-referring to the

the

rules made by the Civil Service Commission. The rule pertinent

Carriers and Broadrick (i) concerned

to our inquiry states:

laws, and (ii) were decided by a superior court, the United States Supreme

30. Candidacy for local office: Candidacy

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

imagination

could Mancuso still

be

held

virtually

operative,
identical

as Letter

resign-to-run

Court. It was thus not surprising for the First Circuit Court of Appeals the
same

court

that

decided Mancuso to

emphatically in Magill v. Lynch

[65]

hold categorically

and

thatMancuso is no longer good

law. As we priorly explained:

Magill involved Pawtucket, Rhode
Island firemen
who ran for city office in 1975. Pawtuckets Little Hatch Act
prohibits city employees from engaging in a broad range of
political activities. Becoming a candidate for any city office
is specifically proscribed,[66] the violation being punished by
removal from office or immediate dismissal. The firemen
brought an action against the city officials on the ground

45
that that the provision of the city charter was
unconstitutional. However, the court, fully cognizant
of Letter Carriers and Broadrick, took the position
that Mancuso had since lost considerable vitality. It
observed that the view that political candidacy was
a fundamental interest which could be infringed
upon only if less restrictive alternatives were not
available, was a position which was no longer viable,
since the Supreme Court (finding that the
governments interest in regulating both the conduct
and speech of its employees differed significantly
from its interest in regulating those of the citizenry
in general) had given little weight to the argument
that
prohibitions
against
the
coercion
of
government employees were a less drastic means to
the same end, deferring to the judgment of
Congress, and applying a balancing test to
determine whether limits on political activity by
public employees substantially served government
interests which were important enough to outweigh
the employees First Amendment rights.[67]
It must be noted that the Court of Appeals ruled in
this manner even though the election in Magill was
characterized as nonpartisan, as it was reasonable for the
city to fear, under the circumstances of that case, that
politically active bureaucrats might use their official power
to help political friends and hurt political foes. Ruled the
court:
The
question
before
us
is
whether Pawtucket's
charter
provision,
which bars a city employee's candidacy in
even a nonpartisan city election, is
constitutional. The issue compels us to
extrapolate two recent Supreme Court
decisions, Civil Service Comm'n v. Nat'l
Ass'n of Letter Carriers and Broadrick v.
Oklahoma. Both dealt with laws barring
civil servants from partisan political
activity. Letter
Carriers reaffirmed United
Public Workers v. Mitchell, upholding the
constitutionality of the Hatch Act as to
federal
employees.
Broadrick
sustained Oklahoma's Little Hatch Act
against constitutional attack, limiting its
holding to Oklahoma's construction that
the Act barred only activity in partisan

politics. In Mancuso v. Taft, we assumed

that
proscriptions
of
candidacy
in
nonpartisan elections would not be
constitutional.
Letter
Carriers
and
Broadrick compel new analysis.
xxxx
What we are obligated to do in this
case, as the district court recognized, is
to apply the Courts interest balancing
approach to the kind of nonpartisan
election revealed in this record. We believe
that the district court found more residual
vigor in our opinion in Mancuso v. Taft than
remains after Letter Carriers. We have
particular reference to our view that
political candidacy was a fundamental
interest which could be trenched upon only
if less restrictive alternatives were not
available. While this approach may still be
viable for citizens who are not government
employees, the Court in Letter Carriers
recognized that the government's interest
in regulating both the conduct and speech
of its employees differs significantly from
its interest in regulating those of the
citizenry in general. Not only was United
Public Workers v. Mitchell "unhesitatingly"
reaffirmed, but the Court gave little weight
to the argument that prohibitions against
the coercion of government employees
were a less drastic means to the same end,
deferring to the judgment of the Congress.
We cannot be more precise than the Third
Circuit in characterizing the Court's
approach as "some sort of 'balancing'
process".[68] It appears that the government
may place limits on campaigning by public
employees if the limits substantially serve
government interests that are "important"
enough to outweigh the employees' First
Amendment rights. x x x (italics supplied)
Upholding thus the constitutionality of the law in
question,
the Magill court
detailed
the
major
governmental interests discussed in Letter Carriers and
applied them to the Pawtucketprovision as follows:

46
In Letter Carriers[,] the first interest
identified by the Court was that of an
efficient government, faithful to the
Congress rather than to party. The district
court
discounted
this
interest,
reasoning that candidates in a local
election would not likely be committed to a
state or national platform. This observation
undoubtedly has substance insofar as
allegiance to broad policy positions is
concerned. But a different kind of possible
political
intrusion
into
efficient
administration could be thought to
threaten municipal government: not into
broad policy decisions, but into the
particulars of administration favoritism in
minute decisions affecting welfare, tax
assessments, municipal contracts and
purchasing, hiring, zoning, licensing, and
inspections. Just as the Court in Letter
Carriers identified a second governmental
interest in the avoidance of the appearance
of "political justice" as to policy, so there is
an equivalent interest in avoiding the
appearance of political preferment in
privileges, concessions, and benefits. The
appearance (or reality) of favoritism that
the charter's authors evidently feared is
not exorcised by the nonpartisan character
of the formal election process. Where, as
here, party support is a key to successful
campaigning, and party rivalry is the norm,
the city might reasonably fear that
politically active bureaucrats would use
their official power to help political friends
and hurt political foes. This is not to say
that the city's interest in visibly fair and
effective
administration
necessarily
justifies a blanket prohibition of all
employee campaigning; if parties are not
heavily involved in a campaign, the danger
of favoritism is less, for neither friend nor
foe is as easily identified.
A second major governmental
interest identified in Letter Carriers was
avoiding the danger of a powerful political
machine. The Court had in mind the large

and growing federal bureaucracy and its

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

47
scarcely lessened by the openness
of Pawtucket's nominating procedure or the
lack of party labels on its ballots.
The
third
area
of
proper
governmental
interest
in Letter
Carriers was ensuring that employees
achieve advancement on their merits and
that they be free from both coercion and
the prospect of favor from political activity.
The district court did not address this
factor, but looked only to the possibility of
a civil servant using his position to
influence voters, and held this to be no
more of a threat than in the most
nonpartisan of elections. But we think that
the possibility of coercion of employees by
superiors remains as strong a factor in
municipal elections as it was in Letter
Carriers. Once again, it is the systematic
and coordinated exploitation of public
servants for political ends that a legislature
is most likely to see as the primary threat
of employees' rights. Political oppression of
public employees will be rare in an entirely
nonpartisan system. Some superiors may
be inclined to ride herd on the politics of
their employees even in a nonpartisan
context, but without party officials looking
over their shoulders most supervisors will
prefer to let employees go their own ways.
In short, the government may
constitutionally restrict its employees'
participation in nominally nonpartisan
elections if political parties play a large role
in the campaigns. In the absence of
substantial party involvement, on the other
hand, the interests identified by the Letter
Carriers Court lose much of their force.
While the employees' First Amendment
rights would normally outbalance these
diminished interests, we do not suggest
that they would always do so. Even when
parties are absent, many employee
campaigns might be thought to endanger
at least one strong public interest, an
interest that looms larger in the context of

municipal elections than it does in the

national elections considered in Letter
Carriers. The city could reasonably fear the
prospect of a subordinate running directly
against his superior or running for a
position that confers great power over his
superior. An employee of a federal agency
who seeks a Congressional seat poses less
of a direct challenge to the command and
discipline of his agency than a fireman or
policeman who runs for mayor or city
council. The possibilities of internal
discussion,
cliques,
and
political
bargaining, should an employee gather
substantial
political
support,
are
considerable. (citations omitted)
The court, however, remanded the case to the
district court for further proceedings in respect of the
petitioners overbreadth charge. Noting that invalidating a
statute for being overbroad is not to be taken lightly, much
less to be taken in the dark, the court held:
The governing case is Broadrick,
which
introduced
the
doctrine
of
"substantial" overbreadth in a closely
analogous case. Under Broadrick, when
one who challenges a law has engaged in
constitutionally
unprotected
conduct
(rather than unprotected speech) and when
the challenged law is aimed at unprotected
conduct, "the overbreadth of a statute
must not only be real, but substantial as
well, judged in relation to the statute's
plainly legitimate sweep." Two major
uncertainties attend the doctrine: how to
distinguish speech from conduct, and how
to define "substantial" overbreadth. We are
spared the first inquiry by Broadrick itself.
The plaintiffs in that case had solicited
support for a candidate, and they were
subject to discipline under a law
proscribing a wide range of activities,
including
soliciting
contributions
for
political candidates and becoming a
candidate. The Court found that this
combination
required
a
substantial
overbreadth approach. The facts of this

48
case are so similar that we may reach the
same result without worrying unduly about
the sometimes opaque distinction between
speech and conduct.
The second difficulty is not so
easily disposed of. Broadrick found no
substantial overbreadth in a statute
restricting
partisan
campaigning. Pawtucket has gone further,
banning
participation
in
nonpartisan
campaigns
as
well. Measuring
the
substantiality of a statute's overbreadth
apparently requires, inter alia, a rough
balancing of the number of valid
applications compared to the number of
potentially invalid applications. Some
sensitivity to reality is needed; an invalid
application that is far-fetched does not
deserve as much weight as one that is
probable. The question is a matter of
degree; it will never be possible to say that
a ratio of one invalid to nine valid
applications makes a law substantially
overbroad. Still, an overbreadth challenger
has a duty to provide the court with some
idea of the number of potentially invalid
applications the statute permits. Often,
simply reading the statute in the light of
common experience or litigated cases will
suggest a number of probable invalid
applications. But this case is different.
Whether the statute is overbroad depends
in large part on the number of elections
that are insulated from party rivalry yet
closed to Pawtucket employees. For all the
record shows, every one of the city, state,
or federal elections in Pawtucket is actively
contested by political parties. Certainly the
record suggests that parties play a major
role even in campaigns that often are
entirely nonpartisan in other cities. School
committee candidates, for example, are
endorsed
by
the
local
Democratic
committee.
The state of the record does not
permit us to find overbreadth; indeed such

a step is not to be taken lightly, much less

to be taken in the dark. On the other hand,
the entire focus below, in the short period
before the election was held, was on the
constitutionality of the statute as applied.
Plaintiffs may very well feel that further
efforts are not justified, but they should be
afforded the opportunity to demonstrate
that the charter forecloses access to a
significant
number
of
offices,
the
candidacy
for
which
by
municipal
employees would not pose the possible
threats to government efficiency and
integrity which Letter Carriers, as we have
interpreted
it,
deems
significant.
Accordingly, we remand for consideration
of plaintiffs' overbreadth claim. (italics
supplied, citations omitted)
Clearly, Letter
Carriers,
Broadrick, and Magill demonstrate beyond doubt
that Mancuso v. Taft, heavily relied upon by
the ponencia, has effectively been overruled.[69] As it
is no longer good law, the ponencias exhortation that
[since] the Americans, from whom we copied the provision
in question, had already stricken down a similar measure
for being unconstitutional[,] it is high-time that we, too,
should follow suit is misplaced and unwarranted. [70]
Accordingly, our assailed Decisions submission that the right to run for
public office is inextricably linked with two fundamental freedoms those of
expression and association lies on barren ground. American case law has in
fact never recognized a fundamental right to express ones political
views through candidacy,[71] as to invoke a rigorous standard of
review.[72] Bart v. Telford[73] pointedly stated that [t]he First Amendment
does not in terms confer a right to run for public office, and this court has
held that it does not do so by implication either. Thus, ones interest in
seeking office, by itself, is not entitled to constitutional protection.
[74]

Moreover, one cannot bring ones action under the rubric of freedom of

association, absent any allegation that, by running for an elective position,

one is advancing the political ideas of a particular set of voters. [75]

49
Prescinding from these premises, it is crystal clear that the provisions

explain

why some public

officials

are

subject

to

the

resign-to-run

challenged in the case at bar, are not violative of the equal protection

provisions, while others are not. Ruled the United States Supreme Court:

clause. The deemed-resigned provisions substantially serve governmental

interests (i.e., (i) efficient civil service faithful to the government and the
people rather than to party; (ii) avoidance of the appearance of political
justice as to policy; (iii) avoidance of the danger of a powerful political
machine; and (iv) ensuring that employees achieve advancement on their
merits and that they be free from both coercion and the prospect of favor
from political activity). These are interests that are important enough to
outweigh the non-fundamental right of appointive officials and employees
to seek elective office.
En passant, we find it quite ironic that Mr. Justice Nachura cites Clements
v. Fashing[76] and Morial, et al. v. Judiciary Commission of the State
of Louisiana, et al.[77] to buttress his dissent. Maintaining that resign-torun provisions are valid only when made applicable to specified officials, he
explains:
U.S. courts,
in
subsequent
cases,
sustained
the
constitutionality of resign-to-run provisions when applied
to specified or particular officials, as distinguished
from all others,[78] under a classification that is
germane to the purposes of the law. These resign-torun legislations were not expressed in a general and
sweeping provision, and thus did not violate the test
of being germane to the purpose of the law, the
second requisite for a valid classification. Directed, as they
were, to particular officials, they were not overly
encompassing as to be overbroad. (emphasis in the
original)
This

reading

is

regrettable

misrepresentation

of Clements and Morial. The resign-to-run provisions in these cases were

upheld not because they referred to specified or particular officials (vis--vis
a general class); the questioned provisions were found valid precisely
because the Court deferred to legislative judgment and found that
a regulation is not devoid of a rational predicate simply because it
happens to be incomplete. In fact, the equal protection challenge
in Clements revolved around the claim that the State of Texas failed to

Article XVI, 65, of the Texas Constitution provides

that the holders of certain offices automatically resign their
positions if they become candidates for any other elected
office, unless the unexpired portion of the current term is
one year or less. The burdens that 65 imposes on
candidacy are even less substantial than those imposed by
19. The two provisions, of course, serve essentially the
same state interests. The District Court found 65 deficient,
however, not because of the nature or extent of the
provision's restriction on candidacy, but because of the
manner in which the offices are classified. According to the
District Court, the classification system cannot survive
equal protection scrutiny, because Texas has failed to
explain sufficiently why some elected public officials are
subject to 65 and why others are not. As with the case of
19, we conclude that 65 survives a challenge under the
Equal Protection Clause unless appellees can show that
there is no rational predicate to the classification scheme.
The history behind 65 shows that it may be upheld
consistent with the "one step at a time" approach that this
Court has undertaken with regard to state regulation not
subject to more vigorous scrutiny than that sanctioned by
the traditional principles. Section 65 was enacted in 1954
as a transitional provision applying only to the 1954
election. Section 65 extended the terms of those offices
enumerated in the provision from two to four years. The
provision also staggered the terms of other offices so that
at least some county and local offices would be contested
at each election. The automatic resignation proviso to 65
was not added until 1958. In that year, a similar automatic
resignation provision was added in Art. XI, 11, which
applies to officeholders in home rule cities who serve terms
longer than two years. Section 11 allows home rule cities
the option of extending the terms of municipal offices from
two to up to four years.
Thus,
the
automatic
resignation
provision
in Texas is a creature of the State's electoral reforms of
1958. That the State did not go further in applying the
automatic resignation provision to those officeholders
whose terms were not extended by 11 or 65, absent an
invidious purpose, is not the sort of malfunctioning of the
State's lawmaking process forbidden by the Equal

50
Protection Clause. A regulation is not devoid of a rational
predicate simply because it happens to be incomplete. The
Equal Protection Clause does not forbid Texas to restrict
one elected officeholder's candidacy for another elected
office unless and until it places similar restrictions on other
officeholders. The provision's language and its history belie
any notion that 65 serves the invidious purpose of denying
access to the political process to identifiable classes of
potential
candidates. (citations
omitted
and
italics
supplied)
Furthermore,

it

is

unfortunate

that

the

dissenters

In any event, the legislature must have some leeway in

determining which of its employment positions require
restrictions on partisan political activities and which may
be left unregulated. And a State can hardly be faulted for
attempting to limit the positions upon which such
restrictions are placed. (citations omitted)

took

V.
Section 4(a) of Resolution 8678, Section 13 of RA 9369,
and Section 66 of the Omnibus Election Code
Do Not Suffer from Overbreadth

the Morial line that there is no blanket approval of restrictions on the right
of public employees to become candidates for public office out of context.

Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of

A correct reading of that line readily shows that the Court only meant to

RA 9369, and Section 66 of the Omnibus Election Code on equal protection

confine its ruling to the facts of that case, as each equal protection

ground, our assailed Decision struck them down for being overbroad in two

challenge would necessarily have to involve weighing governmental

respects, viz.:

interests vis--vis the specific prohibition assailed. The Court held:

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

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

and

(2) The assailed provisions limit the candidacy of any and all civil
servants holding appointive positions without due regard for
the type of office being sought, whether it be partisan or
nonpartisan

in

character,

or

in

the

national,

municipal

or barangay level.
Again, on second look, we have to revise our assailed Decision.
i.

Limitation on Candidacy Regardless of

Incumbent Appointive Officials Position, Valid

According to the assailed Decision, the challenged provisions of law

are overly broad because they apply indiscriminately to all civil servants
holding appointive posts, without due regard for the type of position being

51
held by the employee running for elective office and the degree of
influence that may be attendant thereto.

The assailed Decision also held that the challenged provisions of

law are overly broad because they are made to apply indiscriminately to all
civil servants holding appointive offices, without due regard for the type of

Its underlying assumption appears to be that the evils sought to be

prevented are extant only when the incumbent appointive official running

elective office being sought, whether it be partisan or nonpartisan in

character, or in the national, municipal or barangaylevel.

for elective office holds an influential post.

