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Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 104732 June 22, 1993

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.

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

petitioners.

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 SubicBay 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 thechairman 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 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 o f 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 th e 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 salaryor remuneration or privilege to any go vernment 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 o ther

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 conc lude 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 o f the Local Government Code (LGC) permits the appointment of a

local elective official to another post if so allowed by law or by the primary functions of his

office. 8 But, the contention is fallacious. Section 94 of the LGC is not determinative of the

constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail over the

fundamental law of the land. 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 o f his office, ignores the clear-cut difference in the wordingof the two (2) paragraphs of Sec. 7, Art.

IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices

by an appointiveofficial 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. IX-B, was not

accidental when drawn, and not without reason. It was p urposely sought by the drafters o f

the Constitution as shown in t heir deliberation, thus—

MR. MONSOD. In other words, what t hen 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 fo reclose 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 o f the challenged proviso sinceit 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 the power to appoint the

Chairman of the Board and the Chief E xecutive 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 o ffice

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 . . . .

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 o f issuing appointment

papers to the appointee. In other words, the choice of the appointee is a fundamental

component of the appointing power.

Hence, when Congress clothes the President with the power to appoint an officer, it

(Congress) cannot at the same time limit th e choice of the President to o nly 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 choo se and constitutes an

irregular restriction on the power of appointment. 24

In the case at bar, while Congress willed that the subject posts be f illed 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 o f 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.

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

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

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

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, 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 theappointive 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, t hus 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 i s

expressly provided by law that a person holding one office shall be ineligible to another. Sucha 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 theposition 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 tam pered 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 E xecutive Officer 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.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon,

Melo and Quiason, JJ., concur.

Padilla, J., is on leave.

# Footnotes

1 An Act Accelerating the Conversion of Military Reservations into Other Productive Uses, Creating the Bases

Conversion and Development Authority for this Purpose, Providing F unds Therefor and for Other Purposes," approved

13 March 1992, to take effect upon its publication in a newspaper of general circulation.

2 See "Action to Declare Unconstitutional Provisions of R.A. 7227 with Prohibition and Application for a Writ of

Preliminary Injunction," dated 7 April 1992, p. 6; Rollo p. 7.



3 Sec. 7, Art. IX-B, provides: "No electi ve 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 ot her

office or employment in the Government or any subdivision, agency or instrumentality thereof, including government -

owned or controlled corporations or their subsidiaries."

4 Sec. 16, Art. VII, provides: "The President shall nominate and, with the consent of the Commission on Appointments,

appoint the heads of the executive departments, am bassadors, other public ministers and consuls, or officers of the

armed forces from the rank of colonel or naval captain, and other officers whose appointments a re not vested in him in

this Constitution. He shall also appoint al l other officers of the Government whose appointments a re not

otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law,

vest the appointment of other officers lo wer in rank in the President alone, in the courts, or in the heads of

departments, agencies, commission, or boards.

"The President shall have the power to make appointments during the recess of the Congress, whether voluntary or

compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or

until the next adjournment of the Co ngress."

5 Petitioners allege that the proviso constitutes a "limitation to the power of appointment of the President and

therefore violates the separation of powers" and that "Congress cannot create the position and at the same time

specify the person to fill up such position" (Petition, pp. 4-5; Rollo, pp. 5-6).

6 G.R. Nos. 83896 and 83815 were consolidated and decided jointly on 22 February 1991, 194 SCRA 317, 339.

7 Record of the Constitutional Commission, Vol. 1, p. 546.

8 Sec. 94. Appointment of Elective and Appointive Local Officials; Candidates Who Lost in an Election.— (a) No elective

or appointive local 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 elective or appointive local official shallhold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including

government-owned or controlled corporations or their subsidiaries.

"(b) Except for losing candidates in barangay elections, no candidate who lost in any election shall, within one (1) year

after such election, be appointed to any of fice in the government or any government -owned or controlled corporations

or in any of their subsidiaries."

9 Sec. 9, Art. XII, of the Constitution.

10 Sec. 3, second par., Art. VII, of the Constitution.

11 Sec. 8, par. (1), Art. VIII, of the Constitution. This particular provision was approved in anticipation of a unicameral

legislature. However, as it turn out, we adopted i nstead a bicameral form of government so t hat the seat allocated to

the representative of Congress has to be split between a member of the Senate and a member of the House of

Representative. Each being entitled to one-half vote in the deliberations in the Judicial and Bar Council.

12 Record of the Constitutional Commission, Vol. 5, p. 156.Section 4 of the Proposed Resolution No. 468, the precursor of the first paragraph of Sec. 7, read: "Unless

otherwise provided by law, no elective official shall be eligible for appointment or designation in a temporary or acting

capacity to any public office or position during his term" (Record of the Constitutional Commission, Vol. 1, p. 524).

The following were reactions on the floor:

FR. BERNAS. On page 3, Section 4, line 5 , the provision begins with the phrase "Unless otherwise provided by law" which

does not exist in the 1973 Constitution. This was inserted in a 1981 amendment. We know the reason why this was put

here. It practically renders the provision useless because the whole matter becomes discretionary with the legislature. It

is one of those instance in the 19 73 Constitution, as amended and constantly reamended, where they threw in the

phrase "Unless otherwise provided by law" precisely to give the President a f ree hand in his decree-making power.

xxx xxx xxx

MR. FOZ. As presently worded now, the provision would allow the legislature to really provide otherwise, meaning, to

allow an elective official to be appointed to an executive office. (Ibid ., Vol. 1, p. 539.)

xxx xxx xxx

MR. COLAYCO . . . . The way I understand this is that we are giving the legislature the power to authorize the

appointment or designation in a temporary or acti ng capacity of an elective official to any public office or position

during his term, Am I right?

MR. FOZ. If a law is passed regarding this mat ter, then such law may reverse this provision as worded, but we have said

earlier that we will entertain suggestions from the floor.

MR. COLAYCO. Personally, I find the policy established in this provision meritorious. To make it a firm policy, I suggest

that we delete the prefatory phrase "Unless otherwise provided by law.

MR. FOZ. We agree with the Commissioner ( Ibid ., Vol. 1, p. 549).

As revised, known later as Sec. 4 of Resolution No. 10, and approved on t hird reading, the subject section read: "No

elective official shall be eligible for appointment or designation in any capacity to any public office or position during his

tenure" (Ibid ., Vol. II, p. 788).

13 Supra, p. 335.

14 . . . . W hen, in the exigencies of government, it is necessary to create and define new duties, the legislative

department has the discretion to determine whether additional offices shall be created, or these duties shall be

attached to and become ex officio duties of existing offices. The power extends to t he consolidation of offices resulting

in abolishing one and attaching its powers and duties to the other. It matters not that the name commission or board is

given to the body created . . . ." (Tayloe v. Davis, 212 Ala 282, 102 So. 433, 40 ALR 1052, 1057).

15 Transcripts of Session Proceedings, Senate, 6 February 1992, p. 57.

16 Sec. 8, Art. IX-B, provides: "No elective or appointive public officer or employee shall receive additional, double, or

indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any

present, emolument, office, or title of any kind from any foreign government.

"Pensions or gratuities shall not be considered as additional , double, or indirect compensation."

17 Black's Law Dictionary , 4th ed., p. 128 citing In re Nicholson's Estate, 104 Colo, 561, 93 P. 2d 880, 884.

18 Ibid ., citing State v. Braman, 173 Wis. 596, 181 N.W. 729, 730.

19 1987 ed., p. 180.

20 Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers (1890), p. 48, citing In Johnston v. Wilson, 2N.H. 205, 9 Am. Dec. 50.

21 Mechem, ibid., citing Marbury v. Madison, I Cranch (U.S.) 137; Craig v. Norfolk, I Mod. 122.

22 Concepcion v. Paredes, No. 17539, 23 December 1921; 42 Phil. 599, 603, citing Keim vs. U.S. (1900), 177 U.S., 290.

23 G.R. No. 65439, 13 November 1985; 140 SCRA 22, 35.

24 While it is inarguable that Congress has plenary authority to prescribe qualificatio ns to a public office, it "may not

however prescribe qualifications such that the President is entirely stripped of discretion, thus converting appointment

to a mere ministerial act" (Gonzales, Neptali A., Administrative Law, Law on Public Officers and Election Law , 1966 ed., p.

173, citing Manalang v. Quitoriano, No. L-6898, 30 April 1954; 94 Phil. 903).

25 Record of the Constitutional Commission, vol. 1, p. 591.

26 63 Am Jur 2d 678-679.

27 67 CJS 295.

28 Lino Luna v. Rodriguez and De los Angeles, No. 12647, 26 November 1917, 37 Phil, 186, 192 (emphasis supplied).

29 Transcripts of Session Proceedings, Senate, 29 January 1992, pp. 89-90.

30 Vanhorne v. Dorrance, 1 L. ed. 391, cited in Cruz, Isagani A., Constitutional Law, 1987 ed., p. 7.

31 Cruz, Isagani A., Constitutional Law, supra.




SUPREME COURT

Manila

EN BANC

G.R. No. 112889 April 18, 1995

BIENVENIDO O. MARQUEZ, JR., petitioner,vs.

COMMISSION ON ELECTIONS and EDUARDO T. RODRIGUEZ, respondents.

VITUG, J.:

The Court is called upon, in this petition for certiorari , to resolve the conflicting claims of the

parties on the meaning of the term "fugitive from justice as that phrase is so used under the

provisions of Section 40(e) of the Local Government Co de (Republic Act No. 7160). That law

states:

Sec. 40. Disqualifications. The following persons are disqualified from

running for any elective local position:

xxx xxx xxx

(e) Fugitive from justice in criminal or non-political cases here or

abroad(.)

Bienvenido Marquez, a defeated candidate for the elective position for the elective position

in the Province of Quezon in the 11th May 1992 elections filed this petition

for certiorari praying for the reversal of the resolution of the Commission on Elections

("COMELEC") which dismissed his petition for quo warranto against the winning candidate,

herein private respondent Eduardo Rodriguez, for being allegedly a fugitive from justice.

It is averred that at the time private respondent filed his certificate of candidacy, a criminal

charge against him for ten (10) counts of insurance fraud or grand theft of personal property

was still pending before the Municipal Court of Los Angeles Judicial District, County of Los

Angeles, State of California, U.S.A. A warrant issued by said court for his arrest, it is claimed,

has yet to be served on private respondent on account of his alleged "flight" from that

country.

Before the 11th May 1992 elections, a petition for cancellation (SPA 92-065) of respondent's

certificate of candidacy, on the ground of the candidate's disqualification under Section 40(e)

of the Local Government Code, was filed by petitioner with the COMELEC. On 08 May 1992,

the COMELEC dismissed the petition.

Petitioner's subsequent recourse to this Court (in G.R. No. 105310) from the 08th May 1992

resolution of COMELEC was dismissed without prejudice, however, to the filing in due time of

a possible post-election quo warranto proceeding against private respondent. The Court, in

its resolution of 02 June 1992, held:

Evidently, the matter elevated to this Court was a pre-proclamation

controversy. Since the private respondent had already been proclaimed

as the duly elected Governor of the Province of Quezon, the petition

below for disqualification has ceased to be a pre-proclamation

controversy. In Casimiro vs. Commission on Elections, G.R. Nos. 84462-63

and Antonio vs. Commission on Elections, G.R. Nos. 84678-79, jointly

decided on 29 March 1989, 171 SCRA 468, this court held that a pre-

proclamation controversy is no longer viable at this point of time and

should be dismissed. The proper remedy of the petitioner is to pursue the

disqualification suit in a separate proceeding.

ACCORDINGLY, the Court Resolved to DISMISS the petition, without

prejudice to the filing of the appropriate proceedings in the proper

forum, if so desired, within ten (10) days from notice. 1

Private respondent was proclaimed Governor-elect of Quezon on 29 May 1992. Forthwith,

petitioner institutedquo warranto proceedings (EPC 92-28) against private respondent before

the COMELEC. In its 02 February 1993 resolution, the COMELEC (Second Division) dismissed

the petition. The COMELEC En Banc, on 02 December 1993, denied a reconsideration of the

resolution.

Hence, this petition for certiorari , the core issue of which, such as to be expected, focuses on

whether private respondent who, at the time of the filing of his certificate of candidacy (and

to date), is said to be facing a criminal charge before a foreign court and evading a warrant

for his arrest comes within the t erm "fugitive from justice" contemplated by Section 40(e) of

the Local Government Code and, therefore, disqualified from being a candidate for, and

thereby ineligible from holding on to, an elective local office.

Petitioner's position is perspicuous and to the point. The law, he asseverates, needs nofurther interpretation and construction. Section 40(e) of Republic Act No. 7160, is rather

clear, he submits, and it disqualifies "fugitive from justice" includes not only those who flee

after conviction to avoid punishment but likewise those who, after being charged flee to

avoid prosecution. This definition truly finds support from jurisprudence (Philippine Law

Dictionary, Third Edition, p. 399, by F.B. Moreno; Black's Law Dictionary, Sixth Edition, p. 671;

King vs. Noe, 244 S.C. 344, 137 S.E. 2d 102, 103; Hughes vs. PFlanz, 138 Federal Reporter 980;

Tobin vs. Casaus, 275 Pacific Reporter, 2d., p. 792), and it may be so conceded as expressing

the general and ordinary connotation of the term.

In turn, private respondent would have the Court respect the conclusions of the Oversight

Committee which, conformably with Section 533 2 of R.A. 7160, was convened by the

President to "formulate and issue the appropriate rules and regulations necessary for the



efficient and effective implementation of any and all provisions of the Code t o ensure

compliance with the principles of Local Autonomy.

Here are some excerpts from the committee's deliberations:

CHAIRMAN MERCADO. Session is resumed.

So, we are in agreement to retain Line 12, Page 36, as is. So next, Page 39.

CHAIRMAN DE PEDRO. Kay Benny Marquez.

REP. CUENCO: What does he want?

CHAIRMAN DE PEDRO. Kung puwede i-retain lang iyan. Bahala na kung kuwestiyunin ang

constitutionality nito before the Supreme Court later on.

REP. CUENCO. Anong nakalagay diyan?

CHAIRMAN DE PEDRO. Iyong disqualification to run for public office.

Any person who is a fugitive from justice in criminal or nonpolitical cases here or abroad.

Mabigat yung abroad. One who is facing criminal charges with the warrant of arrest pending,

unserved. . .

HONORABLE SAGUISAG. I think that is even a good point, ano — what is a fugitive? It is not

defined. We have loose understanding. . .

CHAIRMAN DE PEDRO. So isingit na rin sa definition of terms iyong fugitive.

Si Benny umalis na, with the understanding na o kay na sa atin ito.

THE CHAIRMAN. Whether we have this rule or not she can run. She is not a fugitive from

justice. Mrs. Marcos can run at this point and I have held that for a long time ago. So can. . .

MS. DOCTOR. Mr. Chairman. . .

THE CHAIRMAN. Yes.

MS. DOCTOR. Let's move to. . .

THE CHAIRMAN. Wait, wait, wait. Can we just agree on the wording, this is very important.

Manny, can you come up?

MR. REYES. Let's use the word conviction by final judgment.

THE CHAIRMAN. Fugitive means somebody who is convicted by final judgment. Okay,.

Fugitive means somebody who is convicted by final judgment. Insert that on Line 43 after the

semi-colon. Is that approved? No objection, approved (TSN, Oversight Committee, 07 May

1991).

xxx xxx xxx

THE CHAIRMAN. Andy, saan ba naman itong amendment on page 2? Sino ba ang gumawa

nito? Okay, on page 2, lines 43 and 44, "fugitive from justice". What "fugitive"? Sino ba ang

gumawa nito, ha?

MR. SANCHEZ. Yes, I think, well, l ast time, Mr. Chairman, we agree to clarify the word

"fugitive".

THE CHAIRMAN. "Fugitive from justice means a p erson" ba ito, ha?

MR. SANCHEZ. Means a person...

THE CHAIRMAN. Ha?

HON. REYES. A person who has been convicted.

THE CHAIRMAN; Yes, fugitive from justice, oo. Fugitive from justice shall mean or means one

who has been convicted by final judgment . It means one who has been convicted by final

judgment.

HON. DE PEDRO. Kulang pa rin ang ibig sabihin niyan.

THE CHAIRMAN. Ano? Sige, tingnan natin.

HON. DE PEDRO. Kung nasa loob ng presuhan, fugitive pa rin siya?

THE CHAIRMAN. O, tama na yan, fugitive from justice. He has been convicted by final

judgment , meaning that if he is simply in jail and because he put up, post bail, but the case is

still being reviewed, that is not yet conviction by final judgment. 3

The Oversight Committee evidently entertained serious apprehensions on th e possible

constitutional infirmity of Section 40(e) of Republic Act No. 7160 if the disqualification

therein meant were to be so t aken as to embrace those who merely were facing criminal

charges. A similar concern was expressed by Senator R. A. V. Saguisag who, during the

bicameral conference committee of the Senate and the House of Representatives, made this

reservation:



. . . de ipa-refine lang natin 'yung language especially 'yung, the scope of fugitive. Medyo

bothered ako doon, a. 4

The Oversight Committee finally came out with Article 73 of the Rules and Regulations

Implementing the Local Government Code of 1991. It provided:

Art. 73. Disqualifications.— The following persons shall be disqualified

from running for any elective local position:

(a) . . .

(e) Fugitives from justice in criminal or non-political cases here or

abroad. Fugitive from justice refers to a person who has been convicted

by final judgment . 5 (Emphasis supplied)

Private respondent reminds us that the construction placed upon l aw by the officials in

charge of its enforcement deserves great and considerable weight (Atlas Consolidated

Mining and Development Corp. vs. CA, 182 SCRA 166, 181). The Court certainly agrees;

however, when there clearly is no obscurity and ambiguity in an enabling law, it must m erely

be made to apply as it is so written. An administrative rule or regulation can neither expand

nor constrict the law but must remain congruent to it. The Court believes and thusholds, albeit with some personal reservations of the ponente (expressed during the

Court's en banc deliberations), that Article 73 of the Rules and Regulations Implementing the

Local Government Code of 1991, to the extent that it confines the term "fugitive from

justice" to refer only to a person (the fugitive) "who has been convicted by final judgment." is

an inordinate and undue circumscription of the law.

