Appointments

REYNALDO R. SAN JUAN, petitioner,

vs.
CIVIL SERVICE COMMISSION, DEPARTMENT OF BUDGET AND MANAGEMENT and CECILIA
ALMAJOSE, respondents.
GUTIERREZ, JR., J .:
In this petition for certiorari pursuant to Section 7, Article IX (A) of the present Constitution, the petitioner
Governor of the Province of Rizal, prays for the nullification of Resolution No. 89-868 of the Civil Service
Commission (CSC) dated November 21, 1989 and its Resolution No. 90-150 dated February 9, 1990.
The dispositive portion of the questioned Resolution reads:
WHEREFORE, foregoing premises considered, the Commission resolved to dismiss, as
it hereby dismisses the appeal of Governor Reynaldo San Juan of Rizal. Accordingly, the
approved appointment of Ms. Cecilia Almajose as Provincial Budget Officer of Rizal, is
upheld. (Rollo, p. 32)
The subsequent Resolution No. 90-150 reiterates CSC's position upholding the private respondent's
appointment by denying the petitioner's motion for reconsideration for lack of merit.
The antecedent facts of the case are as follows:
On March 22, 1988, the position of Provincial Budget Officer (PBO) for the province of Rizal was left
vacant by its former holder, a certain Henedima del Rosario.
In a letter dated April 18, 1988, the petitioner informed Director Reynaldo Abella of the Department of
Budget and Management (DBM) Region IV that Ms. Dalisay Santos assumed office as Acting PBO since
March 22, 1988 pursuant to a Memorandum issued by the petitioner who further requested Director
Abella to endorse the appointment of the said Ms. Dalisay Santos to the contested position of PBO of
Rizal. Ms. Dalisay Santos was then Municipal Budget Officer of Taytay, Rizal before she discharged the
functions of acting PBO.
In a Memorandum dated July 26, 1988 addressed to the DBM Secretary, then Director Abella of Region
IV recommended the appointment of the private respondent as PBO of Rizal on the basis of a
comparative study of all Municipal Budget Officers of the said province which included three nominees of
the petitioner. According to Abella, the private respondent was the most qualified since she was the only
Certified Public Accountant among the contenders.
On August 1, 1988, DBM Undersecretary Nazario S. Cabuquit, Jr. signed the appointment papers of the
private respondent as PBO of Rizal upon the aforestated recommendation of Abella.
In a letter dated August 3, 1988 addressed to Secretary Carague, the petitioner reiterated his request for
the appointment of Dalisay Santos to the contested position unaware of the earlier appointment made by
Undersecretary Cabuquit.
On August 31, 1988, DBM Regional Director Agripino G. Galvez wrote the petitioner that Dalisay Santos
and his other recommendees did not meet the minimum requirements under Local Budget Circular No. 31
for the position of a local budget officer. Director Galvez whether or not through oversight further required
the petitioner to submit at least three other qualified nominees who are qualified for the position of PBO of
Rizal for evaluation and processing.
On November 2, 1988, the petitioner after having been informed of the private respondent's appointment
wrote Secretary Carague protesting against the said appointment on the grounds that Cabuquit as DBM
Undersecretary is not legally authorized to appoint the PBO; that the private respondent lacks the
required three years work experience as provided in Local Budget Circular No. 31; and that under
Executive Order No. 112, it is the Provincial Governor, not the Regional Director or a Congressman, who
has the power to recommend nominees for the position of PBO.
On January 9, 1989 respondent DBM, through its Director of the Bureau of Legal & Legislative Affairs
(BLLA) Virgilio A. Afurung, issued a Memorandum ruling that the petitioner's letter-protest is not
meritorious considering that public respondent DBM validly exercised its prerogative in filling-up the
contested position since none of the petitioner's nominees met the prescribed requirements.
On January 27, 1989, the petitioner moved for a reconsideration of the BLLA ruling.
On February 28, 1989, the DBM Secretary denied the petitioner's motion for reconsideration.
On March 27, 1989, the petitioner wrote public respondent CSC protesting against the appointment of the
private respondent and reiterating his position regarding the matter.
Subsequently, public respondent CSC issued the questioned resolutions which prompted the petitioner to
submit before us the following assignment of errors:
A. THE CSC ERRED IN UPHOLDING THE APPOINTMENT BY DBM ASSISTANT
SECRETARY CABUQUIT OF CECILIA ALMAJOSE AS PBO OF RIZAL.
B. THE CSC ERRED IN HOLDING THAT CECILIA ALMA JOSE POSSESSES ALL THE
REQUIRED QUALIFICATIONS.
C. THE CSC ERRED IN DECLARING THAT PETITIONER'S NOMINEES ARE NOT
QUALIFIED TO THE SUBJECT POSITION.
D. THE CSC AND THE DBM GRAVELY ABUSED THEIR DISCRETION IN NOT
ALLOWING PETITIONER TO SUBMIT NEW NOMINEES WHO COULD MEET THE
REQUIRED QUALIFICATION (Petition, pp. 7-8, Rollo, pp. 15-16)
All the assigned errors relate to the issue of whether or not the private respondent is lawfully entitled to
discharge the functions of PBO of Rizal pursuant to the appointment made by public respondent DBM's
Undersecretary upon the recommendation of then Director Abella of DBM Region IV.
The petitioner's arguments rest on his contention that he has the sole right and privilege to recommend
the nominees to the position of PBO and that the appointee should come only from his nominees. In
support thereof, he invokes Section 1 of Executive Order No. 112 which provides that:
Sec. 1. All budget officers of provinces, cities and municipalities shall be appointed
henceforth by the Minister of Budget and Management upon recommendation of the local
chief executive concerned, subject to civil service law, rules and regulations, and they
shall be placed under the administrative control and technical supervision of the Ministry
of Budget and Management.
The petitioner maintains that the appointment of the private respondent to the contested position
was made in derogation of the provision so that both the public respondents committed grave
abuse of discretion in upholding Almajose's appointment.
There is no question that under Section 1 of Executive Order No. 112 the petitioner's power to
recommend is subject to the qualifications prescribed by existing laws for the position of PBO.
Consequently, in the event that the recommendations made by the petitioner fall short of the required
standards, the appointing authority, the Minister (now Secretary) of public respondent DBM is expected to
reject the same.
In the event that the Governor recommends an unqualified person, is the Department Head free to
appoint anyone he fancies ? This is the issue before us.
Before the promulgation of Executive Order No. 112 on December 24, 1986, Batas Pambansa Blg. 337,
otherwise known as the Local Government Code vested upon the Governor, subject to civil service rules
and regulations, the power to appoint the PBO (Sec. 216, subparagraph (1), BP 337). The Code further
enumerated the qualifications for the position of PBO. Thus, Section 216, subparagraph (2) of the same
code states that:
(2) No person shall be appointed provincial budget officer unless he is a citizen of the
Philippines, of good moral character, a holder of a degree preferably in law, commerce,
public administration or any related course from a recognized college or university, a first
grade civil service eligibility or its equivalent, and has acquired at least five years
experience in budgeting or in any related field.
The petitioner contends that since the appointing authority with respect to the Provincial Budget Officer of
Rizal was vested in him before, then, the real intent behind Executive Order No. 112 in empowering him
to recommend nominees to the position of Provincial Budget Officer is to make his recommendation part
and parcel of the appointment process. He states that the phrase "upon recommendation of the local
chief executive concerned" must be given mandatory application in consonance with the state policy of
local autonomy as guaranteed by the 1987 Constitution under Art. II, Sec. 25 and Art. X, Sec. 2 thereof.
He further argues that his power to recommend cannot validly be defeated by a mere administrative
issuance of public respondent DBM reserving to itself the right to fill-up any existing vacancy in case the
petitioner's nominees do not meet the qualification requirements as embodied in public respondent DBM's
Local Budget Circular No. 31 dated February 9, 1988.
The questioned ruling is justified by the public respondent CSC as follows:
As required by said E.O. No. 112, the DBM Secretary may choose from among the
recommendees of the Provincial Governor who are thus qualified and eligible for
appointment to the position of the PBO of Rizal. Notwithstanding, the recommendation of
the local chief executive is merely directory and not a condition sine qua non to the
exercise by the Secretary of DBM of his appointing prerogative. To rule otherwise would
in effect give the law or E.O. No. 112 a different interpretation or construction not
intended therein, taking into consideration that said officer has been nationalized and is
directly under the control and supervision of the DBM Secretary or through his duly
authorized representative. It cannot be gainsaid that said national officer has a similar
role in the local government unit, only on another area or concern, to that of a
Commission on Audit resident auditor. Hence, to preserve and maintain the
independence of said officer from the local government unit, he must be primarily the
choice of the national appointing official, and the exercise thereof must not be unduly
hampered or interfered with, provided the appointee finally selected meets the
requirements for the position in accordance with prescribed Civil Service Law, Rules and
Regulations. In other words, the appointing official is not restricted or circumscribed to the
list submitted or recommended by the local chief executive in the final selection of an
appointee for the position. He may consider other nominees for the position vis a vis the
nominees of the local chief executive. (CSC Resolution No. 89-868, p. 2;Rollo, p. 31)
The issue before the Court is not limited to the validity of the appointment of one Provincial Budget
Officer. The tug of war between the Secretary of Budget and Management and the Governor of the
premier province of Rizal over a seemingly innocuous position involves the application of a most
important constitutional policy and principle, that of local autonomy. We have to obey the clear mandate
on local autonomy. Where a law is capable of two interpretations, one in favor of centralized power in
Malacaang and the other beneficial to local autonomy, the scales must be weighed in favor of autonomy.
The exercise by local governments of meaningful power has been a national goal since the turn of the
century. And yet, inspite of constitutional provisions and, as in this case, legislation mandating greater
autonomy for local officials, national officers cannot seem to let go of centralized powers. They deny or
water down what little grants of autonomy have so far been given to municipal corporations.
President McKinley's Instructions dated April 7, 1900 to the Second Philippine Commission ordered the
new Government "to devote their attention in the first instance to the establishment of municipal
governments in which natives of the Islands, both in the cities and rural communities, shall be afforded
the opportunity to manage their own local officers to the fullest extent of which they are capable and
subject to the least degree of supervision and control which a careful study of their capacities and
observation of the workings of native control show to be consistent with the maintenance of law, order
and loyalty.
In this initial organic act for the Philippines, the Commission which combined both executive and
legislative powers was directed to give top priority to making local autonomy effective.
The 1935 Constitution had no specific article on local autonomy. However, in distinguishing between
presidential control and supervision as follows:
The President shall have control of all the executive departments, bureaus, or offices,
exercise general supervision over all local governments as may be provided by law, and
take care that the laws be faithfully executed. (Sec. 11, Article VII, 1935 Constitution)
the Constitution clearly limited the executive power over local governments to "general
supervision . . . as may be provided by law." The President controls the executive departments.
He has no such power over local governments. He has only supervision and that supervision is
both general and circumscribed by statute.
In Tecson v. Salas, 34 SCRA 275, 282 (1970), this Court stated:
. . . Hebron v. Reyes, (104 Phil. 175 [1958]) with the then Justice, now Chief Justice,
Concepcion as the ponente, clarified matters. As was pointed out, the presidential
competence is not even supervision in general, but general supervision as may be
provided by law. He could not thus go beyond the applicable statutory provisions, which
bind and fetter his discretion on the matter. Moreover, as had been earlier ruled in an
opinion penned by Justice Padilla in Mondano V. Silvosa, (97 Phil. 143 [1955]) referred to
by the present Chief Justice in his opinion in the Hebron case, supervision goes no
further than "overseeing or the power or authority of an officer to see that subordinate
officers perform their duties. If the latter fail or neglect to fulfill them the former may take
such action or step as prescribed by law to make them perform their duties." (Ibid, pp.
147-148) Control, on the other hand, "means the power of an officer to alter or modify or
nullify or set aside what a subordinate had done in the performance of their duties and to
substitute the judgment of the former for that of the latter." It would follow then, according
to the present Chief Justice, to go back to the Hebron opinion, that the President had to
abide by the then provisions of the Revised Administrative Code on suspension and
removal of municipal officials, there being no power of control that he could rightfully
exercise, the law clearly specifying the procedure by which such disciplinary action would
be taken.
Pursuant to this principle under the 1935 Constitution, legislation implementing local autonomy was
enacted. In 1959, Republic Act No. 2264, "An Act Amending the Law Governing Local Governments by
Increasing Their Autonomy and Reorganizing Local Governments" was passed. It was followed in 1967
when Republic Act No. 5185, the Decentralization Law was enacted, giving "further autonomous powers
to local governments governments."
The provisions of the 1973 Constitution moved the country further, at least insofar as legal provisions are
concerned, towards greater autonomy. It provided under Article II as a basic principle of government:
Sec. 10. The State shall guarantee and promote the autonomy of local government units,
especially the barangay to ensure their fullest development as self-reliant communities.
An entire article on Local Government was incorporated into the Constitution. It called for a local
government code defining more responsive and accountable local government structures. Any creation,
merger, abolition, or substantial boundary alteration cannot be done except in accordance with the local
government code and upon approval by a plebiscite. The power to create sources of revenue and to levy
taxes was specifically settled upon local governments.
The exercise of greater local autonomy is even more marked in the present Constitution.
Article II, Section 25 on State Policies provides:
Sec. 25. The State shall ensure the autonomy of local governments
The 14 sections in Article X on Local Government not only reiterate earlier doctrines but give in greater
detail the provisions making local autonomy more meaningful. Thus, Sections 2 and 3 of Article X
provide:
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
Sec. 3. The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate
among the different local government units their powers, responsibilities, and resources,
and provide for the qualifications, election, appointment and removal, term, salaries,
powers and functions and duties of local officials, and all other matters relating to the
organization and operation of the local units.
When the Civil Service Commission interpreted the recommending power of the Provincial Governor as
purely directory, it went against the letter and spirit of the constitutional provisions on local autonomy. If
the DBM Secretary jealously hoards the entirety of budgetary powers and ignores the right of local
governments to develop self-reliance and resoluteness in the handling of their own funds, the goal of
meaningful local autonomy is frustrated and set back.
The right given by Local Budget Circular No. 31 which states:
Sec. 6.0 The DBM reserves the right to fill up any existing vacancy where none of the
nominees of the local chief executive meet the prescribed requirements.
is ultra vires and is, accordingly, set aside. The DBM may appoint only from the list of qualified
recommendees nominated by the Governor. If none is qualified, he must return the list of
nominees to the Governor explaining why no one meets the legal requirements and ask for new
recommendees who have the necessary eligibilities and qualifications.
The PBO is expected to synchronize his work with DBM. More important, however, is the proper
administration of fiscal affairs at the local level. Provincial and municipal budgets are prepared at the local
level and after completion are forwarded to the national officials for review. They are prepared by the local
officials who must work within the constraints of those budgets. They are not formulated in the inner
sanctums of an all-knowing DBM and unilaterally imposed on local governments whether or not they are
relevant to local needs and resources. It is for this reason that there should be a genuine interplay, a
balancing of viewpoints, and a harmonization of proposals from both the local and national officials. It is
for this reason that the nomination and appointment process involves a sharing of power between the two
levels of government.
It may not be amiss to give by way of analogy the procedure followed in the appointments of Justices and
Judges. Under Article VIII of the Constitution, nominations for judicial positions are made by the Judicial
and Bar Council. The President makes the appointments from the list of nominees submitted to her by the
Council. She cannot apply the DBM procedure, reject all the Council nominees, and appoint another
person whom she feels is better qualified. There can be no reservation of the right to fill up a position with
a person of the appointing power's personal choice.
The public respondent's grave abuse of discretion is aggravated by the fact that Director Galvez required
the Provincial Governor to submit at least three other names of nominees better qualified than his earlier
recommendation. It was a meaningless exercise. The appointment of the private respondent was
formalized before the Governor was extended the courtesy of being informed that his nominee had been
rejected. The complete disregard of the local government's prerogative and the smug belief that the DBM
has absolute wisdom, authority, and discretion are manifest.
In his classic work "Philippine Political Law" Dean Vicente G. Sinco stated that the value of local
governments as institutions of democracy is measured by the degree of autonomy that they
enjoy. Citing Tocqueville, he stated that "local assemblies of citizens constitute the strength of free
nations. . . . A people may establish a system of free government but without the spirit of municipal
institutions, it cannot have the spirit of liberty." (Sinco, Philippine Political Law, Eleventh Edition, pp. 705-
706).
Our national officials should not only comply with the constitutional provisions on local autonomy but
should also appreciate the spirit of liberty upon which these provisions are based.
WHEREFORE, the petition is hereby GRANTED. The questioned resolutions of the Civil Service
Commission are SET ASIDE. The appointment of respondent Cecilia Almajose is nullified. The
Department of Budget and Management is ordered to appoint the Provincial Budget Officer of Rizal from
among qualified nominees submitted by the Provincial Governor.
SO ORDERED.