This erroneous ruling is premised on the assumption that the
Such a myopic view obviously fails to consider a different, yet

concerns of a truly partisan office and the temptations it fosters are

equally plausible, threat to the government posed by the partisan potential

sufficiently different from those involved in an office removed from regular

of a large and growing bureaucracy: the danger of systematic abuse

party politics [so as] to warrant distinctive treatment, [82] so that restrictions

perpetuated by a powerful political machine that has amassed the

on candidacy akin to those imposed by the challenged provisions can

scattered powers of government workers so as to give itself and its

validly apply only to situations in which the elective office sought is

incumbent workers an unbreakable grasp on the reins of power.

partisan in character. To the extent, therefore, that such restrictions are

elucidated in our prior exposition:

[81]

Attempts by government employees to wield

influence over others or to make use of their respective
positions (apparently) to promote their own candidacy may
seem tolerable even innocuous particularly when viewed in
isolation from other similar attempts by other government
employees. Yet it would be decidedly foolhardy to discount
the equally (if not more) realistic and dangerous possibility
that such seemingly disjointed attempts, when taken
together, constitute a veiled effort on the part of an
emerging central party structure to advance its own
agenda through a carefully orchestrated use of [appointive
and/or elective] officials coming from various levels of the
bureaucracy.
[T]he avoidance of such a politically active public
work force which could give an emerging political machine
an unbreakable grasp on the reins of power is reason
enough to impose a restriction on the candidacies of all
appointive public officials without further distinction as to
the type of positions being held by such employees or the
degree of influence that may be attendant thereto.
(citations omitted)
ii.
Limitation on Candidacy
Regardless of Type of Office Sought, Valid

[80]

As

said to preclude even candidacies for nonpartisan elective offices, the

challenged restrictions are to be considered as overbroad.
Again, a careful study of the challenged provisions and related laws
on the matter will show that the alleged overbreadth is more apparent
than real. Our exposition on this issue has not been repudiated, viz.:
A perusal of Resolution 8678 will immediately
disclose that the rules and guidelines set forth therein refer
to the filing of certificates of candidacy and nomination of
official candidates of registered political parties, in
connection with the May 10, 2010 National and Local
Elections.[83] Obviously, these rules and guidelines,
including the restriction in Section 4(a) of Resolution 8678,
were issued specifically for purposes of the May 10, 2010
National and Local Elections, which, it must be noted, are
decidedly partisan in character. Thus, it is clear that the
restriction in Section 4(a) of RA 8678 applies only to the
candidacies
of
appointive
officials
vying
for partisan elective posts in the May 10, 2010 National
and Local Elections. On this score, the overbreadth
challenge leveled against Section 4(a) is clearly
unsustainable.
Similarly, a considered review of Section 13 of RA
9369 and Section 66 of the Omnibus Election Code, in
conjunction with other related laws on the matter, will

52
confirm that these provisions are likewise not intended to
apply to elections for nonpartisan public offices.
The only elections which are relevant to the present inquiry
are the elections for barangay offices, since these are the
only
elections
in
this
country
which
involve nonpartisan public offices.[84]
In this regard, it is well to note that from as far
back as the enactment of the Omnibus Election Code in
1985,
Congress
has
intended
that
these
nonpartisan barangay elections be governed by special
rules, including a separate rule on deemed resignations
which is found in Section 39 of the Omnibus Election Code.
Said provision states:
Section 39. Certificate of Candidacy. No
person shall be elected punong barangay
or
kagawad
ng
sangguniang
barangay unless he files a sworn certificate
of candidacy in triplicate on any day from
the commencement of the election period
but not later than the day before the
beginning of the campaign period in a form
to be prescribed by the Commission. The
candidate shall state the barangay office
for which he is a candidate.
xxxx
Any elective or appointive municipal, city,
provincial or national official or employee,
or those in the civil or military service,
including those in government-owned orcontrolled
corporations,
shall
be
considered automatically resigned upon
the filing of certificate of candidacy for a
barangay office.
Since barangay elections are governed by a
separate deemed resignation rule, under the present state
of law, there would be no occasion to apply the restriction
on candidacy found in Section 66 of the Omnibus Election
Code, and later reiterated in the proviso of Section 13 of RA
9369, to any election other than a partisan one. For this
reason, the overbreadth challenge raised against Section
66 of the Omnibus Election Code and the pertinent proviso
in Section 13 of RA 9369 must also fail. [85]

In any event, even if we were to assume, for the sake of argument,

that Section 66 of the Omnibus Election Code and the corresponding
provision in Section 13 of RA 9369 are general rules that apply also to
elections for nonpartisan public offices, the overbreadth challenge would
still be futile. Again, we explained:
In the first place, the view that Congress is limited
to controlling only partisan behavior has not received
judicial imprimatur, because the general proposition of the
relevant US cases on the matter is simply that the
government has an interest in regulating the conduct and
speech of its employees that differs significantly from
those it possesses in connection with regulation of the
speech of the citizenry in general.[86]
Moreover, in order to have a statute declared as
unconstitutional or void on its face for being overly broad,
particularly where, as in this case, conduct and not pure
speech is involved, the overbreadth must not only be real,
but substantial as well, judged in relation to the statutes
plainly legitimate sweep.[87]
In operational terms, measuring the substantiality
of a statutes overbreadth would entail, among other things,
a rough balancing of the number of valid applications
compared to the number of potentially invalid applications.
[88]
In this regard, some sensitivity to reality is needed; an
invalid application that is far-fetched does not deserve as
much weight as one that is probable. [89] The question is a
matter of degree.[90] Thus, assuming for the sake of
argument that the partisan-nonpartisan distinction is valid
and necessary such that a statute which fails to make this
distinction is susceptible to an overbreadth attack, the
overbreadth
challenge
presently
mounted
must
demonstrate or provide this Court with some idea of the
number of potentially invalid elections (i.e. the number of
elections that were insulated from party rivalry but were
nevertheless closed to appointive employees) that may in
all probability result from the enforcement of the statute. [91]
The state of the record, however, does not permit
us to find overbreadth. Borrowing from the words of Magill
v. Lynch, indeed, such a step is not to be taken lightly,
much less to be taken in the dark, [92] especially since an
overbreadth finding in this case would effectively prohibit
the State from enforcing an otherwise valid measure

53
against conduct that is admittedly within its power to
proscribe.[93]

Indeed, the anomalies spawned by our assailed Decision have

taken place. In his Motion for Reconsideration, intervenor Drilon stated that

This Court would do well to proceed with tiptoe caution, particularly

a number of high-ranking Cabinet members had already filed their

when it comes to the application of the overbreadth doctrine in the

Certificates of Candidacy without relinquishing their posts. [99] Several

analysis of statutes that purportedly attempt to restrict or burden the

COMELEC election officers had likewise filed their Certificates of Candidacy

exercise of the right to freedom of speech, for such approach is manifestly

in their respective provinces. [100] Even the Secretary of Justice had filed her

strong medicine that must be used sparingly, and only as a last resort.

certificate of substitution for representative of the first district of Quezon

[94]

province last December 14, 2009[101] even as her position as Justice

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

Secretary includes supervision over the City and Provincial Prosecutors,

[102]

who, in turn, act as Vice-Chairmen of the respective Boards of

protected speech of others may be muted and perceived grievances left to

Canvassers.[103] The Judiciary has not been spared, for a Regional Trial Court

fester (due to the possible inhibitory effects of overly broad statutes)

Judge in the South has thrown his hat into the political arena. We cannot

outweighs the possible harm to society in allowing some unprotected

allow the tilting of our electoral playing field in their favor.

speech or conduct to go unpunished. [95] Facial overbreadth has likewise not

been invoked where a limiting construction could be placed on the

For the foregoing reasons, we now rule that Section 4(a) of

challenged statute, and where there are readily apparent constructions

Resolution 8678 and Section 13 of RA 9369, which merely reiterate Section

that would cure, or at least substantially reduce, the alleged overbreadth

66 of the Omnibus Election Code, are not unconstitutionally overbroad.

of the statute.[96]
IN

VIEW

WHEREOF,

the

Court

RESOLVES

to

GRANT

the

In the case at bar, the probable harm to society in permitting

respondents and the intervenors Motions for Reconsideration; REVERSE

incumbent appointive officials to remain in office, even as they actively

and SET ASIDE this Courts December 1, 2009 Decision; DISMISS the

pursue elective posts, far outweighs the less likely evil of having arguably

Petition; and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1)

protected candidacies blocked by the possible inhibitory effect of a

Section 4(a) of COMELEC Resolution No. 8678, (2) the second proviso in the

potentially overly broad statute.

third paragraph of Section 13 of Republic Act No. 9369, and (3) Section 66
of the Omnibus Election Code.

In this light, the conceivably impermissible applications of the

challenged statutes which are, at best, bold predictions cannot justify
invalidating these statutes in toto and prohibiting the State from enforcing
them against conduct that is, and has for more than 100 years been,
unquestionably within its power and interest to proscribe. [97] Instead, the
more prudent approach would be to deal with these conceivably
impermissible applications through case-by-case adjudication rather than
through a total invalidation of the statute itself.[98]

SO ORDERED.

54
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not
voted directly to the position of governor, but who according to prevailing
jurisprudence should take over the said post inasmuch as, by the
ineligibility of Frivaldo, a "permanent vacancy in the contested office has
occurred"?

EN BANC

In ruling for Frivaldo, the Court lays down new doctrines on repatriation,
clarifies/reiterates/amplifies existing jurisprudence on citizenship and
elections, and upholds the superiority of substantial justice over pure
legalisms.
G.R. No. 123755

G.R. No. 120295 June 28, 1996

JUAN G. FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.
G.R. No. 123755 June 28, 1996
RAUL R. LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.

PANGANIBAN, J.:p
The ultimate question posed before this Court in these twin cases is: Who
should be declared the rightful governor of Sorsogon (i) Juan G. Frivaldo, who unquestionably obtained the highest number of
votes in three successive elections but who was twice declared by this
Court to be disqualified to hold such office due to his alien citizenship, and
who now claims to have re-assumed his lost Philippine citizenship thru
repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but who claims
that the votes cast in favor of Frivaldo should be considered void; that the
electorate should be deemed to have intentionally thrown away their
ballots; and that legally, he secured the most number of valid votes; or

This is a special civil action under Rules 65 and 58 of the Rules of Court
for certiorari and preliminary injunction to review and annul a Resolution of
the respondent Commission on Elections (Comelec), First
Division, 1 promulgated on December 19, 1995 2 and another Resolution of
the Comelec en banc promulgated February 23, 1996 3 denying petitioner's
motion for reconsideration.
The Facts
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate
of Candidacy for the office of Governor of Sorsogon in the May 8, 1995
elections. On March 23, 1995, petitioner Raul R. Lee, another candidate,
filed a petition 4 with the Comelec docketed as SPA No. 95-028 praying that
Frivaldo "be disqualified from seeking or holding any public office or
position by reason of not yet being a citizen of the Philippines", and that
his Certificate of Candidacy be canceled. On May 1, 1995, the Second
Division of the Comelec promulgated a Resolution 5 granting the petition
with the following disposition 6:
WHEREFORE, this Division resolves to GRANT the petition
and declares that respondent is DISQUALIFIED to run for
the Office of Governor of Sorsogon on the ground that he is
NOT a citizen of the Philippines. Accordingly, respondent's
certificate of candidacy is canceled.
The Motion for Reconsideration filed by Frivaldo remained unacted upon
until after the May 8, 1995 elections. So, his candidacy continued and he
was voted for during the elections held on said date. On May 11, 1995, the
Comelecen banc 7 affirmed the aforementioned Resolution of the Second
Division.
The Provincial Board of Canvassers completed the canvass of the election
returns and a Certificate of Votes 8 dated May 27, 1995 was issued showing

55
the following votes obtained by the candidates for the position of Governor
of Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
Raul R. Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental)
petition 9 praying for his proclamation as the duly-elected Governor of
Sorsogon.
In an order 10 dated June 21, 1995, but promulgated according to the
petition "only on June 29, 1995," the Comelec en bancdirected "the
Provincial Board of Canvassers of Sorsogon to reconvene for the purpose of
proclaiming candidate Raul Lee as the winning gubernatorial candidate in
the province of Sorsogon on June 29, 1995 . . ." Accordingly, at 8:30 in the
evening of June 30, 1995, Lee was proclaimed governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new petition, 11 docketed
as SPC No. 95-317, praying for the annulment of the June 30, 1995
proclamation of Lee and for his own proclamation. He alleged that on June
30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a
citizen of the Philippines after "his petition for repatriation under P.D. 725
which he filed with the Special Committee on Naturalization in September
1994 had been granted". As such, when "the said order (dated June 21,
1995) (of the Comelec) . . . was released and received by Frivaldo on June
30, 1995 at 5:30 o'clock in the evening, there was no more legal
impediment to the proclamation (of Frivaldo) as governor . . ." In the
alternative, he averred that pursuant to the two cases of Labo
vs. Comelec, 12 the Vice-Governor - not Lee - should occupy said position of
governor.
On December 19, 1995, the Comelec First Division promulgated the herein
assailed Resolution 13 holding that Lee, "not having garnered the highest
number of votes," was not legally entitled to be proclaimed as duly-elected
governor; and that Frivaldo, "having garnered the highest number of votes,
and . . . having reacquired his Filipino citizenship by repatriation on June
30, 1995 under the provisions of Presidential Decree No. 725 . . . (is)
qualified to hold the office of governor of Sorsogon"; thus:

PREMISES CONSIDERED, the Commission (First Division),

therefore RESOLVES to GRANT the Petition.
Consistent with the decisions of the Supreme Court, the
proclamation of Raul R. Lee as Governor of Sorsogon is
hereby ordered annulled, being contrary to law, he not
having garnered the highest number of votes to warrant
his proclamation.
Upon the finality of the annulment of the proclamation of
Raul R. Lee, the Provincial Board of Canvassers is directed
to immediately reconvene and, on the basis of the
completed canvass, proclaim petitioner Juan G. Frivaldo as
the duly elected Governor of Sorsogon having garnered the
highest number of votes, and he having reacquired his
Filipino citizenship by repatriation on June 30, 1995 under
the provisions of Presidential Decree No. 725 and, thus,
qualified to hold the office of Governor of Sorsogon.
Conformably with Section 260 of the Omnibus Election
Code (B.P. Blg. 881), the Clerk of the Commission is
directed to notify His Excellency the President of the
Philippines, and the Secretary of the Sangguniang
Panlalawigan of the Province of Sorsogon of this resolution
immediately upon the due implementation thereof.
On December 26, 1995, Lee filed a motion for reconsideration which was
denied by the Comelec en banc in its Resolution 14 promulgated on
February 23, 1996. On February 26, 1996, the present petition was filed.
Acting on the prayer for a temporary restraining order, this Court issued on
February 27, 1996 a Resolution which inter alia directed the parties "to
maintain the status quo prevailing prior to the filing of this petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand may briefly be capsulized
in the following propositions" 15:
First -- The initiatory petition below was so far insufficient
in form and substance to warrant the exercise by the
COMELEC of its jurisdiction with the result that, in effect,
the COMELEC acted without jurisdiction in taking
cognizance of and deciding said petition;
Second -- The judicially declared disqualification of
respondent was a continuing condition and rendered him

56
ineligible to run for, to be elected to and to hold the Office
of Governor;
Third -- The alleged repatriation of respondent was neither
valid nor is the effect thereof retroactive as to cure his
ineligibility and qualify him to hold the Office of Governor;
and
Fourth -- Correctly read and applied, the Labo Doctrine fully
supports the validity of petitioner's proclamation as duly
elected Governor of Sorsogon.
G.R. No. 120295
This is a petition to annul three Resolutions of the respondent Comelec, the
first two of which are also at issue in G.R. No. 123755, as follows:
1. Resolution 16 of the Second Division, promulgated on
May 1, 1995, disqualifying Frivaldo from running for
governor of Sorsogon in the May 8, 1995 elections "on the
ground that he is not a citizen of the Philippines";

decided, after notice and hearing, not later than fifteen

days before the election. (Emphasis supplied.)
the Comelec had no jurisdiction to issue said Resolutions because
they were not rendered "within the period allowed by law" i.e., "not
later than fifteen days before the election."
Otherwise stated, Frivaldo contends that the failure of the Comelec to act
on the petition for disqualification within the period of fifteen days prior to
the election as provided by law is a jurisdictional defect which renders the
said Resolutions null and void.
By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295
and 123755 since they are intimately related in their factual environment
and are identical in the ultimate question raised, viz., who should occupy
the position of governor of the province of Sorsogon.
On March 19, 1995, the Court heard oral argument from the parties and
required them thereafter to file simultaneously their respective
memoranda.
The Consolidated Issues

2. Resolution 17 of the Comelec en banc, promulgated on

May 11, 1995; and
3. Resolution 18 of the Comelec en banc, promulgated also
on May 11, 1995 suspending the proclamation of, among
others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in G.R. No. 123755.
However, Frivaldo assails the above-mentioned resolutions on a different
ground: that under Section 78 of the Omnibus Election Code, which is
reproduced hereinunder:
Sec. 78. Petition to deny due course or to cancel a
certificate of candidacy. -- A verified petition seeking to
deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that
any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed
at any time not later than twenty-five days from the time of
the filing of the certificate of candidacy and shall be

From the foregoing submissions, the consolidated issues may be restated

as follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably
cure his lack of citizenship as to qualify him to be proclaimed and to hold
the Office of Governor? If not, may it be given retroactive effect? If so, from
when?
2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino
citizenship a continuing bar to his eligibility to run for, be elected to or hold
the governorship of Sorsogon?
3. Did the respondent Comelec have jurisdiction over the initiatory petition
in SPC No. 95-317 considering that said petition is not "a pre-proclamation
case, an election protest or a quo warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid and legal
in light of existing jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction in
promulgating the assailed Resolutions, all of which prevented Frivaldo from
assuming the governorship of Sorsogon, considering that they were not