Unfortunately, the COMELEC did not make any definite finding on whether or not, in fact,

private respondent is a "fugitive from justice" as such term must be interpreted and applied

in the light of the Court's opinion. The omission is understandable since the COMELEC

dismissed outrightly the petition for quo warranto on the basis instead of Rule 73 of the

Rules and Regulations promulgated by the Oversight Committee. The Court itself, not being a

trier of facts, is thus constrained to remand the case to the COMELEC for a determination of

this unresolved factual matter.

WHEREFORE, the questioned resolutions of the Commission on Elections are REVERSED and

SET ASIDE, and the case is hereby REMANDED to the Commission which is DIRECTED to

proceed and resolve the case with dispatch conformably with the foregoing opinion. No

special pronouncement on costs.

SO ORDERED.

Feliciano, Padilla, Melo, Quiason, Puno, Kapunan and Francisco, JJ., concur.

Separate Opinions

DAVIDE JR., J., concurring:

Section 65 of the Omnibus Election Code (B.P. Blg. 881) states that the qualifications for

elective provincial, city, municipal, and barangay officials shall be those provided for in t he

Local Government Code. The quondam Local Government Code was B.P. Blg. 337, which was

superseded by R.A. No. 7160, o therwise known as the Local Government Code of 1991.

Section 39 of the latter provides fo r the qualifications and election of local elective officials.

Section 40 enumerates those who are disqualified from running for any elective local

position, among whom is a:

(e) Fugitive from justice in criminal or non-political cases here or abroad.

The term "fugitive from justice" refers not only to those who flee after conviction to avoid

punishment but also to those who, after being charged, flee to avoid prosecution. In

his ponencia, Mr. Justice Jose C. Vitug finds the definition given to it by the Oversight

Committee, i.e., "a person who has been convicted by final judgment," as appearing in Article

73 of the Rules and Regulations I mplementing the Local Government Code of 1991, as

inordinate and as undue circumscription of the law. I agree.

But this is only one side of the coin. I further submit that it also unreasonably expands the

scope of the disqualification in the 1991 Local Government Code because it

disqualifies all those who have been convicted by final judgment, regardless of the extent of

the penalty imposed and of whether they have served or are serving their sentences or have

evaded service of sentence by jumping bail or leaving for another country. The definition

thus disregards the true and accepted meaning of the word fugitive. This new definition is

unwarranted for nothing in the legislative debates has been shown to sustain it and the clear

language of the law leaves no room for a re-examination of the meaning of t he term.

I do not share the doubt of Mr. Justice Vitug on the constitutionality of the disqualification

based on the presumption of innocence clause of t he Bill of Rights. There are certain

fundamental considerations which do not support the applications of the presumption

Firstly, Section 1, Article V of the Constitution recognizes the authority of Congress to

determine who are disqualified from exercising the right of suffrage. Since the minimum

requirement of a candidate for a public office is that he must be a qualified voter, it logically

follows that Congress has the plenary power to determine who are disqualified to seek

election for a public office.

Secondly, a public office is a public trust. Section 1, Article XI of the Co nstitution expressly

provides:

Sec. 1. Public office is public trust. Public officers and employees must at

all times be accountable to the people, serve them wit h utmost

responsibility, integrity, loyalty, and efficiency, act with patriotism and

justice, and lead modest lives.



A public office is not property. (ISAGANI A. CRUZ, Constitutional Law , 1993 ed., 101; JOAQUIN

BERNAS, The Constitution of the Republic of the Philippines, A Commentary , 1987 ed., 40,

citing Cornejo vs. Gabriel, 41 Phil. 188 [1920]). Accordingly, stricter qualifications for public

office may thus be required by law.

Thirdly, the disqualification in guestion does not, in reality, involve the issue of presumption

of innocence. Elsewise stated, one is not disqualified because he is presumed guilty by the

filing of an information or criminal complaint against him. He is disqualified because he is a

"fugitive from justice," i.e., he was not brought within the jurisdiction of the court because he

had successfully evaded arrest; or if he was brought within the jurisdiction of the court and

was tried and convicted, he has successfully evaded service of sentence because he had

jumped bail or escaped. The disqualification then is based on his flight from justice. In the

face of the settled doctrine that flight is an indication of guilt, it may even be truly said that it

is not the challenged disqualifying provision which overcomes the presumption of innocence

but rather the disqualified person himself who has proven his guilt.

Finally, Dumlao vs. COMELEC (95 SCRA 392 [1980]) cannot be invoked to cast doubt on the

validity of the challenged disqualification. Dumlao struck out as violative of the constitutional

presumption of innocence that portion of the second paragraph, Section 4 of B.P. Blg. 52

providing that "the filing of charges for the commission of such crimes before a civil court or

military tribunal after preliminary investigation shall be prima facie evidence of such fact." It

is clear that the law challenged therein did in fact establish a presumption of guilt from themere filing of the information or criminal complaint, in violation of the constitutional right to

presumption of innocence.

Narvasa, C.J., Romero, Bellosillo and Mendoza, JJ., concur.

Separate Opinions

DAVIDE JR., J., concurring:

Section 65 of the Omnibus Election Code (B.P. Blg. 881) states that the qualifications for

elective provincial, city, municipal, and barangay officials shall be those provided for in t he

Local Government Code. The quondam Local Government Code was B.P. Blg. 337, which was

superseded by R.A. No. 7160, otherwise known as the Local Government Code of 1991.

Section 39 of the latter provides for the qualifications and election of local elective officials.

Section 40 enumerates those who are disqualified from running for any elective local

position, among whom is a:

(e) Fugitive from justice in criminal or non-political cases here or abroad.

The term "fugitive from justice" refers not only to those who flee after conviction to avoid

punishment but also to those who, after being charged, flee to avoid prosecution. In

his ponencia, Mr. Justice Jose C. Vitug finds the definition given to it by the Oversight

Committee, i.e., "a person who has been convicted by final judgment," as appearing in Article

73 of the Rules and Regulations I mplementing the Local Government Code of 1991, as

inordinate and as undue circumscription of the law. I agree.

But this is only one side of the coin. I further submit that it also unreasonably expands the

scope of the disqualification in the 1991 Local Government Code because it

disqualifies all those who have been convicted by final judgment, regardless of the extent of

the penalty imposed and of whether they have served or are serving their sentences or have

evaded service of sentence by jumping bail or leaving for another country. The definition

thus disregards the true and accepted meaning of the word fugitive. This new definition is

unwarranted for nothing in the legislative debates has been shown to sustain it and the clear

language of the law leaves no room for a re-examination of the meaning of the term.

I do not share the doubt of Mr. Justice Vitug on the constitutionality of the disqualification

based on the presumption of innocence clause of t he Bill of Rights. There are certain

fundamental considerations which do not support the applications of the presumption

Firstly, Section 1, Article V of the Constitution recognizes the authority of Congress to

determine who are disqualified from exercising the right of suffrage. Since the minimum

requirement of a candidate for a public office is that he must be a qualified voter, it logically

follows that Congress has the plenary power to determine who are disqualified to seek

election for a public office.

Secondly, a public office is a public trust. Section 1, Article XI of the Constitution expressly

provides:

Sec. 1. Public office is public trust. Public officers and employees must at

all times be accountable to the people, serve them wit h utmost

responsibility, integrity, loyalty, and efficiency, act with patriotism and

justice, and lead modest lives.

A public office is not property. (ISAGANI A. CRUZ, Constitutional Law , 1993 ed., 101; JOAQUIN

BERNAS, The Constitution of the Republic of the Philippines, A Commentary , 1987 ed., 40,

citing Cornejo vs. Gabriel, 41 Phil. 188 [1920]). Accordingly, stricter qualifications for public

office may thus be required by law.

Thirdly, the disqualification in guestion does not, in reality, involve the issue of presumption

of innocence. Elsewise stated, one is not disqualified because he is presumed guilty by the

filing of an information or criminal complaint against him. He is disqualified because he is a

"fugitive from justice," i.e., he was not brought within the jurisdiction of the court because he

had successfully evaded arrest; or if he was brought within the jurisdiction of the court and

was tried and convicted, he has successfully evaded service of sentence because he had

jumped bail or escaped. The disqualification then is based on his flight from justice. In the

face of the settled doctrine that flight is an indication of guilt, it may even be truly said that it

is not the challenged disqualifying provision which overcomes the presumption of innocence

but rather the disqualified person himself who has proven his guilt.




SUPREME COURT

Manila

EN BANC

G.R. No. 118577 March 7, 1995

JUANITO MARIANO, JR. et al., petitioners,vs.

THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR BINAY,THE MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF MAKATI, respondents.

G.R. No. 118627 March 7, 1995

JOHN R. OSMEÑA, petitioner,

vs.

THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR BINAY,MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF MAKATI, respondents.

PUNO, J.:

At bench are two (2) petitions assailing certain provisions of Republic Act No. 7854 as

unconstitutional. R.A. No. 7854 as unconstitutional. R.A. No. 7854 is entitled, "An Act

Converting the Municipality of Makati Into a Highly Urbanized City to be known as the City of

Makati." 1

G.R. No. 118577 involves a petition for prohibition and declaratory relief. It was filed by

petitioners Juanito Mariano, Jr., Ligaya S. Bautista, Teresita Tibay, Camilo Santos, Frankie

Cruz, Ricardo Pascual, Teresita Abang, Valentina Pitalvero, Rufino Caldoza, Florante Alba, and

Perfecto Alba. Of the petitioners, only Mariano, Jr., is a resident of Makati. The others are

residents of Ibayo Ususan, Taguig, Metro Manila. Suing as taxpayers, they assail as

unconstitutional sections 2, 51, and 52 of R.A. No. 7854 on the following grounds:

1. Section 2 of R.A. No. 7854 did not properly identify the land area or territorial jurisdiction

of Makati by metes and bounds, with technical descriptions, in violation of Section 10, Article

X of the Constitution, in relation to Sections 7 and 450 of the Local Government Code;

2. Section 51 of R.A. No. 7854 attempts to alter or restart the "three consecutive term" limit

for local elective officials, in violation of Section 8, Article X and Section 7, Article VI of the

Constitution.

3. Section 52 of R.A. No. 7854 is unconstitutional for:

(a) it increased the legislative district of Makati only by special law (the Charter in violation of

the constitutional provision requiring a general reapportionment law to be passed by

Congress within three (3) years following the return of every census;

(b) the increase in legislative district was not expressed in the title of the bill; and

(c) the addition of another legislative district in Makati is not in accord with Section 5 (3),

Article VI of the Constitution for as of the latest survey (1990 census), the population of

Makati stands at only 450,000.

G.R. No. 118627 was filed by the petitioner John H. Osmeña as senator, taxpayer, and

concerned citizen. Petitioner assails section 52 of R.A. No. 7854 as unconstitutional on the

same grounds as aforestated.

We find no merit in the petitions.

I

Section 2, Article I of R.A. No . 7854 delineated the land areas of the proposed city of Makati,

thus:

Sec. 2. The City of Makati .— The Municipality of Makati shall be converted into a highly

urbanized city to be known as the City of Makati, hereinafter referred to as the City, which

shall comprise the present territory of the Municipality of Makati in Metropolitan Manila

Area over which it has jurisdiction bounded on the northeast by Pasig River and beyond by

the City of Mandaluyong and t he Municipality of Pasig; on the southeast by the

municipalities of Pateros and Taguig; on the southwest by the City of Pasay and the

Municipality of Taguig; and, on the northwest, by the City of Manila.

The foregoing provision shall be without prejudice to the resolution by the appropriate

agency or forum of existing boundary disputes or cases involving questions of territorial

jurisdiction between the City of Makati and the adjoining local government units. (Emphasis

supplied)

In G.R. No. 118577, petitioners claim that this delineation violates sections 7 and 450 of the

Local Government Code which require that the area of a local government unit should be

made by metes and bounds with technical descriptions. 2

The importance of drawing with precise strokes the territorial boundaries of a local unit of

government cannot be overemphasized. The boundaries must be clear for they define the

limits of the territorial jurisdiction of a local government unit. It can legitimately exercise

powers of government only within the l imits, its acts are ultra vires. Needless to state, any

uncertainty in the boundaries of local government units will sow costly conflicts in the

exercise of governmental powers which ultimately will prejudice the people's welfare. This is

the evil sought to avoided by the Local Government Code in requiring that the land area of alocal government unit must be spelled out in metes and bounds, with t echnical descriptions.



Given the facts of the cases at bench, we cannot perceive how this evil can be brought about

by the description made in section 2 of R.A. No. 7854, Petitioners have not demonstrated

that the delineation of the land area of the proposed City of Makati will cause confusion as to

its boundaries. We note that said delineation did not change even by an inch the land area

previously covered by Makati as a municipality. Section 2 did not add, subtract, divide, or

multiply the established land area of Makati. In language that cannot be any clearer, section

2 stated that, the city's land area "shall comprise the present territory of the municipality."

The deliberations of Congress will reveal that there is a legitimate reason why the land area

of the proposed City of Makati was not defined by metes and bounds, with technical

descriptions. At the time of the consideration of R.A. No. 7854, the territorial dispute

between the municipalities of Makati and Taguig over Fort Bonifacio was under court

litigation. Out of a becoming sense of respect to co-equal department of government,

legislators felt that the dispute should be left t o the courts to decide. They did not want to

foreclose the dispute by making a legislative finding of fact which could decide the issue. This

would have ensued if they defined the land area of the proposed city by its exact metes and

bounds, with technical descriptions. 3 We take judicial notice of the fact that Congress has

also refrained from using the metes and bounds d escription of land areas of other local

government units with unsettled boundary disputes. 4

We hold that the existence of a boundary dispute does not per se present an insurmountable

difficulty which will prevent Congress from defining with reasonable certitude the territorial jurisdiction of a local government unit. In the cases at bench, Congress maintained the

existing boundaries of the proposed City of Makati but as an act of fairness, made them

subject to the ultimate resolution by the courts. Considering these peculiar circumstances,

we are not prepared to hold that section 2 of R.A. No. 7854 is unconstitutional. We sustain

the submission of the Solicitor General in this regard, viz.:

Going now to Sections 7 and 450 of the Local Government Code, it is

beyond cavil that the requirement stated therein, viz.: "the territorial

jurisdiction of newly created or converted cities should be described by

meted and bounds, with technical descriptions"— was made in order to

provide a means by which the area of said cities may be reasonably

ascertained. In other words, the requirement on metes and bounds was

meant merely as tool in the establishment of local government units. It is

not an end in itself. Ergo, so long as the territorial jurisdiction of a city

may be reasonably ascertained, i .e., by referring to common boundaries

with neighboring municipalities, as in this case, then, it may be concluded

that the legislative intent behind the law has been sufficiently served.

Certainly, Congress did not intends that laws creating new cities must

contain therein detailed technical descriptions similar to those appearing

in Torrens titles, as petitioners seem to imply. To require such description

in the law as a condition sine qua non for its validity would be to defeat

the very purpose which the Local Government Code to seeks to serve.

The manifest intent of the Code is to empower local government units

and to give them their rightful due. It seeks to make local governmentsmore responsive to the needs of their constituents while at the same

time serving as a vital cog in national development. To invalidate R.A. No.

7854 on the mere ground that no cadastral type of description was used

in the law would serve the letter but defeat the spirit of the Code. It then

becomes a case of the master serving the slave, instead of the other way

around. This could not be the intendment of the law.

Too well settled is the rule t hat laws must be enforced when ascertained,

although it may not be consistent with the strict letter of the statute.

Courts will not follow the letter of the statute when to do so would

depart from the true intent of the legislature or would otherwise yield

conclusions inconsistent with the general purpose of the act. (Torres v.

Limjap, 56 Phil., 141; Tañada v. Cuenco, 103 Phil. 1051; Hidalgo v.

Hidalgo, 33 SCRA 1105). Legislation is an active instrument of

government, which, for purposes of interpretation, means that laws have

ends to achieve, and statutes should be so construed as not to defeat but

to carry out such ends and purposes (Bocolbo v. Estanislao, 72 SCRA 520).

The same rule must indubitably apply to the case at bar.

II

Petitioners in G.R. No. 118577 also assail the constitutionality of section 51, Article X o f R.A.

No. 7854. Section 51 states:

Sec. 51. Officials of the City of Makati .— The represent elective officials

of the Municipality of Makati shall continue as the officials of the City of

Makati and shall exercise their powers and functions until such time that

a new election is held and the duly elected officials shall have already

qualified and assume their offices: Provided , The new city will acquire a

new corporate existence. The appointive officials and employees of the

City shall likewise continues exercising their functions and duties and

they shall be automatically absorbed by the city government of the City

of Makati.

They contend that this section collides with section 8, Article X and section 7, Article VI of theConstitution which provide:

Sec. 8. The term of office of elective local officials, except barangay

officials, which shall be determined by law, shall be three years and no

such official shall serve for more than three consecutive terms. Voluntary

renunciation of the office for any length of time shall not be considered

as an interruption in the continuity of his service for the full term for

which he was elected.

xxx xxx xxx



Sec. 7. The Members of the House of Representatives shall be elected for

a term of three years which shall begin, unless otherwise provided by

law, at noon on the thirtieth day of June next following their election.

No Member of the House of Representatives shall serve for more than

three consecutive terms. Voluntary renunciation of the office for any

length of time shall not be considered as an interruption in the continuity

of his service for the full term for which he was elected.