San Juan vs. Civil Service Commisssion
Facts:
The Provincial Budget Officer of Rizal (PBO) was left vacant; thereafter Rizal Governor San Juan,
peititioner, nominated Dalisay Santos for the position and the latter quickly assumed position. However,
Director Abella of Region IV Department of Budget and Management (DBM) did not endorse the
nominee, and recommended private respondent Cecilia Almajose as PBO on the ground that she was the
most qualified. This appointment was subsequently approved by the DBM. Petitioner protested the
appointment of Almajose before the DBM and the Civil Service Commission who both dismissed his
complaints. His arguments rest on his contention that he has the sole right and privilege to recommend
the nominees to the position of PBO and that the appointee should come only from his nominees. In
support thereof, he invokes Section 1 of Executive Order No. 112.
Issue:
Whether or not DBM is empowered to appoint a PBO who was not expressly nominated by the provincial
governor.
Held:
Under the cited Sec 1 of EO 112, the petitioner's power to recommend is subject to the qualifications
prescribed by existing laws for the position of PBO. Consequently, in the event that the recommendations
made by the petitioner fall short of the required standards, the appointing authority, public respondent
DBM is expected to reject the same. In the event that the Governor recommends an unqualified person,
is the Department Head free to appoint anyone he fancies?
Petitioner states that the phrase of said law: "upon recommendation of the local chief executive
concerned" must be given mandatory application in consonance with the state policy of local autonomy as
guaranteed by the 1987 Constitution under Art. II, Sec. 25 and Art. X, Sec. 2 thereof. He further argues
that his power to recommend cannot validly be defeated by a mere administrative issuance of public
respondent DBM reserving to itself the right to fill-up any existing vacancy in case the petitioner's
nominees do not meet the qualification requirements as embodied in public respondent DBM's Local
Budget Circular No. 31 dated February 9, 1988.
This case involves the application of a most important constitutional policy and principle, that of local
autonomy. We have to obey the clear mandate on local autonomy. Where a law is capable of two
interpretations, one in favor of centralized power in Malacaang and the other beneficial to local
autonomy, the scales must be weighed in favor of autonomy.
The 1935 Constitution clearly limited the executive power over local governments to "general supervision
. . . as may be provided by law." The President controls the executive departments. He has no such
power over local governments. He has only supervision and that supervision is both general and
circumscribed by statute. The exercise of greater local autonomy is even more marked in the present
Constitution. Article II, Section 25 provides: "The State shall ensure the autonomy of local governments"
Thereby, DBM Circular is ultra vires and is, accordingly, set aside. The DBM may appoint only from the
list of qualified recommendees nominated by the Governor. If none is qualified, he must return the list of
nominees to the Governor explaining why no one meets the legal requirements and ask for new
recommendees who have the necessary eligibilities and qualifications.

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC,
CARLITO T. CRUZ and MANUEL P. REYES, petitioner,
vs.
HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON, respondents.

BELLOSILLO, J .:
The constitutionality of Sec. 13, par. (d), of R.A. 7227,
1
otherwise known as the "Bases Conversion and
Development Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City was
appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA), is
challenged in this original petition with prayer for prohibition, preliminary injunction and temporary
restraining order "to prevent useless and unnecessary expenditures of public funds by way of salaries
and other operational expenses attached to the office . . . ."
2
Paragraph (d) reads
(d) Chairman administrator The President shall appoint a professional manager as
administrator of the Subic Authority with a compensation to be determined by the Board
subject to the approval of the Secretary of Budget, who shall be the ex oficio chairman of
the Board and who shall serve as the chief executive officer of the Subic
Authority: Provided, however, That for the first year of its operations from the effectivity of
this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief
executive officer of the Subic Authority (emphasis supplied).
Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and
officers and members of the Filipino Civilian Employees Association in U.S. Facilities in the Philippines,
maintain that theproviso 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 of an election offense: . . . (g)
Appointment of new employees, creation of new position, promotion, or giving salary
increases. During the period of forty-five days before a regular election and thirty days
before a special election, (1) any head, official or appointing officer of a government
office, agency or instrumentality, whether national or local, including government-owned
or controlled corporations, who appoints or hires any new employee, whether provisional,
temporary or casual, or creates and fills any new position, except upon prior authority of
the Commission. The Commission shall not grant the authority sought unless it is
satisfied that the position to be filled is essential to the proper functioning of the office or
agency concerned, and that the position shall not be filled in a manner that may influence
the election. As an exception to the foregoing provisions, a new employee may be
appointed in case of urgent need:Provided, however, That notice of the appointment shall
be given to the Commission within three days from the date of the appointment. Any
appointment or hiring in violation of this provision shall be null and void. (2) Any
government official who promotes, or gives any increase of salary or remuneration or
privilege to any government official or employee, including those in government-owned or
controlled corporations . . . .
for the reason that the appointment of respondent Gordon to the subject posts made by respondent
Executive Secretary on 3 April 1992 was within the prohibited 45-day period prior to the 11 May 1992
Elections.
The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states, "Provided,
however,That for the first year of its operations from the effectivity of this Act, the mayor of the City of
Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," violates
the constitutional proscription against appointment or designation of elective officials to other government
posts.
In full, Sec. 7 of Art. IX-B of the Constitution provides:
No elective official shall be eligible for appointment or designation in any capacity to any
public office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled corporations
or their subsidiaries.
The section expresses the policy against the concentration of several public positions in one person, so
that a public officer or employee may serve full-time with dedication and thus be efficient in the delivery of
public services. It is an affirmation that a public office is a full-time job. Hence, a public officer or
employee, like the head of an executive department described in Civil Liberties Union v. Executive
Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico, as
Secretary of Agrarian Reform, G.R. No. 83815,
6
". . . . should be allowed to attend to his duties and
responsibilities without the distraction of other governmental duties or employment. He should be
precluded from dissipating his efforts, attention and energy among too many positions of responsibility,
which may result in haphazardness and inefficiency . . . ."
Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a situation where
a local elective official will work for his appointment in an executive position in government, and thus
neglect his constituents . . . ."
7