57
rendered within the period referred to in Section 78 of the Omnibus
Election Code, viz., "not later than fifteen days before the elections"?
The First Issue: Frivaldo's Repatriation
The validity and effectivity of Frivaldo's repatriation is the lis mota, the
threshold legal issue in this case. All the other matters raised are
secondary to this.
The Local Government Code of 1991 19 expressly requires Philippine
citizenship as a qualification for elective local officials, including that of
provincial governor, thus:
Sec. 39. Qualifications. -- (a) An elective local official must
be a citizen of the Philippines; a registered voter in the
barangay, municipality, city, or province or, in the case of a
member of the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district where he
intends to be elected; a resident therein for at least one (1)
year immediately preceding the day of the election; and
able to read and write Filipino or any other local language
or dialect.
(b) Candidates for the position of governor,
vice governor or member of the
sangguniang panlalawigan, or mayor, vice
mayor or member of the sangguniang
panlungsod of highly urbanized cities must
be at least twenty-three (23) years of age
on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court 20 as a non-citizen, it
is therefore incumbent upon him to show that he has reacquired
citizenship; in fine, that he possesses the qualifications prescribed under
the said statute (R.A. 7160).
Under Philippine law, 21 citizenship may be reacquired by direct act of
Congress, by naturalization or by repatriation. Frivaldo told this Court in
G.R. No. 104654 22 and during the oral argument in this case that he tried
to resume his citizenship by direct act of Congress, but that the bill
allowing him to do so "failed to materialize, notwithstanding the
endorsement of several members of the House of Representatives" due,
according to him, to the "maneuvers of his political rivals." In the same

case, his attempt at naturalization was rejected by this Court because of

jurisdictional, substantial and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly
elected governor by the electorate of Sorsogon, with a margin of 27,000
votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 over the
same opponent Raul Lee. Twice, he was judicially declared a non-Filipino
and thus twice disqualified from holding and discharging his popular
mandate. Now, he comes to us a third time, with a fresh vote from the
people of Sorsogon and a favorable decision from the Commission on
Elections to boot. Moreover, he now boasts of having successfully passed
through the third and last mode of reacquiring citizenship: by repatriation
under P.D. No. 725, with no less than the Solicitor General himself, who was
the prime opposing counsel in the previous cases he lost, this time, as
counsel for co-respondent Comelec, arguing the validity of his cause (in
addition to his able private counsel Sixto S. Brillantes, Jr.). That he took his
oath of allegiance under the provisions of said Decree at 2:00 p.m. on June
30, 1995 is not disputed. Hence, he insists that he -- not Lee -- should have
been proclaimed as the duly-elected governor of Sorsogon when the
Provincial Board of Canvassers met at 8:30 p.m. on the said date since,
clearly and unquestionably, he garnered the highest number of votes in
the elections and since at that time, he already reacquired his citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted with serious
defects, which we shall now discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively repealed",
asserting that "then President Corazon Aquino exercising legislative powers
under the Transitory Provisions of the 1987 Constitution, forbade the grant
of citizenship by Presidential Decree or Executive Issuances as the same
poses a serious and contentious issue of policy which the present
government, in the exercise of prudence and sound discretion, should best
leave to the judgment of the first Congress under the 1987 Constitution",
adding that in her memorandum dated March 27, 1987 to the members of
the Special Committee on Naturalization constituted for purposes of
Presidential Decree No. 725, President Aquino directed them "to cease and
desist from undertaking any and all proceedings within your functional
area of responsibility as defined under Letter of Instructions (LOI) No. 270
dated April 11, 1975, as amended." 23
This memorandum dated March 27, 1987 24 cannot by any stretch of legal
hermeneutics be construed as a law sanctioning or authorizing a repeal of
P.D. No. 725. Laws are repealed only by subsequent ones 25 and a repeal
may be express or implied. It is obvious that no express repeal was made
because then President Aquino in her memorandum -- based on the copy
furnished us by Lee -- did not categorically and/or impliedly state that P.D.
725 was being repealed or was being rendered without any legal effect. In

58
fact, she did not even mention it specifically by its number or text. On the
other hand, it is a basic rule of statutory construction that repeals by
implication are not favored. An implied repeal will not be allowed "unless it
is convincingly and unambiguously demonstrated that the two laws are
clearly repugnant and patently inconsistent that they cannot co-exist". 26
The memorandum of then President Aquino cannot even be regarded as a
legislative enactment, for not every pronouncement of the Chief Executive
even under the Transitory Provisions of the 1987 Constitution can nor
should be regarded as an exercise of her law-making powers. At best, it
could be treated as an executive policy addressed to the Special
Committee to halt the acceptance and processing of applications for
repatriation pending whatever "judgment the first Congress under the
1987 Constitution" might make. In other words, the former President did
not repeal P.D. 725 but left it to the first Congress -- once created -- to deal
with the matter. If she had intended to repeal such law, she should have
unequivocally said so instead of referring the matter to Congress. The fact
is she carefully couched her presidential issuance in terms that clearly
indicated the intention of "the present government, in the exercise of
prudence and sound discretion" to leave the matter of repeal to the new
Congress. Any other interpretation of the said Presidential Memorandum,
such as is now being proffered to the Court by Lee, would visit unmitigated
violence not only upon statutory construction but on common sense as
well.
Second, Lee also argues that "serious congenital irregularities flawed the
repatriation proceedings," asserting that Frivaldo's application therefor was
"filed on June 29, 1995 . . . (and) was approved in just one day or on June
30, 1995 . . .", which "prevented a judicious review and evaluation of the
merits thereof." Frivaldo counters that he filed his application for
repatriation with the Office of the President in Malacaang Palace on
August 17, 1994. This is confirmed by the Solicitor General. However, the
Special Committee was reactivated only on June 8, 1995, when presumably
the said Committee started processing his application. On June 29, 1995,
he filled up and re-submitted the FORM that the Committee required.
Under these circumstances, it could not be said that there was "indecent
haste" in the processing of his application.
Anent Lee's charge that the "sudden reconstitution of the Special
Committee on Naturalization was intended solely for the personal interest
of respondent," 27 the Solicitor General explained during the oral argument
on March 19, 1996 that such allegation is simply baseless as there were
many others who applied and were considered for repatriation, a list of
whom was submitted by him to this Court, through a Manifestation 28 filed
on April 3, 1996.

On the basis of the parties' submissions, we are convinced that the

presumption of regularity in the performance of official duty and the
presumption of legality in the repatriation of Frivaldo have not been
successfully rebutted by Lee. The mere fact that the proceedings were
speeded up is by itself not a ground to conclude that such proceedings
were necessarily tainted. After all, the requirements of repatriation under
P.D. No. 725 are not difficult to comply with, nor are they tedious and
cumbersome. In fact, P.D.
725 29 itself requires very little of an applicant, and even the rules and
regulations to implement the said decree were left to the Special
Committee to promulgate. This is not unusual since, unlike in naturalization
where an alien covets a first-timeentry into Philippine political life, in
repatriation the applicant is a former natural-born Filipino who is merely
seeking to reacquire his previous citizenship. In the case of Frivaldo, he
was undoubtedly a natural-born citizen who openly and faithfully served
his country and his province prior to his naturalization in the United States
-- a naturalization he insists was made necessary only to escape the iron
clutches of a dictatorship he abhorred and could not in conscience
embrace -- and who, after the fall of the dictator and the re-establishment
of democratic space, wasted no time in returning to his country of birth to
offer once more his talent and services to his people.
So too, the fact that ten other persons, as certified to by the Solicitor
General, were granted repatriation argues convincingly and conclusively
against the existence of favoritism vehemently posited by Raul Lee. At any
rate, any contest on the legality of Frivaldo's repatriation should have been
pursued before the Committee itself, and, failing there, in the Office of the
President, pursuant to the doctrine of exhaustion of administrative
remedies.
Third, Lee further contends that assuming the assailed repatriation to be
valid, nevertheless it could only be effective as at 2:00 p.m. of June 30,
1995 whereas the citizenship qualification prescribed by the Local
Government Code "must exist on the date of his election, if not when the
certificate of candidacy is filed," citing our decision in G.R. 104654 30 which
held that "both the Local Government Code and the Constitution require
that only Philippine citizens can run and be elected to public office."
Obviously, however, this was a mere obiter as the only issue in said case
was whether Frivaldo's naturalization was valid or not -- and NOT the
effective date thereof. Since the Court held his naturalization to be invalid,
then the issue of when an aspirant for public office should be a citizen was
NOT resolved at all by the Court. Which question we shall now directly rule
on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official
must be:

59
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or
province . . . where he intends to be elected;
* a resident therein for at least one (1) year immediately
preceding the day of the election;
* able to read and write Filipino or any other local language
or dialect.
* In addition, "candidates for the position of governor . . .
must be at least twenty-three (23) years of age on election
day.
From the above, it will be noted that the law does not specify any particular
date or time when the candidate must possess citizenship, unlike that for
residence (which must consist of at least one year's residency immediately
preceding the day of election) and age (at least twenty three years of
age on election day).
Philippine citizenship is an indispensable requirement for holding an
elective public office, 31 and the purpose of the citizenship qualification is
none other than to ensure that no alien, i.e., no person owing allegiance to
another nation, shall govern our people and our country or a unit of
territory thereof. Now, an official begins to govern or to discharge his
functions only upon his proclamation and on the day the law mandates his
term of office to begin. Since Frivaldo re-assumed his citizenship on June
30, 1995 -- the very day 32 the term of office of governor (and other
elective officials) began -- he was therefore already qualified to be
proclaimed, to hold such office and to discharge the functions and
responsibilities thereof as of said date. In short, at that time, he was
already qualified to govern his native Sorsogon. This is the liberal
interpretation that should give spirit, life and meaning to our law on
qualifications consistent with the purpose for which such law was enacted.
So too, even from a literal (as distinguished from liberal) construction, it
should be noted that Section 39 of the Local Government Code speaks of
"Qualifications" of "ELECTIVE OFFICIALS", not of candidates. Why then
should such qualification be required at the time of election or at the time
of the filing of the certificates of candidacies, as Lee insists? Literally, such
qualifications -- unless otherwise expressly conditioned, as in the case of
age and residence -- should thus be possessed when the "elective [or
elected] official" begins to govern, i.e., at the time he is proclaimed and at
the start of his term -- in this case, on June 30, 1995. Paraphrasing this
Court's ruling in Vasquez vs. Giap and Li Seng Giap & Sons, 33 if the
purpose of the citizenship requirement is to ensure that our people and

country do not end up being governed by aliens,i.e., persons owing

allegiance to another nation, that aim or purpose would not be thwarted
but instead achieved by construing the citizenship qualification as applying
to the time of proclamation of the elected official and at the start of his
term.
But perhaps the more difficult objection was the one raised during the oral
argument 34 to the effect that the citizenship qualification should be
possessed at the time the candidate (or for that matter the elected official)
registered as a voter. After all, Section 39, apart from requiring the official
to be a citizen, also specifies as another item of qualification, that he be a
"registered voter". And, under the law 35 a "voter" must be a citizen of the
Philippines. So therefore, Frivaldo could not have been a voter -- much less
a validly registered one -- if he was not a citizen at the time of such
registration.
The answer to this problem again lies in discerning the purpose of the
requirement. If the law intended thecitizenship qualification to be
possessed prior to election consistent with the requirement of being a
registered voter, then it would not have made citizenship a SEPARATE
qualification. The law abhors a redundancy. It therefore stands to reason
that the law intended CITIZENSHIP to be a qualification distinct from being
a VOTER, even if being a voter presumes being a citizen first. It also stands
to reason that the voter requirement was included as another qualification
(aside from "citizenship"), not to reiterate the need for nationality but to
require that the official be registered as a voter IN THE AREA OR
TERRITORY he seeks to govern, i.e., the law states: "a registered voter in
the barangay, municipality, city, or province . . . where he intends to be
elected." It should be emphasized that the Local Government Code
requires an elective official to be a registered voter. It does not require him
to vote actually. Hence, registration -- not the actual voting -- is the core of
this "qualification". In other words, the law's purpose in this second
requirement is to ensure that the prospective official is actually registered
in the area he seeks to govern -- and not anywhere else.
Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not
disputed -- that he "was and is a registered voter of Sorsogon, and his
registration as a voter has been sustained as valid by judicial declaration . .
. In fact, he cast his vote in his precinct on May 8, 1995." 36
So too, during the oral argument, his counsel steadfastly maintained that
"Mr. Frivaldo has always been a registered voter of Sorsogon. He has voted
in 1987, 1988, 1992, then he voted again in 1995. In fact, his eligibility as
a voter was questioned, but the court dismissed (sic) his eligibility as a
voter and he was allowed to vote as in fact, he voted in all the previous
elections including on May 8, 1995." 37

60
It is thus clear that Frivaldo is a registered voter in the province where he
intended to be elected.
There is yet another reason why the prime issue of citizenship should be
reckoned from the date of proclamation, not necessarily the date of
election or date of filing of the certificate of candidacy. Section 253 of the
Omnibus Election Code 38 gives any voter, presumably including the
defeated candidate, the opportunity to question the ELIGIBILITY (or the
disloyalty) of a candidate. This is the only provision of the Code that
authorizes a remedy on how to contest before the Comelec an incumbent's
ineligibility arising from failure to meet the qualifications enumerated
under Sec. 39 of the Local Government Code. Such remedy of Quo
Warranto can be availed of "within ten days after proclamation" of the
winning candidate. Hence, it is only at such time that the issue of
ineligibility may be taken cognizance of by the Commission. And since, at
the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G.
Frivaldo was already and indubitably a citizen, having taken his oath of
allegiance earlier in the afternoon of the same day, then he should have
been the candidate proclaimed as he unquestionably garnered the highest
number of votes in the immediately preceding elections and such oath had
already cured his previous "judicially-declared" alienage. Hence, at such
time, he was no longer ineligible.
But to remove all doubts on this important issue, we also hold that the
repatriation of Frivaldo RETROACTED to the date of the filing of his
application on August 17, 1994.
It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have
no retroactive effect, unless the contrary is provided." But there are settled
exceptions 40 to this general rule, such as when the statute is CURATIVE or
REMEDIAL in nature or when it CREATES NEW RIGHTS.
According to Tolentino, 41 curative statutes are those which undertake to
cure errors and irregularities, thereby validating judicial or administrative
proceedings, acts of public officers, or private deeds and contracts which
otherwise would not produce their intended consequences by reason of
some statutory disability or failure to comply with some technical
requirement. They operate on conditions already existing, and are
necessarily retroactive in operation. Agpalo, 42 on the other hand, says that
curative statutes are
"healing acts . . . curing defects and adding to the means of enforcing
existing obligations . . . (and) are intended to supply defects, abridge
superfluities in existing laws, and curb certain evils. . . . By their very
nature, curative statutes are retroactive . . . (and) reach back to past
events to correct errors or irregularities and to render valid and effective
attempted acts which would be otherwise ineffective for the purpose the
parties intended."

On the other hand, remedial or procedural laws, i.e., those statutes relating
to remedies or modes of procedure, which do not create new or take away
vested rights, but only operate in furtherance of the remedy or
confirmation of such rights, ordinarily do not come within the legal
meaning of a retrospective law, nor within the general rule against the
retrospective operation of statutes. 43
A reading of P.D. 725 immediately shows that it creates a new right, and
also provides for a new remedy, thereby filling certain voids in our laws.
Thus, in its preamble, P.D. 725 expressly recognizes the plight of "many
Filipino women (who) had lost their Philippine citizenship by marriage to
aliens" and who could not, under the existing law (C.A. No. 63, as
amended) avail of repatriation until "after the death of their husbands or
the termination of their marital status" and who could neither be benefitted
by the 1973 Constitution's new provision allowing "a Filipino woman who
marries an alien to retain her Philippine citizenship . . ." because "such
provision of the new Constitution does not apply to Filipino women who had
married aliens before said constitution took effect." Thus, P.D. 725 granted
a new right to these women -- the right to re-acquire Filipino citizenship
even during their marital coverture, which right did not exist prior to P.D.
725. On the other hand, said statute also provided a new remedyand
a new right in favor of other "natural born Filipinos who (had) lost their
Philippine citizenship but now desire to re-acquire Philippine citizenship",
because prior to the promulgation of P.D. 725 such former Filipinos would
have had to undergo the tedious and cumbersome process of
naturalization, but with the advent of P.D. 725 they could now re-acquire
their Philippine citizenship under the simplified procedure of repatriation.
The Solicitor General 44 argues:
By their very nature, curative statutes are retroactive, (DBP
vs. CA, 96 SCRA 342), since they are intended to supply
defects, abridge superfluities in existing laws (Del Castillo
vs. Securities and Exchange Commission, 96 Phil. 119) and
curb certain evils (Santos vs. Duata, 14 SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the defect in
the existing naturalization law, specifically C.A. No. 63
wherein married Filipino women are allowed to repatriate
only upon the death of their husbands, and natural-born
Filipinos who lost their citizenship by naturalization and
other causes faced the difficulty of undergoing the rigid
procedures of C.A. 63 for reacquisition of Filipino citizenship
by naturalization.