Petitioners stress that under these provisions, elective local officials, including Members of

the House of Representative, have a term of three (3) years and are prohibited from serving

for more than three (3)consecutive terms. They argue that by providing that the new city shall

acquire a new corporate existence, section 51 of R.A. No. 7854 restarts the term of the

present municipal elective officials of Makati and disregards the terms previously served by

them. In particular, petitioners point that section 51 favors the incumbent Makati Mayor,

respondent Jejomar Binay, who has already served for two (2) consecutive terms. They

further argue that should Mayor Binay decide to run and eventually win as city mayor in the

coming elections, he can still run for the same position in 1998 and seek another three-year

consecutive term since his previous three-year consecutive term asmunicipal mayor would

not be counted. Thus, petitioners conclude that said s ection 51 has been conveniently

crafted to suit the political ambitions of respondent Mayo r Binay.

We cannot entertain this challenge to the constitutionality of s ection 51. The requirements

before a litigant can challenge the constitutionality of a law are well delineated. They are: 1)

there must be an actual case or co ntroversy; (2) the question of constitutionality must be

raised by the proper party; (3) the constitutional question must be raised at the earliest

possible opportunity; and (4) the decision on the constitutional question must be necessary

to the determination of the case itself. 5

Petitioners have far from complied with these requirements. The petition is premised on the

occurrence of many contingent events, i .e., that Mayor Binay will run again in this coming

mayoralty elections; that he would be re-elected in said elections; and that he would seek re-

election for the same position in the 1998 elections. Considering that these contingencies

may or may not happen, petitioners merely pose a hypothetical issue which has yet to ripento an actual case or controversy. Petitioners who are residents of Taguig (except Mariano)

are not also the proper parties to raise this abstract issue. Worse, they hoist this futuristic

issue in a petition for declaratory relief over which this Court has no jurisdiction.

III

Finally, petitioners in the two (2) cases at bench assail the constitutionality of section 52,

Article X of R.A. No. 7854. Section 52 of the Charter provides:

Sec. 52. Legislative Districts.— Upon its conversion into a highly-

urbanized city, Makati shall thereafter have at least two (2) legislative

districts that shall initially correspond to the two (2) existing districtscreated under Section 3(a) of Republic Act. No. 7166 as implemented by

the Commission on Elections to commence at the next national elections

to be held after the effectivity of this Act. Henceforth, barangays

Magallanes, Dasmariñas and Forbes shall be with the first district, in lieu

of Barangay Guadalupe-Viejo which shall form part of the second district.

(emphasis supplied)

They contend. that the addition of another legislative district in Makati is unconstitutional

for: (1) reapportionment6 cannot made by a special law, (2) the addition of a legislative

district is not expressed in the title of the bill 7 and (3) Makati's population, as per the 1990

census, stands at only four hundred fifty thousand (450,000).

These issues have been laid to rest in the recent case of Tobias v . Abalos. 8 In said case, we

ruled that reapportionment of legislative districts may be made through a special law, such

as in the charter of a new city. The Constitution 9 clearly provides that Congress shall be

composed of not more than two hundred fifty (250) members, unless otherwise fixed by law .

As thus worded, the Constitution did not preclude Congress from increasing its m embership

by passing a law, other than a general reapportionment of the law. This is its exactly what

was done by Congress in enacting R.A. No. 7854 and providing for an increase in Makati's

legislative district. Moreover, to hold that reapportionment can o nly be made through a

general apportionment law, with a review of all the legislative districts allotted to each local

government unit nationwide, would create an inequitable situation where a new city or

province created by Congress will be denied legislative representation for an indeterminateperiod of time. 10 The intolerable situations will deprive the people of a new city or province

a particle of their sovereignty. 11 Sovereignty cannot admit of any kind of subtraction. It is

indivisible. It must be forever whole or it is not sovereignty.

Petitioners cannot insist that the addition of another legislative district in Makati is not in

accord with section 5(3), Article VI 12 of the Constitution for as of the latest survey (1990

census), the population of Makati stands at only four hundred fifty thousand

(450,000). 13 Said section provides, inter alia, that a city with a population of at least two

hundred fifty thousand (250,000) shall have at least one representative. Even granting that

the population of Makati as of the 1990 census stood at four hundred fifty thousand

(450,000), its legislative district may still be increased since it has met the minimum

population requirement of two hundred fifty thousand (250,000). In fact, section 3 of the

Ordinance appended to the Constitution provides that a city whose population has increased

to more than two hundred fifty thousand (250,000) shall be entitled to at least one

congressional representative. 14

Finally, we do not find merit in petitioners' contention that the creation of an additional

legislative district in Makati should have been expressly stated in the title of the bill. In the

same case of Tobias v . Abalos, op cit ., we reiterated the policy of the Court favoring a liberal

construction of the "one title-one subject " rule so as not to impede legislation. To be sure,

with Constitution does not command that the title of a law should exactly mirror, fully index,

or completely catalogue all its details. Hence, we ruled that "it should be sufficient

compliance if the title expresses the general subject and all the provisions are germane to

such general subject."



WHEREFORE, the petitions are hereby DISMISSED for lack of merit No costs.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Vitug,

Kapunan, Mendoza and Francisco, JJ., concur.

Separate Opinions

DAVIDE, JR., J., concurring:

I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish, however, to add a

few observations.

I.

Section 10, Article X of the Constitution provides that "[n]o province, city, municipality or

barangay may be created, divided, merged, abolished, or its boundary substantially altered,

except in accordance with the criteria established in the local government code and subject

to the approval by a majority of the votes cast in a plebiscite in the political units directly

affected." These criteria are now set forth in Section 7 of the Local Government Code of 1991(R.A. No. 7160). One of these is that the territorial jurisdiction of the local government unit to

be created or converted should be properly identified by metes and bounds with technical

descriptions.

The omission of R.A. No. 7854 ( An Act Converting the Municipality of Makati Into a Highly

Urbanized City to be Known as the City of Makati ) to describe the territorial boundaries of

the city by metes and bounds does not make R.A. No. 7854 unconstitutional or illegal. The

Constitution does not provide for a description by metes and bounds as a condition sine qua

non for the creation of a local government unit or its conversion from one level to another.

The criteria provided for in Section 7 of R.A. No. 7854 are not absolute, for, as a matter of

fact, the section starts with the clause "as a general rule." The petitioners' reliance on

Section 450 of R.A. No. 7160 is unavailing Said section only applies to the conversion of amunicipality or a cluster of barangays into a COMPONENT CITY, not a highly urbanized city. It

pertinently reads as follows:

Sec. 450. Requisite for creation.— (a) A municipality or a cluster of

barangays may be converted into a component city if it has an average

annual income, as certified by the Department of Finance, of at least

Twenty million pesos (P20,000,000.00) for the last two (2) consecutive

years based on 1991 constant prices, and if it has either of the following

requisites:

xxx xxx xxx

(b) The territorial jurisdiction of a newly created city shall be properly

identified by metes and bounds. . . .

The constitution classifies cities as either highly urbanized or component. Section 12 of

Article X thereof provides:

Sec. 12. Cities that are highly urbanized, as determined by law, and

component cities whose charters prohibit their voters from voting for

provincial elective officials, shall be independent of the province. The

voters of component cities within a province, whose charters contain no

such prohibition, shall not be deprived of their right to vote for elective

provincial officials.

And Section 451 of R.A. No. 7160 provides:

Sec. 451. Cities Classified .— A city may either be component or highly

urbanized: Provided, however , That the criteria established in this Co de

shall not affect the classification and corporate status of existing cities.

Independent component cities are those component cities whose

charters prohibit their voters from voting for provincial elective officials.Independent component cities shall be independent of the province.

II.

Strictly speaking, the increase in the number of legislative seats for the City of Makati

provided for in R.A. No. 7854 is not an increase justified by the clause unless otherwise fixed

by law in paragraph 1, Section 5, Article VI of the Constitution. That clause contemplates of

the reapportionmentmentioned in the succeeding paragraph (4) of the said Section which

reads in full as follows:

Within three years following the return of every census, the Congress

shall make a reapportionment of legislative districts based on th estandards provided in this section.

In short, the clause refers to a general reapportionment law .

The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the

Ordinance appended to the Constitution which reads:

Sec. 1. For purposes of the election of Members of the House of

Representatives of the First Congress of the Philippines under the

Constitution proposed by the 1986 Constitutional Commissionand

subsequent elections, and until otherwise provided by law , the Members

thereof shall be elected from legislative districts apportioned among theprovinces, cities, and the Metropolitan Manila Areaas follows:



METROPOLITAN MANILA AREA

xxx xxx xxx

MAKATI one (1)

xxx xxx xxx

Sec. 3. Any province that may hereafter be created, or any city whose

population may hereafter increase to more than two hundred fifty

thousand shall be entitled in the immediately following election to at least

one Member or such number of Members as it may be entitled to on the

basis of the number of its inhabitants and according to the standards set

forth in paragraph (3), Section 5 of Article VI of the Constitution. The

number of Members apportioned to the province out of which such new

province was created, or where the city, whose population has so

increased, is geographically located shall be correspondingly adjusted by

the Commission on Elections but such adjustment shall not be made

within one hundred and twenty days before the election. (Emphases

supplied)

Separate Opinions

DAVIDE, JR., J., concurring:

I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish, however, to add a

few observations.

I.

Section 10, Article X of the Constitution provides that "[n]o province, city, municipality or

barangay may be created, divided, merged, abolished, or its boundary subst antially altered,

except in accordance with the criteria established in the local government code and subject

to the approval by a majority of the votes cast in a plebiscite in the political units directly

affected." These criteria are now set forth in Section 7 of the Local Government Code of 1991

(R.A. No. 7160). One of these is that the territorial jurisdiction of the local government unit to

be created or converted should be properly identified by metes and bounds with technical

descriptions.

The omission of R.A. No. 7854 ( An Act Converting the Municipality of Makati Into a Highly

Urbanized City to be Known as the City of Makati ) to describe the territorial boundaries of

the city by metes and bounds does not make R.A. No. 7854 unconstitutional or illegal. The

Constitution does not provide for a description by metes and bounds as a condition sine qua

non for the creation of a local government unit or its conversion from one level to another.

The criteria provided for in Section 7 of R.A. No. 7854 are not absolute, for, as a matter of

fact, the section starts with the clause "as a general rule." The petitioners' reliance on

Section 450 of R.A. No. 7160 is unavailing Said section only applies to the conversion of a

municipality or a cluster of barangays into a COMPONENT CITY, not a highly urbanized city. It

pertinently reads as follows:

Sec. 450. Requisite for creation.— (a) A municipality or a cluster of

barangays may be converted into a component city if it has an av erage

annual income, as certified by the Department of Finance, of at least

Twenty million pesos (P20,000,000.00) for the last two (2) consecutive

years based on 1991 constant prices, and if it has either of the following

requisites:

xxx xxx xxx

(b) The territorial jurisdiction of a newly created city shall be properly

identified by metes and bounds. . . .

The constitution classifies cities as either highly urbanized or component. Section 12 of

Article X thereof provides:

Sec. 12. Cities that are highly urbanized, as determined by law, and

component cities whose charters prohibit their voters from voting for

provincial elective officials, shall be independent of the province. The

voters of component cities within a province, whose charters contain no

such prohibition, shall not be deprived of their right to vote for elective

provincial officials.

And Section 451 of R.A. No. 7160 provides:

Sec. 451. Cities Classified .— A city may either be component or highly

urbanized: Provided, however , That the criteria established in this Co de

shall not affect the classification and corporate status of existing cities.

Independent component cities are those component cities whose

charters prohibit their voters from voting for provincial elective officials.

Independent component cities shall be independent of the province.

II.

Strictly speaking, the increase in the number of legislative seats for the City of Makati

provided for in R.A. No. 7854 is not an increase justified by the clause unless otherwise fixed

by law in paragraph 1, Section 5, Article VI of the Constitution. That clause contemplates of

the reapportionmentmentioned in the succeeding paragraph (4) of the said Section which

reads in full as follows:

Within three years following the return of every census, the Congress

shall make a reapportionment of legislative districts based on th e

standards provided in this section.

In short, the clause refers to a general reapportionment law .



The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the

Ordinance appended to the Constitution which reads:

Sec. 1. For purposes of the election of Members of the House of

Representatives of the First Congress of the Philippines under the

Constitution proposed by the 1986 Constitutional Commissionand

subsequent elections, and until otherwise provided by law , the Members

thereof shall be elected from legislative districts apportioned among the

provinces, cities, and the Metropolitan Manila Areaas follows:

METROPOLITAN MANILA AREA

xxx xxx xxx

MAKATI one (1)

xxx xxx xxx

Sec. 3. Any province that may hereafter be created, or any city whose

population may hereafter increase to more than two hundred fifty

thousand shall be entitled in the immediately following election to at least

one Member or such number of Members as it may be entitled to on the

basis of the number of its inhabitants and according to the standards set

forth in paragraph (3), Section 5 of Article VI of the Constitution. Thenumber of Members apportioned to the province out of which such new

province was created, or where the city, whose population has so

increased, is geographically located shall be correspondingly adjusted by

the Commission on Elections but such adjustment shall not be made

within one hundred and twenty days before the election. (Emphases

supplied)

Footnotes

1 R.A. No. 7854 is a consolidatio n of House Bill No. 12240 sponsored by Congressman Joker

Arroyo and Senate Bill No. 1244 sponsored by Senator Vicente Sotto III.

2 Sec. 7. Creation and Conversion.— As a general rule, the creatio n of a local government unit

or its conversion from one level to anot her level shall be based on verifiable indicators of

viability and projected capacity to provide services, to wit:

xxx xxx xxx

(c) Land Area.— It must be contiguous, unless it comprises two (2) or more islands or is

separated by a local government unit independent of the others; properly identified by metes

and bounds with technical descriptions and sufficient to provide for such basic services and

facilities to meet the requirements of its populace.

Compliance with the foregoing indicators shall be attested to by the Department of Finance

the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the

Department of Environment and Natural Resources (DENR).

xxx xxx xxx

Sec. 450. Requisites for Creation.—

. . .

(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and

bounds. . . .

3 August 18, 1994, Senate Deliberations on H.B. No. 12240, pp. 23-28.

4 Ibid , citing as example the City of Mandaluyong.

5 Dumlao v. COMELEC, 95 SCRA 392 (19180); Cruz, Constitutional Law, 1991 ed., p. 24.

6 Section 5(4), Article VI of the Constitution provides:

(4) Within three years following the return of every census, the Congress shall make a

reapportionment of legislative districts based on the sta ndards provided in this section.

7 Section 26(1), Article VI of the Constitution provides:

Sec. 26 (1) Every bill passed by the Congress shall, embrace only one subject which shall be

expressed in the title thereof.

8 G.R. No. 114783, December 8, 1994.

9 Section 5(1), Article VI.

10 In this connection, we take judicial notice of the fact that since 1986 up to this time,

Congress has yet to pass a general reapportionment law.

11 Section 1, Article II provides that "the Philippines is a democratic and republican state.

Sovereignty resides in the people and all government authority from them."

12 Sec. 5. . . .

(3) Each legislative district shall comprise, a s far as practicable, contiguous, compact, and

adjacent territory. Each city with a population of at least two hundred fifty thousand, or each

province, shall have at least one representative.

xxx xxx xxx

13 As per the certificate issued by Administration Tomas Africa of the National Census and

Statistics Office, the population of Makati as of 1994 stood at 508,174; August 4, 1994, Senate

Deliberations on House Bill No. 12240 (converting Makati into a highly urbanized city), p. 15.

14 Sec. 3 provides: "Any province t hat may hereafter be created, or a ny city whose population

may hereafter increase to more than two hundred fifty thousand shall be entitled in the

immediately following election to at least one Member or such number of Members as it may

be entitled to on the basis of the number of its inhabita nts and according to the standards set

forth in paragraph (3), Section 5 of Article VI of the Co nstitution. The number of Members

apportioned to the province out of which such new province was created or where the city ,

whose population has so increased, is geographically located shall be correspondingly adjusted

by the Commission on Elections but such adjustment shall not be made within one hundred,

and twenty days before the election."




SUPREME COURT

Manila

EN BANC

G.R. No. 135083 May 26, 1999

ERNESTO S. MERCADO, petitioner,vs.

EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS, respondents.

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.

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 COMELEC's 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.

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, September 14, 1955, and is considered in

American citizen under US Laws. But notwithstanding his registration as

an American citizen, he did not lose his Filipino citizenship.

Judging from the foregoing facts, it would appear that respondent

Manzano is born a Filipino and a US citizen. In other words, he holds dual

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.

3

The motionremained pending even until after the election held on May 11, 1998.

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.

On May 19, 1998, petitioner sought to intervene in the case for disqualification. 4 Petitioner's

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 torun for vice mayor of the City of Makati in the May 11, 1998 elections. 5The 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 .

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 o f allegiance to the United

States.

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

majority, he registered himself as a voter, and v oted 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.

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 vice-mayor 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) vot es. In applying election

laws, it would be far better to err in favor of the popular choice t han 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 respondent's certificate of candidacy.

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 proclaimthe 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 vo ted in the

elections of 1992, 1995 and 1998.

B. Manzano is qualified to run fo r and or hold the elective office of Vice-

Mayor 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 t hat, 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 his personality to bring this suit considering that he was not anoriginal party in the case for disqualification filed by E rnesto Mamaril nor was petitioner's

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:

Sec. 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, inits 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 t o be

adversely affected by such action or proceeding.

xxx xxx xxx

Sec. 3. Discretion of Commission. — In allowing or disallowing a mo tion

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 int ervenor's rights may be fully protected in aseparate 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 if the private respo ndent 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 t he 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 noproclamation 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 t ime petitioner

filed a "Motion for Leave to File Intervention" on May 20, 1998, there had been no

proclamation of the winner, and petitioner's 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.

Nor is petitioner's 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

Reform Law of 1987, which provides:

Any candidate who his 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 action, inquiry, o r 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 petitioner's motion for intervention was

tantamount to a denial of the mo tion, 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 petitioner's motion for intervention but

also with the substantive issues respecting private respondent's 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 Go vernment Code, Congress

has "command[ed] in explicit terms the ineligibility of persons pos sessing 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 i n 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 father's' country such children are citizens of that

country;

(3) Those who marry aliens if by the laws of the latter's 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 o f 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 isinvoluntary, dual allegiance is the result of an individual's 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 th e fact that dual allegiance is not dual

citizenship. I have circulated a memorandum to the Bernas Comm ittee

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 afunction 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 chat the Filipino-Chinese community is

represented in the Legislative Yuan of the Republic of China in Taiwan.