In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the
Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief Executive
Officer of SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it needs no
stretching of the imagination to conclude that the proviso contravenes Sec. 7, first par., Art. IX-B, of the
Constitution. Here, the fact that the expertise of an elective official may be most beneficial to the higher
interest of the body politic is of no moment.
It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local elective
official to another post if so allowed by law or by the primary functions of his office.
8
But, the contention is
fallacious. Section 94 of the LGC is not determinative of the constitutionality of Sec. 13, par. (d), of R.A.
7227, for no legislative act can prevail over the fundamental law of the land. Moreover, since the
constitutionality of Sec. 94 of LGC is not the issue here nor is that section sought to be declared
unconstitutional, we need not rule on its validity. Neither can we invoke a practice otherwise
unconstitutional as authority for its validity.
In any case, the view that an elective official may be appointed to another post if allowed by law or by the
primary functions of his office, ignores the clear-cut difference in the wording of the two (2) paragraphs of
Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by
an appointive official when allowed by law or by the primary functions of his position, the first paragraph
appears to be more stringent by not providing any exception to the rule against appointment or
designation of an elective official to the government post, except as are particularly recognized in the
Constitution itself, e.g., the President as head of the economic and planning agency;
9
the Vice-President,
who may be appointed Member of the Cabinet;
10
and, a member of Congress who may be designated ex
officio member of the Judicial and Bar Council.
11

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental when
drawn, and not without reason. It was purposely sought by the drafters of the Constitution as shown in
their deliberation, thus
MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding Officer,
is that the prohibition is more strict with respect to elective officials, because in the case
of appointive officials, there may be a law that will allow them to hold other positions.
MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive
officials, there will be certain situations where the law should allow them to hold some
other positions.
12

The distinction being clear, the exemption allowed to appointive officials in the second paragraph cannot
be extended to elective officials who are governed by the first paragraph.
It is further argued that the SBMA posts are merely ex officio to the position of Mayor of Olongapo City,
hence, an excepted circumstance, citing Civil Liberties Union v. Executive Secretary,
13
where we stated
that the prohibition against the holding of any other office or employment by the President, Vice-
President, Members of the Cabinet, and their deputies or assistants during their tenure, as provided in
Sec. 13, Art. VII, of the Constitution, does not comprehend additional duties and functions required by the
primary functions of the officials concerned, who are to perform them in an ex officio capacity as provided
by law, without receiving any additional compensation therefor.
This argument is apparently based on a wrong premise. Congress did not contemplate making the
subject SBMA posts as ex officio or automatically attached to the Office of the Mayor of Olongapo City
without need of appointment. The phrase "shall be appointed" unquestionably shows the intent to make
the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City. Had it been the
legislative intent to make the subject positions ex officio, Congress would have, at least, avoided the word
"appointed" and, instead, "ex officio" would have been used.
14

Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene Sec.
7, first par., Art. IX-B, but they nevertheless passed the bill and decided to have the controversy resolved
by the courts. Indeed, the Senators would not have been concerned with the effects of Sec. 7, first par.,
had they considered the SBMA posts as ex officio.
Cognizant of the complication that may arise from the way the subject proviso was stated, Senator Rene
Saguisag remarked that "if the Conference Committee just said "the Mayor shall be the Chairman" then
that should foreclose the issue. It is a legislative choice."
15
The Senator took a view that the constitutional
proscription against appointment of elective officials may have been sidestepped if Congress attached the
SBMA posts to the Mayor of Olongapo City instead of directing the President to appoint him to the post.
Without passing upon this view of Senator Saguisag, it suffices to state that Congress intended the posts
to be appointive, thus nibbling in the bud the argument that they are ex officio.
The analogy with the position of Chairman of the Metro Manila Authority made by respondents cannot be
applied to uphold the constitutionality of the challenged proviso since it is not put in issue in the present
case. In the same vein, the argument that if no elective official may be appointed or designated to another
post then Sec. 8, Art. IX-B, of the Constitution allowing him to receive double compensation
16
would be
useless, is non sequitur since Sec. 8 does not affect the constitutionality of the subject proviso. In any
case, the Vice-President for example, an elective official who may be appointed to a cabinet post under
Sec. 3, Art. VII, may receive the compensation attached to the cabinet position if specifically authorized
by law.
Petitioners also assail the legislative encroachment on the appointing authority of the President. Section
13, par. (d), itself vests in the President the power to appoint the Chairman of the Board and the Chief
Executive Officer of SBMA, although he really has no choice under the law but to appoint the Mayor of
Olongapo City.
As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having
authority therefor, to discharge the duties of some office or trust,"
17
or "[t]he selection or designation of a
person, by the person or persons having authority therefor, to fill an office or public function and
discharge the duties of the same.
18
In his treatise,Philippine Political
Law,
19
Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority
vested with the power, of an individual who is to exercise the functions of a given office."
Considering that appointment calls for a selection, the appointing power necessarily exercises a
discretion. According to Woodbury, J.,
20
"the choice of a person to fill an office constitutes the essence of
his appointment,"
21
and Mr. Justice Malcolm adds that an "[a]ppointment to office is intrinsically an
executive act involving the exercise of discretion."
22
In Pamantasan ng Lungsod ng Maynila v.
Intermediate Appellate Court
23
we held:
The power to appoint is, in essence, discretionary. The appointing power has the right of
choice which he may exercise freely according to his judgment, deciding for himself who
is best qualified among those who have the necessary qualifications and eligibilities. It is
a prerogative of the appointing power . . . .
Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of
discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the appointee. In
other words, the choice of the appointee is a fundamental component of the appointing power.
Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at
the same time limit the choice of the President to only one candidate. Once the power of appointment is
conferred on the President, such conferment necessarily carries the discretion of whom to appoint. Even
on the pretext of prescribing the qualifications of the officer, Congress may not abuse such power as to
divest the appointing authority, directly or indirectly, of his discretion to pick his own choice.
Consequently, when the qualifications prescribed by Congress can only be met by one individual, such
enactment effectively eliminates the discretion of the appointing power to choose and constitutes an
irregular restriction on the power of appointment.
24

In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee for
the first year of its operations from the effectivity of R.A. 7227, the proviso nevertheless limits the
appointing authority to only one eligible, i.e., the incumbent Mayor of Olongapo City. Since only one can
qualify for the posts in question, the President is precluded from exercising his discretion to choose whom
to appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all
and goes against the very nature itself of appointment.
While it may be viewed that the proviso merely sets the qualifications of the officer during the first year of
operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of
congressional authority to prescribe qualifications where only one, and no other, can qualify. Accordingly,
while the conferment of the appointing power on the President is a perfectly valid legislative act,
the proviso limiting his choice to one is certainly an encroachment on his prerogative.
Since the ineligibility of an elective official for appointment remains all throughout his tenure or during his
incumbency, he may however resign first from his elective post to cast off the constitutionally-attached
disqualification before he may be considered fit for appointment. The deliberation in the Constitutional
Commission is enlightening:
MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word "term"
with TENURE.
MR. FOZ. The effect of the proposed amendment is to make possible for one to resign
from his position.
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 the appointive position, his appointment or designation thereto cannot be valid in view of his
disqualification or lack of eligibility. This provision should not be confused with Sec. 13, Art. VI, of the
Constitution where "(n)o Senator or Member of the House of Representatives may hold any other office or
employment in the Government . . . during his term without forfeiting his seat . . . ." The difference
between the two provisions is significant in the sense that incumbent national legislators lose their
elective posts only after they have been appointed to another government office, while other incumbent
elective officials must first resign their posts before they can be appointed, thus running the risk of losing
the elective post as well as not being appointed to the other post. It is therefore clear that ineligibility is not
directly related with forfeiture of office. ". . . . The effect is quite different where it is expresslyprovided by
law that a person holding one office shall be ineligible to another. Such a provision is held to incapacitate
the incumbent of an office from accepting or holding a second office (State ex rel. Van Antwerp v Hogan,
283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to render his election or
appointment to the latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65 NW 262. Annotation:
40 ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)."
26
"Where the
constitution, or statutes declare that persons holding one office shall be ineligible for election or
appointment to another office, either generally or of a certain kind, the prohibition has been held to
incapacitate the incumbent of the first office to hold the second so that any attempt to hold the second is
void (Ala. State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)."
27

As incumbent elective official, respondent Gordon is ineligible for appointment to the position of Chairman
of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a legislative act
that contravenes the Constitution cannot be sustained. He however remains Mayor of Olongapo City, and
his acts as SBMA official are not necessarily null and void; he may be considered a de facto officer, "one
whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold
valid so far as they involve the interest of the public and third persons, where the duties of the office were
exercised . . . . under color of a known election or appointment, void because the officer was not eligible,
or because there was a want of power in the electing or appointing body, or by reason of some defect or
irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public . . . .
[or] under color of an election, or appointment, by or pursuant to a public unconstitutional law, before the
same is adjudged to be such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231;
21 Am. Dec., 213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)."
28

Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other
emoluments which may have been received by respondent Gordon pursuant to his appointment may be
retained by him.
The illegality of his appointment to the SBMA posts being now evident, other matters affecting the legality
of the questioned proviso as well as the appointment of said respondent made pursuant thereto need no
longer be discussed.
In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he expressed in
the floor deliberations of S.B. 1648, precursor of R.A. 7227, when he articulated
. . . . (much) as we would like to have the present Mayor of Olongapo City as the Chief
Executive of this Authority that we are creating; (much) as I, myself, would like to
because I know the capacity, integrity, industry and dedication of Mayor Gordon; (much)
as we would like to give him this terrific, burdensome and heavy responsibility, we cannot
do it because of the constitutional prohibition which is very clear. It says: "No elective
official shall be appointed or designated to another position in any capacity."
29

For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of storms or a
rock in the ocean amidst the raging of the waves."
30
One of the characteristics of the Constitution is
permanence, i.e., "its capacity to resist capricious or whimsical change dictated not by legitimate needs
but only by passing fancies, temporary passions or occasional infatuations of the people with ideas or
personalities . . . . Such a Constitution is not likely to be easily tampered with to suit political expediency,
personal ambitions or ill-advised agitation for change."
31

Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.
WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however, That
for the first year of its operations from the effectivity of this Act, the Mayor of the City of Olongapo shall be
appointed as the chairman and chief executive officer of the Subic Authority," is declared unconstitutional;
consequently, the appointment pursuant thereto of the Mayor of Olongapo City, respondent Richard J.
Gordon, is INVALID, hence NULL and VOID.
However, all per diems, allowances and other emoluments received by respondent Gordon, if any, as
such Chairman and Chief Executive Officer 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, Grio-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo and
Quiason, JJ., concur.
Padilla, J., is on leave.