61
Presidential Decree No. 725 provided a remedy for the
aforementioned legal aberrations and thus its provisions
are considered essentially remedial and curative.
In light of the foregoing, and prescinding from the wording of the preamble,
it is unarguable that the legislative intent was precisely to give the statute
retroactive operation. "(A) retrospective operation is given to a statute or
amendment where the intent that it should so operate clearly appears from
a consideration of the act as a whole, or from the terms thereof." 45 It is
obvious to the Court that the statute was meant to "reach back" to those
persons, events and transactions not otherwise covered by prevailing law
and jurisprudence. And inasmuch as it has been held that citizenship is a
political and civil right equally as important as the freedom of speech,
liberty of abode, the right against unreasonable searches and seizures and
other guarantees enshrined in the Bill of Rights, therefore the legislative
intent to give retrospective operation to P.D. 725 must be given the fullest
effect possible. "(I)t has been said that a remedial statute must be so
construed as to make it effect the evident purpose for which it was
enacted, so that if the reason of the statute extends to past transactions,
as well as to those in the future, then it will be so applied although the
statute does not in terms so direct, unless to do so would impair some
vested right or violate some constitutional guaranty." 46 This is all the more
true of P.D. 725, which did not specify any restrictions on or delimit or
qualify the right of repatriation granted therein.
At this point, a valid question may be raised: How can the retroactivity of
P.D. 725 benefit Frivaldo considering that said law was enacted on June 5,
1975, while Frivaldo lost his Filipino citizenship much later, on January 20,
1983, and applied for repatriation even later, on August 17, 1994?
While it is true that the law was already in effect at the time that Frivaldo
became an American citizen, nevertheless, it is not only the law itself (P.D.
725) which is to be given retroactive effect, but even the repatriation
granted under said law to Frivaldo on June 30, 1995 is to be deemed to
have retroacted to the date of his application therefor, August 17, 1994.
The reason for this is simply that if, as in this case, it was the intent of the
legislative authority that the law should apply to past events -- i.e.,
situations and transactions existing even before the law came into being -in order to benefit the greatest number of former Filipinos possible thereby
enabling them to enjoy and exercise the constitutionally guaranteed right
of citizenship, and such legislative intention is to be given the fullest effect
and expression, then there is all the more reason to have the law apply in
a retroactive or retrospective manner to situations, events and
transactions subsequent to the passage of such law. That is, the
repatriation granted to Frivaldo on June 30, 1995 can and should be made
to take effect as of date of his application. As earlier mentioned, there is
nothing in the law that would bar this or would show a contrary intention

on the part of the legislative authority; and there is no showing that

damage or prejudice to anyone, or anything unjust or injurious would result
from giving retroactivity to his repatriation. Neither has Lee shown that
there will result the impairment of any contractual obligation, disturbance
of any vested right or breach of some constitutional guaranty.
Being a former Filipino who has served the people repeatedly, Frivaldo
deserves a liberal interpretation of Philippine laws and whatever defects
there were in his nationality should now be deemed mooted by his
repatriation.
Another argument for retroactivity to the date of filing is that it would
prevent prejudice to applicants. If P.D. 725 were not to be given retroactive
effect, and the Special Committee decides not to act, i.e., to delay the
processing of applications for any substantial length of time, then the
former Filipinos who may be stateless, as Frivaldo -- having already
renounced his American citizenship -- was, may be prejudiced for causes
outside their control. This should not be. In case of doubt in the
interpretation or application of laws, it is to be presumed that the lawmaking body intended right and justice to prevail. 47
And as experience will show, the Special Committee was able to process,
act upon and grant applications for repatriation within relatively short
spans of time after the same were filed. 48 The fact that such interregna
were relatively insignificant minimizes the likelihood of prejudice to the
government as a result of giving retroactivity to repatriation. Besides, to
the mind of the Court, direct prejudice to the government is possible only
where a person's repatriation has the effect of wiping out a liability of his to
the government arising in connection with or as a result of his being an
alien, and accruing only during the interregnum between application and
approval, a situation that is not present in the instant case.
And it is but right and just that the mandate of the people, already twice
frustrated, should now prevail. Under the circumstances, there is nothing
unjust or iniquitous in treating Frivaldo's repatriation as having become
effective as of the date of his application, i.e., on August 17, 1994. This
being so, all questions about his possession of the nationality qualification
-- whether at the date of proclamation (June 30, 1995) or the date of
election (May 8, 1995) or date of filing his certificate of candidacy (March
20, 1995) would become moot.
Based on the foregoing, any question regarding Frivaldo's status as a
registered voter would also be deemed settled. Inasmuch as he is
considered as having been repatriated -- i.e., his Filipino citizenship
restored -- as of August 17, 1994, his previous registration as a voter is
likewise deemed validated as of said date.

62
It is not disputed that on January 20, 1983 Frivaldo became an American.
Would the retroactivity of his repatriation not effectively give him dual
citizenship, which under Sec. 40 of the Local Government Code would
disqualify him "from running for any elective local position?" 49 We answer
this question in the negative, as there is cogent reason to hold that
Frivaldo was really STATELESS at the time he took said oath of allegiance
and even before that, when he ran for governor in 1988. In his Comment,
Frivaldo wrote that he "had long renounced and had long abandoned his
American citizenship -- long before May 8, 1995. At best, Frivaldo was
stateless in the interim -- when he abandoned and renounced his US
citizenship but before he was repatriated to his Filipino citizenship." 50
On this point, we quote from the assailed Resolution dated December 19,
1995: 51
By the laws of the United States, petitioner Frivaldo lost his
American citizenship when he took his oath of allegiance to
the Philippine Government when he ran for Governor in
1988, in 1992, and in 1995. Every certificate of candidacy
contains an oath of allegiance to the Philippine
Government."
These factual findings that Frivaldo has lost his foreign nationality long
before the elections of 1995 have not been effectively rebutted by Lee.
Furthermore, it is basic that such findings of the Commission are conclusive
upon this Court, absent any showing of capriciousness or arbitrariness or
abuse. 52
The Second Issue: Is Lack of Citizenship
a Continuing Disqualification?
Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second
Division in SPA No. 95-028 as affirmed in totoby Comelec En Banc in its
Resolution of May 11, 1995 "became final and executory after five (5) days
or on May 17, 1995, no restraining order having been issued by this
Honorable Court. 54 Hence, before Lee "was proclaimed as the elected
governor on June 30, 1995, there was already a final and executory
judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings
(which Frivaldo now concedes were legally "correct") declaring Frivaldo an
alien have also become final and executory way before the 1995 elections,
and these "judicial pronouncements of his political status as an American
citizen absolutely and for all time disqualified (him) from running for, and
holding any public office in the Philippines."
We do not agree.

It should be noted that our first ruling in G.R. No. 87193 disqualifying
Frivaldo was rendered in connection with the 1988 elections while that in
G.R. No. 104654 was in connection with the 1992 elections. That he was
disqualified for such elections is final and can no longer be changed. In the
words of the respondent Commission (Second Division) in its assailed
Resolution: 55
The records show that the Honorable Supreme Court had
decided that Frivaldo was not a Filipino citizen and thus
disqualified for the purpose of the 1988 and 1992
elections. However, there is no record of any "final
judgment" of the disqualification of Frivaldo as a candidate
for the May 8, 1995 elections. What the Commission said in
its Order of June 21, 1995 (implemented on June 30, 1995),
directing the proclamation of Raul R. Lee, was that Frivaldo
was not a Filipino citizen "having been declared by the
Supreme Court in its Order dated March 25, 1995, not a
citizen of the Philippines." This declaration of the Supreme
Court, however, was in connection with the 1992 elections.
Indeed, decisions declaring the acquisition or denial of citizenship cannot
govern a person's future status with finality. This is because a person may
subsequently reacquire, or for that matter lose, his citizenship under any of
the modes recognized by law for the purpose. Hence, in Lee
vs. Commissioner of Immigration, 56 we held:
Everytime the citizenship of a person is material or
indispensable in a judicial or administrative case, whatever
the corresponding court or administrative authority decides
therein as to such citizenship is generally not
considered res judicata, hence it has to be threshed out
again and again, as the occasion demands.
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to entertain the
petition in SPC No. 95-317 because the only "possible types of proceedings
that may be entertained by the Comelec are a pre-proclamation case, an
election protest or a quo warranto case". Again, Lee reminds us that he
was proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317
questioning his (Lee's) proclamation only on July 6, 1995 -- "beyond the 5day reglementary period." Hence, according to him, Frivaldo's "recourse
was to file either an election protest or a quo warranto action."

63
This argument is not meritorious. The Constitution 57 has given the
Comelec ample power to "exercise exclusive original jurisdiction over all
contests relating to the elections, returns and qualifications of all
elective . . . provincial . . . officials." Instead of dwelling at length on the
various petitions that Comelec, in the exercise of its constitutional
prerogatives, may entertain, suffice it to say that this Court has invariably
recognized the Commission's authority to hear and decide petitions for
annulment of proclamations -- of which SPC No. 95-317 obviously is
one. 58 Thus, in Mentang vs. COMELEC, 59 we ruled:
The petitioner argues that after proclamation and
assumption of office, a pre-proclamation controversy is no
longer viable. Indeed, we are aware of cases holding that
pre-proclamation controversies may no longer be
entertained by the COMELEC after the winning candidate
has been proclaimed. (citingGallardo vs. Rimando, 187
SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513;
Casimiro vs. COMELEC, 171 SCRA 468.) This rule, however,
is premised on an assumption that the proclamation is no
proclamation at all and the proclaimed candidate's
assumption of office cannot deprive the COMELEC of the
power to make such declaration of nullity. (citing Aguam
vs. COMELEC, 23 SCRA 883; Agbayani vs. COMELEC, 186
SCRA 484.)
The Court however cautioned that such power to annul a proclamation
must "be done within ten (10) days following the proclamation." Inasmuch
as Frivaldo's petition was filed only six (6) days after Lee's proclamation,
there is no question that the Comelec correctly acquired jurisdiction over
the same.
The Fourth Issue: Was Lee's Proclamation Valid?
Frivaldo assails the validity of the Lee proclamation. We uphold him for the
following reasons:
First. To paraphrase this Court in Labo vs. COMELEC, 60 "the fact remains
that he (Lee) was not the choice of the sovereign will," and
in Aquino vs. COMELEC, 61 Lee is "a second placer, . . . just that, a second
placer."
In spite of this, Lee anchors his claim to the governorship on the
pronouncement of this Court in the aforesaid Labo62 case, as follows:
The rule would have been different if the electorate fully
aware in fact and in law of a candidate's disqualification so

as to bring such awareness within the realm of notoriety,

would nonetheless cast their votes in favor of the ineligible
candidate. In such case, the electorate may be said to
have waived the validity and efficacy of their votes by
notoriously misapplying their franchise or throwing away
their votes, in which case, the eligible candidate obtaining
the next higher number of votes may be deemed elected.
But such holding is qualified by the next paragraph, thus:
But this is not the situation obtaining in the instant dispute.
It has not been shown, and none was alleged, that
petitioner Labo was notoriously known as an ineligible
candidate, much less the electorate as having known of
such fact. On the contrary, petitioner Labo was even
allowed by no less than the Comelec itself in its resolution
dated May 10, 1992 to be voted for the office of the city
Payor as its resolution dated May 9, 1992 denying due
course to petitioner Labo's certificate of candidacy had not
yet become final and subject to the final outcome of this
case.
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling
appropriate in this case because Frivaldo was in 1995 in an identical
situation as Labo was in 1992 when the Comelec's cancellation of his
certificate of candidacy was not yet final on election day as there was in
both cases a pending motion for reconsideration, for which reason Comelec
issued an (omnibus) resolution declaring that Frivaldo (like Labo in 1992)
and several others can still be voted for in the May 8, 1995 election, as in
fact, he was.
Furthermore, there has been no sufficient evidence presented to show that
the electorate of Sorsogon was "fully aware in fact and in law" of Frivaldo's
alleged disqualification as to "bring such awareness within the realm of
notoriety;" in other words, that the voters intentionally wasted their ballots
knowing that, in spite of their voting for him, he was ineligible. If Labo has
any relevance at all, it is that the vice-governor -- and not Lee -- should be
pro- claimed, since in losing the election, Lee was, to
paraphrase Labo again, "obviously not the choice of the people" of
Sorsogon. This is the emphatic teaching of Labo:
The rule, therefore, is: the ineligibility of a candidate
receiving majority votes does not entitle the eligible
candidate receiving the next highest number of votes to be
declared elected. A minority or defeated candidate cannot
be deemed elected to the office.

64
Second. As we have earlier declared Frivaldo to have seasonably
reacquired his citizenship and inasmuch as he obtained the highest
number of votes in the 1995 elections, he -- not Lee -- should be
proclaimed. Hence, Lee's proclamation was patently erroneous and should
now be corrected.
The Fifth Issue: Is Section 78 of the
Election Code Mandatory?
In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the
Comelec (Second Division) dated May 1, 1995 and the confirmatory en
banc Resolution of May 11, 1995 disqualifying him for want of citizenship
should be annulled because they were rendered beyond the fifteen (15)
day period prescribed by Section 78, of the Omnibus Election Code which
reads as follows:
Sec. 78. Petition to deny due course or to cancel a
certificate of candidacy. -- A verified petition seeking to
deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that
any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed
at any time not later than twenty-five days from the time of
the filing of the certificate of candidacy and shall be
decided after notice and hearing, not later than fifteen
days before the election. (Emphasis supplied.)
This claim is now moot and academic inasmuch as these resolutions are
deemed superseded by the subsequent ones issued by the Commission
(First Division) on December 19, 1995, affirmed en banc 63 on February 23,
1996; which both upheld his election. At any rate, it is obvious that Section
78 is merely directory as Section 6 of R.A. No. 6646 authorizes the
Commission to try and decide petitions for disqualifications even after the
elections, thus:
Sec. 6. Effect of Disqualification Case. -- Any candidate who
has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by
final judgment before an election to be disqualified and he
is voted for and receives the winning number of votes in
such election, the Court or Commission shall continue with
the trial and hearing of the action, inquiry or protest and
upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of
his guilt is strong. (emphasis supplied)

Refutation of
Mr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr.
argues that President Aquino's memorandum dated March 27, 1987 should
be viewed as a suspension (not a repeal, as urged by Lee) of P.D. 725. But
whether it decrees a suspension or a repeal is a purely academic
distinction because the said issuance is not a statute that can amend or
abrogate an existing law.
The existence and subsistence of P.D. 725 were recognized in the first
Frivaldo case; 64 viz., "(u)nder CA No. 63 as amended by CA No. 473
and P.D. No. 725, Philippine citizenship maybe reacquired by . . .
repatriation". He also contends that by allowing Frivaldo to register and to
remain as a registered voter, the Comelec and in effect this Court abetted
a "mockery" of our two previous judgments declaring him a non-citizen. We
do not see such abetting or mockery. The retroactivity of his repatriation,
as discussed earlier, legally cured whatever defects there may have been
in his registration as a voter for the purpose of the 1995 elections. Such
retroactivity did not change his disqualifications in 1988 and 1992, which
were the subjects of such previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole remedy
to question the ineligibility of a candidate, citing the Comelec's authority
under Section 78 of the Omnibus Election Code allowing the denial of a
certificate of candidacy on the ground of a false material representation
therein as required by Section 74. Citing Loong, he then states his
disagreement with our holding that Section 78 is merely directory. We
really have no quarrel. Our point is that Frivaldo was in error in his claim in
G.R. No. 120295 that the Comelec Resolutions promulgated on May 1,
1995 and May 11, 1995 were invalid because they were issued "not later
than fifteen days before the election" as prescribed by Section 78. In
dismissing the petition in G.R. No. 120295, we hold that the Comelec did
not commit grave abuse of discretion because "Section 6 of R.A. 6646
authorizes the Comelec to try and decide disqualifications even after the
elections." In spite of his disagreement with us on this point, i.e., that
Section 78 "is merely directory", we note that just like us, Mr. Justice
Davide nonetheless votes to "DISMISS G.R. No. 120295". One other
point. Loong, as quoted in the dissent, teaches that a petition to deny due
course under Section 78 must be filed within the 25-day period prescribed
therein. The present case however deals with the period during which the
Comelec may decide such petition. And we hold that it may be decided
even after the fifteen day period mentioned in Section 78. Here, we rule
that a decision promulgated by the Comelec even after the elections is
valid but Loong held that a petition filed beyond the 25-day period is out of
time. There is no inconsistency nor conflict.

65
Mr. Justice Davide also disagrees with the Court's holding that, given the
unique factual circumstances of Frivaldo, repatriation may be given
retroactive effect. He argues that such retroactivity "dilutes" our holding in
the first Frivaldo case. But the first (and even the second Frivaldo) decision
did not directly involve repatriation as a mode of acquiring citizenship. If
we may repeat, there is no question that Frivaldo was not a Filipino for
purposes of determining his qualifications in the 1988 and 1992 elections.
That is settled. But his supervening repatriation has changed his political
status -- not in 1988 or 1992, but only in the 1995 elections.

Mr. Justice Davide also questions the giving of retroactive effect to

Frivaldo's repatriation on the ground, among others, that the law
specifically provides that it is only after taking the oath of allegiance that
applicants shall be deemed to have reacquired Philippine citizenship. We
do not question what the provision states. We hold however that the
provision should be understood thus: that after taking the oath of
allegiance the applicant is deemed to have reacquired Philippine
citizenship, which reacquisition (or repatriation) is deemed for all purposes
and intents to have retroacted to the date of his application therefor.

Our learned colleague also disputes our holding that Frivaldo was stateless
prior to his repatriation, saying that "informal renunciation or abandonment
is not a ground to lose American citizenship". Since our courts are charged
only with the duty of determining who are Philippine nationals, we cannot
rule on the legal question of who are or who are not Americans. It is basic
in international law that a State determines ONLY those who are its own
citizens -- not who are the citizens of other countries. 65 The issue here is:
the Comelec made a finding of fact that Frivaldo was stateless and such
finding has not been shown by Lee to be arbitrary or whimsical. Thus,
following settled case law, such finding is binding and final.

In any event, our "so too" argument regarding the literal meaning of the
word "elective" in reference to Section 39 of the Local Authority Code, as
well as regarding Mr. Justice Davide's thesis that the very wordings of P.D.
725 suggest non-retroactivity, were already taken up rather extensively
earlier in this Decision.

The dissenting opinion also submits that Lee who lost by chasmic margins
to Frivaldo in all three previous elections, should be declared winner
because "Frivaldo's ineligibility for being an American was publicly known".
First, there is absolutely no empirical evidence for such "public"
knowledge. Second, even if there is, such knowledge can be truepost
facto only of the last two previous elections. Third, even the Comelec and
now this Court were/are still deliberating on his nationality before, during
and after the 1995 elections. How then can there be such "public"
knowledge?

At balance, the question really boils down to a choice of philosophy and

perception of how to interpret and apply laws relating to elections: literal or
liberal; the letter or the spirit, the naked provision or its ultimate purpose;
legal syllogism or substantial justice; in isolation or in the context of social
conditions; harshly against or gently in favor of the voters' obvious choice.
In applying election laws, it would be far better to err in favor of popular
sovereignty than to be right in complex but little understood legalisms.
Indeed, to inflict a thrice rejected candidate upon the electorate of
Sorsogon would constitute unmitigated judicial tyranny and an
unacceptable assault upon this Court's conscience.