And until recently, sponsor might recall, in Mainland China in the People's

Republic of China, they have the Associated Legislative Council foroverseas 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 t his 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.

Dull 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 T O LAW.

In another session of the Co mmission, 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 People's 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 t he anniversary of the Sun Yat-SenRepublic 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 t he

problem, the real impact on the security of this country, arising from, let

us say, potentially great numbers o f 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 s ubject

to strict process with respect to the termination of their status, for candidates with d ual

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 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

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 t he Philippines but his father is aforeigner 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 c ountries

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 acitizen of the Philippines is, at birth, a citizen without any overt act t o

claim the citizenship.

SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under

the Gentleman's 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 r equirement 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 renounce, 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 compiled 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," sothat 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 o ld, it was ineffective as it should

have been made when he reached the age of majority.

In holding that by v oting 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 respondent's certificate of candidacy, filed on

March 27, 1998, contained the following statements made under o ath:

6. I AM A FILIPINO CITIZEN (STATE IF "NATURAL-BORN" OR "NATURALIZED") NATURAL-BORN

xxx xxx xxx

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 T HE 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 CE RTIFY THAT THE FACTS STATED HEREIN ARE TRUE AND

CORRECT OF MY OWN PERSONAL KNOWLEDGE.

The filing of such certificate of candidacy sufficed to renounce his American citizenship,

effectively removing any disqualification he might have as a dual citizen. T hus, in Frivaldo

v . COMELEC it was held: 17

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 Go vernment Code would

disqualify him "from running for any elective local position?" We answer

this question in the negative, as t here 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 petitioner's contention that the oath of allegiance contained

in private respondent's certificate of candidacy is insufficient to constitute renunciation 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 ma de

upon majority age.

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 t hat 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 o f

his American nationality before the termination of his American citizenship. What this Court

said in Aznar v .COMELEC 18 applies mutatis mundatis to private respondent in the case at bar:

. . . Considering the fact that admittedly Osmeña was both a Filipino and

an American, the mere fact that he has a Certificate staring he is an

American does not mean that he is not still a Filipino. . . . [T]heCertification that he is 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 andthat 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 respondent's 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 o f 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 g round



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 o ne 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.1âwphi1.nêt

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Quisumbing, Buena,

Gonzaga-Reyes and Ynares-Santiago, JJ., concur.

Panganiban and Purisima, JJ., are on leave.

Pardo, J., took no part.

Footnotes

1 Petition, Rollo, p. 5.

2 Per Commissioner Amado M. Calderon and concurred in by Commissioners Julio F. Desamito and Japal M. G uiani.

3 Id ., Annex E, Rollo, pp. 50-63.

4 Rollo, pp. 78-83.

5 Per Chairman Bernardo P. Pardo and concurred in by Commissioners Manolo B. Gorospe, Teresita Dy-Liaco Flores,

Japal M. Guiani, and Luzviminda G. Tancangco. Commissioner Julio F. Desamito dissented.

6 176 SCRA 1 (1989).

7 Abella v. COMELEC, 201 SCRA 253 (1991); Benito v. COMELEC, 235 SCRA 436 (1991); Aquino v. COMELEC, 248 SCRA

400 (1995); Frivaldo v. COMELEC, 257 SCRA 727 (1996).

8 R.A. No. 7854, the Charter of the City of Makati, provides: "SEC. 20— The following are disqualified from running for

any elective position in the city: . . . (d) Those with dual citizenship."

9 JOVITO R. SALONGA, PRIVATE INTERNATIONAL LAW 166 (1995).

10 Id ., at 361 (Session of July 8, 1986).

11 Id ., at 233-234 (Session of June 25, 1986).

12 1 RECORD OF THE CONSTITUTIONAL COMMISSION 203 (Session of June 23, 19 86).

13 Transcript, pp. 5-6, Session of Nov. 27, 1990.

14 C.A. No. 473, §12.

15 86 Phil. 310, 343 (1950).

16 387 U.S. 18 L. Ed. 2d 757 (1967), overruling Perez v. Brownell, 356 U.S. 2 L. Ed. 2d 603 (1958).

17 257 SCRA 727, 759-760 (1996).

18 185 SCRA 703, 711 (1990). See also Kawakita v. United States, 343 U.S. 717, 96 L. Ed. 1249 (1952).

19 169 SCRA 364 (1989).




SUPREME COURT

Manila

FIRST DIVISION

G.R. No. 126661 December 3, 1999

JOSE S. ANDAYA and EDGARDO L. INCIONG, petitioners,vs.

REGIONAL TRIAL COURT, Cebu City, Branch 20, and THE CITY OF CEBU, respondents.

PARDO, J.:

The case is an appeal via certiorari from a decision 1 of the Regional Trial Court, Cebu City,

Branch 20, commanding petitioner Jose S. Andaya as Regional Police Command No. 7, to

include P/Chief Inspector Andres Sarmiento in the list of five (5) recommendees to be

submitted to the mayor from which list the mayor shall select the City Director, Cebu City

Police Command (chief of police).

On January 3, 1996, the position of City Director, Cebu City Police Command (chief of police)became vacant after P/Supt. Antonio Enteria was relieved of command.

Sometime in January 1996, petitioner Andaya submitted to t he City Mayor, Cebu City a list of

five (5) eligibles for the mayor choose one to be appointed as the chief of police of Cebu City.

The mayor did not choose anyone from the list of five (5) recommendees because the name

of P/Chief Inspector Andres Sarmiento was not included therein.

However, petitioner Andaya refused to agree to Mayor Alvin B. Garcia's request to include

the name of Major Andres Sarmiento in the list of police officers for appointment by the

mayor to the position of City Director (chief of police), Cebu City Police Co mmand. Petitioner

Andaya's refusal was based on his contention that Major Andres Sarmiento was not qualified

for the position of City Director (chief of police), Cebu City Police Command, underNAPOLCOM Memorandum Circular No. 95-04 dated January 12, 1995, particularly Item No.

8, paragraph D thereof, which provides that the minimum qualification standards for

Directors of Provincial/City Police Commands, include completion of the Officers Senior

Executive Course (OSEC) and the rank of Police Superintendent.

Due to the impasse, on March 22, 1996, the City of Cebu filed with the Regional Trial Court,

Branch 20, Cebu City, a complaint for declaratory relief with preliminary prohibitory and

mandatory injunction and temporary restraining order against P/Chief Supt. Jose S. Andaya

and Edgardo L. Inciong, Regional Director, National Police Commission. 2

On April 10, 1996, petitioners filed with the trial court their respective answer to the

complaint. Petitioners stated that the power to designate the chief o f police of Cebu City

(City Director, Cebu City Police Command) is v ested with the Regional Director, Regional

Police Command No. 7. However, the mayor is authorized to choose t he chief of police from

a list of five (5) eligibles submitted by the Regional Director. In case of conflict between the

Regional Director and the mayor, the issue shall be elevated to the Regional Director,

National Police Commission, who shall resolve the issue within five (5) working days from

receipt and whose decision on the choice of the chief of police shall be final and executory.

Thus, petitioners prayed for dismissal of the complaint for lack of legal basis and failure to

exhaust administrative remedies. 3

On April 18, 1996, the trial court issued a writ of preliminary injunction against petitioner

Jose S. Andaya enjoining him from replacing C/Insp. Andres Sarmiento as OIC Director orChief of Police of the Cebu Cit y Police Command by designating another as OIC Chief of Police

or appointing a regular replacement for said officer, and, from sub mitting to the mayor a list

of five (5) eligibles which did not include t he name of Major Andres Sarmiento. 4

On July 12, 1996, the trial court rendered decision in favor of respondent City of Cebu, the

dispositive portion of which reads as follows:

WHEREFORE, in view of all the foregoing premises, judgment is hereby

rendered in favor of plaintiff as against defendants, declaring that

P/CInsp. Andres Sarmiento is qualified under RA 6975 to be appointed as

Chief Director or Chief of Police of the Cebu City Police Command and

whose name must be included in t he list of five (5) eligiblesrecommended as regular replacement to the position of the Chief of

Police of said Cebu City Police Command.

The writ of preliminary prohibitory injunction issued in this case against

defendants and their agents, or, representatives or any other persons

acting for and in their behalf enjoining and preventing them from

replacing P/CInsp. Andres Sarmiento as OIC Chief of Police of Cebu City

Police Command by designating anyone from the eligibles recommended

in the two (2) lists thereof submitted to Mayor Garcia or from any other

list of said eligible recommendees for said position is hereby made

permanent.

Let a permanent writ of preliminary mandatory injunction be issued

against defendant Jose S. Andaya or his successor ordering the latter to

include Major Andres Sarmiento in the list of five (5) eligible persons

recommended for the replacement to the position of Chief of Police of

Cebu City Police Command.

SO ORDERED.

Cebu City, July 12, 1996. (signed Ferdinand Marcos)



In due time, petitioners filed with the trial court their joint motion for reconsideration 6 on

the ground that the decision is co ntrary to Section 51 of Republic Act 6975 which only

empowers the mayor to choose one (1) from the five (5) eligibles recommended by the

Regional Police Director to be named chief of police. The mayor cannot superimpose his will

on the recommending authority by insisting that his protégé be included in the list of five

eligibles from which the chief of police is to be chosen.

On September 11, 1996, the trial court denied petitioners' motion for reconsideration ruling

that no new matters had been raised t herein. 7

Hence, this petition 8 review on certiorari on pure question of law. 9

On June 11, 1997, we gave due course to the petition. 10

At issue is whether or not the Mayor of Cebu City may require the Regional Director,

Regional Police Command No. 7, to include the mayor's protégé in the list of five (5) eligibles

to be recommended by the Regional Police Director to the mayor from which the mayor shall

choose the City Director, City Police Command (chief of police) City of Cebu.

We resolve the issue against the position of the city mayor.

Republic Act No. 6975, Section 51, gives authority to the mayor of Cebu City 11 to choose the

chief of police from a list of five (5) eligibles recommended by the Regional Director, Regional

Police Command No. 7.

The National Police Commission has issued Memorandum Circular No. 95 -04, dated January

12, 1995, for the implementation of Republic Act No. 6975. It provides that among the

qualifications for chief of police of highly urbanized cities are (1) completion of the Officers'

Senior Executive Course (OSEC) and (2) holding the rank of Police Superintendent.

The mayor of Cebu City submits that Memorandum Circular No. 95-04 of the National Police

Commission prescribing such additional qualifications is not valid as it contravenes the law.

We do not agree. Under Republic Act No. 6975, Section 51, the mayor of Cebu City shall be

deputized as representative of the Commission (National Police Commission) in his territorial

jurisdiction and as such the mayor shall have authority to choose the chief of police from a

list of five (5) eligibles recommended by the Police Regional Director. The C ity Police Station

of Cebu City is under th e direct command and control of t he PNP Regional Director, Regional

Police Command No. 7, and is equivalent to a provincial office. 12 Then, the Regional Director,

Regional Police Command No. 7 appoints the officer selected by t he mayor as the City

Director, City Police Command (chief of police) Cebu City. It is the prerogative of th e Regional

Police Director to name the five (5) eligibles from a pool of eligible officers screened by the

Senior Officers Promotion and Selection Board, Headquarters, Philippine National Police,

Camp Crame, Quezon City, without interference from local executives. In case o f

disagreement between the Regional Police Director and the Mayor, the question shall be

elevated to the Regional Director, National Police Commission, who shall resolve the iss ue

within five (5) working days from receipt and whose decision on the choice of the Chief of

Police shall be final and executory. 13 As deputy of the Commission, the authority of the

mayor is very limited. In reality, he has no power of appointment; he has only the limited

power of selecting one from among the list of five eligibles to be named the chief of police.

Actually, the power to appoint the chief of police of Cebu City is vested in the Regional

Director, Regional Police Command No. 7. Much less may the mayor require the Regional

Director, Regional Police Command, to include the name of any officer, no matter how

qualified, in the list of five to be submitted to the mayor. The purpose is to enhance police

professionalism and to isolate the police service from political domination.

Consequently, we find that the trial court erred in granting preliminary injunction that

effectively restrained the Regional Director, Regional Police Command, Region 7, from

performing his statutory function. The writ of preliminary injunction issued on April 18, 1996,

is contrary to law and thus void. Similarly, the lower court's decision sustaining the City

Mayor's position suffers from the same legal infirmity.

WHEREFORE, the Court GRANTS the petition and SETS ASIDE the decision of the Regional

Trial Court, Branch 20, Cebu City, dated July 12, 1996, in Civil Case No. CEB-18545. In lieu

thereof, the Court renders judgment upholding the sole discretion of the Regional Director,

Regional Police Command No. 7, to submit to the mayor of Cebu City a list of five (5) eligibles

from which the mayor shall choose the c hief of police. In case of the mayor' s refusal to make

his choice within a given period due t o disagreement as to the eligible nominees, the issueshall be submitted to the Regional Director, National Police Commission, whose decision shall

be final.

No costs.

SO ORDERED.

Kapunan and Ynares-Santiago, JJ., concur.

Davide, Jr., C.J., like Justice Puno, on the ground of non-exhaustion of administrative

remedies.

Puno, J., I concur but on the ground of non-exhaustion of adm. remedies.




SUPREME COURT

Manila

EN BANC

G.R. No. 125955 June 19, 1997

WILMER GREGO, petitioner,

vs.

COMMISSION ON ELECTIONS and HUMBERTO BASCO, respondents.

ROMERO, J.:

The instant special civil action for certiorari and prohibition impugns the resolution o f the

Commission on Elections (COMELEC) en banc in SPA No. 95-212 dated July 31, 1996,

dismissing petitioner's motion for reconsideration of an earlier resolution rendered by the

COMELEC's First Division on October 6, 1995, which also dismissed the petition for

disqualification 1 filed by petitioner Wilmer Grego against private respondent Humberto

Basco.

The essential and undisputed factual antecedents of the case are as follows:

On October 31, 1981, Basco was removed from his position as Deputy Sheriff by no less than

this Court upon a finding o f serious misconduct in an administrative complaint lodged by a

certain Nena Tordesillas. The Court held:

WHEREFORE, FINDING THE RESPONDENT DEPUTY SHERIFF HUMBERTO

BASCO OF THE CITY CO URT OF MANILA GUILTY OF SERIOUS

MISCONDUCT IN OFFICE FOR THE SECOND TIME, HE IS HEREBY

DISMISSED FROM THE SERVICE WITH FORFEITURE OF ALL RETIREMENT

BENEFITS AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION

IN THE NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIESAND INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED

CORPORATIONS.

xxx xxx xxx 2

Subsequently, Basco ran as a candidate for Councilor in the Second District of the City of

Manila during the January 18, 1988, local elections. He won and, accordingly, assumed office.

After his term, Basco sought re-election in the May 11, 1992 synchronized national elections.

Again, he succeeded in his bid and he was elected as one of the six (6) City Councilors.

However, his victory this time did not remain unchallenged. In the midst of his successful re-

election, he found himself besieged by lawsuits of his o pponents in the polls who wanted todislodge him from his position.

One such case was a petition for quo warranto 3 filed before the COMELEC by Cenon

Ronquillo, another candidate for councilor in the same district, who alleged Basco's

ineligibility to be elected councilor on the basis of the Tordesillas ruling. At about the same

time, two more cases were also commenced by Ho norio Lopez II in the Office of the

Ombudsman and in the Department of Interior and Local Government. 4 All these challenges

were, however, dismissed, thus, paving the way for Basco's continued stay in office.

Despite the odds previously encountered, Basco remained undaunted and ran again for

councilor in the May 8, 1995, local elections seeking a third and final term. Once again, he

beat the odds by emerging sixt h in a battle for six councilor seats. As in the past, however, hisright to office was again contested. On May 13, 1995, petitioner Grego, claiming to be a

registered voter of Precinct No. 966, District II, City of Manila, filed with the COMELEC a

petition for disqualification, praying for Basco's disqualification, for the suspension of his

proclamation, and for the declaration of Romualdo S. Maranan as the sixth duly elected

Councilor of Manila's Second District.

On the same day, the Chairman of the Manila City Board o f Canvassers (BOC) was duly

furnished with a copy of the petition. The other members of the B OC learned about this

petition only two days later.

The COMELEC conducted a hearing of the case on May 14, 1995, where it ordered the parties

to submit simultaneously their respective memoranda.

Before the parties could comply with this directive, however, the Manila City BOC proclaimed

Basco on May 17, 1995, as a duly elected councilor for the Second District of Manila, placing

sixth among several candidates who vied for the seats. 5 Basco immediately took his oath of

office before the Honorable Ma. Ruby Bithao-Camarista, Presiding Judge, Metropolitan Trial

Court, Branch I, Manila.

In view of such proclamation, petitioner lost no time in filing an Urgent Motion seeking to

annul what he considered to be an illegal and hasty proclamation made on May 17, 1995, by

the Manila City BOC. He reiterated Basco's disqualification and prayed anew that candidate

Romualdo S. Maranan be declared the winner. As expected, Basco countered said motion by

filing his Urgent Opposition to: Urgent Motion (with Reservation to Submit Answer and/orMotion to Dismiss Against Instant Petition for Disqualification with Temporary Restraining

Order).

On June 5, 1995, Basco filed his Motion to Dismiss Serving As Answer pursuant to the

reservation he made earlier, summarizing his contentions and praying as follows:

Respondent thus now submits that the petitioner is not entitled to relief

for the following reasons:

1. The respondent cannot be disqualified on the ground of Section 40

paragraph b of the Local Government Code because the Tordesillas



decision is barred by laches, prescription, res judicata, lis pendens, bar by

prior judgment, law of the case and stare decisis;

2. Section 4[0] par. B of t he Local Government Code may not be validly

applied to persons who were dismissed prior to its effectivity. To do so

would make it ex post facto, bill of attainder, and retroactive legislation

which impairs vested rights. It is also a class legislation and

unconstitutional on the account.