Flores v. Drilon
Facts:
The constitutionality of Sec. 13, par. (d), of R.A. 7227, otherwise known as the "Bases Conversion and
Development Act of 1992," under which Mayor Richard J. Gordon of Olongapo City was appointed
Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority(SBMA), is challenged in
this original petition for prohibition, preliminary injunction and temporary restraining order. Under said
provision, 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.
Petitioners, as taxpayers: that said provision is unconstitutional as under 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," 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", since it was Congress through the questioned
proviso and not the President who appointed the Mayor to the subject posts; and, (c) Sec. 261, par. (g), of
the Omnibus Election Code.
Issue:
WON the proviso in Sec. 13, par. (d), of R.A. 7227 violates the constitutional proscription against
appointment or designation of elective officials to other government posts
Held:
Yes.
Ratio:
The rule 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 (CLU case), should be allowed to attend to his duties and responsibilities without the
distraction of other governmental duties or employment. He should be precluded from dissipating his
efforts, attention and energy among too many positions of responsibility, which may result in
haphazardness and inefficiency.
o In this case, the proviso directs the President to appoint an elective official, i. e., the
Mayor of Olongapo, to other government posts (as Chairman of the Board and CEO of
SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it
needs no stretching of the imagination to conclude that the proviso contravenes Sec. 7,
par.1, Art.IX-B, of the Constitution. 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.
There is the clear-cut difference in the wording of the two (2) paragraphs of Sec. 7,Art. IX-B, of
the Constitution. While par. 2 authorizes holding of multiple offices by an appointive official when allowed
by law or by the primary functions of his position, par.1 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 recognized in the Constitution itself.
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 CLU case, where we stated that the prohibition against the
holding of any other office or employment by the President and his official family 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 additional compensation.
o 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. 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, par. 1, had they considered
the SBMA posts as ex officio. It is a legislative choice."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. Congress intended the posts to be
appointive, thus nibbling in the bud the argument that they are ex officio.
Petitioners: 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 CEO
of SBMA, although he really has no choice under the law but to appoint the Mayor of Olongapo City.
o In the case at bar, while Congress willed that the subject posts be filled with a
presidential appointee for the first year of its operations from the effectivity of R.A. 7227,
the proviso nevertheless limits the appointing authority to only one eligible, i. e., the
incumbent Mayor of Olongapo City. Since only one can qualify for the posts in question,
the President is precluded from exercising his discretion to choose whom to appoint.
Such supposed power of appointment, sans the essential element of choice, is no power
at all and goes against the very nature itself of appointment. While it may be viewed that
the proviso merely sets the qualifications of the officer during the first year of operations
of SBMA, i. e., he must be the Mayor of Olongapo City, it is manifestly an abuse of
congressional authority to prescribe qualifications where only one, and no other, can
qualify.
Where, as in the case of 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 the appointive position, his appointment or designation thereto cannot be valid in view of his
disqualification or lack of eligibility.
Hence, Gordon is ineligible for appointment to the position in SBMA; hence, his appointment
pursuant to a legislative act that contravenes the Constitution cannot be sustained. He however remains
Mayor of Olongapo City, and his acts in SBMA are not necessarily 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] under color of an election, or appointment, by or pursuant to a public unconstitutional law,
before the same is adjudged to be such.

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

The undisputed facts:
On November 23, 1992, petitioner Zosimo M. Dimaandal, then holding the position of Supply Officer
III, was designated Acting Assistant Provincial Treasurer for Administration by then Governor Vicente A.
Mayo of Batangas. Pursuant to the designation, petitioner filed a claim for the difference in salary and
Representation and Transportation Allowance (RATA) of Assistant Provincial Treasurer and Supply
Officer III for the whole year of 1993 in the total amount of P61,308.00.
However, the Provincial Auditor disallowed in audit P52,908.00 of the claim. What was allowed was
only the amount of P8,400.00 which corresponds to the difference in the allowances attached to the
designation and the position occupied by the appellant. The disallowance was premised on the following
reasons:
1. The provisions of Section 2077 of the Revised Administrative Code is not applicable in the instant
case as the power to fill the position of Assistant Provincial Treasurer rests on the Secretary of Finance.
2. The designation is temporary in nature and does not amount to the issuance of an appointment as
could entitle the designee to receive the salary of the position to which he is designated (Opinion of the
Director, Office for Legal Affairs, Civil Service Commission dated January 25, 1994).
On August 3, 1994, Governor Mayo wrote to the Provincial Auditor requesting reconsideration of the
subject disallowance, interposing the following reasons:
1. That Section 2077 of the Revised Administrative Code is applicable in the instant case as the same
provides that the Governor General or the officer having the power to fill-up a temporary absence or
disability in the provincial office has the power to order or authorize payment of compensation to any
government officer or employee designated or appointed temporarily to fill the place;
2. That the budget containing an appropriation for the position of Assistant Provincial Treasurer for
Administration was already approved by the Provincial Board; and
3. That Mr. Dimaandal at the time of his designation as Acting Provincial Treasurer for Administration was
no longer performing the duties and functions of Supply Officer III."
The Provincial Auditor, however, denied the request for reconsideration. Appellant was required to
refund the amount of P52,908.00 which was disallowed.
Petitioner appealed to the respondent Commission on Audit which sustained the stand of the
Provincial Auditor of Batangas as valid and proper. The respondent Commission was of the view that the
petitioner was merely designated as an Assistant Provincial Treasurer for Administration in addition to his
regular duties. As such, he is not entitled to receive an additional salary. The Commission further opined
that petitioner was likewise not entitled to receive the difference in RATA provided for under the Local
Budget Circular issued by the Department of Budget and Management considering that the party
designating him to such position is not the duly competent authority, provided for under Section 471 of
the Local Government Code. Notably, petitioner was appointed as Assistant Provincial Treasurer for
Administration by the Secretary of Finance only on July 8, 1994.
Thus, the respondent Commission not only affirmed the disallowance of the amount of P52,908.00
but likewise disallowed the claim for the RATA differential in the amount of P8,400.00, for being devoid of
any legal basis. Petitioner was, therefore, directed to refund the salary and RATA differential in the
amount of P61,308.00.
Hence, this petition.
The issue here is whether or not an employee who is designated in an acting capacity is entitled to
the difference in salary between his regular position and the higher position to which he is designated.
Petitioner avers that the respondent Commissions decision is probably not in accordance with
applicable decisions of the Supreme Court.
[3]
He cites the cases of Cui, et. al. vs. Ortiz, et. al.,
[4]
April 29,
1960; and, Menzon vs. Petilla, May 20, 1991,
[5]
which laid down the rule that de facto officers are entitled
to salary for services actually rendered. Petitioner contends that he may be considered as a de facto
officer by reason of services rendered in favor of the Province of Batangas. He then posits the view that
to disallow his compensation and in the process allow the Province of Batangas to keep and enjoy the
benefits derived from his services actually rendered would be tantamount to deprivation of property
without due process of law, and impairment of obligation of contracts duly enshrined in the Constitution.
On the other hand, the respondent Commission, through the Office of the Solicitor General,
maintains that the decisions cited by petitioner do not find application in petitioners case. In the case
of Menzon, what was extended was an appointment to the vacant position of Vice-Governor. Here, what
was extended to petitioner was not an appointment but a mere designation. Thus, the nature of
petitioners designation and in the absence of authority of the Governor to authorize the payment of the
additional salary and RATA without the appropriate resolution from the Sangguniang Panlalawigan does
not make the ruling on de facto officers applicable in this case.
We find the petition to be without merit.
We are not persuaded by petitioners insistence that he could still claim the salary and RATA
differential because he actually performed the functions pertaining to the office of Acting Assistant
Provincial Treasurer and, therefore, entitled to the salary and benefits attached to it despite the fact that
the Governor of Batangas had no authority to designate him to the said position.
The law applicable is Section 471(a) of RA 7160 otherwise known as the Local Government Code
which mandates that:
Sec. 471. Assistant Treasurers. - (a) An assistant treasurer may be appointed by the Secretary of
Finance from a list of at least three (3) ranking eligible recommendees of the governor or mayor, subject
to civil service law, rules and regulations.
x x x x x x x x x
In fact, the appointing officer is authorized by law to order the payment of compensation to any
government officer or employee designated or appointed to fill such vacant position, as provided under
Section 2077 of the Revised Administrative Code which states that:
"Section 2077. Compensation for person appointed to temporary service.
x x x x x x x x x
In case of the temporary absence or disability of a provincial officer or in case of a vacancy in a
provincial office, the President of the Philippines or officer having the power to fill such position may, in
his discretion, order the payment of compensation, or additional compensation, to any Government officer
or employee designated or appointed temporarily to fill the place, but the total compensation paid shall
not exceed the salary authorized by law for the position filled.
Undoubtedly, the aforecited laws do not authorize the Provincial Governor to appoint nor even
designate one temporarily in cases of temporary absence or disability or a vacancy in a provincial office.
That power resides in the President of the Philippines or the Secretary of Finance.
Necessarily, petitioners designation as Assistant Provincial Treasurer for Administration by
Governor Mayo being defective, confers no right on the part of petitioner to claim the difference in the
salaries and allowances attached to the position occupied by him.
Moreover, what was extended to petitioner by Governor Mayo was merely a designation not an
appointment. The respondent Commission clearly pointed out the difference between an appointment
and designation, thus:
There is a great difference between an appointment and designation. While an appointment is the
selection by the proper authority of an individual who is to exercise the powers and functions of a given
office, designation merely connotes an imposition of additional duties, usually by law, upon a person
already in the public service by virtue of an earlier appointment (Santiago vs. COA, 199 SCRA 125).
Designation is simply the mere imposition of new or additional duties on the officer or employee to be
performed by him in a special manner. It does not entail payment of additional benefits or grant upon the
person so designated the right to claim the salary attached to the position (COA Decision No. 95-087
dated February 2, 1995). As such, there being no appointment issued, designation does not entitle the
officer designated to receive the salary of the position. For the legal basis of an employees right to claim
the salary attached thereto is a duly issued and approved appointment to the position (Opinion dated
January 25, 1994 of the Office for Legal Affairs, Civil Service Commission, Re: Evora, Carlos, A. Jr.,
Designation).
[6]

This Court has time and again ruled that:
Although technically not binding and controlling on the courts, the construction given by the agency or
entity charged with the enforcement of a statute should be given great weight and respect (In re Allen, 2
Phil. 630, 640), particularly so if such construction, as in the case at bar, has been uniform, and
consistent, and has been observed and acted on for a long period of time (Molina vs. Rafferty, 38 Phil.
167; Madrigal vs. Rafferty, 38 Phil. 414; Philippine Sugar Central vs. Collector of Customs, 51 Phil.
143).
[7]

We see no justifiable reason to sustain petitioners argument that non-payment of his salary
differential and RATA would be a violation of his constitutional right against deprivation of property without
due process of law and the non-impairment of obligation of contracts clause in the Constitution.
The right to the salary of an Assistant Provincial Treasurer is based on the assumption that the
appointment or designation thereof was made in accordance with law. Considering that petitioners
designation was without color of authority, the right to the salary or an allowance due from said office
never existed. Stated differently, in the absence of such right, there can be no violation of any
constitutional right nor an impairment of the obligation of contracts clause under the Constitution.
The nature of petitioners designation and the absence of authority of the Governor to authorize the
payment of the additional salary and RATA without the appropriate resolution from the Sangguniang
Panlalawigan does not make him a de facto officer.
A de facto officer is defined as one who derives his appointment from one having colorable authority
to appoint, if the office is an appointive office, and whose appointment is valid on its face. It is likewise
defined as one who is in possession of an office, and is discharging its duties under color of authority, by
which is meant authority derived from an appointment, however irregular or informal, so that the
incumbent be not a mere volunteer.
[8]
Then a de facto officer is one who is in possession of an office in
the open exercise of its functions under color of an election or an appointment, even though such election
or appointment may be irregular.
[9]