Mr. Justice Davide submits that Section 39 of the Local Government Code
refers to the qualifications of electivelocal officials, i.e., candidates, and
not elected officials, and that the citizenship qualification [under par. (a) of
that section] must be possessed by candidates, not merely at the
commencement of the term, but by election day at the latest. We see it
differently. Section 39, par. (a) thereof speaks of "elective local official"
while par. (b) to (f) refer to "candidates". If the qualifications under par. (a)
were intended to apply to "candidates" and not elected officials, the
legislature would have said so, instead of differentiating par. (a) from the
rest of the paragraphs. Secondly, if Congress had meant that the
citizenship qualification should be possessed at election day or prior
thereto, it would have specifically stated such detail, the same way it did in
pars. (b) to (f) far other qualifications of candidates for governor, mayor,
etc.

Mr. Justice Davide caps his paper with a clarion call: "This Court must be
the first to uphold the Rule of Law." We agree -- we must all follow the rule
of law. But that is NOT the issue here. The issue is how should the law be
interpreted and applied in this case so it can be followed, so it can rule!

EPILOGUE
In sum, we rule that the citizenship requirement in the Local Government
Code is to be possessed by an elective official at the latest as of the time
he is proclaimed and at the start of the term of office to which he has been
elected. We further hold P.D. No. 725 to be in full force and effect up to the
present, not having been suspended or repealed expressly nor impliedly at
any time, and Frivaldo's repatriation by virtue thereof to have been
properly granted and thus valid and effective. Moreover, by reason of the
remedial or curative nature of the law granting him a new right to resume
his political status and the legislative intent behind it, as well as his unique
situation of having been forced to give up his citizenship and political
aspiration as his means of escaping a regime he abhorred, his repatriation
is to be given retroactive effect as of the date of his application therefor,
during the pendency of which he was stateless, he having given up his U.S.

66
nationality. Thus, in contemplation of law, he possessed the vital
requirement of Filipino citizenship as of the start of the term of office of
governor, and should have been proclaimed instead of Lee. Furthermore,
since his reacquisition of citizenship retroacted to August 17, 1994, his
registration as a voter of Sorsogon is deemed to have been validated as of
said date as well. The foregoing, of course, are precisely consistent with
our holding that lack of the citizenship requirement is not a continuing
disability or disqualification to run for and hold public office. And once
again, we emphasize herein our previous rulings recognizing the Comelec's
authority and jurisdiction to hear and decide petitions for annulment of
proclamations.
This Court has time and again liberally and equitably construed the
electoral laws of our country to give fullest effect to the manifest will of our
people, 66 for in case of doubt, political laws must be interpreted to give life
and spirit to the popular mandate freely expressed through the ballot.
Otherwise stated, legal niceties and technicalities cannot stand in the way
of the sovereign will. Consistently, we have held:
. . . (L)aws governing election contests must be liberally
construed to the end that the will of the people in the
choice of public officials may not be defeated by mere
technical objections (citations omitted). 67
The law and the courts must accord Frivaldo every possible protection,
defense and refuge, in deference to the popular will. Indeed, this Court has
repeatedly stressed the importance of giving effect to the sovereign will in
order to ensure the survival of our democracy. In any action involving the
possibility of a reversal of the popular electoral choice, this Court must
exert utmost effort to resolve the issues in a manner that would give effect
to the will of the majority, for it is merely sound public policy to cause
elective offices to be filled by those who are the choice of the majority. To
successfully challenge a winning candidate's qualifications, the petitioner
must clearly demonstrate that the ineligibility is so patently
antagonistic 68 to constitutional and legal principles that overriding such
ineligibility and thereby giving effect to the apparent will of the people,
would ultimately create greater prejudice to the very democratic
institutions and juristic traditions that our Constitution and laws so
zealously protect and promote. In this undertaking, Lee has miserably
failed.
In Frivaldo's case. it would have been technically easy to find fault with his
cause. The Court could have refused to grant retroactivity to the effects of
his repatriation and hold him still ineligible due to his failure to show his
citizenship at the time he registered as a voter before the 1995 elections.
Or, it could have disputed the factual findings of the Comelec that he was
stateless at the time of repatriation and thus hold his consequent dual

citizenship as a disqualification "from running for any elective local

position." But the real essence of justice does not emanate from quibblings
over patchwork legal technicality. It proceeds from the spirit's gut
consciousness of the dynamic role of law as a brick in the ultimate
development of the social edifice. Thus, the Court struggled against and
eschewed the easy, legalistic, technical and sometimes harsh
anachronisms of the law in order to evoke substantial justice in the larger
social context consistent with Frivaldo's unique situation approximating
venerability in Philippine political life. Concededly, he sought American
citizenship only to escape the clutches of the dictatorship. At this stage, we
cannot seriously entertain any doubt about his loyalty and dedication to
this country. At the first opportunity, he returned to this land, and sought to
serve his people once more. The people of Sorsogon overwhelmingly voted
for him three times. He took an oath of allegiance to this Republic every
time he filed his certificate of candidacy and during his failed naturalization
bid. And let it not be overlooked, his demonstrated tenacity and sheer
determination to re-assume his nationality of birth despite several legal
set-backs speak more loudly, in spirit, in fact and in truth than any legal
technicality, of his consuming intention and burning desire to re-embrace
his native Philippines even now at the ripe old age of 81 years. Such loyalty
to and love of country as well as nobility of purpose cannot be lost on this
Court of justice and equity. Mortals of lesser mettle would have given up.
After all, Frivaldo was assured of a life of ease and plenty as a citizen of the
most powerful country in the world. But he opted, nay, single-mindedly
insisted on returning to and serving once more his struggling but beloved
land of birth. He therefore deserves every liberal interpretation of the law
which can be applied in his favor. And in the final analysis, over and above
Frivaldo himself, the indomitable people of Sorsogon most certainly
deserve to be governed by a leader of their overwhelming choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed
Resolutions of the respondent Commission are AFFIRMED.
(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and
academic. In any event, it has no merit.
No costs.
SO ORDERED.

67

EN BANC
[G.R. No. 135083. May 26, 1999]
ERNESTO
S.
MERCADO, petitioner,
MANZANO
and
the
ELECTIONS, respondents.

vs. EDUARDO
BARRIOS
COMMISSION
ON

DECISION
MENDOZA, J.:
Petitioner Ernesto S. Mercado and private respondent Eduardo B.
Manzano were candidates for vice mayor of the City of Makati in the May
11, 1998 elections. The other one was Gabriel V. Daza III.The results of the
election were as follows:
Eduardo B. Manzano 103,853
Ernesto S. Mercado 100,894
Gabriel V. Daza III 54,275[1]
The proclamation of private respondent was suspended in view of a
pending petition for disqualification filed by a certain Ernesto Mamaril who
alleged that private respondent was not a citizen of the Philippines but of
the United States.

68
In its resolution, dated May 7, 1998,[2] the Second Division of the
COMELEC granted the petition of Mamaril and ordered the cancellation of
the certificate of candidacy of private respondent on the ground that he is
a dual citizen and, under 40(d) of the Local Government Code, persons
with dual citizenship are disqualified from running for any elective
position. The COMELECs Second Division said:
What is presented before the Commission is a petition for disqualification
of Eduardo Barrios Manzano as candidate for the office of Vice-Mayor of
Makati City in the May 11, 1998 elections. The petition is based on the
ground that the respondent is an American citizen based on the record of
the Bureau of Immigration and misrepresented himself as a natural-born
Filipino citizen.

On May 19, 1998, petitioner sought to intervene in the case for

disqualification.[4] Petitioners motion was opposed by private respondent.
The motion was not resolved. Instead, on August 31, 1998, the
COMELEC en banc rendered its resolution. Voting 4 to 1, with one
commissioner abstaining, the COMELEC en banc reversed the ruling of its
Second Division and declared private respondent qualified to run for vice
mayor of the City of Makati in the May 11, 1998 elections. [5] The pertinent
portions of the resolution of the COMELEC en banc read:
As aforesaid, respondent Eduardo Barrios Manzano was born in San
Francisco, California, U.S.A. He acquired US citizenship by operation of the
United States Constitution and laws under the principle of jus soli.

In his answer to the petition filed on April 27, 1998, the respondent
admitted that he is registered as a foreigner with the Bureau of
Immigration under Alien Certificate of Registration No. B-31632 and alleged
that he is a Filipino citizen because he was born in 1955 of a Filipino father
and a Filipino mother. He was born in the United States, San Francisco,
California, on September 14, 1955, and is considered an American citizen
under US Laws. But notwithstanding his registration as an American
citizen, he did not lose his Filipino citizenship.

He was also a natural born Filipino citizen by operation of the 1935

Philippine Constitution, as his father and mother were Filipinos at the time
of his birth. At the age of six (6), his parents brought him to the Philippines
using an American passport as travel document. His parents also
registered him as an alien with the Philippine Bureau of Immigration. He
was issued an alien certificate of registration. This, however, did not result
in the loss of his Philippine citizenship, as he did not renounce Philippine
citizenship and did not take an oath of allegiance to the United States.

Judging from the foregoing facts, it would appear that respondent Manzano
is both a Filipino and a US citizen. In other words, he holds dual citizenship.

It is an undisputed fact that when respondent attained the age of majority,

he registered himself as a voter, and voted in the elections of 1992, 1995
and 1998, which effectively renounced his US citizenship under American
law. Under Philippine law, he no longer had U.S. citizenship.

The question presented is whether under our laws, he is disqualified from

the position for which he filed his certificate of candidacy. Is he eligible for
the office he seeks to be elected?
Under Section 40(d) of the Local Government Code, those holding dual
citizenship are disqualified from running for any elective local position.
WHEREFORE, the Commission hereby declares the respondent Eduardo
Barrios Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati City.
On May 8, 1998, private respondent filed a motion for reconsideration.
The motion remained pending even until after the election held on May
11, 1998.
[3]

Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10,

1998, of the COMELEC, the board of canvassers tabulated the votes cast
for vice mayor of Makati City but suspended the proclamation of the
winner.

At the time of the May 11, 1998 elections, the resolution of the Second
Division, adopted on May 7, 1998, was not yet final. Respondent Manzano
obtained the highest number of votes among the candidates for vicemayor of Makati City, garnering one hundred three thousand eight hundred
fifty three (103,853) votes over his closest rival, Ernesto S. Mercado, who
obtained one hundred thousand eight hundred ninety four (100,894) votes,
or a margin of two thousand nine hundred fifty nine (2,959) votes. Gabriel
Daza III obtained third place with fifty four thousand two hundred seventy
five (54,275) votes. In applying election laws, it would be far better to err
in favor of the popular choice than be embroiled in complex legal issues
involving private international law which may well be settled before the
highest court (Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727).
WHEREFORE, the Commission en banc hereby REVERSES the resolution of
the Second Division, adopted on May 7, 1998, ordering the cancellation of
the respondents certificate of candidacy.

69
We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a
candidate for the position of vice-mayor of Makati City in the May 11, 1998,
elections.
ACCORDINGLY, the Commission directs the Makati City Board of
Canvassers, upon proper notice to the parties, to reconvene and proclaim
the respondent Eduardo Luis Barrios Manzano as the winning candidate for
vice-mayor of Makati City.
Pursuant to the resolution of the COMELEC en banc, the board of
canvassers, on the evening of August 31, 1998, proclaimed private
respondent as vice mayor of the City of Makati.
This is a petition for certiorari seeking to set aside the aforesaid
resolution of the COMELEC en banc and to declare private respondent
disqualified to hold the office of vice mayor of Makati City.Petitioner
contends that
[T]he COMELEC en banc ERRED in holding that:
A. Under Philippine law, Manzano was no longer a U.S. citizen when he:
1. He renounced his U.S. citizenship when he attained the age of majority
when he was already 37 years old; and,
2. He renounced his U.S. citizenship when he (merely) registered himself as
a voter and voted in the elections of 1992, 1995 and 1998.
B. Manzano is qualified to run for and or hold the elective office of ViceMayor of the City of Makati;
C. At the time of the May 11, 1998 elections, the resolution of the Second
Division adopted on 7 May 1998 was not yet final so that, effectively,
petitioner may not be declared the winner even assuming that Manzano is
disqualified to run for and hold the elective office of Vice-Mayor of the City
of Makati.
We first consider the threshold procedural issue raised by private
respondent Manzano whether petitioner Mercado has personality to bring
this suit considering that he was not an original party in the case for
disqualification filed by Ernesto Mamaril nor was petitioners motion for
leave to intervene granted.
I. PETITIONER'S RIGHT TO BRING THIS SUIT

Private respondent cites the following provisions of Rule 8 of the Rules

of Procedure of the COMELEC in support of his claim that petitioner has no
right to intervene and, therefore, cannot bring this suit to set aside the
ruling denying his motion for intervention:
Section 1. When proper and when may be permitted to intervene. Any
person allowed to initiate an action or proceeding may, before or during
the trial of an action or proceeding, be permitted by the Commission, in its
discretion to intervene in such action or proceeding, if he has legal interest
in the matter in litigation, or in the success of either of the parties, or an
interest against both, or when he is so situated as to be adversely affected
by such action or proceeding.
....
Section 3. Discretion of Commission. In allowing or disallowing a motion for
intervention, the Commission or the Division, in the exercise of its
discretion, shall consider whether or not the intervention will unduly delay
or prejudice the adjudication of the rights of the original parties and
whether or not the intervenors rights may be fully protected in a separate
action or proceeding.
Private respondent argues that petitioner has neither legal interest in the
matter in litigation nor an interest to protect because he is a defeated
candidate for the vice-mayoralty post of Makati City [who] cannot be
proclaimed as the Vice-Mayor of Makati City even if the private respondent
be ultimately disqualified by final and executory judgment.
The flaw in this argument is it assumes that, at the time petitioner
sought to intervene in the proceedings before the COMELEC, there had
already been a proclamation of the results of the election for the vice
mayoralty contest for Makati City, on the basis of which petitioner came
out only second to private respondent. The fact, however, is that there had
been no proclamation at that time. Certainly, petitioner had, and still has,
an interest in ousting private respondent from the race at the time he
sought to intervene. The rule in Labo v. COMELEC,[6] reiterated in several
cases,[7] only applies to cases in which the election of the respondent is
contested, and the question is whether one who placed second to the
disqualified candidate may be declared the winner. In the present case, at
the time petitioner filed a Motion for Leave to File Intervention on May 20,
1998, there had been no proclamation of the winner, and petitioners
purpose was precisely to have private respondent disqualified from running
for [an] elective local position under 40(d) of R.A. No. 7160. If Ernesto
Mamaril (who originally instituted the disqualification proceedings), a
registered voter of Makati City, was competent to bring the action, so was
petitioner since the latter was a rival candidate for vice mayor of Makati
City.

70
Nor is petitioners interest in the matter in litigation any less because
he filed a motion for intervention only on May 20, 1998, after private
respondent had been shown to have garnered the highest number of votes
among the candidates for vice mayor. That petitioner had a right to
intervene at that stage of the proceedings for the disqualification against
private respondent is clear from 6 of R.A. No. 6646, otherwise known as the
Electoral Reforms Law of 1987, which provides:
Any candidate who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted. If
for any reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate
whenever the evidence of guilt is strong.
Under this provision, intervention may be allowed in proceedings for
disqualification even after election if there has yet been no final judgment
rendered.
The failure of the COMELEC en banc to resolve petitioners motion for
intervention was tantamount to a denial of the motion, justifying petitioner
in filing the instant petition for certiorari. As the COMELEC en banc instead
decided the merits of the case, the present petition properly deals not only
with the denial of petitioners motion for intervention but also with the
substantive issues respecting private respondents alleged disqualification
on the ground of dual citizenship.
This brings us to the next question, namely, whether private
respondent Manzano possesses dual citizenship and, if so, whether he is
disqualified from being a candidate for vice mayor of Makati City.
II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION

The disqualification of private respondent Manzano is being sought

under 40 of the Local Government Code of 1991 (R.A. No. 7160), which
declares as disqualified from running for any elective local position: . . . (d)
Those with dual citizenship. This provision is incorporated in the Charter of
the City of Makati.[8]

Invoking the maxim dura lex sed lex, petitioner, as well as the
Solicitor General, who sides with him in this case, contends that through
40(d) of the Local Government Code, Congress has command[ed] in
explicit terms the ineligibility of persons possessing dual allegiance to hold
local elective office.
To begin with, dual citizenship is different from dual allegiance. The
former arises when, as a result of the concurrent application of the
different laws of two or more states, a person is simultaneously considered
a national by the said states.[9] For instance, such a situation may arise
when a person whose parents are citizens of a state which adheres to the
principle of jus sanguinis is born in a state which follows the doctrine of jus
soli. Such a person, ipso facto and without any voluntary act on his part, is
concurrently considered a citizen of both states. Considering the
citizenship clause (Art. IV) of our Constitution, it is possible for the
following classes of citizens of the Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries
which follow the principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if
by the laws of their fathers country such children are citizens of that
country;
(3) Those who marry aliens if by the laws of the latters country the
former are considered citizens, unless by their act or omission they are
deemed to have renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines
may, without performing any act, be also a citizen of another state; but the
above cases are clearly possible given the constitutional provisions on
citizenship.
Dual allegiance, on the other hand, refers to the situation in which a
person simultaneously owes, by some positive act, loyalty to two or more
states. While dual citizenship is involuntary, dual allegiance is the result of
an individuals volition.
With respect to dual allegiance, Article IV, 5 of the Constitution
provides: Dual allegiance of citizens is inimical to the national interest and
shall be dealt with by law. This provision was included in the 1987
Constitution at the instance of Commissioner Blas F. Ople who explained its
necessity as follows:[10]
. . . I want to draw attention to the fact that dual allegiance is not dual
citizenship. I have circulated a memorandum to the Bernas Committee