3. Respondent had already been proclaimed. And the petition being a

preproclamation contest under the Marquez v . Comelec Ruling, supra, it

should be dismissed by virtue of said pronouncement.

4. Respondent's three-time election as candidate for councilor

constitutes implied pardon by the people of previous mi sconduct

(Aguinaldo v. Comelec G.R. 105128; Rice v. State 161 SCRA 401;

Montgomery v. Newell 40 SW 2d 4181; People v. Bashaw 130 P. 2nd 237,

etc.).

5. As petition to nullify certificate of candidacy, the instant case has

prescribed; it was premature as an election protest and it was not

brought by a proper party in interest as such protest.:

PRAYER

WHEREFORE it is respectfully prayed that the instant case be dismissed

on instant motion to dismiss the prayer for restraining order denied (sic).

If this Honorable Office is not minded to dismiss, it is respectfully prayed

that instant motion be considered as respondent's answer. All other

reliefs and remedies just and proper in the premises are likewise hereby

prayed for.

After the parties' respective memoranda had been filed, the COMELEC's First Division

resolved to dismiss the petition for disqualification on October 6, 1995, ruling that "the

administrative penalty imposed by the Supreme Court on respondent Basco on October 31,

1981 was wiped away and condoned by the electorate which elected him" and that on

account of Basco's proclamation on May 17, 1995, as the sixth duly elected councilor of the

Second District of Manila, "the petition would no longer be viable." 6

Petitioner's motion for reconsideration of said resolution was later denied by t he

COMELEC en banc in its assailed resolution promulgated on July 31, 1996. 7 Hence, this

petition.

Petitioner argues that Basco should be disqualified from running far any elective position

since he had been "removed from office as a result of an administrative case" pursuant to

Section 40 (b) of Republic Act No. 7160, otherwise known as the Local Government Code (the

Code), which took effect on January 1, 1992. 8

Petitioner wants the Court to likewise resolve the following issues, namely:

1. Whether or not Section 40 (b) of Republic Act No. 7160 applies

retroactively to those removed from office before it took effect on

January 1, 1992;

2. Whether or not private respondent's election in 1988, 1992 and in

1995 as City Councilor of Manila wiped away and condoned the

administrative penalty against him;

3. Whether or not private respondent's proclamation as sixth winning

candidate on May 17, 1995, while the d isqualification case was still

pending consideration by COMELEC, is void ab initio; and

4. Whether or not Romualdo S. Maranan, who placed seventh among the

candidates for City Councilor of Manila, may be declared a winner

pursuant to Section 6 of Republic Act No. 6646.

While we do not necessarily agree with the conclusions and reasons of the COMELEC in the

assailed resolution, nonetheless, we find no grave abuse of discretion on its part in dismissing

the petition for disqualification. The instant petition must, th erefore, fail.

We shall discuss the issues raised by petitioner in seriatim.

I. Does Section 40 (b) of Republic Act No. 7160 apply retroactively to those removed

from office before it took effect on January 1, 1992?

Section 40 (b) of the Local Gov ernment Code under which petitioner anchors Basco's alleged

disqualification to run as City Councilor states:

Sec. 40. Disqualifications.— The following persons are disqualified from

running for any elective local position:

xxx xxx xxx

(b) Those removed from office as a result of an administrative case;

xxx xxx xxx

In this regard, petitioner submits that although the Code took effect only on January 1, 1992,

Section 40 (b) must nonetheless be given retroactive effect and a pplied to Basco's dismissalfrom office which took place in 1981. It is stressed that the provision of the law as worded



Contrary to petitioner's assertion, the Tordesillas decision did not bar Basco from running for

any elective position. As can be gleaned from the decretal portion of the said decision, the

Court couched the prohibition in this wise:

. . . AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE

NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND

INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED

CORPORATIONS.

In this regard, particular attention is directed to t he use of the term

"reinstatement." Under the former Civil Service Decree, 16 the law applicable at the

time Basco, a public officer, was administratively dismissed from office, the term

"reinstatement" had a technical meaning, referring only to an appointive position.

Thus:

Art. VIII. PERSONNEL POLICIES AND STANDARDS.

Sec. 24. Personnel Actions.—

xxx xxx xxx

(d) Reinstatement.— Any person who has been

permanently APPOINTED to a position in the career service and who has,

through no delinquency or misconduct, been separated therefrom, may

be reinstated to a position in th e same level for which he is qualified.

xxx xxx xxx

(Emphasis supplied).

The Rules on Personnel Actions and Policies issued by the Civil Service Commission

on November 10, 1975, 17 provides a clearer definition. It reads:

RULE VI. OTHER PERSONNEL ACTIONS

Sec. 7. Reinstatement is the REAPPOINTMENT of a person who was

previously separated from the service through no delinquency or

misconduct on his part from a position in the career service to which he

was permanently appointed, to a position for which he is qualified.

(Emphasis supplied).

In light of these definitions, there is, therefore, no basis for holding that Basco is likewise

barred from running for an elective position inasmuch as what is contemplated by the

prohibition in Tordesillas is reinstatement to anappointive position.

III. Is private respondent's proclamation as sixth winning candidate on May 17,

1995, while the disqualification case was still pending consideration by COMELEC,

void ab initio?

To support its position, petitioner argues t hat Basco violated the provisions of Section 20,

paragraph (i) of Republic Act No. 7166, Section 6 of Republic Act No. 6646, as well as our

ruling in the cases of Duremdes v .COMELEC , 18 Benito v . COMELEC 19 and Aguam

v . COMELEC . 20

We are not convinced. The provisions and cases cited are all misplaced and quoted out of

context. For the sake of clarity, let us tackle each one by one.

Section 20, paragraph (i) of Rep. Act 7166 reads:

Sec. 20. Procedure in Disposition of Contested Election Returns.—

xxx xxx xxx

(i) The board of canvassers shall not proclaim any candidate as winner

unless authorized by the Commission after th e latter has ruled on the

objections brought to it on appeal by the losing party. Any proclamationmade in violation hereof shall be void ab initio, unless the contested

returns will not adversely affect the results of the election.

xxx xxx xxx

The inapplicability of the abovementioned provision to the present case is very much patent

on its face considering that the s ame refers only to a void proclamation in relation to

contested returns and NOT to contested qualifications of a candidate.

Next, petitioner cites Section 6 of Rep. Act 6646 which states:

Sec. 6. Effect of Disqualification Case.—

Any candidate who has beendeclared by final judgment to be disqualified shall not be voted for, and

the votes cast for him s hall 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 s hall 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).

This provision, however, does not support petitioner's contention that the COMELEC, or

more properly speaking, the Manila City BOC, should have suspended the proclamation. Theuse of the word "may" indicates that the suspension of a proclamation is



merely directory and permissive in nature and operates to confer discretion. 21What is merely

made mandatory, according to the provision itself, is t he continuation of the trial and hearing

of the action, inquiry or protest. Thus, in view of this discretion granted to the COMELEC, the

question of whether or not evidence of guilt is so strong as to warrant suspension of

proclamation must be left for its own determination and the Court cannot interfere

therewith and substitute its own judgment unless such discretion has been exercised

whimsically and capriciously. 22 The COMELEC, as an administrative agency and a specialized

constitutional body charged with the enforcement and administration of all laws and

regulations relative to the conduct of an election, plebiscite, initiative, referendum, and

recall,23

has more than enough expertise in its field that its findings or conclusions aregenerally respected and even given finality. 24 The COMELEC has not found any ground to

suspend the proclamation and the records likewise fail to show any so as to warrant a

different conclusion from this Court. Hence, there is no ample justification to hold that the

COMELEC gravely abused its discretion.

It is to be noted that Section 5, Rule 25 of the COMELEC Rules of Procedure 25 states that:

Sec. 5. Effect of petition if unresolved before completion of canvass.— . .

. (H)is proclamation shall be suspended notwithstanding the fact that he

received the winning number of votes in such election.

However, being merely an implementing rule, the same must not override, but insteadremain consistent with and in harmony with t he law it seeks to apply and implement.

Administrative rules and regulations are intended to carry out, neither to supplant nor to

modify, the law. 26 Thus, in Miners Association of the Philippines, Inc. v . Factoran, Jr ., 27 the

Court ruled that:

We reiterate the principle that the power of administrative officials to

promulgate rules and regulations in the implementation of a statut e is

necessarily limited only to carrying into effect what is provided in the

legislative enactment. The principle was enunciated as early as 1908 in

the case of United States v . Barrias. The scope of the exercise of such rule-

making power was clearly expressed in the case of United States v . Tupasi

Molina, decided in 1914, thus: "Of course, the regulations adopted under

legislative authority by a particular department must be in harmony with

the provisions of the law, and for the sole purpose of carrying into effect

its general provisions. By such regulations, of course, the law itself can

not be extended. So long, however, as the regulations relate solely to

carrying into effect the provision of the law, they are valid.

Recently, the case of People v . Maceren gave a brief delineation of the

scope of said power of administrative officials:

Administrative regulations adopted under legislative authority by a

particular department must be in harmony with the provisions of the law,

and should be for the sole purpose of carrying into effect its general

provisions. By such regulations, of course, the law itself cannot be

extended (U.S. v. Tupasi Molina, supra). An administrative agency cannot

amend an act of Congress (Santos v. Estenzo, 109 Phil. 419, 422; Teoxon

vs. Members of the Board of Administrators, L-25619, June 30, 1970, 33

SCRA 585; Manuel vs. General Auditing Office, L-28952, December 29,

1971, 42 SCRA 660; Deluao v. Casteel, L-21906, August 29, 1969, 29 SCRA

350).

The rule-making power must be confined to details for regulating the

mode or proceeding to carry into effect the law as it has been enacted.

The power cannot be extended to amending or expanding the statutoryrequirements or to embrace matters not covered by the statute. Rules

that subvert the statute cannot be sanctioned (University of Santo Tomas

v. Board of Tax Appeals, 93 Phil. 376, 382, citing 12 C.J. 845-46. As to

invalid regulations, see Collector of Internal Revenue v. Villaflor, 69 Phil.

319; Wise & Co. v . Meer, 78 Phil. 655, 676; Del Mar v. Phil. Veterans

Administration, L-27299, June 27, 1973, 51 SCRA 340, 349).

xxx xxx xxx

. . . The rule or regulations should be within the scope of the statutory

authority granted by the legislature to the administrative agency (Davis,

Administrative Law, p. 194, 197, cited in Victorias Milling Co., Inc. v. SocialSecurity Commission, 114 Phil. 555, 558).

In case of discrepancy between the basic law and a rule or regulation

issued to implement said law, the basic law prevails b ecause said rule or

regulations cannot go beyond the terms and provisions of the basic law

(People v. Lim, 108 Phil. 1091).

Since Section 6 of Rep. Act 6646, the law which Section 5 of Rule 25 of the COMELEC Rules of

Procedure seeks to implement, employed the word "may," it is, therefore, improper and

highly irregular for the COMELEC t o have used instead the word "shall" in its rules.

Moreover, there is no reason why the Manila City BOC should not have proclaimed Basco asthe sixth winning City Co uncilor. Absent any determination of irregularity in the election

returns, as well as an order enjoining the canvassing and proclamation of the winner, it is a

mandatory and ministerial duty of the Board of Canvassers concerned to count the votes

based on such returns and declare the result. This has been the rule as early as in the case

of Dizon v . Provincial Board of Canvassers of Laguna 28 where we clarified the nature of the

functions of the Board of Canvassers, viz.:

The simple purpose and duty of the canvassing board is to ascertain and

declare the apparent result of the voting. All o ther questions are to be

tried before the court or other tri bunal for contesting elections or in quo

warranto proceedings. (9 R.C.L., p. 1110)



To the same effect is the following quotation:

. . . Where there is no question as to the genuineness of the returns or

that all the returns are before them, the powers and duties of canvassers

are limited to the mechanical or mathematical function of ascertaining

and declaring the apparent result of the election by adding or compiling

the votes cast for each candidate as shown on the face of the returns

before them, and then declaring or certifying the result so ascertained.

(20 C.J., 200-201) [Emphasis supplied]

Finally, the cases of Duremdes, Benito and Aguam, supra, cited by petitioner are all irrelevant

and inapplicable to the factual circumstances at bar and serve no other purpose than to

muddle the real issue. These three cases do not in any manner refer to v oid proclamations

resulting from the mere pendency of a disqualification case.

In Duremdes, the proclamation was deemed void ab initio because the same was made

contrary to the provisions of the Omnibus Election Code regarding the suspension of

proclamation in cases of contested election returns.

In Benito, the proclamation of petitioner Benito was rendered ineffective due to the Board of

Canvassers' violation of its ministerial duty to proclaim the candidate receiving the highest

number of votes and pave the w ay to succession in office. In said case, the candidatereceiving the highest number of votes for the mayoralty position died but the Board of

Canvassers, instead of proclaiming the deceased candidate winner, declared Benito, a mere

second-placer, the mayor.

Lastly, in Aguam, the nullification of the proclamation proceeded from the fact that it was

based only on advanced copies of election returns which, under th e law then prevailing,

could not have been a proper and legal basis for proclamation.

With no precedent clearly in point, petitioner's arguments must, t herefore, be rejected.

IV. May Romualdo S. Maranan, a seventh placer, be legally declared a winning

candidate?

Obviously, he may not be declared a winner. In the first place, Basco was a duly qualified

candidate pursuant to our disquisition above. Furthermore, he clearly received the winning

number of votes which put him i n sixth place. Thus, petitioner's emphatic reference to Labo

v . COMELEC , 29 where we laid down a possible exception to the rule that a second placer may

not be declared the winning candidate, finds no application in this case. The exception is

predicated on the concurrence of two assumptions, namely: (1) the o ne who obtained the

highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law

of a candidate's disqualification so as to bring s uch awareness within the realm of notoriety

but would nonetheless cast their votes in favor of the ineligible candidate. Both assumptions,

however, are absent in this case. Petitioner's allegation that Basco was well-known to have

been disqualified in the small community where he ran as a candidate is purely speculative

and conjectural, unsupported as it is by any convincing facts of record to show notoriety of

his alleged disqualification. 30

In sum, we see the dismissal of the petition for disqualification as not having been attended

by grave abuse of discretion. There is t hen no more legal impediment for private

respondent's continuance in office as City Councilor for the Second District of Manila.

WHEREFORE, the instant petition for certiorari and prohibition is hereby DISMISSED for lack

of merit. The assailed resolution of respondent Commission on Elections (COMELEC) in SPA

95-212 dated July 31, 1996 is hereby AFFIRMED. Costs against petitioner.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Melo, Puno, V itug, Mendoza, Hermosisima, Jr.,

Panganiban and Torres, Jr., JJ., concur.

Padilla, Bellosillo, Kapunan and Francisco, JJ., are on leave.

Footnotes

1 "In re: Petition to Disqualify Candidate for Councilor, Humberto Basco, Second District, Cityof Manila, in the May 8, 1995 Local Elections," Annex, "A," Rollo, pp. 40-44.

2 Adm. Matter No. P-2363, 108 SCRA 551 (1981).

3 Docketed as SPC No. 92-93, Rollo, p. 183.

4 Rollo, p, 162.

5 Annex "B," Rollo, p. 46. The names of the winning candidates and their corresponding votes

are as follows:

(1) NESTOR C. PONCE— 48,088

(2) MARLON M. LACSON—

41,611(3) FLAVIANO F. CONCEPCION, JR. — 39,548

(4) FRANCISCO B. VARONA, JR. — 37,635

(5) ABELARDO C. VICEO— 37,183

(6) HUMBERTO B. BASCO— 34,358

6 Rollo, pp. 101-102.

7 Supra, note 1.

8 Both parties made errors in their respective pleadings as to the date of effectivity of Rep. Act

7160.

9 Rollo, p. 14.



10 Id .

11 G.R. Nos. 105128-30, promulgated on June 9, 1992.

12 254 SCRA 514 (1996).

13 257 SCRA 55 (1996).

14 R.E. AGPALO, STATUTORY CONSTRUCTION 254 (2nd ed., 1990), citing Laceste v. Santos, 56

Phil. 472. Cf . also Article 4, Civil Code.

15 174 SCRA 245 (1989).

16 Presidential Decree No. 807, issued on October 6, 19 75. This law has been superseded by

Subtitle A, Title I, Book V of Executive Order No. 292, otherwise known as the Adminis trative

Code of 1987, which took effect on November 29, 1989, or two years af ter its publication in

the Official Gazette.

17 Implementing Rules of P.D. 807.

18 178 SCRA 746 (1989).

19 235 SCRA 436 (1994).

20 23 SCRA 883 (1968).

21 R.E. AGPALO, STATUTORY CONSTRUCTION 239 (2nd ed., 1990).

22 Provident Tree Farms, Inc. v. Batario, Jr., 231 SCRA 463 (1994).

23 Sec. 2, Sub-title C, Art. IX, 1987 Constitution.

24 Cf . Ting v. Court of Appeals, 237 SCRA 797 (1994); Sesbreno v. Ala, 208 SCRA 359 (1992);

San Miguel Corp. v. Javate, Jr., 205 SCRA 469 (1992).

25 Published in the Official Gazette on June 27, 1988, Vol. 84, No. 26.

26 Commissioner of Internal Revenue v. Court of Appeals, 240 SCRA 368 (1995).

27 240 SCRA 100 (1995).

28 52 Phil. 47.

29 211 SCRA 456 (1992).

30 Frivaldo v. COMELEC, 257 SCRA 727 (1996).




SUPREME COURT

Manila

EN BANC

G.R. No. 133495 September 3, 1998

BENJAMIN U. BORJA, JR., petitioner,

vs.

COMMISSION ON ELECTIONS and JOSE T. CAPCO, JR., respondents.

MENDOZA, J.:

This case presents for determination the scope of the constitutional provision barring

elective local officials, with the exception of barangay officials, from serving more than three

consecutive terms. In particular, the question is whether a vice-mayor who succeeds to the

office of mayor by operation of law and serves the remainder of the term is considered to

have served a term in that office for the purpose of the three-term limit.

Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18, 1988for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of

law, upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected

mayor for a term of three years which ended on June 30, 1995. On May 8, 1995, he was

reelected mayor for another term of three years ending June 30, 1998. 1

On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of

Pateros relative to the May 11, 1998 elections. Petitioner Benjamin U. Borja Jr., who was also

a candidate for mayor, sought Capco's disqualification on the theory that the latter would

have already served as mayor for three consecutive terms by June 30, 1998 and wo uld

therefore be ineligible to serve for another term after that.

On April 30, 1998, the Second Division o f the Commission on Elections ruled in favor of

petitioner and declared private respondent Capco disqualified from running for reelection as

mayor of Pateros. 2 However, on motion of private respondent the COMELEC en banc, voting

5-2, reversed the decision and declared Capco eligible to run for mayor in the May 11, 1998

elections. 3 The majority stated in its decision:

In both the Constitution and the Local Government Code, the three-term

limitation refers to the term of office for which the local official was

elected. It made no reference to succession to an office to which he was

not elected. In the case before the Commission, respondent Capco was

not elected to the position of Mayor in the January 18, 1988 local

elections. He succeeded to such office by operation of law and served for

the unexpired term of his predecessor. Consequently, such succession

into office is not counted as o ne (1) term for purposes of the

computation of the three-term limitation under the Constitution and the

Local Government Code.

Accordingly, private respondent was voted for in the elections. He received 16,558 votes

against petitioner's 7,773 votes and was proclaimed elected by the Municipal Board of

Canvassers.

This is a petition for certiorari brought to set aside the resolution, dated My 7, 1998, of the

COMELEC and to seek a declaration that private respondent is disqualified to serve another

term as mayor of Pateros, Metro Manila.

Petitioner contends that private respondent Capco's service as mayo r from September 2,

1989 to June 30, 1992 should be considered as service for one full term, and since he

thereafter served from 1992 to 1998 two more terms as mayor, he should be considered to

have served three consecutive terms within the contemplation of Art. X, §8 of the

Constitution and §43(b) of the Local Government Code. Petitioner stresses the fact that,

upon the death of Mayor Cesar Borja on September 2, 1989, private respondent b ecame the

mayor and thereafter served the remainder of the term. Petitioner argues that it is irrelevant

that private respondent became mayor by succession because the purpose of the

constitutional provision in limiting the number of terms elective local officials may serve is to

prevent a monopolization of political power.

This contention will not bear analysis. Article X, §8 of the Constitution provides:

Sec. 8. The term of office of elective local officials, except barangay

officials, which shall be determined by law, shall be three years and no

such official shall serve for more than three consecutive terms. Voluntary

renunciation of the office for any length of time shall not be considered

as an interruption in the continuity of his service for the full term for

which he was elected.

This provision is restated in §43(b) o f the Local Government Code (R.A. No. 7160):

Sec. 43. Term of Office.—

. . .

(b) No local elective official shall serve for more than t hree (3)

consecutive terms in the same position. Vo luntary renunciation of the

office for any length of time shall not be considered as an interruption in

the continuity of service for the full term for which the elective official

concerned was elected. . . .

First, to prevent the establishment of political dynasties is not the only policy embodied in

the constitutional provision in question. The other policy is that of enhancing the freedom of

choice of the people. To consider, therefore, only stay in office regardless of how the official

concerned came to that office— whether by election or by succession by operation of law —

would be to disregard one of the purposes of the constitutional provision in question.



Thus, a consideration of the historical background of Article X, §8 of the Constitution reveals

that the members of the Constitutional Commission were as much concerned with

preserving the freedom of choice of the people as they were with preventing the

monopolization of political power. Indeed, they rejected a proposal put forth by

Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine years

there should be no further reelection for local and legislative officials. Instead, they adopted

the alternative proposal of Commissioner Christian Monsod that such officials be simply

barred from running for the same position in the of the succeeding election following the

expiration of the third consecutive term. 4 Monsod warned against "prescreening candidates

[from] whom the people will choose" as a result of the proposed absolute disqualification,considering that the draft constitution contained provisions "recognizing people's power." 5

Commissioner Blas F. Ople, who supported the Monsod proposal, said:

The principle involved is really whether this Commission shall imp ose a

temporary or a perpetual disqualification on those who have served their

terms in accordance with the limits on consecutive service as decided by

the Constitutional Commission. I would be very wary about this

Commission exercising a sort of omnipotent power in order to disqualify

those who will already have served their terms from perpetuating

themselves in office. I think the Commission achieves its purpose in

establishing safeguards against the excessive accumulation of power as a

result of consecutive terms. We do put a cap on consecutive service — in

the case of the President, six years, in t he case of the Vice-President,

unlimited; and in the case of the Senators, one reelection. In the case of

the Members of Congress, both from the legislative districts and from the

party list and sectoral representation, this is now under discussion and

later on the policy concerning local officials will be taken up by the

Committee on Local Governments. The principle remains the same. I

think we want to prevent future situations where, as a result of

continuous service and frequent reelections, officials from the President

down to the municipal mayor tend to develop a proprietary interest in

their positions and to accumulate those powers and perquisites that

permit them to stay on indefinitely or to transfer these posts to members

of their families in a subsequent election. I think that is taken care ofbecause we put a gap on the co ntinuity or the unbroken service of all of

these officials. But where we now decide to put t hese prospective

servants of the people or politicians, if we want to use the coarser term,

under a perpetual disqualification, I have a feeling that we are taking

away too much from the people, whereas we should be giving as much to

the people as we can in terms of their own freedom of choice. . . . 6

Other commissioners went on record against "perpetually disqualifying" elective officials

who have served a certain number of terms as this would deny the right of the people to

choose. As Commissioner Yusup R. Abubakar asked, "why should we arrogate unto ourselves

the right to decide what the people want?" 7

Commissioner Felicitas S. Aquino spoke in the same vein when she called on her colleagues

to "allow the people to exercise their own sense of proportion and [rely] o n their own

strength to curtail power when it overreaches itself." 8

Commissioner Teodoro C. Bacani stressed: "Why should we not leave [perpetual

disqualification after serving a number of terms] to t he premise accepted by practically

everybody here that our people are politically mature? Should we use this assumption only

when it is convenient for us, and not when it may also lead to a freedom of choice for the

people and for politicians who may aspire to serve them longer?" 9

Two ideas thus emerge from a consideration of the proceedings of the Constitutional

Commission. The first is the notion of service of term, derived from the concern about the

accumulation of power as a result of a prolonged stay in office. The second is the idea

of election, derived from the concern that the right of the people to choose those whom they

wish to govern them be preserved.

It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so

on the assumption that the officials concerned were serving by reason of election. This is

clear from the following exchange in the Constitutional Co mmission concerning term limits,

now embodied in Art. VI, §§4 and 7 of the Constitution, for members of Congress:

MR. GASCON. I would like to ask a question with regard to the issue afterthe second term. We will allow the Senator to rest for a period of time

before he can run again?

MR. DAVIDE. That is correct.

MR. GASCON. And the question t hat we left behind before — if the

Gentlemen will remember— was: How long will that period of rest be?

Will it be one election which is t hree years or one term which is six years?

MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo

expressed the view that during the election following the expiration of

the first 12 years, whether such election will be on the third year or onthe sixth year thereafter, this particular member of t he Senate can run.

So, it is not really a period of hibernation for six years. That was the

Committee's stand. 10

Indeed a fundamental tenet of representative democracy is that the people s hould be

allowed to choose those whom they please to govern them. 11 To bar the election of a local

official because he has already served three terms, although the first as a result of succession

by operation of law rather than election, would t herefore be to violate this principle.

Second, not only historical examination but textual analysis a s well supports the ruling of the

COMELEC that Art. X, §8 contemplates service by local officials for three consecutive terms as

a result of election. The first sentence speaks o f "the term of office of elective local officials"



and bars "such official[s]" from serving for more than three consecutive terms. The second

sentence, in explaining when an elective local official may be deemed to have served h is full

term of office, states that "voluntary renunciation of the o ffice for any length of time s hall

not be considered as an interruption in the continuity of his service for the full term for which

he was elected ." The term served must therefore be one "for which [the official concerned]

was elected." The purpose of this provision is t o prevent a circumvention of the limitation o n

the number of terms an elective local official may serve. Conversely, if he is not serving a

term for which he was elected because he is simply continuing the service of the official he

succeeds, such official cannot be considered to have fully served the term notwithstanding

his voluntary renunciation of office prior to its expiration.

Reference is made to Commissioner Bernas' comment on Art. VI, §7, which similarly bars

members of the House of Representatives from serving for more than three terms.

Commissioner Bernas states that "if one is elected Representative to serve the unexpired

term of another, that unexpired term, no matter how short, will be considered one term for

the purpose of computing the number of successive terms allowed." 12

This is actually based on the opinion expressed by Commissioner Davide in answer to a query

of Commissioner Suarez: "For example, a special election is called for a Senator, and the

Senator newly elected would have to serve the unexpired portion of the term. Would that

mean that serving the unexpired portion of the term is already considered one term? So, half

a term, which is actually the correct statement, plus one term would disqualify the Senator

concerned from running? Is that the meaning of this provision on disqualification, Madam

President?" Commissioner Davide said: "Yes, because we speak of "term," and if there is a

special election, he will serve only for the unexpired portion o f that particular term plus one

more term for the Senator and two more terms for the Members of the Lower House." 13

There is a difference, however, between the case of a vice-mayor and that of a member of

the House of Representatives who succeeds another who dies, resigns, becomes

incapacitated, or is removed from office. The vice-mayor succeeds to the mayorship by

operation of law. 14 On the other hand, the Representative is elected to fill the vacancy. 15 In

a real sense, therefore, such Representative serves a term for which he was elected. As the

purpose of the constitutional provision is to limit the right to b e elected and to serve in

Congress, his service of the unexpired term is rightly counted as his first term. Rather than

refute what we believe to be the intendment of Art. X, §8 with regard to elective localofficials, the case of a Representative who succeeds another confirms the theory.

Petitioner also cites Art. VII, §4 of the Constitution which provides for succession of the Vice-

President to the Presidency in case of vacancy in that office. After stating that "The President

shall not be eligible for any reelection," this provision says that "No person who has

succeeded as President and has served as such for more than four years shall be qualified for

election to the same office at any time." Petitioner contends that, by analogy, the vice-mayor

should likewise be considered to have served a full term as mayor if he succeeds to the

latter's office and serves for the remainder of the term.

The framers of the Constitution included such a provision because, without it, the Vice-

President, who simply steps into the Presidency by succession, would be qualified to run

President even if he has occupied that office for more than four years. The absence of a

similar provision in Art. X, §8 on elective local officials throws in bold relief the difference

between the two cases. It underscores the constitutional intent to cover only the terms o f

office to which one may have been elected for purposes of the three-term limit on local

elective officials, disregarding for this purpose service by automatic succession.

There is another reason why the Vice-President who succeeds to the Presidency and serves

in that office for more than four years is ineligible for election as President. The Vice-

President is elected primarily to succeed the President in the event of the latter's death,

permanent disability, removal, or resignation. While he may be appointed to the cabinet, hisbecoming, so is entirely dependent on the good graces of the President. In running for Vice-

President, he may thus be said to also seek the Presidency. For their part, the electors

likewise choose as Vice-President the candidate who they think can fill the Presidency in the

event it becomes vacant. Hence, service in the Presidency for more than four years may

rightly be considered as service for a full term.

This is not so in the case of the vice-mayor. Under the Local Government Code, he is the

presiding officer of the sanggunian and he appoints all officials and employees of such local

assembly. He has distinct powers and functions, succession to mayorship in the event of

vacancy therein being only one of

them. 16 It cannot be said of him, as much as of the Vice-President in the event of a vacancy

in the Presidency, that, in running for vice-mayor, he also seeks the mayorship. His

assumption of the mayorship in t he event of vacancy is more a matter of chance than of

design. Hence, his service in that office should not be counted in the application of any term

limit.

To recapitulate, the term limit for elective local officials must be taken to refer to t he right to

be elected as well asthe right to serve in the same elective position. Consequently, it is not

enough that an individual has served three consecutive terms in an elective local office, he

must also have been elected to the same position for the same number of times before the

disqualification can apply. This point can be made clearer by considering the following cases

or situations:

Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of

the death of the incumbent. Six months before the next election, he

resigns and is twice elected thereafter. Can he run again for mayor in the

next election?

Yes, because although he has already first served as mayor by succession

and subsequently resigned from office before the full term expired, h e

has not actually served three full terms in all for the purpose of applying

the term limit. Under Art. X, §8, voluntary renunciation of the office is not

considered as an interruption in the continuity of his service for the full

term only if the term is one "for which he was elected." Since A is only

completing the service of the term for which the deceased and not he

was elected, A cannot be considered to have completed one term. His

resignation constitutes an interruption of the full term.



Case No. 2. Suppose B is elected mayor and, during his first term, he is

twice suspended for misconduct for a total of 1 year. If he is twice

reelected after that, can he run for one more term in the next election?

Yes, because he has served only two full terms successively.

In both cases, the mayor is entitled to run for reelection because the two conditions for the

application of the disqualification provisions have not concurred, namely, that the local

official concerned has been elected three consecutive times and that he has fully served

three consecutive terms. In the first case, even if the local official is considered to haveserved three full terms notwithstanding his resignation before the end o f the first term, the

fact remains that he has not been elected three times. In the s econd case, the local official

has been elected three consecutive times, but he has not fully served three consecutive

terms.

Case No. 3. The case of vice-mayor C who becomes mayor by succession

involves a total failure of the two conditions to concur for the p urpose of

applying Art. X, §8. Suppose he is twice elected after that term, is he

qualified to run again in the next election?

Yes, because he was not elected to the o ffice of mayor in the first term

but simply found himself thrust into it by operation of law. Neither hadhe served the full term because he only continued the service,

interrupted by the death, of the deceased mayor.

To consider C in the third case to have served the first t erm in full and therefore ineligible to

run a third time for reelection would be not only to falsify reality b ut also to unduly restrict

the right of the people to choose whom they wish to govern them. If the vice-mayor turns

out to be a bad mayor, the people can remedy the situation by si mply not reelecting him for

another term. But if, on the ot her hand, he proves to be a good mayor, there will be no way

the people can return him to office (even if it is just the t hird time he is standing for

reelection) if his service of the first term is counted as one for the purpose o f applying the

term limit.

To consider C as eligible for reelection would be in accord with the understanding of the

Constitutional Commission that while the people should be protected from the evils that a

monopoly of political power may bring about, care should be taken that their freedom of

choice is not unduly curtailed.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,

Panganiban, Martinez, Quisumbing and Purisima, JJ., concur.

Regalado, J., is on leave.

Footnotes

1 Rollo, pp. 5-6, 124-125.

2 Id ., pp. 63-71.

3 Id ., pp. 30-32.

4 RECORD OF THE CONSTITUTIONAL COMMISSION 236-243 (Session of July 25, 19 86)

(hereafter cited as RECORD).

5 Id ., at 236.

6 Id ., at 239-240.

7 Id ., at 242.

8 Id ., at 242.

9 Id ., at 243.

10 Id ., 590 (August 7, 1986).

11 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 131 L.Ed.2d 881 (1995).

12 JOAQUIN BERNAS, THE 1987 CONSTITUTION 637 (1996).

13 2 RECORD 592 (Session of August 7, 1986).

14 LOCAL GOVERNMENT CODE of 1991, R.A. No. 7160, §44(a).

15 Art. VI, §8.

16 RA. No. 7160, §445 (1991).




SUPREME COURT

Manila

EN BANC

G.R. No. 125416 September 26, 1996

SUBIC BAY METROPOLITAN AUTHORITY, petitioner,

vs.

COMMISSION ON ELECTIONS, ENRIQUE T. GARCIA and CATALINO A.CALIMBAS, respondents.

PANGANIBAN, J.:

The 1987 Constitution is unique in many ways. For one thing, it institutionalized

people power in law-making. Learning from the bitter lesson of completely

surrending to Congress the sole authority to make, amend or repeal laws, the

present Constitution concurrently vested such prerogatives in the electorate by

expressly recognizing their residual and sovereign authority to ordain legislation

directly through the concepts and processes of initiative and of referendum.

In this Decision, this Court distinguishes referendum from initiative and discusses

the practical and legal implications of such differences. It also sets down some

guidelines in the conduct and implementation of these two novel and vital features

of popular democracy, as well as settles some relevant questions o n jurisdiction—

all with the purpose of nurturing, protecting and promoting the people's exercise

of direct democracy.

In this action for certiorari and prohibition, petitioner seeks to nullify the

respondent Commission on Elections' Ruling dated April 17, 1996 and Resolution

No. 2848 promulgated on June 27, 1996 1 denying petitioner's plea to stop the

holding of a local initiative and referendum on the proposition to recall Pambayang

Kapasyahan Blg. 10, Serye 1993, of the Sangguniang Bayan of Morong, Bataan.

The Facts

On March 13, 1992, Congress enacted Republic Act No. 7227 (The Bases Conversion

and Development Act of 1992), which among others, provided for the creation of

the Subic Economic Zone, thus:

Sec. 12. Subic Special Economic Zone.— Subject to the concurrence by

resolution of the Sangguniang Panlugnsod of the City of Olongapo and

the Sangguniang Bayan of the Municipalities of Subic. Morong and

Hermosa, there is hereby created a Special Economic and Free-port Zone

consisting of the City of Olongapo and the Municipality of Subic, Province

of Zambales, the lands occupied by the Subic Naval Base and its

contiguous extensions as embraced, covered and defined by the 1 947

Military Bases Agreement between the Philippines and the United States

of America as amended, and within the territorial jurisdiction of the

Municipalities of Morong and Hermosa, Province of Bataan, hereinafter

referred to as the Subic Special Economic Zone whose metes and bounds

shall be delineated in a proclamation to be issued by the President of the

Philippines. Within thirty (30) days after the approval of this Act, each

local government unit shall submit its resolution of concurrence to join

the Subic Special Economic Zone to the Office of the President.