Petitioner invokes in his favor the ruling in Menzon vs. Petilla,
[10]
that a de facto officer is entitled to
receive the salary for services actually rendered. However, his reliance on the Menzoncase is
misplaced. In Menzon, what was extended was an appointment to the vacant position of Vice-
Governor, in petitioners case, he was designated. The appointment of Menzon had the color of
validity. This Court said:
And finally, even granting that the President, acting through the Secretary of Local Government,
possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled
to compensation. There is no denying that the petitioner assumed the Office of the Vice-Governor under
a color of a known appointment. As revealed by the records, the petitioner was appointed by no less than
the alter ego of the President, The Secretary of Local Government, after which he took his oath of office
before Senator Alberto Romulo in the Office of Department of Local Government Regional Director Res
Salvatierra. Concededly, the appointment has the color of validity.
Likewise, the doctrine in Cui, et. al. vs. Ortiz, et. al.
[11]
does not apply in petitioners
case. In Cui, this Court held:
Petitioners appointments on December 1 and 12, 1955 by the then mayor of the municipality were legal
and in order, the appointing mayor still in possession of his right to appoint. For such appointments to be
complete, the approval of the President of the Philippines is required. The law provides that pending
approval of said appointment by the President, the appointee may assume office and receive salary for
services actually rendered. Accordingly, therefore, in that duration until the appointment is finally acted
upon favorably or unfavorably, the appointees may be considered as de facto officers and entitled to
salaries for services actually rendered.
Finally, the appointment signed by Finance Undersecretary Juanita D. Amatong is dated July 8,
1994. Petitioners claim that the appointment retro-acts to his assumption of office is not confirmed by the
express phraseology of the appointment itself, which states:
Kayo ay nahirang na ASSISTANT PROVINCIAL TREASURER FOR ADMINISTRATION na may
katayuang PERMANENT sa OFFICE OF THE PROVINCIAL TREASURER OF BATANGAS sa
pasahod na ONE HUNDRED TWENTY ONE THOUSAND SIX HUNDRED TWENTY (P121,620.00)
P.A. piso. Ito ay magkakabisa sa petsa ng pagganap ng tungkulin subalit di aaga sa petsa ng pagpirma
ng puno ng tanggapan o appointing authority.
[12]

The subsequent appointment of petitioner to the position on July 8, 1994, cannot justify petitioners
retention of the excess amount of P61,308.00, which corresponds to the amount disallowed and ordered
refunded by COA representing the salary and RATA in excess of what was due him in 1993.
WHEREFORE, premises considered, the petition is hereby DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing and Purisima, JJ., concur.

DIMAANDAL vs COA
Facts:
Dimaandal, Supply Officer III, was designated Acting Assistant Provincial Treasurer for Administration by
Governor of Batangas. Dimaandal filed a claim for the difference in salary and Representation and
Transportation Allowance (RATA) in the total amount of P61,308.00.
Provincial Auditor disallowed in audit P52,908.00 of the claim. The disallowances was premised on the
reason that the designation is temporary in nature and does not amount to the issuance of an
appointment as could entitle the designee to receive the salary of the position to which he is designated
Dimaandal appealed to the respondent COA which sustained the stand of the Provincial Auditor. COA
was of the view that the petitioner was merely designated as an Assistant Provincial Treasurer for
Administration in addition to his regular duties. As such, he is not entitled to receive an additional salary.
Contention of Dimaandal: Cites cases which laid down the rule that de facto officers are entitled to
salary for services actually rendered. Dimaandal contends that he may be considered as a de facto officer
by reason of services rendered in favor of the Province of Batangas.
Issue:
WON Dimaandal is considered a de facto officer, who is designated in an acting capacity, and therefore,
is entitled to the difference in salary between his regular position and the higher position to which he is
designated.
Decision:
No. The nature of Dimaandals designation and the absence of authority of the Governor to authorize the
payment of the additional salary and RATA without the appropriate resolution from the Sangguniang
Panlalawigan does not make him a de facto officer.
A de facto officer is defined as one who derives his appointment from one having colorable authority to
appoint, if the office is an appointive office, and whose appointment is valid on its face. It is likewise
defined as one who is in possession of an office, and is discharging its duties under color of authority, by
which is meant authority derived from an appointment, however irregular or informal, so that the
incumbent be not a mere volunteer.
Ratio 1: Governors Absence of Authority. The law applicable is Section 471(a) of RA 7160 otherwise
known as the Local Government Code which mandates that:
Sec. 471. Assistant Treasurers. (a) An Assistant treasurer may be appointed by the
Secretary of Finance from a list of at least three (3) ranking eligible recommendees of the
governor or mayor, subject to civil service law, rules and regulations.
Aforementioned law does not authorize the Provincial Governor to appoint nor even designate one
temporarily in cases of temporary absence or disability or a vacancy in a provincial office. That power
resides in the President of the Philippines or the Secretary of Finance.
Ratio 2: Nature of designation. What was extended to Dimaandal was merely a designation not an
appointment. While an appointment is the selection by the proper authority of an individual who is to
exercise the powers and functions of a given office, designation merely connotes an imposition of
additional duties, usually by law, upon a person already in the public service by virtue of an earlier
appointment. As such, there being no appointment issued, designation does not entitle the officer
designated to receive the salary of the position. For the legal basis of an employee's right to claim the
attached thereto is a duly issued and approved appointment to the position.






















Atty. ANGEL AGUIRRE JR. as City Legal Officer of Manila; Atty. DOMINADOR MAGLALANG, Atty.
MA. THERESA BALAGTAS and Atty. ANALYN T. MARCELO, all members of the Legal Panel of the
Office of the City Legal Officer of Manila, petitioners,
vs.
EVANGELINE C. DE CASTRO, respondents.
PANGANIBAN, J .:
The city legal officer of Manila has no disciplinary authority over the chief of the Legal Affairs and
Complaint Services of the Division of City Schools of Manila. Inasmuch as the said official was appointed
by and is a subordinate of the regional director of the Department of Education, Culture and Sports, she is
subject to the supervision and control of said director. The power to appoint carries the power to remove
or to discipline. The mere fact that her salary is sourced from city funds does not ipso facto place her
under the city legal officer's disciplinary jurisdiction, absent any clear statutory basis therefor.
The Case
Before this Court is a Petition for Review on Certiorari
1
under Rule 45 of the Rules of Court seeking
reversal of the October 22, 1996 Decision
2
of the Court of Appeals (CA)
3
in CA-GR SP No. 40183, the
dispositive portion of which reads:
WHEREFORE, premises considered, the petition is GRANTED and the public
respondent City Legal Office of Manila is directed to permanently cease and desist from
further proceeding with Administrative Case CLO No. 24-96.
4

Likewise assailed is the CA's December 23, 1996 Resolution
5
denying reconsideration.
The Facts
The undisputed facts of the case are summarized by the Court of Appeals as follows:
[Respondent]
6
Atty. Evangeline C. De Castro is the Chief of the Legal Affairs and
Complaint Services of the Division of City Schools of Manila. On February 1, 1996,
[respondent] received a letter from public respondent Angel Aguirre, Jr., City Legal
Officer of Manila accompanied by copies of alleged complaints against her. [Respondent]
was required in the said letter to explain within seventy two (72) hours upon receipt why
no administrative sanctions shall be imposed upon her for gross misconduct and conduct
unbecoming . . . a public officer in violation of the Civil Service Law, Rules and
Regulations.
On February 6, 1996, [Respondent] Evangeline de Castro filed her answer-affidavit which
was received on the same day by the Office of the City Legal Officer.
Subsequently, on February 13, 1996, City Legal Officer Angel Aguirre, Jr. notified the
[respondent] that her answer-affidavit was found unsatisfactory for which reason she was
summoned to appear before the said City Legal Officer for the purpose of conducting a
formal investigation.
Two (2) days later or on February 15, 1996, [respondent] filed a motion to dismiss. She
claimed that she [was] a subordinate of the Secretary of the Department of Education,
Culture and Sports (DECS). Thus, the case should be endorsed to the Office of the
DECS Secretary or its legal division as nowhere in RA 409, Charter of the City of Manila
is there a provision conferring upon the Office of the City Legal Officer jurisdiction to try
and investigate personnel of the DECS in general, or the Division of City Schools where
petitioner is under, in particular.
This motion to dismiss of [respondent] was denied in a resolution of the City Legal Officer
dated February 21, 1996 citing Sec. 455 b(1) and (V) of the Local Government Code and
Section 3(c) of the same code. In the said resolution it was held that the records of the
personnel office disclose[d] that [respondent was] included in the plantilla of the City of
Manila and therefore her salary derived wholly and mainly from the funds of the City for
which reason she [was] subject to the disciplinary authority of the said City Legal Officer.
Thereafter, on February 26, 1996, [respondent] was notified to appear before the panel
formed by the City Legal Officer (CLO Panel) to hear administrative case CLO 24-96 filed
against her for grave misconduct and conduct unbecoming . . . a public officer.
[Respondent] filed a motion to reconsider the resolution dated February 21, 1996. This
motion was again denied by the CLO panel in its order dated March 6, 1996.
Again, [respondent] moved to reconsider the above order which was likewise denied in
the resolution of the CLO panel dated March 18, 1996.
7

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

Issue
The solitary issue presented for the Court's consideration is "whether or not the Office of the City Legal
Officer of Manila has jurisdiction to investigate the complaint for grave misconduct filed against the
respondent."
10

This Court's Ruling
The Petition is bereft of merit.
Sole Issue:
Jurisdiction of the City Legal Officer
Petitioners contend that respondent is a city employee under the supervision of the city mayor, because
her salary is paid by the City of Manila. They base this argument on Section 455 (b-1-v)
11
of the Local
Government Code (LGC), which authorizes the city mayor to appoint city employees whose salaries and
wages are wholly or mainly paid out of city funds; and on Section 455 (b-1-x),
12
which states that the
mayor may institute administrative or judicial proceedings against erring city officials or employees.
Petitioners' contentions are not persuasive. Under Book IV, Chapter V, Section 7(4) of the Administrative
Code of 1987, the power to appoint and discipline first-level employees, which include respondent, is
specifically lodged with the regional director of the Department of Education, Culture and Sports.
xxx xxx xxx
(4) Appoint personnel to positions in the first level and casual and seasonal employees;
and exercise disciplinary actions over them in accordance with the Civil Service Law.
This is also clear in Book V, Section 47 (2) of the same Code; and in Section 32, Rule XIV of the
Omnibus Rules Implementing Book V of the Administrative Code of 1987.
Sec. 32. The Secretaries and heads of agencies and instrumentalities, provinces, cities,
and municipalities shall have jurisdiction to investigate and decide matters involving
disciplinary action against officers and employees under their jurisdiction. . . . .
We agree with the CA that the LGC did not automatically repeal the provisions in the 1987 Administrative
Code, contrary to petitioners' argument. There is no provision in the LGC expressly rescinding the
authority of the DECS regional director to appoint and exercise disciplinary authority over first-level
employees. On the other hand, "implied repeals are not lightly presumed in the absence of a clear and
unmistakable showing of such intention."
13