71
according to which a dual allegiance - and I reiterate a dual allegiance - is
larger and more threatening than that of mere double citizenship which is
seldom intentional and, perhaps, never insidious. That is often a function of
the accident of mixed marriages or of birth on foreign soil. And so, I do not
question double citizenship at all.
What we would like the Committee to consider is to take constitutional
cognizance of the problem of dual allegiance. For example, we all know
what happens in the triennial elections of the Federation of Filipino-Chinese
Chambers of Commerce which consists of about 600 chapters all over the
country. There is a Peking ticket, as well as a Taipei ticket. Not widely
known is the fact that the Filipino-Chinese community is represented in the
Legislative Yuan of the Republic of China in Taiwan. And until recently, the
sponsor might recall, in Mainland China in the Peoples Republic of China,
they have the Associated Legislative Council for overseas Chinese wherein
all of Southeast Asia including some European and Latin countries were
represented, which was dissolved after several years because of diplomatic
friction. At that time, the Filipino-Chinese were also represented in that
Overseas Council.
When I speak of double allegiance, therefore, I speak of this unsettled kind
of allegiance of Filipinos, of citizens who are already Filipinos but who, by
their acts, may be said to be bound by a second allegiance, either to
Peking or Taiwan. I also took close note of the concern expressed by some
Commissioners yesterday, including Commissioner Villacorta, who were
concerned about the lack of guarantees of thorough assimilation, and
especially Commissioner Concepcion who has always been worried about
minority claims on our natural resources.
Dual allegiance can actually siphon scarce national capital to Taiwan,
Singapore, China or Malaysia, and this is already happening. Some of the
great commercial places in downtown Taipei are Filipino-owned, owned by
Filipino-Chinese it is of common knowledge in Manila. It can mean a tragic
capital outflow when we have to endure a capital famine which also means
economic stagnation, worsening unemployment and social unrest.
And so, this is exactly what we ask that the Committee kindly consider
incorporating a new section, probably Section 5, in the article on
Citizenship which will read as follows: DUAL ALLEGIANCE IS INIMICAL TO
CITIZENSHIP AND SHALL BE DEALT WITH ACCORDING TO LAW.
In another session of the Commission, Ople spoke on the problem of
these citizens with dual allegiance, thus:[11]
. . . A significant number of Commissioners expressed their concern about
dual citizenship in the sense that it implies a double allegiance under a

double sovereignty which some of us who spoke then in a freewheeling

debate thought would be repugnant to the sovereignty which pervades the
Constitution and to citizenship itself which implies a uniqueness and which
elsewhere in the Constitution is defined in terms of rights and obligations
exclusive to that citizenship including, of course, the obligation to rise to
the defense of the State when it is threatened, and back of this,
Commissioner Bernas, is, of course, the concern for national security. In the
course of those debates, I think some noted the fact that as a result of the
wave of naturalizations since the decision to establish diplomatic relations
with the Peoples Republic of China was made in 1975, a good number of
these naturalized Filipinos still routinely go to Taipei every October 10; and
it is asserted that some of them do renew their oath of allegiance to a
foreign government maybe just to enter into the spirit of the occasion
when the anniversary of the Sun Yat-Sen Republic is commemorated. And
so, I have detected a genuine and deep concern about double citizenship,
with its attendant risk of double allegiance which is repugnant to our
sovereignty and national security. I appreciate what the Committee said
that this could be left to the determination of a future legislature. But
considering the scale of the problem, the real impact on the security of this
country, arising from, let us say, potentially great numbers of double
citizens professing double allegiance, will the Committee entertain a
proposed amendment at the proper time that will prohibit, in effect, or
regulate double citizenship?
Clearly, in including 5 in Article IV on citizenship, the concern of the
Constitutional Commission was not with dual citizens per se but with
naturalized citizens who maintain their allegiance to their countries of
origin even after their naturalization. Hence, the phrase dual citizenship in
R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as
referring to dual allegiance. Consequently, persons with mere dual
citizenship do not fall under this disqualification. Unlike those with dual
allegiance, who must, therefore, be subject to strict process with respect to
the termination of their status, for candidates with dual citizenship, it
should suffice if, upon the filing of their certificates of candidacy, they elect
Philippine citizenship to terminate their status as persons with dual
citizenship considering that their condition is the unavoidable consequence
of conflicting laws of different states. As Joaquin G. Bernas, one of the most
perceptive members of the Constitutional Commission, pointed out: [D]ual
citizenship is just a reality imposed on us because we have no control of
the laws on citizenship of other countries. We recognize a child of a Filipino
mother. But whether or not she is considered a citizen of another country is
something completely beyond our control.[12]
By electing Philippine citizenship, such candidates at the same time
forswear allegiance to the other country of which they are also citizens and
thereby terminate their status as dual citizens. It may be that, from the
point of view of the foreign state and of its laws, such an individual has not
effectively renounced his foreign citizenship. That is of no moment as the

72
following discussion on 40(d) between Senators Enrile and Pimentel clearly
shows:[13]
SENATOR ENRILE. Mr. President, I would like to ask clarification of line
41, page 17: Any person with dual citizenship is disqualified to run
for any elective local position. Under the present Constitution, Mr.
President, someone whose mother is a citizen of the Philippines but
his father is a foreigner is a natural-born citizen of the
Republic. There is no requirement that such a natural born citizen,
upon reaching the age of majority, must elect or give up Philippine
citizenship.
On the assumption that this person would carry two passports, one
belonging to the country of his or her father and one belonging to
the Republic of the Philippines, may such a situation disqualify the
person to run for a local government position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means that at
the moment when he would want to run for public office, he has to
repudiate one of his citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport but the
country of origin or the country of the father claims that person,
nevertheless, as a citizen? No one can renounce. There are such
countries in the world.
SENATOR PIMENTEL. Well, the very fact that he is running for public
office would, in effect, be an election for him of his desire to be
considered as a Filipino citizen.
SENATOR ENRILE. But, precisely, Mr. President, the Constitution does
not require an election. Under the Constitution, a person whose
mother is a citizen of the Philippines is, at birth, a citizen without
any overt act to claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under
the Gentlemans example, if he does not renounce his other
citizenship, then he is opening himself to question. So, if he is
really interested to run, the first thing he should do is to say in the
Certificate of Candidacy that: I am a Filipino citizen, and I have only
one citizenship.
SENATOR ENRILE. But we are talking from the viewpoint of Philippine
law, Mr. President. He will always have one citizenship, and that is
the citizenship invested upon him or her in the Constitution of the
Republic.

SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts

that will prove that he also acknowledges other citizenships, then
he will probably fall under this disqualification.
This is similar to the requirement that an applicant for naturalization
must renounce all allegiance and fidelity to any foreign prince, potentate,
state, or sovereignty[14] of which at the time he is a subject or citizen before
he can be issued a certificate of naturalization as a citizen of the
Philippines. In Parado v. Republic,[15] it was held:
[W]hen a person applying for citizenship by naturalization takes an oath
that he renounces his loyalty to any other country or government and
solemnly declares that he owes his allegiance to the Republic of the
Philippines, the condition imposed by law is satisfied and complied
with. The determination whether such renunciation is valid or fully
complies with the provisions of our Naturalization Law lies within the
province and is an exclusive prerogative of our courts. The latter should
apply the law duly enacted by the legislative department of the
Republic. No foreign law may or should interfere with its operation and
application. If the requirement of the Chinese Law of Nationality were to be
read into our Naturalization Law, we would be applying not what our
legislative department has deemed it wise to require, but what a foreign
government has thought or intended to exact. That, of course, is absurd. It
must be resisted by all means and at all cost. It would be a brazen
encroachment upon the sovereign will and power of the people of this
Republic.
III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP

The record shows that private respondent was born in San Francisco,
California on September 4, 1955, of Filipino parents. Since the Philippines
adheres to the principle of jus sanguinis, while the United States follows
the doctrine of jus soli, the parties agree that, at birth at least, he was a
national both of the Philippines and of the United States. However, the
COMELEC en banc held that, by participating in Philippine elections in
1992, 1995, and 1998, private respondent effectively renounced his U.S.
citizenship under American law, so that now he is solely a Philippine
national.
Petitioner challenges this ruling. He argues that merely taking part in
Philippine elections is not sufficient evidence of renunciation and that, in
any event, as the alleged renunciation was made when private respondent
was already 37 years old, it was ineffective as it should have been made
when he reached the age of majority.

73
In holding that by voting in Philippine elections private respondent
renounced his American citizenship, the COMELEC must have in mind 349
of the Immigration and Nationality Act of the United States, which provided
that A person who is a national of the United States, whether by birth or
naturalization, shall lose his nationality by: . . . (e) Voting in a political
election in a foreign state or participating in an election or plebiscite to
determine the sovereignty over foreign territory. To be sure this provision
was declared unconstitutional by the U.S. Supreme Court in Afroyim v.
Rusk[16] as beyond the power given to the U.S. Congress to regulate foreign
relations. However, by filing a certificate of candidacy when he ran for his
present post, private respondent elected Philippine citizenship and in effect
renounced his American citizenship. Private respondents certificate of
candidacy, filed on March 27, 1998, contained the following statements
made under oath:
6. I AM A FILIPINO CITIZEN (STATE IF NATURAL-BORN OR
NATURALIZED) NATURAL-BORN
....
10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A,
BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF MAKATI,
PROVINCE OF NCR .
11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A
FOREIGN COUNTRY.
12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL
SUPPORT AND DEFEND THE CONSTITUTION OF THE
PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND
ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS, LEGAL
ORDERS AND DECREES PROMULGATED BY THE DULY
CONSTITUTED AUTHORITIES OF THE REPUBLIC OF THE
PHILIPPINES; AND THAT I IMPOSE THIS OBLIGATION UPON
MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION OR
PURPOSE OF EVASION. I HEREBY CERTIFY THAT THE FACTS
STATED HEREIN ARE TRUE AND CORRECT OF MY OWN
PERSONAL KNOWLEDGE.

would disqualify him from running for any elective local position? We
answer this question in the negative, as there is cogent reason to hold that
Frivaldo was really STATELESS at the time he took said oath of allegiance
and even before that, when he ran for governor in 1988. In his Comment,
Frivaldo wrote that he had long renounced and had long abandoned his
American citizenship-long before May 8, 1995. At best, Frivaldo was
stateless in the interim-when he abandoned and renounced his US
citizenship but before he was repatriated to his Filipino citizenship.
On this point, we quote from the assailed Resolution dated December 19,
1995:
By the laws of the United States, petitioner Frivaldo lost his American
citizenship when he took his oath of allegiance to the Philippine
Government when he ran for Governor in 1988, in 1992, and in 1995.Every
certificate of candidacy contains an oath of allegiance to the Philippine
Government.
These factual findings that Frivaldo has lost his foreign nationality long
before the elections of 1995 have not been effectively rebutted by
Lee. Furthermore, it is basic that such findings of the Commission are
conclusive upon this Court, absent any showing of capriciousness or
arbitrariness or abuse.
There is, therefore, no merit in petitioners contention that the oath of
allegiance contained in private respondents certificate of candidacy is
insufficient to constitute renunciation of his American citizenship. Equally
without merit is petitioners contention that, to be effective, such
renunciation should have been made upon private respondent reaching the
age of majority since no law requires the election of Philippine citizenship
to be made upon majority age.

The filing of such certificate of candidacy sufficed to renounce his

American citizenship, effectively removing any disqualification he might
have as a dual citizen. Thus, in Frivaldo v. COMELEC it was held:[17]

Finally, much is made of the fact that private respondent admitted

that he is registered as an American citizen in the Bureau of Immigration
and Deportation and that he holds an American passport which he used in
his last travel to the United States on April 22, 1997. There is no merit in
this. Until the filing of his certificate of candidacy on March 21, 1998, he
had dual citizenship. The acts attributed to him can be considered simply
as the assertion of his American nationality before the termination of his
American
citizenship. What
this
Court
said
in Aznar
v.
COMELEC[18] applies mutatis mutandis to private respondent in the case at
bar:

It is not disputed that on January 20, 1983 Frivaldo became an

American. Would the retroactivity of his repatriation not effectively give
him dual citizenship, which under Sec. 40 of the Local Government Code

. . . Considering the fact that admittedly Osmea was both a Filipino and an
American, the mere fact that he has a Certificate stating he is an American
does not mean that he is not still a Filipino. . . . [T]he Certification that he is

74
an American does not mean that he is not still a Filipino, possessed as he
is, of both nationalities or citizenships. Indeed, there is no express
renunciation here of Philippine citizenship; truth to tell, there is even no
implied renunciation of said citizenship. When We consider that the
renunciation needed to lose Philippine citizenship must be express, it
stands to reason that there can be no such loss of Philippine
citizenship when there is no renunciation, either express or implied.
To recapitulate, by declaring in his certificate of candidacy that he is a
Filipino citizen; that he is not a permanent resident or immigrant of another
country; that he will defend and support the Constitution of the Philippines
and bear true faith and allegiance thereto and that he does so without
mental reservation, private respondent has, as far as the laws of this
country are concerned, effectively repudiated his American citizenship and
anything which he may have said before as a dual citizen.
On the other hand, private respondents oath of allegiance to the
Philippines, when considered with the fact that he has spent his youth and
adulthood, received his education, practiced his profession as an artist,
and taken part in past elections in this country, leaves no doubt of his
election of Philippine citizenship.
His declarations will be taken upon the faith that he will fulfill his
undertaking made under oath. Should he betray that trust, there are
enough sanctions for declaring the loss of his Philippine citizenship through
expatriation in appropriate proceedings. In Yu v. Defensor-Santiago,[19] we
sustained the denial of entry into the country of petitioner on the ground
that, after taking his oath as a naturalized citizen, he applied for the
renewal of his Portuguese passport and declared in commercial documents
executed abroad that he was a Portuguese national. A similar sanction can
be taken against any one who, in electing Philippine citizenship, renounces
his foreign nationality, but subsequently does some act constituting
renunciation of his Philippine citizenship.
WHEREFORE, the petition for certiorari is DISMISSED for lack of
merit.
SO ORDERED.

EN BANC
[G.R. No. 137329. August 9, 2000]
ROGELIO M. TORAYNO SR., GENEROSO ELIGAN and JACQUELINE M.
SERIO, petitioners, vs. COMMISSION ON ELECTIONS and
VICENTE Y. EMANO,respondents.
DECISION
PANGANIBAN, J.:
The Constitution and the law requires residence as a qualification for
seeking and holding elective public office, in order to give candidates the
opportunity to be familiar with the needs, difficulties, aspirations,
potentials for growth and all matters vital to the welfare of their
constituencies; likewise, it enables the electorate to evaluate the office
seekers' qualifications and fitness for the job they aspire for. Inasmuch as
Vicente Y. Emano has proven that he, together with his family, (1) had
actually resided in a house he bought in 1973 in Cagayan de Oro City; (2)
had actually held office there during his three terms as provincial governor

75
of Misamis Oriental, the provincial capitol being located therein; and (3)
has registered as voter in the city during the period required by law, he
could not be deemed "a stranger or newcomer" when he ran for and was
overwhelmingly voted as city mayor. Election laws must be liberally
construed to give effect to the popular mandate.
The Case
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court
seeking to set aside the January 18, 1999 Resolution [1] of the Commission
on Elections (Comelec) en banc in SPA No. 98-298, which upheld the July
14, 1998 Resolution[2] of the Comelec First Division. The assailed
Resolutions ruled that Private Respondent Vicente Y. Emano possessed the
minimum period of residence to be eligible to vote in Cagayan de Oro City,
as well as be voted mayor thereof.
The Facts
The pertinent facts of the case, as culled from the records, are as
follows.
During the 1995 elections, Vicente Y. Emano ran for, was elected, and
proclaimed provincial governor of Misamis Oriental. It was his third
consecutive term as governor of the province.In his Certificate of
Candidacy dated March 12, 1995, his residence was declared to be in
Tagoloan, Misamis Oriental.
On June 14, 1997, while still the governor of Misamis Oriental, Emano
executed a Voter Registration Record in Cagayan de Oro City
(geographically located in the Province of Misamis Oriental), a highly
urbanized city, in which he claimed 20 years of residence. On March 25,
1998, he filed his Certificate of Candidacy for mayor of the city, stating
therein that his residence for the preceding two years and five months was
at 1409 San Jose Street, Capistrano Subdivision, Gusa, Cagayan de Oro
City.
Among those who ran for the mayorship of the city in 1998, along with
Emano, was Erasmo B. Damasing, counsel of herein petitioners. On May
15, 1998, Petitioners Rogelio M. Torayno Sr., Generoso Q. Eligan and
Jacqueline M. Serio, all residents of Cagayan de Oro City, filed a Petition
before the Comelec, docketed as SPA No. 98-298, in which they sought the
disqualification of Emano as mayoral candidate, on the ground that he had
allegedly failed to meet the one-year residence requirement. Prior to the
resolution of their Petition, the Comelec proclaimed private respondent as
the duly elected city mayor. Thus, on May 29, 1998, petitioners filed
another Petition before the Comelec, this time for quo warranto,[3] in which

they sought (1) the annulment of the election of private respondent; and
(2) the proclamation of Erasmo B. Damasing, who had garnered the next
highest number of votes, as the duly elected mayor of the city.
In its Resolution dated July 14, 1998, the Comelec First Division denied
the
Petition
for
Disqualification. Upon
petitioners'
Motion
for
Reconsideration and Motion for Consolidation, the two cases were
consolidated.[4]
Ruling of the Comelec
As earlier stated, the Comelec en banc upheld the findings and
conclusions of the First Division, holding that "[t]he records clearly show
that the respondent is an actual resident of Cagayan de Oro City for such a
period of time necessary to qualify him to run for mayor therein. This fact
is clearly established by the respondent having a house in the city which
has been existing therein since 1973 and where his family has been living
since then."
Additionally, it ruled:
"There is nothing in the law which bars an elected provincial official from
residing and/or registering as a voter in a highly urbanized city whose
residents are not given the right to vote for and be elected to a position in
the province embracing such highly urbanized city as long as he has
complied with the requirements prescribed by law in the case of a qualified
voter.
"Neither can the list of voters submitted as evidence for the petitioners
showing that the respondent was a registered voter as of March 13, 1995
in Precinct No. 12, Barangay Poblacion, Tagoloan, Misamis Oriental bolster
the petitioner's argument that the respondent is not a resident [or a]
registered voter in Cagayan de Oro City since registration in said Precinct
No. 12 does not preclude the respondent from registering anew in another
place."
Hence, this recourse[5] before this Court.
Issues
In their Memorandum,[6] petitioners submit that the main issue is
whether the "Comelec gravely abused its discretion amounting to lack of
jurisdiction in issuing the questioned Resolutions." Allegedly, the resolution
of this issue would depend on the following: [7]

76
"1. Whether or not private respondent Emano's
(a) remaining as governor of Misamis Oriental until he filed his certificate of
candidacy for mayor of Cagayan de Oro City on March 25, 1998 in the May
11, 1998 election;
(b) asserting under oath [that he was] qualified to act as governor of said
province until said date; and
(c) admitting, in sworn statements, [that he was] a resident of Misamis
Oriental,
precluded him from acquiring a bona fide domicile of choice for at least
one (1) year in Cagayan de Oro City prior to the May 11, 1998 elections, as
to disqualify him for being a candidate for city mayor of said City.
2. Differently stated, whether or not Emano's securing a residence
certificate in Cagayan de Oro City, holding offices as governor of Misamis
Oriental in the Capitol Building located in Cagayan de Oro City and having
a house therein where [he had] stay[ed] during his tenure as governor, and
registering as a voter in said City in June 1997, would be legally sufficient,
as against the undisputed facts above enumerated, to constitute a change
of his domicile of birth in Tagoloan, Misamis Oriental in favor of a new
domicile of choice in Cagayan de Oro City for at least one (1) year for
purposes of qualifying him to run for city mayor in the May 11, 1998
elections.
3. Whether or not Erasmo Damasing, the candidate for mayor of Cagayan
de Oro City in the May 11, 1998 elections, who received the second highest
number of votes, can be declared winner, considering that respondent
Emano was disqualified to run for and hold said office and considering that
his disqualification or ineligibility had been extensively brought to the
attention and consciousness of the voters prior to the May 11, 1998
election as to attain notoriety, notwithstanding which they still voted for
him."
Petitioners are seeking the resolution of essentially two questions: (1)
whether private respondent had duly established his residence in Cagayan
de Oro City at least one year prior to the May 11, 1998 elections to qualify
him to run for the mayorship thereof; and (2) if not, whether Erasmo
Damasing, the candidate who had received the second highest number of
votes, should be proclaimed mayor of the city.
The Courts Ruling

The Petition has no merit.