Thereafter, the President of the Philippines shall issue a proclamation

defining the metes and bounds of the zone as provided herein."

(Emphasis supplied)

RA 7227 likewise created petitioner to implement the declared national policy of

converting the Subic military reservation into alternative productive

uses. 2 Petitioner was organized with an authorized capital stock of P20 billion

which was fully subscribed and fully paid up by the Republic of the Philippines with,

among other assets, "(a)ll lands embraced, covered and defined in Section 12

hereof, as well as permanent improvements and fixtures upon proper inventory

not otherwise alienated, conveyed, or transferred to another government

agency". 3

On November 24, 1992, the American navy turned over the Subic military

reservation to the Philippines government. Immediately, petitioner commenced

the implementation of its task, particularly the preservation of the sea-ports,

airport, buildings, houses and other installations left by the American navy.

In April 1993, the Sangguniang Bayan of Morong, Bataan passed Pambayang

Kapasyahan Bilang 10, Serye 1993, expressing therein its absolute concurrence, as

required by said Sec. 12 of RA 7227, to join the Subic Special Economic Zone. On

September 5, 1993, the Sangguniang Bayan of Morong submittedPambayang

Kapasyahan Bilang 10, Serye 1993 to the Office of the President.

On May 24, 1993, respondents Garcia, Calimbas and their companions filed a

petition with the Sangguniang Bayan of Morong to annul Pambayang Kapasyahan

Blg. 10, Serye 1993. The petition prayed for the following:

I. Bawiin, nulipikahin at pawalang-bisa and Pambayang Kapasyahang Blg.

10, Serye 1993 ng Sangguniang Bayan para sa pag-anib ng Morong sa

SSEFZ na walang kundisyon.

II. Palitan ito ng isang Pambayang kapasyahan na aanib lamang ang

Morong sa SSEFZ kung ang mga sumusunod na kondisyones ay

ipagkakaloob, ipatutupad at isasagawa para sa kapakanan at interest ng

Morong at Bataan:



(A) Ibalik sa Bataan ang "Virgin Forests" — isang bundok na hindi nagagalaw at punong-puno

ng malalaking punong-kahoy at iba't-ibang halaman.

(B) Ihiwalay ang Grande Island sa SSEFZ at ibalik ito sa Bataan.

(K) Isama ang mga lupain ng Bataan na nakapaloob sa SBMA sa pagkukuenta ng salaping

ipinagkaloob ng pamahalaang national o "Internal Revenue Allotment" (IRA) sa Morong,

Hermosa at sa Lalawigan.

(D) Payagang magtatag rin ng sariling "special economic zones" and bawat bayan n g Morong,

Hermosa at Dinalupihan.

(E) Ibase sa laki ng kanya-kanyang lupa ang pamamahagi ng kikitain ng SBMA.

(G) Ibase rin ang alokasyon ng pagbibigay ng trabaho sa laki ng nasabing mga lupa.

(H) Pabayaang bukas ang pinto ng SBMA na nasa Morong ng 24 na oras at bukod dito sa

magbukas pa ng pinto sa hangganan naman ng Morong at Hermosa upang magkaroon ng

pagkakataong umunlad rin ang mga nasabing bayan, pati na rin ng iba pang bayan ng Bataan.

(I) Tapusin ang pagkokonkreto ng mga daang Morong-Tala-Orani at Morong-Tasig-Dinalupihan para sa kabutihan ng mga taga-Bataan at tuloy makatulong sa pangangalaga ng

mga kabundukan.

(J) Magkakaroon ng sapat na representasyon sa pamunuan ng SBMA ang Morong, Hermosa

at Bataan.

The Sangguniang Bayan ng Morong acted upon the petition of respondents Garcia,

Calimbas, et al. by promulgating Pambayang Kapasyahan Blg. 18, Serye 1993,

requesting Congress of the Philippines so amend certain provisions of RA 7227,

particularly those concerning the matters cited in items (A), (B), (K), (E), and (G) of

private respondent's petition. The Sangguniang Bayan of Morong also informed

respondents that items (D) and (H) had already been referred to and favorablyacted upon by the government agencies concerned, such as t he Bases Conversion

Development Authority and the Office of the President.

Not satisfied, and within 30 days from submission of their petition, herein

respondents resorted to their power initiative under the Local Gov ernment Code of

1991, 4 Sec. 122 paragraph (b) of which provides as follows:

Sec. 122. Procedure in Local Initiative.—

xxx xxx xxx

(b) If no favorable action thereon is taken by the sanggunian concerned,

the proponents, through their duly authorized and registered

representatives, may invoke their power of initiative, giving notice

thereof to the sangguniang concerned.

xxx xxx xxx

On July 6, 1993, respondent Commission En Banc in Comelec Resolution No. 93-

1623 denied the petition for local initiative by herein private respondents on the

ground that the subject thereof was merely a resolution ( pambayang kapasyahan)and not an ordinance. On July 13, 1993, public respondent ComelecEn Banc (thru

Comelec Resolution no. 93-1676) further directed its Provincial Election Supervisor

to hold action on t he authentication of signatures being solicited by private

respondents.

On August 15, 1993, private respondents instituted a petition

for certiorari and mandamus 5 before this Court against the Commission on

Elections and the Sangguniang Bayan of Morong, Bataan, to set aside Comelec

Resolution No. 93-1623 insofar as it disallowed the conduct of a local initiative to

annul Pambayang Kapasyahan Bilang 10, Serye 1993, and Comelec Resolution No.

93-1676 insofar as it prevented the Provincial Election Supervisor o f Bataan from

proceeding with the authentication of the required number of signatures insupport of the initiative and the gathering of signatures.

On February 1, 1995, pursuant to Sec. 12 of RA 7227, t he President of the

Philippines issued Proclamation No. 532 defining the metes and bo unds of the

SSEZ. Said proclamation included in the SSEZ all the la nds within the former Subic

Naval Base, including Grande Island and that portion of the former naval base

within the territorial jurisdiction of the Municipality of Morong.

On June 18, 19956, respondent Comelec issued Resolution No. 2845, adopting

therein a "Calendar of Activities for local referendum on certain municipal

ordinance passed by the Sangguniang Bayan of Morong, Bataan", and which

indicated, among others, the scheduled Referendum Day (July 27, 1996, Saturday).On June 27, 1996, the Comelec promulgated the assailed Resolution No. 2848

providing for "the rules and guidelines to govern the conduct of the referendum

proposing to annul or repealKapasyahan Blg. 10, Serye 1993 of the Sangguniang

Bayan of Morong, Bataan".

On July 10, 1996, petitioner instituted the present petition for certiorari and

prohibition contesting the validity of Resolution No. 2848 and alleging, inter alia,

that public respondent "is intent on proceeding with a local initiative that proposes

an amendment of a national law. . . .

The Issues



The petition 6 presents the following "argument":

Respondent Commission on Elections committed a grave abuse o f

discretion amounting to lack of jurisdiction in scheduling a local initiative

which seeks the amendment of a national law.

In his Comment, private respondent Garcia claims that (1) petitioner has failed to

show the existence of an actual case of controversy: (2) . . . petitioner seeks to

overturn a decision/judgment which has long become final and executory ; (3) . . .

public respondent has not abused its discretion and has in fact acted within its jurisdiction; (and) (4) . . . the concurrence of local government units is required for

the establishment of the Subic Special Economic Zone."

Private respondent Calimbas, now the incumbent Mayor of Morong, in his Reply

(should be Comment) joined petitioner's cause because "(a)fter several meetings

with petitioner's Chairman and staff and after consultation with legal counsel,

respondent Calimbas discovered that the demands in the petition for a local

initiative/referendum were not legally feasible." 7

The Solicitor General, as counsel for public respondent, identified two issues, as

follows:

1. Whether or not the Comelec can be enjoined from

scheduling/conducting the local initiative proposing to annul Pambayang

Kapasyahan Blg. 10, Serye 1993 of the Sangguniang Bayan of Morong,

Bataan.

2. Whether or not the Comelec co mmitted grave abuse of discretion in

denying the request of petitioner SBMA to stop the local initiative.

On July 23, 1996, t he Court heard oral argument by the parties, after which, it

issued the following Resolution:

The Court Resolved to: (1) GRANT the Motion to Admit the Attachment

Comment filed by counsel for private respondent Enrique T. Garcia, dated

July 22, 1996 and (2) NOT E the: (a) Reply (should be comment) to the

petition for certiorari and prohibition with prayer for temporary

restraining order and/or writ of preliminary injunction, filed by counsel

for respondent Catalino Calimbas, date July 22, 1996; (b) Separate

Comments on the petition, filed by: (b-1) the Solicitor General for

respondent Commission on Elections dated July 19, 1996 and (b-2)

counsel for private respondent Enrique T. Garcia, dated July 22, 1996, all

filed in compliance with the resolution of July 16, 1996 and (c)

Manifestation filed by counsel for petitioner, dated July 22, 1996.

At the hearing of this case this morning, Atty. Rodolfo O. Reyes appeared

and argued for petitioner Subic Bay Metropolitan Authority (SBMA) while

Atty. Sixto Brillantes for private respondent Enrique T. Garcia, and Atty.

Oscar L. Karaan for respondent Catalino Calimbas. Solicitor General Raul

Goco, Assistant Solicitor General Cecilio O. Estoesta and Solicitor Zenaida

Hernandez-Perez appeared for respondent Commission on Elections with

Solicitor General Goco arguing.

Before the Court adjourned, the Court directed the counsel for both

parties to INFORM this Court by Friday, July 26, 1996, whether or notCommission on Elections would push through with the

initiative/referendum this Saturday, July 27, 1996.

Thereafter, the case shall be considered SUBMITTED for resolution.

At 2:50 p.m., July 23, 1996, the Court received by facsimile transmission

an Order dated also on July 23, 1996 from the respondent Commission on

Elections En Banc inter alia "to hold in abeyance the scheduled

referendum (initiative) on July 27, 1996 pending resolution of G.R. No.

125416." In view of this Order, the petitioner's application for a

temporary restraining order and/or writ of preliminary injunction has

become moot and academic and will thus not be passed upon by thisCourt at this time. Puno, J., no part due to relationship. Bellosillo, J., is on

leave.

After careful study of and judicious deliberation on the submissions and arguments

of the parties, the Court believes that the issues may be restated as follows:

(1) Whether this petition "seeks to overturn a decision/judgment which

has long become final and executory"; namely, G.R. No. 111230, Enrique

Garcia, et al. vs. Commission on Elections, et al.;

(2) Whether the respondent Comelec committed grave abuse of

discretion in promulgating and implementing its Resolution No. 2848which "govern(s) the conduct of the referendum proposing to annul or

repeal Pambayang Kapasyahan Blg. 10, Serye 1993 of the Sangguniang

Bayan of Morong, Bataan;" and

(3) Whether the questioned local initiative covers a subject within the

powers of the people of Morong to enact; i .e., whether such initiative

"seeks the amendment of a national law."

First Issue: Bar by Final Judgment

Respondent Garcia contends that this Court had already ruled with finality

in Enrique T . Garcia, et al . vs.Commission on Elections, et al . 8 on "the very issue



raised in (the) petition: whether or not there can be an initiative by the people of

Morong, Bataan on the subject proposition — the very same proposition, it bears

emphasizing, the submission of which to the people o f Morong, Bataan is now

sought to be enjoined by petitioner . . .".

We disagree. The only issue resolved in the earlier Garcia case is whether a

municipal resolution as contra-distinguished from an ordinance may be the proper

subject of an initiative and/or referendum. We quote from our said Decision: 9

In light of this legal backdrop, the essential issue to be resolved in t hecase at bench is whether Pambayang Kapasyahan Blg. 10, serye 1993 of

the Sangguniang Bayan of Morong, Bataan is the proper subject of an

initiative. Respondents take the negative stance as they contend that

under the Local Government Code of 1991 only an ordinance can be the

subject of initiative. They rely on Section 120, Chapter 2, Title XI, Book I of

the Local Government Code of 1991 which provides: "Local Initiative

Defined.— Local initiative is the legal process whereby the registered

voters of a local government until may directly propose, enact, or amend

any ordinance."

We reject respondents' narrow and literal reading of the above provision

for it will collide with the Constitution and will subvert the intent of thelawmakers in enacting the provisions of the Local Government of 1991 on

initiative and referendum.

The Constitution clearly includes not only ordinance but resolutions as

appropriate subjects of a local initiative. Section 32 of Article VI provides

in luminous language: "The Congress shall, as early as possible, provide

for a system of initiative and referendum, and t he exceptions therefrom,

whereby the people can directly propose and enact laws or approve or

reject any act or law or part thereof passed by the Congress, or local

legislative body . . .". An act includes a resolution. Black defines an act as

"an expression of will or purpose . . . it may denote something done . . .

as a legislature, including not merely physical acts, but a lso decrees,

edicts, laws, judgments, resolves, awards, and determinations . . .". It is

basic that a law should be construed i n harmony with and not i n violation

of the Constitution. In line with this postulate, we held in In Re Guarina

that "if there is doubt or uncertainty as to the meaning of the legislative,

if the words or provisions are obs cure, or if the enactment is fairly

susceptible of two or more constructions, that interpretation will be

adopted which will avoid the effect of unconstitutionality, even though it

may be necessary, for this purpose, to disregard the more usual or

apparent import of the language used."

Moreover, we reviewed our rollo in said G.R. No. 111230 and we found that the

sole issue presented by the pleadings was the question of "whether or not a

Sangguniang Bayan Resolution can be the subject of a valid initiative or

referendum". 10

In the present case, petitioner is not contesting the propriety of a municipal

resolution as the form by which t hese two new constitutional prerogatives of the

people may be validly exercised. What is at issue here is whether Pambayang

Kapasyahan Blg. 10, Serye 1993, as worded , is sufficient in form and substance for

submission to the people for their approval ; in fine, whether the Comelec acted

properly and juridically in promulgating and implementing Resolution No. 2848.

Second Issue: Sufficiency of Comelec Resolution No. 2848

The main issue in this case may be re-stated thus: Did respondent Comelec commit

grave abuse of discretion in promulgating and implementing Resolution No. 2848?

We answer the question in the affirmative.

To begin with, the process started by private respondents was an INITIATIVE but

respondent Comelec made preparations for a REFERENDUM only . In fact, in the

body of the Resolution 11 as reproduced in the footnote below, the word

"referendum" is repeated at least 27 times, but "initiative" is not mentioned at all.

The Comelec labeled the exercise as a "Referendum"; the counting of v otes was

entrusted to a "Referendum Committee"; the documents were called "referendum

returns"; the canvassers, "Referendum Board of Canvassers" and the ballots

themselves bore the description "referendum". To repeat, not once was the word

"initiative" used in said body of Resolution No. 2848. And yet, this exercise is

unquestionably an INITIATIVE.

There are statutory and conceptual demarcations between a referendum and an

initiative. In enacting the "Initiative and Referendum Act, 12 Congress differentiated

one term from the other, thus:

(a) "Initiative" is the power of the people to propose amendments to the

Constitution or to propose and enact legislations through an electioncalled for the purpose.

There are three (3) systems of initiative, namely:

a.1. Initiative on the Constitution which refers to a petition proposing amendments to the

Constitution;

a.2. Initiative on statutes which refers to a petition proposing to enact a national legislation;

and

a.3. Initiative on local legislation which refers to a petition proposing to enact a regional,

provincial, city, municipal, or barangay law, resolution or ordinance.



(b) "Indirect initiative" is exercise of initiative by the people through a proposition sent to

Congress or the local legislative body for action.

(c) "Referendum" is the power of the electorate to approve or reject a legislation through an

election called for the purpose. It may be o f two classes, namely:

c.1. Referendum on statutes which refers to a petition t o approve or reject an act

or law, or part thereof, passed by Congress; and

c.2 Referendum on local law which refers to a petition t o approve or reject a law,

resolution or ordinance enacted by regional assemblies and local legislative bodies.

Along these statutory definitions, Justice Isagani A. Cruz 13 defines initiative as the

"power of the people to propose bills and laws, and to enact or reject them at the

polls independent of the legislative assembly." On the other hand, he explains that

referendum "is the right reserved to the people to adopt or reject any act or

measure which has been passed by a legislative body and which in most cases

would without action on the part of electors become a law." The foregoing

definitions, which are based on Black's 14 and other leading American authorities,

are echoed in the Local Government Code (RA 7160) substantially as follows:

Sec. 120. Local Initiative Defined.—

Local initiative is the legal processwhereby the registered voters of local government unit may directly

propose, enact, or amend any ordinance.

Sec. 126. Local Referendum Defined.— Local referendum is the legal

process whereby the registered voters of the local go vernment units may

approve, amend or reject any ordinance enacted by the sanggunian.

The local referendum shall be held under the control and direction of the

Comelec within sixty (60) days in case of provinces and cities, forty-five

(45) days in case of municipalities and thirty (30) days in case of

baranggays.

The Comelec shall certify and proclaim the results of t he said

referendum.

Prescinding from these definitions, we gather that initiative is resorted to (or

initiated) by the people directly either because the law-making body fails o r refuses

to enact the law, ordinance, resolution or act t hat they desire or because they want

to amend or modify one already existing. Under Sec. 13 of R.A. 6735, t he local

legislative body is given the opportunity t o enact the proposal. If it refuses/neglects

to do so within thirty (30) days from its presentation, the proponents through their

duly-authorized and registered representatives may invoke their power of

initiative, giving notice thereof to the local legislative body concerned. Should the

proponents be able to collect the number of signed conformities within the period

granted by said statute, the Co mmission on Elections "shall then set a date for the

initiative (not referendum) at which the proposition shall be submitted to the

registered voters in the local government unit concerned . . .".