Furthermore, respondent's position as senior legal officer in the Division of City Schools is not one of the
offices covered by the city mayor's power of appointment under the LGC.
Sec. 454. Officials of the City Government. (a) There shall be in each city a mayor, a
vice-mayor, sangguniang panlungsod members, a secretary to the sangguniang
panlungsod, a city treasurer, a city assessor, a city accountant, a city budget officer, a
city planning and development coordinator, a city engineer, a city health officer, a city civil
registrar, a city administrator, a city legal officer, a city veterinarian, a city social welfare
and development officer, and a city general services officer.
(b) In addition thereto, the city mayor may appoint a city architect, a city information
officer, a city agriculturist, a city population officer, a city environment and natural
resources officer, and a city cooperatives officer.
xxx xxx xxx
14

Moreover, petitioners failed to show a specific provision in the LGC showing that the power to discipline
officials in the Division of City Schools has been devolved from the regional director of the DECS to the
city mayor. All that Section 17 (4) of the Local Government Code states is that the city must provide
support for education and other such services and facilities.
Likewise, Section 455 (b-1-x) of the Local Government Code, which provides that the city mayor "may
cause to be instituted administrative or judicial proceedings against any official or employee of the city," is
not necessarily incompatible with the provisions of the Administrative Code of 1987 authorizing the
regional director to discipline national education employees. Nothing prohibits the mayor from filing
complaints against respondent before the DECS.
Petitioners cite paragraph 12, Section 2 (a) of Executive Order (EO) 503, which states that devolved
personnel are automatically reappointed by the local chief executive. Since respondent was deemed
reappointed by the city mayor, it follows that the latter can exercise disciplinary authority over her.
We are not convinced. First, the above provision applies to devolved personnel, and there is no proof
whatsoever that respondent is one of them. Second, even if respondent can be considered as a devolved
personnel, the cited paragraph of EO 503 must not be read in isolation from but in conjunction with the
other paragraphs in Section 2 (a).
Thus, paragraph 12 along with paragraphs 5, 6, 8, 13 and 14
15
of EO 503 deals with safeguards
against termination, reduction of pay and diminution in rank of existing personnel; it is not about the
power of the mayor to discipline personnel of the Division of City Schools. In effect, the said provision
serves more to limit the appointing authority of the city mayor, whose acts must be circumscribed by the
aforecited conditions. It is not incompatible and can exist with aforecited provisions of the Administrative
Code. Indeed, it cannot be deemed to have divested the regional director of his disciplining power.
As to petitioners' argument that respondent's salary is wholly or mainly paid out of city funds, suffice it to
say that the source of the wages is not the only criteria in determining whether the payor may be deemed
the employer. In fact, the most important factor is the control test; that is, who has the power to supervise
and direct the work of the employee concerned?
Absent any contrary statutory provision, the power to appoint carries with it the power to remove or to
discipline.
16
Since respondent was appointed by the regional director of DECS, she may be disciplined or
removed by the latter pursuant to law.
Finally, respondent's primary duty is to conduct investigations of cases involving teaching and
nonteaching personnel of the Division of City Schools of Manila. The report on the results of her
investigations is then submitted for final evaluation to the DECS regional director, who may approve,
disapprove or allow respondent to modify it. This fact clearly shows that supervision over respondent is
lodged with the regional director, not the mayor.
All in all, petitioners have not convinced us that the Court of Appeals committed any reversible error.
WHEREFORE, the Petition is hereby DISMISSED and the assailed Decision AFFIRMED. Costs against
petitioners.
CIVIL SERVICE COMMISSION,
Petitioner,
- versus -
ENGR. ALI P. DARANGINA,
Respondent.









D E C I S I O N


SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Review on Certiorari under Rule 45 of the 1997 Rules of
Civil Procedure, as amended, seeking to reverse the Resolutions of the Court of Appeals dated October
7, 2004
[1]
and March 18, 2005
[2]
in CA-G.R. SP No. 71353.
The undisputed facts are:
Engr. Ali P. Darangina, respondent, was a development management officer V in the Office of
Muslim Affairs (OMA). On September 25, 2000, he was extended a temporary promotional appointment
as director III, Plans and Policy Services, in the same office. On October 11, 2000, the Civil Service
Commission (CSC), petitioner, approved this temporary appointment effective for one (1) year from the
date of its issuance unless sooner terminated.
On October 31, 2000, newly appointed OMA Executive Director Acmad Tomawis terminated the
temporary appointment of respondent on the ground that he is not a career executive service
eligible. Tomawis then appointed Alongan Sani as director III. But he is not also a career executive
service eligible. Thus, the CSC disapproved his appointment, stating that respondent could only be
replaced by an eligible.
On appeal by respondent, the CSC issued Resolution No. 01-1543 dated September 18,
2001 sustaining the termination of his temporary appointment but ordering the payment of his salaries
from the time he was appointed on September 25, 2000 until his separation on October 31, 2000.
Respondent filed a motion for reconsideration. On March 20, 2002, the CSC issued Resolution No.
02-439 granting the same with modification in the sense that respondent should be paid his backwages
from the time his employment was terminated on October 11, 2000 until September 24, 2001, the
expiration of his one year temporary appointment.
On April 3, 2002, respondent filed a motion for partial reconsideration, praying for his reinstatement
as director III and payment of backwages up to the time he shall be reinstated.

On June 5, 2002, the CSC issued Resolution No. 02-782 denying respondents motion for partial
reconsideration being a second motion for reconsideration which is prohibited.
Respondent then filed a petition for review with the Court of Appeals, docketed as CA-G.R. SP No.
71353. But in its Resolution of February 27, 2004, the petition was dismissed for his failure
to implead the OMA Executive Director and the incumbent of the disputed position.
Respondent filed a motion for reconsideration.
In a Resolution dated October 7, 2004, the Court of Appeals reconsidered its Decision of February
27, 2004, thus:
ACCORDINGLY, our Decision of February 27, 2004 is RECONSIDERED and the
assailed CSC resolutions are hereby MODIFIED in that the petitioner is reinstated to
his post to finish his 12-month term with backwages from the date of his removal
until reinstatement.
SO ORDERED.
The CSC filed a motion for reconsideration but it was denied by the Court of Appeals in a
Resolution dated March 28, 2005.
Section 27, Chapter 5, Subtitle A, Title I, Book V of the Administrative Code of 1987, as amended,
classifying the appointment status of public officers and employees in the career service, reads:

SEC. 27. Employment Status. Appointment in the career service shall be
permanent or temporary.

(1) Permanent status. A permanent appointment shall be issued to a person who
meets all the requirements for the position to which he is being appointed,
including appropriate eligibility prescribed, in accordance with the provisions of
law, rules and standards promulgated in pursuance thereof.

(2) Temporary appointment. In the absence of appropriate eligibles and it becomes
necessary in the public interest to fill a vacancy, a temporary appointment shall
be issued to a person who meets all the requirements for the position to which
he is being appointed except the appropriate civil service eligibility: Provided,
That such temporary appointment shall not exceed twelve months, but the
appointee may be replaced sooner if a qualified civil service eligible becomes
available.

It is clear that a permanent appointment can issue only to a person who possesses all the
requirements for the position to which he is being appointed, including the appropriate
eligibility.
[3]
Differently stated, as a rule, no person may be appointed to a public office unless he or she
possesses the requisite qualifications. The exception to the rule is where, in the absence of
appropriate eligibles, he or she may be appointed to it merely in a temporary capacity. Such a temporary
appointment is not made for the benefit of the appointee. Rather, an acting or temporary appointment
seeks to prevent a hiatus in the discharge of official functions by authorizing a person to discharge the
same pending the selection of a permanent appointee.
[4]
In Cuadra v. Cordova,
[5]
this Court defined a
temporary appointment as one made in an acting capacity, the essence of which lies in its temporary
character and its terminability at pleasure by the appointing power. Thus, the temporary appointee
accepts the position with the condition that he shall surrender the office when called upon to do so by the
appointing authority. Under Section 27 (2), Chapter 5, Subtitle A, Title I, Book V of the same Code, the
term of a temporary appointment shall be 12 months, unless sooner terminated by the appointing
authority. Such pre-termination of a temporary appointment may be with or without cause as the
appointee serves merely at the pleasure of the appointing power.
[6]

Under the Revised Qualifications Standards prescribed by the CSC, career executive service
eligibility is a necessary qualification for the position of director III in Plans and Policy Services, OMA. It
is not disputed that on September 25, 2000, when respondent was extended an appointment, he was not
eligible to the position, not being a holder of such eligibility. Hence, his appointment was properly
designated as temporary. Then on October 31, 2000, newly-appointed OMA Executive
Director Tomawis recalled respondents temporary appointment and replaced him by
appointing Alongan Sani. It turned out, however, that Sani is not likewise qualified for the post. A game
of musical chairs then followed. Sani was subsequently replaced by Tapa Umal, who in turn, was
succeeded by Camad Edres, and later, was replaced by Ismael Amod. All these appointees were also
disqualified for lack of the required eligibility.
The Court of Appeals ruled that such replacements are not valid as the persons who replaced
respondent are not also eligible. Also, since he was replaced without just cause, he is entitled to serve the
remaining term of his 12-month term with salaries.
This Court has ruled that where a non-eligible holds a temporary appointment, his replacement by
another non-eligible is not prohibited.
[7]

Moreover, in Achacoso
[8]
cited earlier, this Court held that when a temporary appointee is required
to relinquish his office, he is being separated precisely because his term has expired. Thus,
reinstatement will not lie in favor of respondent. Starkly put, with the expiration of his term upon his
replacement, there is no longer any remaining term to be served. Consequently, he can no longer
be reinstated.
As to whether respondent is entitled to back salaries, it is not disputed that he was paid his salary
during the entire twelve-month period in spite of the fact that he served only from September 25,
2000 to October 31, 2000, or for only one month and six days. Clearly, he was overpaid.
WHEREFORE, this Court GRANTS the petition and REVERSES the assailed Resolutions of the
Court of Appeals. Considering that respondents employment was validly terminated on October 31,
2000, he is ordered to refund the salaries he received from that date up to September 24, 2001.
No costs.
SO ORDERED.