Preliminary Matter: Locus Standi of Petitioners
Although not raised by the parties, the legal standing of the
petitioners was deliberated upon by the Court. We note that petitioners
pray, among others, for judgment "declaring Atty. Erasmo B. Damasing as
entitled to be proclaimed winner as mayor in the May 11, 1998 elections in
Cagayan de Oro City." [8] And yet, Damasing is not a party to the instant
"Petition forCertiorari pursuant to Rule[s] 64 and 65" brought before us.
Under the Rules of Court, a quo warranto may be brought only by (1)
the solicitor general or (2) a public prosecutor or (3) a person claiming to
be entitled to the public office or position usurped or unlawfully held or
exercised by another.[9] A reading of the Rules shows that petitioners, none
of whom qualify under any of the above three categories, are without legal
standing to bring this suit.
However, the present Petition finds its root in two separate cases filed
before the Comelec: (1) SPC 98-298 for disqualification and (2) EPC 98-62
for quo warranto. Under our election laws and the Comelec Rules of
Procedure, any voter may file a petition to disqualify a candidate on
grounds provided by law,[10] or to contest the election of a city officer on
the ground of ineligibility or disloyalty to the Republic. [11] The petitioners
herein, being "duly-registered voters" of Cagayan de Oro City, therefore
satisfy the requirement of said laws and rules. [12]
Main Issue: Residence Qualification for Candidacy
Petitioners argue that private respondent maintains his domicile in
Tagoloan, Misamis Oriental, not in Cagayan de Oro City, as allegedly shown
by the following facts: (1) he had run and won as governor of the province
of Misamis Oriental for three consecutive terms immediately preceding the
1998 elections; (2) in the pleadings he filed in connection with an election
protest against him relating to the 1995 election, he had stated that he
was a resident of Tagoloan, Misamis Oriental; (3) he had fully exercised the
powers and prerogatives of governor until he filed his Certificate of
Candidacy for mayor on March 25, 1998.
Petitioners claim that in discharging his duties as provincial governor,
private respondent remained a resident of the province. They aver that
residence is a continuing qualification that an elective official must possess
throughout his term. Thus, private respondent could not have changed his
residence to Cagayan de Oro City while he was still governor of Misamis
Oriental.

77
Petitioners further contend that the following were not sufficient to
constitute a change of domicile: having a house in Cagayan de Oro City,
residing therein while exercising one's office as governor (the city being
the seat of government of the province), securing a residence certificate
and registering as voter therein.
Private respondent, on the other hand, alleges that he actually and
physically resided in Cagayan de Oro City while serving as provincial
governor for three consecutive terms, since the seat of the provincial
government was located at the heart of that city. [13] He also avers that
one's choice of domicile is a matter of intention, and it is the person
concerned who would be in the best position to make a choice. In this case,
Emano decided to adopt Cagayan de Oro City as his place of residence
after the May 1995 elections. In fact, in January 1997, he secured his
Community Tax Certificate at the City Treasurer's Office, stating therein
that he was a resident of 1409 San Jose Street, Capistrano Subdivision,
Gusa, Cagayan de Oro City. During the general registration of voters in
June 1997, he registered in one of the precincts of Gusa, Cagayan de Oro
City. This meant that, at the time, Emano had been a voter of the city for
the minimum period required by law. No one has ever challenged this fact
before any tribunal.
Private respondent contends further that his transfer of legal
residence did not ipso facto divest him of his position as provincial
governor. First, there is no law that prevents an elected official from
transferring residence while in office. Second, an elective official's transfer
of residence does not prevent the performance of that official's duties,
especially in private respondent's case in which the seat of government
became his adopted place of residence. Third, as ruled in Frivaldo v.
Comelec,[14] the loss of any of the required qualifications for election merely
renders the official's title or right to office open to challenge. In Emano's
case, no one challenged his right to the Office of Provincial Governor when
he transferred his residence to Cagayan de Oro City. Naturally, he
continued to discharge his functions as such, until he filed his candidacy
for mayor in March 1998.
Lastly, Emano urges that the sanctity of the people's will, as
expressed in the election result, must be respected. He is not, after all, a
stranger to the city, much less to its voters. During his three terms as
governor of Misamis Oriental, his life and actuations have been closely
interwoven with the pulse and beat of Cagayan de Oro City.
Public Respondent Comelec relies essentially on Romualdez-Marcos v.
Comelec[15] in its Memorandum[16]which supports the assailed Resolutions,
and which has been filed in view of the solicitor general's Manifestation
and Motion in Lieu of Comment.[17] Thus, the poll body argues that "x x x
the fact of residence x x x ought to be decisive in determining whether or

not an individual has satisfied the Constitution's residency qualification

requirement."
Law on Qualifications of Local Elective Officials

The pertinent provision sought to be enforced is Section 39 of the

Local Government Code (LGC) of 1991,[18] which provides for the
qualifications of local elective officials, as follows:
"SEC. 39. Qualifications. - (a) An elective local official must be a citizen of
the Philippines; a registered voter in the barangay, municipality, city, or
province x x x where he intends to be elected; a resident therein for at
least one (1) year immediately preceding the day of the election; and able
to read and write Filipino or any other local language or dialect."
Generally, in requiring candidates to have a minimum period of
residence in the area in which they seek to be elected, the Constitution or
the law intends to prevent the possibility of a "stranger or newcomer
unacquainted with the conditions and needs of a community and not
identified with the latter from [seeking] an elective office to serve that
community."[19] Such provision is aimed at excluding outsiders "from taking
advantage of favorable circumstances existing in that community for
electoral gain."[20] Establishing residence in a community merely to meet
an election law requirement defeats the purpose of representation: to elect
through the assent of voters those most cognizant and sensitive to the
needs of the community. This purpose is "best met by individuals who have
either had actual residence in the area for a given period or who have been
domiciled in the same area either by origin or by choice."[21]
Facts Showing Change of Residence

In the recent en banc case Mamba-Perez v. Comelec,[22] this Court

ruled that private respondent therein, now Representative Rodolfo E.
Aguinaldo of the Third District of Cagayan, had duly proven his change of
residence from Gattaran, Cagayan (part of the First District) to Tuguegarao,
Cagayan (part of the Third District in which he sought election as
congressman). He proved it with the following facts: (1) in July 1990, he
leased and lived in a residential apartment in Magallanes Street,
Tuguegarao, Cagayan; (2) in July 1995, he leased another residential
apartment in Kamias Street, Tanza, Tuguegarao, Cagayan; (3) the January
18, 1998 Certificate of Marriage between Aguinaldo and his second wife,
Lerma Dumaguit; (4) the Certificate of Live Birth of his second daughter;
and (5) various letters addressed to him and his family showed that he had
been a resident of Tuguegarao for at least one year immediately preceding
the May 1998 elections. The Court also stated that it was not "of much
importance that in his [Aguinaldo's] certificates of candidacy for provincial

78
governor in the elections of 1988, 1992, and 1995, private respondent
stated that he was a resident of Gattaran."[23]
In the case at bar, the Comelec found that private respondent and his
family had actually been residing in Capistrano Subdivision, Gusa, Cagayan
de Oro City, in a house he had bought in 1973. Furthermore, during the
three terms (1988-1998) that he was governor of Misamis Oriental, he
physically lived in that city, where the seat of the provincial government
was located. In June 1997, he also registered as voter of the same
city. Based on our ruling in Mamba-Perez, these facts indubitably prove
that Vicente Y. Emano was a resident of Cagayan de Oro City for a period of
time sufficient to qualify him to run for public office therein. Moreover, the
Comelec did not find any bad faith on the part of Emano in his choice of
residence.
Petitioners put much emphasis on the fact that Cagayan de Oro City is
a highly urbanized city whose voters cannot participate in the provincial
elections. Such political subdivisions and voting restrictions, however, are
simply for the purpose of parity in representation. The classification of an
area as a highly urbanized or independent component city, for that matter,
does not completely isolate its residents, politics, commerce and other
businesses from the entire province -- and vice versa -- especially when the
city is located at the very heart of the province itself, as in this case.
Undeniably, Cagayan de Oro City was once an integral part of Misamis
Oriental and remains a geographical part of the province. Not only is it at
the center of the province; more important, it is itself the seat of the
provincial government. As a consequence, the provincial officials who carry
out their functions in the city cannot avoid residing therein; much less,
getting acquainted with its concerns and interests. Vicente Y. Emano,
having been the governor of Misamis Oriental for three terms and
consequently residing in Cagayan de Oro City within that period, could not
be said to be a stranger or newcomer to the city in the last year of his third
term, when he decided to adopt it as his permanent place of residence.
Significantly, the Court also declared in Mamba-Perez that "although
private respondent declared in his certificates of candidacy prior to the
May 11, 1998 elections that he was a resident of Gattaran, Cagayan, the
fact is that he was actually a resident of the Third District not just for one
(1) year prior to the May 11, 1998 elections but for more than seven (7)
years since July 1990. His claim that he ha[s] been a resident of
Tuguegarao since July 1990 is credible considering that he was governor
from 1988 to 1998 and, therefore, it would be convenient for him to
maintain his residence in Tuguegarao, which is the capital of the province
of Cagayan."

Similarly in the instant case, private respondent was actually and

physically residing in Cagayan de Oro City while discharging his duties as
governor of Misamis Oriental. He owned a house in the city and resided
there together with his family. He even paid his 1998 community tax and
registered as a voter therein. To all intents and purposes of the Constitution
and the law, he is a resident of Cagayan de Oro City and eligible to run for
mayor thereof.
To petitioners' argument that Emano could not have continued to
qualify as provincial governor if he was indeed a resident of Cagayan de
Oro City, we respond that the issue before this Court is whether Emano's
residence in the city qualifies him to run for and be elected as mayor, not
whether he could have continued sitting as governor of the province. There
was no challenge to his eligibility to continue running the province; hence,
this Court cannot make any pronouncement on such issue. Considerations
of due process prevent us from adjudging matters not properly brought to
us. On the basis, however, of the facts proven before the Comelec, we hold
that he has satisfied the residence qualification required by law for the
mayorship of the city.
We stress that the residence requirement is rooted in the desire that
officials of districts or localities be acquainted not only with the metes and
bounds of their constituencies but, more important, with the constituents
themselves -- their needs, difficulties, aspirations, potentials for growth
and development, and all matters vital to their common welfare. The
requisite period would give candidates the opportunity to be familiar with
their desired constituencies, and likewise for the electorate to evaluate the
former's qualifications and fitness for the offices they seek.
In other words, the actual, physical and personal presence of herein
private respondent in Cagayan de Oro City is substantial enough to show
his intention to fulfill the duties of mayor and for the voters to evaluate his
qualifications for the mayorship. Petitioners' very legalistic, academic and
technical approach to the residence requirement does not satisfy this
simple, practical and common-sense rationale for the residence
requirement.
Interpretation to Favor Popular Mandate

There is no question that private respondent was the overwhelming

choice of the people of Cagayan de Oro City. He won by a margin of about
30,000 votes.[24] Thus, we find it apt to reiterate the principle that the
manifest will of the people as expressed through the ballot must be given
fullest effect. In case of doubt, political laws must be interpreted to give life
and spirit to the popular mandate. [25] Verily, in Frivaldo v. Comelec,[26] the
Court held:

79
"x x x [T]his Court has repeatedly stressed the importance of giving effect
to the sovereign will in order to ensure the survival of our democracy. In
any action involving the possibility of a reversal of the popular electoral
choice, this Court must exert utmost effort to resolve the issues in a
manner that would give effect to the will of the majority, for it is merely
sound public policy to cause elective offices to be filled by those who are
the choice of the majority. To successfully challenge a winning candidate's
qualifications, the petitioner must clearly demonstrate that the ineligibility
is so patently antagonistic to constitutional and legal principles that
overriding such ineligibility and thereby giving effect to the apparent will of
the people would ultimately create greater prejudice to the very
democratic institutions and juristic traditions that our Constitution and laws
so zealously protect and promote."
In the same vein, we stated in Alberto v. Comelec[27] that "election
cases involve public interest; thus, laws governing election contests must
be liberally construed to the end that the will of the people in the choice of
public officials may not be defeated by mere technical objections."
Indeed, "it would be far better to err in favor of popular sovereignty
than to be right in complex but little understood legalisms." [28]
In sum, we hold that Respondent Comelec cannot be faulted with
abuse, much less grave abuse, of discretion in upholding private
respondent's election.
Corollary Issue: Effect of Disqualification of Winner on Second
Placer
With the resolution of the first issue in the positive, it is obvious that
the second one posited by petitioners has become academic and need not
be ruled upon.
WHEREFORE, the Petition is DISMISSED and the assailed Comelec
Resolutions AFFIRMED. Costs against petitioners.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing,
Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon Jr.,
JJ., concur.
Bellosillo, J., abroad on official business.

80
Muslim Mindanao. Ten days after, or on October 15, 2012, Mustapha J.
Omar (Omar) filed a Petition to Deny Due Course or Cancel Hayudinis CoC,
entitled Mustapha J. Omar v. Gamal S. Hayudini, docketed as SPA No. 13106(DC)(F).5Omar basically asserted that Hayudini should be disqualified
for making false representation regarding his residence. He claimed that
Hayudini declared in his CoC that he is a resident of the Municipality of
South Ubian when, in fact, he resides in Zamboanga City.
Thereafter, on November 30, 2012, Hayudini filed a Petition for Inclusion in
the Permanent List of Voters in Barangay Bintawlan, South Ubian before
the Municipal Circuit Trial Court (MCTC). Despite the opposition of Ignacio
Aguilar Baki, the MCTC granted Hayudinis petition on January 31,
2013.6 On that same day, the COMELECs First Division dismissed 7 Omars
earlier petition to cancel Hayudinis CoC in SPA No. 13-106(DC)(F) for lack
of substantial evidence that Hayudini committed false representation as to
his residency.

EN BANC
G.R. No. 207900

April 22, 2014

MAYOR GAMAL S. HAYUDINI, Petitioner,

vs.
COMMISSION ON ELECTIONS and MUSTAPHA J. OMAR, Respondents.

Oppositor Baki, subsequently, elevated the case to the Bongao Regional

Trial Court (RTC), Branch 5. The RTC, on March 8, 2013, Reversed 8 the
MCTC ruling and ordered the deletion of Hayudinis name in Barangay
Bintawlans permanent list of voters. In view of said decision, Omar filed
before the COMELEC a Petition to Cancel the Certificate of Candidacy of
Gamal S. Hayudini by Virtue of a Supervening Event on March 26, 2013.
The petition was docketed as SPA No. 13-249(DC)(F). 9 Hayudini appealed
the March 8, 2013 RTC decision to the Court of Appeals (CA), but on April
17, 2013, in CA-G.R. SP No. 05426, 10 the same was denied.
On May 13, 2013, Hayudini won the mayoralty race in South Ubian, TawiTawi. He was proclaimed and, consequently, took his oath of office.