On the other hand, in a local referendum, the law-making body submits to the

registered voters of its territorial jurisdiction, for approval or rejection, any

ordinance or resolution which is duly enacted or approved by such law-making

authority. Said referendum shall be conducted also under the control and direction

of the Commission on Elections. 15

In other words, while initiative is entirely the work of the electorate, referendum is

begun and consented to by the law-making body. Initiative is a process of law-

making by the people themselves without the participation and against the wishes

of their elected representatives, while referendum consists merely of the

electorate approving or rejecting what has been drawn up o r enacted by a

legislative body. Hence, the process and the voting in an initiative are

understandably more complex than in a referendum where expectedly the voters

will simply write either "Yes" of "No" in the ballot.

[Note: While the above quoted laws variously refer to initiative and referendum as

"powers" or "legal processes", these can be also be "rights", as Justice Cruz terms

them, or "concepts", or "the proposal" itself (in the case of initiative) being referredto in this Decision.]

From the above differentiation, it follows that there is need for the Comelec to

supervise an initiative more closely, its authority thereon extending not only to the

counting and canvassing of votes but also to seeing to it that the matter or act

submitted to the people is in the proper form and language so it may be easily

understood and voted upon by the electorate. This is especially true where the

proposed legislation is lengthy and complicated, and should thus be broken down

into several autonomous parts, each such part t o be voted upon separately. Care

must also be exercised that "(n)o petition embracing more than one subject shall

be submitted to the electorate," 16 although "two or more propositions may be

submitted in an initiative". 17

It should be noted that under Sec. 13 (c) of RA 6735, the "Secretary of Local

Government or his designated representative shall extend assistance in the

formulation of the proposition."

In initiative and referendum, the Comelec exercises administration and supervision

of the process itself, akin to its powers over the conduct of elections. These law-

making powers belong to the people, hence the respondent Commission cannot

control or change the substance or the content of legislation. In the exercise of its

authority, it may (in fact it should have done so already) issue relevant and

adequate guidelines and rules for the orderly exercise of these "people-power"

features of our Constitution.



Third Issue: Withdrawal of Adherence and

Imposition of Conditionalities— Ultra Vires?

Petitioner maintains that the proposition sought to be submitted in the plebiscite,

namely, Pambayang Kapasyahan Blg. 10, Serye 1993, is ultra vires or beyond the

powers of the Sangguniang Bayan to enact,18 stressing that under Sec. 124 (b) of RA

7160 (the Local Government Code), "local initiative shall cover only such subjects or

matters as are within the legal powers of the sangguniang to enact." Elsewise

stated, a local initiative may enact only such ordinances or resolutions as the

municipal council itself could, if it decided to so enact.19

After the SangguniangBayan of Morong and the other municipalities concerned (Olongapo, Subic and

Hermosa) gave their resolutions of concurrence, and by reason of which the SSEZ

had been created, whose metes and bounds had already been delineated by

Proclamation No. 532 issued on February 1, 1995 in accordance with Section 12 of

R.A. No. 7227, the power to withdraw such concurrence and/or to substitute

therefor a conditional concurrence is no longer within the authority and

competence of the Municipal Council of Morong to legislate. Furthermore,

petitioner adds, the specific conditionalities included in the questioned municipal

resolution are beyond the powers of the Council t o impose. Hence, such

withdrawal can no longer be enacted or conditionalities imposed by initiative. In

other words, petitioner insists, the creation of SSEZ is now a faith accompli for the

benefit of the entire nation. Thus, Morong cannot unilaterally withdraw its

concurrence or impose new conditions for such concurrence as this wouldeffectively render nugatory the creation by (national) law of the SSEZ and would

deprive the entire nation of the benefits to be derived therefrom. Once created.

SSEZ has ceased to be a local concern. It has become a national project.

On the other hand, private respondent Garcia counters that such argument is

premature and conjectural because at this point, the resolution is just a proposal. If

the people should reject it during the referendum, then th ere is nothing to declare

as illegal.

Deliberating on this issue, the Court agrees with private respondent Garcia that

indeed, the municipal resolution is still in the proposal stage. It is not yet an

approved law. Should the people reject it, then there would be nothing to contestand to adjudicate. It is only when the people have voted for it and it has become an

approved ordinance or resolution that rights and o bligations can be enforced or

implemented thereunder. At this point, it is merely a proposal and the writ or

prohibition cannot issue upon a mere conjecture or pos sibility. Constitutionally

speaking, courts may decide only actual controversies, not hypothetical questions

or cases. 20

We also note that the Initiative and Referendum Act itself provides 21 that

"(n)othing in this Act shall prevent or preclude the proper courts from declaring

null and void any proposition approved pursuant to this Act . . . ."

So too, the Supreme Court is basically a review court. 22 It passes upon errors of law

(and sometimes of fact, as in the case of mandatory appeals of capital offenses) of

lower courts as well as determines whether there had been grave abuse of

discretion amounting to lack or excess of jurisdiction on the part of any "branch or

instrumentality" of government. In the present case, it is quite clear that the Court

has authority to review Comelec Resolution No. 2848 to determine the commission

of grave abuse of discretion. However, it does not have the same authority in

regard to the proposed initiative since it has not been promulgated or approved, or

passed upon by any "branch or instrumentality" or lower court, for that matter.

The Commission on Elections itself has made no reviewable pronouncements about

the issues brought by the pleadings. The Comelec simply included verbatim the

proposal in its questioned Resolution No. 2848. Hence, there is really no decision or

action made by a branch, instrumentality or court which this Court could take

cognizance of and acquire jurisdiction over, in the exercise of its review powers.

Having said that, we are in no wise suggesting that the Commelec itself has no

power to pass upon proposed resolutions in an initiative. Quite the contrary, we are

ruling that these matters are in fact within the initiatory jurisdiction of the

Commission— to which then the herein basic questions ought to have been

addressed, and by which the same should have been decided in the first instance.

In other words, while regular courts may take jurisdiction over

"approved propositions" per said Sec. 18 of R.A. 6735, the Comelec in the exercise

of its quasi-judicial and administrative powers may adjudicate and pass upon suchproposals insofar as their form and language are concerned, as discussed earlier;

and it may be added, even as to content, where the proposals or parts thereof are

patently and clearly outside the "capacity of the local legislative body to

enact." 23 Accordingly, the question of whether the subject of this initiative is within

the capacity of the Municipal Council of Morong to enact may be r uled upon by the

Comelec upon remand and after hearing the parties thereon.

While on the subject of capacity o f the local lawmaking body, it would be fruitful

for the parties and the Comelec to plead and adjudicate, respectively, the question

of whether Grande Island and the "virgin forest" mentioned in the proposed

initiative belong to the national government and thus cannot be segregated from

the Zone and "returned to Bataan" by the simple expedient of passing a municipalresolution. We note that Sec. 13 (e) of R.A. 7227 speaks of the full subscription

and payment of the P20 billion authorized capital stock of the Subic Authority by

the Republic, with, aside from cash and other assets, the ". . . lands embraced,

covered and defined in Section 12 hereof, . . ." which includes said island and

forests. The ownership of said lands is question of fact that may be taken up in the

proper forum— the Commission on Elections.

Another question which the parties may wish to submit to the Comelec upon

remand of the initiative is whether the proposal, assuming it is within the capacity

of the Municipal Council to enact, may be divided into several parts for purposes of

voting. Item "I" is a p roposal to recall, nullify and render without effect (bawiin,

nulipikahin at pawalangbisa) Municipal Resolution No. 10, Series of 1993. On the

other hand, Item "II" proposes to change or replace (palitan) said resolution with



another municipal resolution of co ncurrence provided certain conditions

enumerated thereunder would be granted, obeyed and implemented

(ipagkakaloob, ipatutupad at isasagawa) for the benefit and interest of Morong and

Bataan. A voter may favor Item I— i .e., he may want a total dismemberment of

Morong from the Authority— but may not agree with any of the conditions set

forth in Item II. Should the propo sal then be divided and be voted upon separately

and independently?

All told, we shall not pass upon the third issue of ultra vires on the ground of

prematurity.

Epilogue

In sum, we hold that (i) our decision in the earlier Garcia case is not a bar to the

present controversy as the issue raised and decided therein is different from the

questions involved here; (iii) the respondent Commission should be given an

opportunity to review and correct its errors in promulgating its Resolution No. 2848

and in preparing— if necessary— for the plebiscite; and (iii) that the said

Commission has administrative and initiatory quasi-judicial jurisdiction to pass

upon the question of whether the proposal is sufficient in form and language and

whether such proposal or part or parts thereof are clearly and patently outside the

powers of the municipal council of Morong t o enact, and therefore violative of law.

In deciding this case, the Court realizes that initiative and referendum, as concepts

and processes, are new in our country. We are r emanding the matter to the

Comelec so that proper corrective measures, as above discussed, may be

undertaken, with a view to helping fulfill our people's aspirations for the

actualization of effective direct sovereignty. Indeed we recognize that "(p)rovisions

for initiative and referendum are liberally construed to effectuate their purposes,

to facilitate and not to hamper the exercise by the voters of the rights granted

thereby." 24 In his authoritative treatise on the Constitution, Fr. Joaquin G. Bernas,

S. J. treasures these "instruments which can be used should the legislature show

itself indifferent to the needs of the people." 25Impelled by a sense or urgency,

Congress enacted Republic Act No. 6735 t o give life and form to the constitutional

mandate. Congress also interphased initiative and referendum into the workings of

local governments by including a chapter on this subject in the Local Government

Code of 1991. 26 And the Commission on Elections can do no less by seasonably and

judiciously promulgating guidelines and rules, for both national and local use, in

implementation of these laws. For its part, this Court early on expressly recognized

the revolutionary import of reserving people power in the process of law-making. 27

Like elections, initiative and referendum are powerful and valuable modes of

expressing popular sovereignty. And this Court as a matter of policy and doctrine

will exert every effort to nurture, protect and promote their legitimate exercise.

For it is but sound public policy to enable the electorate to express their free and

untrammeled will, not only in the election of their anointed lawmakers and

executives, but also in the formulation of the very rules and laws by which our

society shall be governed and managed.

WHEREFORE the petition is GRANTED. Resolution No. 2848 is ANNULLED and SET

ASIDE. The initiative on Pambayang Kapasyahan Blg. 10, Serye 1993 is REMANDED

to the Commission on Elections for further proceeding consistent with the

foregoing discussion. No costs.

IT IS SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Bellosillo, Melo, Vitug, Kapunan, Francisco,

Hermosisima, Jr. and Torres, Jr., JJ., concur.

Puno, J., took no part.

Romero and Mendoza, JJ., are on leave.

Footnotes

1 Rollo, pp. 38-46; signed by Chairman Bernardo P. Pardo and Comms. Regalado E. Maambong, Remedios

A. Salazar-Fernando, Manolo B. Gorospe, Julio F. Desamito, Teresita Dy-Liaco Flores and Japal M. Guiani.

2 Sec. 13 (a), RA 7227.

3 Sec. 13 (e) (1), RA 7227.

4 Republic Act No. 7160.

5 Enrique T. Garcia, et al. vs. Commission on Elections, et al., 237 SCRA 279, September 30, 1994.

6 p. 10; rollo, p. 12.

7 Reply, p. 3.

8 See footnote no. 5, supra.

9 Supra, at pp. 290-291.

10 Rollo, G.R. No. 111230, p. 82 (Solocitor General's Comment). See also petitioner Garcia's

Memorandum, rollo, pp. 134-147.

11 For easy references, quoted verbatim hereunder, minus the preamble or "whereas" clauses, is the next

of Resolution 2848:

NOW, THEREFORE, the Commission on Elections, by virtue of the powers vested upon it by the

Constitution, Republic Act No. 6735, Republic Act No. 7160, the Omnibus Election Code and o ther related

election laws, RESOLVED AS IT HEREBY RESOLVES to promulgate the following rules and guidelines to



govern the conduct of the referendum proposing to annul o r repeal Kapasyahan Blg. 10, Serye 1993, of the

Sangguniang Bayan of Morong, Bataan.

Sec. 1. Supervision and control .— The Commission on Elections shall have direct control and supervision

over the conduct of the referendum.

Sec. 2. Expenses, forms and paraphernalia.— The expenses in the holding of the referendum, which shall

include the printing of official ballots, referendum returns, and other forms and the procurement of

supplies and paraphernalia, as well as the per diems of the members of the Referendum committees and

overtime compensation of the members of the Board of Canvassers, shall be chargeable against the

available funds of the Commission. In case of deficiency, the Executive Director and the Director of the

Finance Services Department are directed to submit the bu dget thereon and to request the Department ofBudget and Management to immediately release the necessary amount.

Sec. 3. Date of referendum and voting hours.— The referendum shall be held on July 27, 1 996. The voting

shall start at seven o'clock in the morning and shall end at three o'clock in the afternoon.

Sec. 4. Area of coverage.— The referendum shall be held in the entire municipality of Morong, Bataan.

Sec. 5. Who may vote.— The qualified voters of Morong, Bataan, duly registered as such in the May 8,

1995 Congressional and Local Elections, and those who are registered in the special registration of voters

scheduled on June 29, 1996, shall be entitl ed to vote in the refere ndum. For this purpose, the Election

Officer, said municipality, shall prepare the lists of voters for the entire municipality.

Sec. 6. Precincts and polling places.— The same precincts and polling places that f unctioned in the

municipality of Morong, Bataan during the May 8, 1995 Congressional and Local Elections shall functionand be used in the referendum, subject to such changes under the law as the Commission may find

necessary.

Sec. 7. Officials ballots.— The official ballots to be used in the referendum shall bear the heading:

"OFFICIAL BALLOT"; "REFERENDUM"; "JULY 27, 1996", "MORONG, BATAAN"; and underneath, the

following instructions: "Fill out this ballot secretly inside the voting booth. Do not put any distinctive mark

on any part of this ballot." The following question shall be provided in the official ballots:

DO YOU APPROVE OF THE PROPOSITIONS CONTAINED IN THE SIGNED PETITION TO ANNUL OR

REPEAL PAMBAYANG KAPASYAHAN BLG. 10, SERYE 1993, OF THE SANGGUNIANG BAYAN OF MORONG,

BATAAN, WHICH READ AS FOLLOWS:

I. Bawiin, nulipikahin at pawalang-bisa and Pambayang Kapasyahan Blg. 10, Serye 1993 ng Sangguniang

Bayan para sa pag-anib ng Morong sa SSEZ na walang kondisyon.

II. Palitan ito ng isang Pambayang Kapasiyahan na aa nib lamang ang Morong sa SSEZ kun g and mga

sumusunod na kondisyones ay ipagkakaloob, ipatutupad at isasagawa para sa kapakanan at interes ng

Morong at Bataan:

(A) Ibalik sa Bataan ang "Virgin Forests" — isang bundok na hindi nagagalaw at punong-puno ng malalaking

punong-kahoy at iba't-ibang halaman.

(B) Ihiwalay ang Grande Island sa SSEZ at ibalik ito sa Bataan.

(K) Isama ang mga lupain ng Bataan na nakapaloob sa SBMA sa pagkukuenta ng salapi ng ipinagkaloob ng

pamahalaang national o "Internal Revenue Allotment" (IRA) sa Morong, Hermosa at sa Lalawigan.

(D) Payagang magtatag rin ng sariling "special economic zones" ang bawal bayan ng Morong, Hermosa at

Dinalupihan.

(E) Ibase sa laki ng kanya-kanya lupa ang pamamahagi ng kikitain ng SBMA.

(G) Ibase rin ang alokasyon ng pagbibigay ng trabaho sa laki ng nasabing mga lupa.

(H) Pabayaang bukas ang pinto ng SBMA na nasa Morong ng 24 na oras a t bukod dito sa magbukas pa ng

pinto sa hangganan naman ng Morong at Hermosa upang magkaroon ng pagkakataong umunlad rin ang

mga nasabing bayan, pati na rin ng iba pang bayan ng Bataan.

(I) Tapusin ang pagkokonkre-to ng mga daa ng Morong-Tala-Orani at Morong-Tasig-Dinalupihan para sa

kabutihan ng mga taga-Bataan at tuloy makatulong sa pangangalaga ng mga kabundukan.

(J) Magkaroon ng sapat na representation sa pamunuan ng SBMA ng Morong, Hermosa at Bataan.?

Sec. 8. Referendum Committee.— The voting and counting of votes shall be conducted in each polling

place by a Referendum Committee composed of a Chairman, a Poll Clerk, and a Third Member who shall all

be public schools teachers, to be appointed by the Commission through the Election Officer of Morong,

Bataan. Each member of the Referendum Committee shall be entitled to a per diem of Two Hundred Pesos

(P200.00) for services rendered on the day of the referendum.

Sec. 9. Referendum returns and distribution of copies thereof .— The referendum returns shall be prepared

by the Referendum Committee in three (3) copies, to distributed as follows:

(1) The first copy shall be delivered to the Referendum Board of Canvassers;

(2) The second copy shall be forwarded to the Election Records and Statistics Department of the

Commission; and

(3) The third copy shall be deposited inside ballot box.

Sec. 10. Referendum Board of Canvassers.— There is hereby created a Referendum Board of Canvassers

which shall be composed of the Provincial Election S upervisor of Bataan as Chairman; and as Members

thereof, the Municipal Treasurer and the most senior District School Supervisor or, in the lat ter's absence, a

principal of the school district or the elementary school.

At least five (5) days before the day of the referendum, the C hairman shall issue a written notice to t heMembers of the Board that it s hall convene at four o'clock in t he afternoon of Referendum Day to canvass

the referendum returns. Notice of said meeting shall be posted in conspicuous places in the Municipal Hall

and other public places within the municipality.

The Board shall meet at the session hall of the Sangguniang Bayan of Morong, Bataa n not later than four

o'clock in the afternoon of Referendum Day, and shall immediately canvass the referendum returns and

shall not adjourn until the canvass is completed.

Sec. 11. Preparation and distribution of copies of the referendum results .— As soon as all the returns have

been canvassed, the Board shall prepare and accomplish the Certificate of Canvass of Votes and

Proclamation in five (5) copies, supported by a Statement of Votes per Precinct, and, or on the basis

thereof, shall certify and proclaim the final results.

Said copies shall be distributed as follows:

pubcorp cases (finals)

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