PATRICIO E. SALES, ROGER R. SARIMOS, AL B. BUSICO, MARIMEL S. SAGARIO, CAMILA B.
BAGCOR, JONAS C. SALON, LILIBETH O. OBERES, NOEL E. MAWILI, MARIO C. PAUSAL, JAMES
D. TUGAHAN, MARIBETH C. DANGCALAN, CAMILO P. RECAMARA, ANDRO H. AGDA,
GERALDINE S. CARIN, MYRNA G. SAGARIO, OSCAR E. MONCOPA, LOURDIRICO E. GUDMALIN,
EUFEMIO A. MONTEDERAMOS, JR., CORNELIO E. JUMAWAN, JR., ELBA R. CASALANG, MERLA
E. CAIDIC, RESTY C. SOCOBOS, JOSE DARRY O. SAGARION, MARIA LUZ S. SIENES, BOB C.
HAYAG, RONIE L. LABISIG, FRANNIE M. ANTIVO, RONILO B. RUIZ, ANASTACIA A. PAILAGA,
LERNIE S. FREJOLES, ROMILO D. BAJAS, ISIDRA T. GALLEPOSO, LEAH S. AUSTER,
JOIEVELYNN E. HERRERA, JOELYALLUZ C. DOSIDOS, GLADYS M. ADAZA, NICARATA A.
GALLEPOSO, MARIA LIEZEL S. CUARESMA, ARLO B. CAGATAN, JOSEPHINE S. CABILIN, LEA C.
ALAG, PILAR A. JAMOLOD, and BENJAMIN M. SUMALPONG, Petitioners,
vs.
HON. RODOLFO H. CARREON, JR., and THE CITY GOVERNMENT OF DAPITAN CITY, represented
by its Mayor, Hon. RODOLFO H. CARREON, JR., Respondents.
D E C I S I O N
SANDOVAL-GUTIERREZ, J .:
For our resolution is the instant Petition for Review on Certiorari assailing the Decision
1
of the Court of
Appeals dated September 16, 2003 in CA-G.R. SP No. 75515.
During the May 2001 elections, then Mayor Joseph Cedrick O. Ruiz of Dapitan City, running for re-
election, was defeated by respondent Rodolfo H. Carreon, Jr.
On June 1, 18 and 27, 2001, his last month in office, then Dapitan City Mayor Ruiz issued 83
appointments, including those of herein petitioners.
On July 1, 2001, the newly elected Mayor, Rodolfo H. Carreon, Jr., herein respondent, assumed office.
On July 2, 2001, respondent issued Memorandum Orders Nos. 1 and 2 revoking the 83 appointments
signed by his predecessor on the ground that the latter violated Civil Service Commission (CSC)
Resolution No. 01-988 in relation to CSC Memorandum Circular No. 7, Series of 2001, imposing a ban on
issuing appointments in the civil service during the election period. Thereupon, respondent prohibited the
release of the salaries and benefits of the 83 appointees.
On July 10, 2001, Patricio Sales, one of herein petitioners, in his capacity as president of the Dapitan City
Government Employees Association, wrote the CSC Regional Office No. IX requesting its ruling on the
matter.
On July 16 and August 3, 2001, respondent sent the said Office a position paper justifying his action,
contending that the questioned appointments were not only "issued in bulk" but that there was no urgent
need to fill those positions.
On August 17, 2001, the CSC Regional Office No. IX issued an Omnibus Order, the dispositive portion of
which reads:
WHEREFORE, all premises considered:
1. The eighty-three (83) appointments issued by then Mayor Joseph Cedrick O. Ruiz, including
those issued by the herein requesting parties, are, therefore not considered "mass
appointments," as defined under CSC Resolution No. 01-0988 and are thus, VALID and
EFFECTIVE.
2. Memorandum Orders Nos. 1 and 2, Series of 2001, issued by Mayor Rodolfo H. Carreon, Jr.,
are hereby declared NULL and VOID, and accordingly,
3. The LGU-Dapitan is hereby directed to pay the salaries and other emoluments to which the 83
appointments are entitled to pursuant to the appointments issued to them.
On appeal by respondent, the CSC En Banc, on June 17, 2002, issued Resolution No. 020828 reversing
the assailed Omnibus Order of the CSC Regional Office No. IX, thus:
WHEREFORE, premises considered, the Omnibus Order dated August 17, 2001of the Civil Service
Commission Regional Office No. IX is
REVERSED and SET ASIDE. The Commission hereby rules, as follows:
1. The approval of all 83 appointments issued by then Mayor J. Cedrick O. Ruiz is revoked for
being violative of Republic Act No. 7041, CSC Memorandum Circular No. 18 s. 1988, as
amended, CSC Resolution No. 963332 on its accreditation and CSC Resolution No. 01-
0988.1awphi1.net
2. All promoted employees are reverted to their previous position; and
3. Memorandum Order No. 1 and Memorandum Order No. 2 issued by incumbent Mayor Rodolfo
H. Carreon, Jr. are hereby declared null and void.
The CSC En Banc held that the positions in question were published and declared vacant prior to the
existence of any vacancy.
Petitioners filed a motion for reconsideration but it was denied in Resolution No. 030049 dated January
16, 2003 by the CSC En Banc.
On February 13, 2003, petitioners filed with the Court of Appeals a petition for review. On September 16,
2003, the appellate court rendered its Decision dismissing the petition, sustaining the CSCs finding that
the positions to which the petitioners were appointed were already reported and published even before
they had been declared vacant, in violation of Sections 2 and 3 of Republic Act (R.A.) No. 7041;
2
and that
there was no first level representative to the Personnel Section Board who should have participated in the
screening of candidates for vacancy in the first level.
Petitioners filed a motion for reconsideration, but this was denied by the Court of Appeals in its Resolution
dated November 17, 2003.
Hence, the instant petition.
This case is a typical example of the practice of outgoing local chief executives to issue "midnight"
appointments, especially after their successors have been proclaimed. It does not only cause animosities
between the outgoing and the incoming officials, but also affects efficiency in local governance. Those
appointed tend to devote their time and energy in defending their appointments instead of attending to
their functions. However, not all "midnight" appointments are invalid.
3
Each appointment must be judged
on the basis of the nature, character, and merits of the individual appointment and the circumstances
surrounding the same.
4
It is only when the appointments were made en masse by the outgoing
administration and shown to have been made through hurried maneuvers and under circumstances
departing from good faith, morality, and propriety that this Court has struck down "midnight"
appointments.
5

It is State policy that "opportunities for government employment shall be open to all qualified citizens" and
"employees shall be selected on the basis of fitness to perform the duties and assume the responsibilities
of the positions."
6
It was precisely in order to ensure transparency and equal opportunity in the
recruitment and hiring of government personnel, that Republic Act No. 7041 was enacted. Section 2
provides:
SEC. 2. Duty of Personnel Officers. It shall be the duty of all Chief Personnel or Administrative Officers
of all branches, subdivisions, instrumentalities and agencies of the Government, including government-
owned or controlled corporations with original charters, and local government units, to post in three (3)
conspicuous places of their offices for a period ten (10) days a complete list of all existing vacant
positions in their respective offices which are authorized to be filled, and to transmit a copy of such list
and the corresponding qualification standards to the Civil Service Commission not later than the tenth day
of every month. Vacant positions shall not be filled until after publication: Provided, however, that
vacant and unfilled positions that are:
a) primarily confidential;
b) policy-determining;
c) highly technical;
d) co-terminous with that of the appointing authority; or
e) limited to the duration of a particular project, shall be excluded from the list required by law.
SEC. 3. Publication of Vacancies. The Chairman and members of the Civil Service Commission shall
publish once every quarter a complete list of all the existing vacant positions in the Government
throughout the country, including the qualification standards required for each position and, thereafter,
certify under oath to the completion of publication. Copies of such publication shall be sold at cost to the
public and distributed free of charge to the various personnel office of the government where they shall be
available for inspection by the public: Provided, That said publication shall be posted by the Chief
Personnel or Administrative Officer of all local government units in at least three (3) public and
conspicuous places in their respective municipalities and provinces: Provided, further, That any vacant
position published therein shall be open to any qualified person who does not necessarily belong to the
same office with the vacancy or who occupies a position next-in-rank to the vacancy: Provided,
finally, That the Civil Service Commission shall not act on any appointment to fill up a vacant
position unless the same has been reported to and published by the Commission.
The foregoing provisions are clear and need no interpretation. The CSC is required to publish the lists of
vacant positions and such publication shall be posted by the chief personnel or administrative officer of all
local government units in the designated places. The vacant positions may only be filled by the appointing
authority after they have been reported to the CSC as vacant and only after publication.
Here, the publication of vacancies was made even before the positions involved actually became vacant.
Clearly, respondents action violated Section 2 of R.A. No. 7041 cited earlier.
Moreover, the CSC found that there was no first-level representative appointed to the Personnel
Selection Board, which deliberated on the appointments to first-level positions.
CSC Memorandum Circular No. 18, series of 1988, as amended, provides that the Personnel Selection
Board shall be composed of the following:
a. Official of department/agency directly responsible for personnel management;
b. Representative of management;
c. Representative of organizational unit which may be an office, department, or division where the
vacancy is;
d. Representative of rank-and-file employees, one (1) for the first-level and one (1) for the
second-level, who shall both be chosen by duly registered/accredited employees association in
the department or agency. The former shall sit during the screening of candidates for
vacancy in the first-level, while the latter shall participate in the screening of candidates for
vacancy in the second level. In case where there is no employees association in the department
or agency, the representative shall be chosen at large by the employees through a general
election to be called for the purpose.
Petitioners admitted that after the retirement on April 22, 2000 of Beltran Faconete, the first-level
representative to the Personnel Selection Board, no other first-level representative to replace him was
chosen by the Dapitan City Government Employees Association. Yet, the city government Personnel
Selection Board proceeded to deliberate and recommend the appointments of applicants to the 43 first-
level positions. Petitioners contend, however, that although there was no such representative, the action
of the Board is still valid.
Petitioners contention lacks merit.
Section 20, Rule VI of the Omnibus Rules Implementing Book V-A of the Administrative Code of 1987
(also known as the Civil Service Law), provides:
SEC. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the
following grounds:
a) non-compliance with the procedures/criteria provided in the agencys Merit Promotion Plan;
b) failure to pass through the agencys Selection/Promotion Board;
c) violation of the existing collective bargaining agreement between management and employees
relative to promotion; or
d) violation of other existing civil service laws, rules and regulations.
Verily, in deliberating and recommending to former Mayor Ruiz the appointments of herein petitioners to
the vacant positions sans the required representation, the Board violated the above CSC Rules. Hence,
the appointments he issued are not valid. They may be recalled. In Mathay, Jr. v. Civil Service
Commission,
7
this Court upheld the authority of the CSC to take appropriate action on all
appointments, including its authority to recall appointments made in disregard of the applicable
provisions of Civil Service Law and regulations.
In sum, for being in violation of Section 2, R.A. No. 7041, CSC Memorandum Circular No. 18, as
amended, and Section 20, Rule VI of the Omnibus Rules Implementing Book V-A of the Administrative
Code of 1987, the appointments of the above-named petitioners are declared void.
WHEREFORE, the Court DENIES the petition and AFFIRMS the assailed Decision of the Court of
Appeals in CA-G.R. SP No. 755151.
SO ORDERED.
ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA ARAA, Petitioners,
vs.
OFFICE OF THE OMBUDSMAN, RICARDO AGON, RAMON VILLASANTA, ELMER DIZON,
SALVADOR ADUL, and AGNES FABIAN, Respondents,
D E C I S I O N
CARPIO MORALES, J .:
Petitioners Vicente Salumbides, Jr. (Salumbides) and Glenda Araa (Glenda) challenge the October 11,
2007 Decision and the December 13, 2007 Resolution of the Court of Appeals
1
in CA-G.R. SP No. 96889
affirming the Office of the Ombudsman's decision finding them guilty of Simple Neglect of Duty.
Salumbides and Glenda were appointed in July 2001 as Municipal Legal Officer/Administrator and
Municipal Budget Officer, respectively, of Tagkawayan, Quezon.
Towards the end of 2001, Mayor Vicente Salumbides III (the mayor) saw the urgent need to construct a
two-classroom building with fence (the projects) for the Tagkawayan Municipal High School
2
(TMHS)
since the public school in the poblacion area would no longer admit high school freshmen starting school
year 2002-2003. On how to solve the classroom shortage, the mayor consulted Salumbides who
suggested that the construction of the two-classroom building be charged to the account of the
Maintenance and Other Operating Expenses/ Repair and Maintenance of Facilities (MOOE/RMF) and
implemented "by administration," as had been done in a previous classroom building project of the former
mayor.
Upon consultation, Glenda advised Salumbides in December 2001, that there were no more available
funds that could be taken from the MOOE/RMF, but the savings of the municipal government were
adequate to fund the projects. She added, however, that the approval by the Sangguniang Bayan of a
proposed supplemental budget must be secured.
The members of the Sangguniang Bayan having already gone on recess for the Christmas holidays,
Glenda and Salumbides advised the mayor to source the funds from the P1,000,000 MOOE/RMF
allocation in the approved Municipal Annual Budget for 2002.
3