DECISION
PERALTA, J.:
For the Court's resolution is a Petition for Certiorari and Prohibition 1 under
Rule 65, which petitioner Gamal S. Hayudini (Hayudini) filed to set aside
and annul the assailed Resolutions of the Commission on Elections
(COMELEC), dated June 20, 20132 and July 10, 2013,3 which cancelled his
Certificate of Candidacy for the mayoralty seat in the 2013 local elections
in South Ubian, Tawi-Tawi, for having been issued with grave abuse of
discretion amounting to lack or in excess of jurisdiction.
The antecedent facts are:
On October 5, 2012, Hayudini filed his Certificate of Candidacy 4 (CoC) for
the position of Municipal Mayor of South Ubian, Tawi-Tawi in the May 13,
2013 National and Local Elections held in the Autonomous Region in

On June 20, 2013, the COMELEC Second Division issued a

Resolution11 granting Omars second petition to cancel Hayudinis CoC. The
dispositive portion of the COMELEC Resolution reads:
WHEREFORE, premises considered, the instant petition is hereby
GRANTED. Accordingly, the Certificate of Candidacy filed by Gamal S.
Hayudini as Mayor of South Ubian, Tawi-Tawi, in the 13 May 2013 elections,
is hereby CANCELLED.
The Office of the Deputy Executive Director for Operations is hereby
directed to constitute a Special Board of Canvassers for the purpose of
proclaiming the lawful winner for mayoralty position in South Ubian, TawiTawi during the 13 May 2013 elections.
SO ORDERED.12

81
Hayudini, thus, filed a Motion for Reconsideration with the COMELEC En
Banc, arguing that its Second Division committed grave error when it gave
due course to a belatedly filed petition and treated the March 8, 2013 RTC
Decision as a supervening event.
On July 10, 2013, the COMELEC En Banc denied Hayudinis Motion for
Reconsideration for lack of merit. The decretal portion of the En Bancs
assailed Resolution states:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES to DENY this Motion for Reconsideration for LACK OF
MERIT. Consequently, the June 20, 2013 Resolution of the Commission
(Second Division) is hereby affirmed.
Corollary thereto, the proclamation of respondent GAMAL S. HAYUDINI is
hereby declared null and void and without any legal force and effect.
SALMA A. OMAR is hereby proclaimed as the duly-elected Mayor for South
Ubian, Tawi-Tawi, being the qualified candidate obtaining the highest
number of votes, considering the doctrine laid down by the case Aratea v.
Comelec13 that a cancelled CoC cannot give rise to a valid candidacy, and
much less, to a valid vote, to wit:
"Ergo, since respondent Lonzanida was never a candidate for the position
of mayor [of] San Antonio, Zambales, the votes cast for him should be
considered stray votes. Consequently, Intervenor Antipolo, who remains as
the sole candidate for the mayoralty post and obtained the highest number
of votes, should now be proclaimed as the duly-elected Mayor of San
Antonio, Zambales.
Lonzanida's certificate of candidacy was cancelled, because he was
ineligible or not qualified to run for Mayor. Whether his certificate of
candidacy is cancelled before or after elections is immaterial because the
cancellation on such ground means he was never a candidate from the
very beginning, his certificate of candidacy being void ab initio. There was
only one qualified candidate for Mayor in the May 2010 elections - Antipolo,
who therefore received the highest number of votes."
The Office of the Deputy Executive Director for Operations is hereby
directed to constitute a Special Board of Canvassers for the purpose of
proclaiming SALMA OMAR as the winning candidate for mayoralty position
in South Ubian, Tawi-Tawi during the May 13, 2013 elections.
SO ORDERED.14
Thus, Hayudini filed the instant petition for certiorari and prohibition.

Hayudini mainly advances the following arguments:

A.
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION WHEN IT FAILED TO
OUTRIGHTLY DISMISS THE INSTANT PETITION TO CANCEL CERTIFICATE OF
CANDIDACY DUE TO SUPERVENING EVENT (SPA. NO. 13-249(DC)(F),
DESPITE THE FAILURE OF RESPONDENT OMAR TO COMPLY WITH THE
MANDATORY REQUIREMENTS OF SECTIONS 2 AND 4 OF THE COMELEC
RESOLUTION NO. 9532.
xxxx
C.
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION WHEN IT REVISITED
AND MODIFIED THE FINAL AND EXECUTORY RESOLUTION ISSUED BY THE
FIRST DIVISION IN THE SPA NO. 13-106(DC)(F).
III.
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION WHEN IT RESOLVED
TO CANCEL PETITIONER HAYUDINIS CERTIFICATE OF CANDIDACY AND
DECLARE HIS PROCLAMATION AS NULL AND VOID.
xxxx
L.
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION WHEN IT DECREED
THE PROCLAMATION OF SALMA A. OMAR AS THE DULY-ELECTED MAYOR
FOR SOUTH UBIAN, TAWI-TAWI.15
The Court finds the petition to be without merit.
A special civil action for certiorari under Rule 65 is an independent action
based on thespecific grounds and available only if there is no appeal or any
other plain, speedy, and adequate remedy in the ordinary course of law. It
will only prosper if grave abuse of discretion is alleged and is actually
proved to exist. Grave abuse of discretion has been defined as the

82
arbitrary exercise of power due to passion, prejudice or personal hostility;
or the whimsical, arbitrary, or capricious exercise of power that amounts to
an evasion or refusal to perform a positive duty enjoined by law or to act at
all in contemplation of law. For an act to be condemned as having been
done with grave abuse of discretion, such an abuse must be patent and
gross.16 Here, Hayudini miserably failed to prove that the COMELEC
rendered its assailed Resolutions with grave abuse of discretion.
Hayudini contends that the COMELEC committed grave abuse of discretion
when it admitted, and later granted, Omars petition despite failure to
comply with Sections 2 and 4 of Rule 23 of the COMELEC Rules of
Procedure, as amended by Resolution No. 9523. The subject sections read:
Section 2. Period to File Petition. The Petition must be filed within five (5)
days from the last day for filing of certificate of candidacy; but not later
than twenty five (25) days from the time of filing of the certificate of
candidacy subject of the Petition. In case of a substitute candidate, the
Petition must be filed within five (5) days from the time the substitute
candidate filed his certificate of candidacy.
xxxx
Section 4. Procedure to be observed. Both parties shall observe the
following procedure:
1. The petitioner shall, before filing of the Petition, furnish a copy of the
Petition, through personal service to the respondent. In cases where
personal service is not feasible, or the respondent refuses to receive the
Petition, or the respondents whereabouts cannot be ascertained, the
petitioner shall execute an affidavit stating the reason or circumstances
therefor and resort to registered mail as a mode of service. The proof of
service or the affidavit shall be attached to the Petition to be filed;17
Here, Hayudini filed his CoC on October 5, 2012, which was also the last
day of filing of CoC for the May 13, 2013 elections. Omar, on the other
hand, filed the subject petition only on March 26, 2013. Under the
COMELEC Rules, a Petition to Deny Due Course or Cancel CoC must be filed
within five days from the last day for filing a certificate of candidacy, but
not later than twenty-five days from the time of filing of the CoC subject of
the petition. Clearly, Omars petition was filed way beyond the prescribed
period. Likewise, he failed to provide sufficient explanation as to why his
petition was not served personally to Hayudini.
Notwithstanding the aforementioned procedural missteps, the Court
sustains the COMELECs liberal treatment of Omars petition.

As a general rule, statutes providing for election contests are to be liberally

construed in order that the will of the people in the choice of public officers
may not be defeated by mere technical objections. Moreover, it is neither
fair nor just to keep in office, for an indefinite period, one whose right to it
is uncertain and under suspicion. It is imperative that his claim be
immediately cleared, not only for the benefit of the winner but for the sake
of public interest, which can only be achieved by brushing aside
technicalities of procedure that protract and delay the trial of an ordinary
action. This principle was reiterated in the cases of Tolentino v. Commission
on Elections18 and De Castro v. Commission on Elections,19 where the Court
held that "in exercising its powers and jurisdiction, as defined by its
mandate to protect the integrity of elections, the COMELEC must not be
straitjacketed by procedural rules in resolving election disputes."20
Settled is the rule that the COMELEC Rules of Procedure are subject to
liberal construction.1wphi1 The COMELEC has the power to liberally
interpret or even suspend its rules of procedure in the interest of justice,
including obtaining a speedy disposition of all matters pending before it.
This liberality is for the purpose of promoting the effective and efficient
implementation of its objectives ensuring the holding of free, orderly,
honest, peaceful, and credible elections, as well as achieving just,
expeditious, and inexpensive determination and disposition of every action
and proceeding brought before the COMELEC. Unlike an ordinary civil
action, an election contest is imbued with public interest. It involves not
only the adjudication of private and pecuniary interests of rival candidates,
but also the paramount need of dispelling the uncertainty which beclouds
the real choice of the electorate. And the tribunal has the corresponding
duty to ascertain, by all means within its command, whom the people truly
chose as their rightful leader.21
Indeed, Omar had previously filed a Petition to Deny Due Course or Cancel
Hayudinis CoC on October 15, 2012, docketed as SPA No. 13-106(DC)(F).
This was dismissed on January 31, 2013, or the same day the MCTC
granted Hayudinis petition to be included in the list of voters. However, on
March 8, 2013, the RTC reversed the MCTC ruling and, consequently,
ordered the deletion of Hayudinis name in Barangay Bintawlans
permanent list of voters. Said deletion was already final and executory
under the law.22 Hayudini, however, still appealed the case to the CA, which
was subsequently denied. Notably, thereafter, he went to the CA again,
this time to file a petition for certiorari, docketed as CA-G.R. SP No.
05499.23 In a Resolution dated July 9, 2013, the CA also denied said petition
primarily because of Hayudinis act of engaging in the pernicious practice
of forum shopping by filing two modes of appeal before said court. 24 Hence,
by virtue of the finality of said RTC decision deleting his name from the
voters list, Hayudini, who had been previously qualified under the law 25 to
run for an elective position, was then rendered ineligible.

83
Given the finality of the RTC decision, the same should be considered a
valid supervening event. A supervening event refers to facts and events
transpiring after the judgment or order had become executory. These
circumstances affect or change the substance of the judgment and render
its execution inequitable.26 Here, the RTCs March 8, 2013 decision,
ordering the deletion of Hayudinis name in the list of voters, which came
after the dismissal of Omars first petition, is indubitably a supervening
event which would render the execution of the ruling in SPA No. 13106(DC)(F) iniquitous and unjust. As the COMELEC aptly ruled, the decision
to exclude Hayudini was still non-existent when the COMELEC first
promulgated the Resolution in SPA No. 13-106(DC)(F) on January 31, 2013,
or when the issues involved therein were passed upon. 27 The First Division
even expressed that although the Election Registration Board (ERB) denied
Hayudinis application for registration, it could not adopt the same because
it was not yet final as Hayudini was still to file a Petition for Inclusion before
the MCTC.28 Thus, it is not far-fetched to say that had this final RTC finding
been existent before, the COMELEC First Division could have taken judicial
notice of it and issued a substantially different ruling in SPA No. 13-106(DC)
(F).29
The same ruling adequately equipped Omar with the necessary ground to
successfully have Hayudinis CoC struck down. Under the rules, a
statement in a certificate of candidacy claiming that a candidate is eligible
to run for public office when in truth he is not, is a false material
representation, a ground for a petition under Section 78 of the Omnibus
Election Code.

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy.

A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by the person exclusively on the ground that any
material representation contained therein as required under Section 74
hereof is false. The petition may be filed at any time not later than twentyfive days from the time of the filing of the certificate of candidacy and shall
be decided, after due notice and hearing, not later than fifteen days before
the election.
The false representation mentioned in these provisions must pertain to a
material fact, not to a mere innocuous mistake. A candidate who falsifies a
material fact cannot run; if he runs and is elected, cannot serve; in both
cases, he or she can be prosecuted for violation of the election laws. These
facts pertain to a candidate's qualification for elective office, such as his or
her citizenship and residence. Similarly, the candidate's status as a
registered voter falls under this classification as it is a legal requirement
which must be reflected in the CoC. The reason for this is obvious: the
candidate, if he or she wins, will work for and represent the local
government under which he or she is running.30 Even the will of the people,
as expressed through the ballot, cannot cure the vice of ineligibility,
especially if they mistakenly believed, as in the instant case, that the
candidate was qualified.31

Sections 74 and 78 read:

Aside from the requirement of materiality, a false representation under

Section 78 must consist of a "deliberate attempt to mislead, misinform, or
hide a fact which would otherwise render a candidate ineligible." Simply
put, it must be made with a malicious intent to deceive the electorate as to
the potential candidate's qualifications for public office. 32

Sec. 74. Contents of certificate of candidacy. The certificate of candidacy

shall state that the person filing it is announcing his candidacy for the
office stated therein and that he is eligible for said office; if for Member of
the Batasang Pambansa, the province, including its component cities,
highly urbanized city or district or sector which he seeks to represent; the
political party to which he belongs; civil status; his date of birth; residence;
his post office address for all election purposes; his profession or
occupation; that he will support and defend the Constitution of the
Philippines and will maintain true faith and allegiance thereto; that he will
obey the laws, legal orders, and decrees promulgated by the duly
constituted authorities; that he is not a permanent resident or immigrant to
a foreign country; that the obligation imposed by his oath is assumed
voluntarily, without mental reservation or purpose of evasion; and that the
facts stated in the certificate of candidacy are true to the best of his
knowledge.

Section 74 requires the candidate to state under oath in his CoC "that he is
eligible for said office." A candidate is eligible if he has a right to run for
the public office. If a candidate is not actually eligible because he is not a
registered voter in the municipality where he intends to be elected, but still
he states under oath in his certificate of candidacy that he is eligible to run
for public office, then the candidate clearly makes a false material
representation, a ground to support a petition under Section 78. 33 It is
interesting to note that Hayudini was, in fact, initially excluded by the ERB
as a voter. On November 30, 2012, the ERB issued a certificate confirming
the disapproval of Hayudinis petition for registration.34 This is precisely the
reason why he needed to file a Petition for Inclusion in the Permanent List
of Voters in Barangay Bintawlan before the MCTC. Thus, when he stated in
his CoC that "he is eligible for said office," Hayudini made a clear and
material misrepresentation as to his eligibility, because he was not, in fact,
registered as a voter in Barangay Bintawlan.

xxxx

Had the COMELEC not given due course to Omars petition solely based on
procedural deficiencies, South Ubian would have a mayor who is not even

84
a registered voter in the locality he is supposed to govern, thereby creating
a ridiculously absurd and outrageous situation. Hence, the COMELEC was
accurate in cancelling Hayudinis certificate of candidacy. Hayudini likewise
protests that it was a grave error on the part of the COMELEC to have
declared his proclamation null and void when no petition for annulment of
his proclamation was ever filed. What petitioner seems to miss, however, is
that the nullification of his proclamation as a winning candidate is also a
legitimate outcome a necessary legal consequence of the cancellation
of his CoC pursuant to Section 78. A CoC cancellation proceeding
essentially partakes of the nature of a disqualification case. 35 The
cancellation of a CoC essentially renders the votes cast for the candidate
whose certificate of candidacy has been cancelled as stray votes. 36 If the
disqualification or CoC cancellation or denial case is not resolved before
the election day, the proceedings shall continue even after the election
and the proclamation of the winner. Meanwhile, the candidate may be
voted for and even be proclaimed as the winner, but the COMELEC's
jurisdiction to deny due course and cancel his or her CoC continues. This
rule likewise applies even if the candidate facing disqualification has
already taken his oath of office.37 The only exception to this rule is in the
case of congressional and senatorial candidates where the COMELEC ipso
jure loses jurisdiction in favor of either the Senate or the House of
Representatives Electoral Tribunal after the candidates have been
proclaimed, taken the proper oath, and also assumed office. 38
It bears stressing that one of the requirements for a mayoralty candidate is
that he must be a resident of the city or municipality where he intends to
be elected. Thus, under Section 74 of the Omnibus Election Code, it is
required that a candidate must certify under oath that he is eligible for the
public office he seeks election. In this case, when petitioner stated in his
CoC that he is a resident of Barangay Bintawlan, South Ubian, Tawi Tawi
and eligible for a public office, but it turned out that he was declared to be
a non-resident thereof in a petition for his inclusion in the list of registered
voters, he therefore committed a false representation in his CoC which
pertained to a material fact which is a ground for the cancellation of his
CoC under Section 78 of the Omnibus Election Code. Petitioner's
ineligibility for not being a resident of the place he sought election is not a
ground for a petition for disqualification, since the grounds enumerated
under Section 6839 of the Omnibus Election Code specifically refer to the
commission of prohibited acts, and possession of a permanent resident
status in a foreign country.
As held in Aratea v. COMELEC,40 which is a case for cancellation of CoC
under Section 78 of the Omnibus Election Code, a cancelled certificate of

candidacy void ab initio cannot give rise to a valid candidacy, and much
less to valid votes. Whether a certificate of candidacy is cancelled before
or after the elections is immaterial, because the cancellation on such
ground means he was never a candidate from the very beginning, his
certificate of candidacy being void ab initio. We then found that since the
winning mayoralty candidate's certificate of candidacy was void ab initio,
he was never a candidate at all and all his votes were considered stray
votes, and thus, proclaimed the second placer, the only qualified
candidate, who actually garnered the highest number of votes, for the
position of Mayor.
We find the factual mileu of the Aratea case applicable in the instant case,
since this is also a case for a petition to deny due course or cancel a
certificate of candidacy. Since Hayudini was never a valid candidate for the
position of the Municipal Mayor of South Ubian, Tawi-Tawi, the votes cast
for him should be considered stray votes, Consequently, the COMELEC
properly proclaimed Salma Omar, who garnered the highest number of
votes in the remaining qualified candidates for the mayoralty post, as the
duly-elected Mayor of South Ubian, Tawi Tawi.
Codilla v. De Venecia case has no application in this case, since it dealt
with a petition for disqualification under Section 68 of the Omnibus Election
Code and not a petition to deny due course or cancel certificate of
candidacy under Section 78 which is the case at bar.
Finally, contrary to Hayudini's belief, the will of the electorate is still
actually respected even when the votes for the ineligible candidate are
disregarded. The votes cast in favor of the ineligible candidate are not
considered at all in determining the winner of an election for these do not
constitute the sole and total expression of the sovereign voice. On the
other hand, those votes for the eligible and legitimate candidates form an
integral part of said voice, which must equally be given due respect , if not
more.41
WHEREFORE, the petition is DISMISSED. The COMELEC Resolutions dated
June 20, 2013 and July 10, 2013 are hereby AFFIRMED. No pronouncement
as to costs.
SO ORDERED.