The mayor thus ordered on January 8, 2002 Municipal Engineer Jose Aquino (Aquino) to proceed with
the construction of the projects based on the program of work and bill of materials he (Aquino) prepared
with a total cost estimate of P222,000.
Upon advice of Municipal Planning and Development Officer Hernan Jason (Jason), the mayor included
the projects in the list of local government projects scheduled for bidding on January 25, 2002 which,
together with the January 31, 2002 public bidding, failed.
The mayor was to admit later his expectation or assumption of risk on reimbursement:
x x x It was my thinking that even if a bidder emerges and gets these 2 projects which were at the time
on-going (although it was also my thinking then that no bidder would possibly bid for these 2 projects as
these were cost-estimated very low-P150,000 for the 2-room school building P72,000 for the fencing) he
(bidder) would be reasonable enough to reimburse what I had so far spen[t] for the project. I said "I"
because up to the time of the failed 2 biddings I have shouldered the "vale" of the laborers and I
requisitioned some materials on credit on my own personal account, and not a single centavo was at the
time disbursed by our municipal treasury until all requirements for negotiated purchase of the materials
for the project had been accomplished. As a matter of fact,payments for the expenses on these 2 projects
have been made only starting 19 March 2002. x x x
4
(underscoring supplied)
The construction of the projects commenced without any approved appropriation and ahead of the public
bidding. Salumbides was of the opinion that the projects were regular and legal, based on an earlier
project that was "implemented in the same manner, using the same source of fund and for the same
reason of urgency" which was allowed "because the building was considered merely temporary as the
TMHS is set to be transferred to an 8-hectare lot which the municipal government is presently negotiating
to buy."
5

Meanwhile, Aquino suggested to the Sangguniang Bayan the adoption of "model guidelines" in the
implementation of infrastructure projects to be executed "by administration," while Councilor Coleta
Sandro (Coleta) sponsored a Resolution to ratify the projects and to authorize the mayor to enter into a
negotiated procurement. Both actions did not merit the approval of the Sangguniang Bayan.
On May 13, 2002, herein respondents Ricardo Agon, Ramon Villasanta, Elmer Dizon, Salvador Adul and
Agnes Fabian, all members of the Sangguniang Bayan of Tagkawayan, filed with the Office of the
Ombudsman a complaint
6
against Salumbides and Glenda (hereafter petitioners), the mayor, Coleta,
Jason and Aquino.
The administrative aspect of the case, docketed as Case No. OMB-L-A-02-0276-E, charged petitioners et
al. with Dishonesty, Grave Misconduct, Gross Neglect of Duty, Conduct Prejudicial to the Best Interest of
the Service, and violation of the Commission on Audit (COA) Rules and the Local Government Code.
By Order of June 14, 2002, the Office of the Ombudsman, denied the prayer to place petitioners et al.
under preventive suspension pending investigation. By Order dated February 1, 2005, approved on April
11, 2005, it denied the motion for reconsideration but dropped the mayor and Coleta, both elective
officials, as respondents in the administrative case, the 2004 elections having mooted the case. The
parties were thereupon directed to submit their respective verified position papers to which petitioners,
Jason and Aquino complied by submitting a consolidated position paper on May 19, 2005.
Meanwhile, in response to the subpoena duces tecum issued by the Office of the Ombudsman on
February 18, 2005 requiring the regional officer of the COA to submit the post-audit report on the projects,
Celerino Alviar, COA State Auditor II claimed by Affidavit of May 23, 2005 that the required documents
were among those razed by fire on April 14, 2004 that hit the Office of the Municipal Accountant where
they were temporarily stored due to lack of space at the Provincial Auditor's Office.1avvphi1
On October 17, 2005, the Office of the Ombudsman approved the September 9, 2005
Memorandum absolving Jason and Aquino, and finding petitioners guilty of Simple Neglect of Duty, for
which they were meted the penalty of suspension from office for a maximum period of six months with a
stern warning against a similar repetition. It also approved on November 2, 2006 the March 27, 2006
Order
7
denying the motion for reconsideration.
Their recourse to the appellate court having failed, petitioners come before this Court via Rule 45 of the
Rules of Court.
For non-compliance with the rule on certification against forum shopping, the petition merits outright
dismissal. The verification portion of the petition does not carry a certification against forum shopping.
8

The Court has distinguished the effects of non-compliance with the requirement of verification and that of
certification against forum shopping. A defective verification shall be treated as an unsigned pleading and
thus produces no legal effect, subject to the discretion of the court to allow the deficiency to be remedied,
while the failure to certify against forum shopping shall be cause for dismissal without prejudice, unless
otherwise provided, and is not curable by amendment of the initiatory pleading.
9

Petitioners' disregard of the rules was not the first. Their motion for extension of time to file petition was
previously denied by Resolution of January 15, 2008
10
for non-compliance with the required showing of
competent proof of identity in the Affidavit of Service. The Court, by Resolution of March 4, 2008,
11
later
granted their motion for reconsideration with motion to admit appeal (Motion with Appeal) that was filed
on February 18, 2008 or the last day of filing within the extended period.
Moreover, in their Manifestation/Motion
12
filed a day later, petitioners prayed only for the admission of
nineadditional copies of the Motion with Appeal "due to honest inadvertence" in earlier filing an insufficient
number of copies. Petitioners were less than candid when they surreptitiously submitted a Motion with
Appeal which isdifferent from the first set they had submitted. The second set of Appeal includes specific
Assignment of Errors
13
and already contains a certification against forum shopping
14
embedded in the
Verification. The two different Verifications were notarized by the same notary public and bear the same
date and document number.
15
The rectified verification with certification, however, was filed beyond the
reglementary period.
Its lapses aside, the petition just the same merits denial.
Petitioners urge this Court to expand the settled doctrine of condonation
16
to cover coterminous
appointive officials who were administratively charged along with the reelected official/appointing authority
with infractions allegedly committed during their preceding term.
The Court rejects petitioners' thesis.
More than 60 years ago, the Court in Pascual v. Hon. Provincial Board of Nueva Ecija
17
issued the
landmark ruling that prohibits the disciplining of an elective official for a wrongful act committed during his
immediately preceding term of office. The Court explained that "[t]he underlying theory is that each term is
separate from other terms, and that the reelection to office operates as a condonation of the officer's
previous misconduct to the extent of cutting off the right to remove him therefor."
18

The Court should never remove a public officer for acts done prior to his present term of office. To do
otherwise would be to deprive the people of their right to elect their officers. When the people elect[e]d a
man to office, it must be assumed that they did this with knowledge of his life and character, and that they
disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by
reason of such faults or misconduct[,] to practically overrule the will of the people.
19
(underscoring
supplied)
Lizares v. Hechanova, et al.
20
replicated the doctrine. The Court dismissed the petition in that case for
being moot, the therein petitioner "having been duly reelected, is no longer amenable to administrative
sanctions."
21

Ingco v. Sanchez, et al.
22
clarified that the condonation doctrine does not apply to a criminal
case.
23
Luciano v. The Provincial Governor, et al.,
24
Olivarez v. Judge Villaluz,
25
and Aguinaldo v.
Santos
26
echoed the qualified rule that reelection of a public official does not bar prosecution for crimes
committed by him prior thereto.
Consistently, the Court has reiterated the doctrine in a string of recent jurisprudence including two cases
involving a Senator and a Member of the House of Representatives.
27

Salalima v. Guingona, Jr.
28
and Mayor Garcia v. Hon. Mojica
29
reinforced the doctrine. The condonation
rule was applied even if the administrative complaint was not filed before the reelection of the public
official, and even if the alleged misconduct occurred four days before the elections,
respectively. Salalima did not distinguish as to the date of filing of the administrative complaint, as long as
the alleged misconduct was committed during the prior term, the precise timing or period of
which Garcia did not further distinguish, as long as the wrongdoing that gave rise to the public official's
culpability was committed prior to the date of reelection.
Petitioners' theory is not novel.
A parallel question was involved in Civil Service Commission v. Sojor
30
where the Court found no basis to
broaden the scope of the doctrine of condonation:
Lastly, We do not agree with respondent's contention that his appointment to the position of president of
NORSU, despite the pending administrative cases against him, served as a condonation by the BOR of
the alleged acts imputed to him. The doctrine this Court laid down in Salalima v. Guingona, Jr. and
Aguinaldo v. Santos are inapplicable to the present circumstances. Respondents in the mentioned cases
are elective officials, unlike respondent here who is an appointed official. Indeed, election expresses the
sovereign will of the people. Under the principle of vox populi est suprema lex, the re-election of a
public official may, indeed, supersede a pending administrative case. The same cannot be said of
a re-appointment to a non-career position.There is no sovereign will of the people to speak of when
the BOR re-appointed respondent Sojor to the post of university president.
31
(emphasis and underscoring
supplied)
Contrary to petitioners' asseveration, the non-application of the condonation doctrine to appointive
officials does not violate the right to equal protection of the law.
In the recent case of Quinto v. Commission on Elections,
32
the Court applied the four-fold test in an equal
protection challenge
33
against the resign-to-run provision, wherein it discussed the material and
substantive distinctions between elective and appointive officials that could well apply to the doctrine of
condonation:
The equal protection of the law clause is against undue favor and individual or class privilege, as well as
hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is
limited either in the object to which it is directed or by territory within which it is to operate. It does not
demand absolute equality among residents; it merely requires that all persons shall be treated alike,
under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal
protection clause is not infringed by legislation which applies only to those persons falling within a
specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making
a distinction between those who fall within such class and those who do not.
Substantial distinctions clearly exist between elective officials and appointive officials. The former
occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite
term and may be removed therefrom only upon stringent conditions. On the other hand, appointive
officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive
officials hold their office in a permanent capacity and are entitled to security of tenure while others serve
at the pleasure of the appointing authority.
x x x x
An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power
of the people. It involves the choice or selection of candidates to public office by popular vote.
Considering that elected officials are put in office by their constituents for a definite term, x x x complete
deference is accorded to the will of the electorate that they be served by such officials until the end of the
term for which they were elected. In contrast, there is no such expectation insofar as appointed officials
are concerned. (emphasis and underscoring supplied)
The electorate's condonation of the previous administrative infractions of the reelected official cannot be
extended to that of the reappointed coterminous employees, the underlying basis of the rule being to
uphold the will of the people expressed through the ballot. In other words, there is neither subversion of
the sovereign will nor disenfranchisement of the electorate to speak of, in the case of reappointed
coterminous employees.
It is the will of the populace, not the whim of one person who happens to be the appointing authority, that
could extinguish an administrative liability. Since petitioners hold appointive positions, they cannot claim
the mandate of the electorate. The people cannot be charged with the presumption of full knowledge of
the life and character of each and every probable appointee of the elective official ahead of the latter's
actual reelection.
Moreover, the unwarranted expansion of the Pascual doctrine would set a dangerous precedent as it
would, as respondents posit, provide civil servants, particularly local government employees, with blanket
immunity from administrative liability that would spawn and breed abuse in the bureaucracy.
Asserting want of conspiracy, petitioners implore this Court to sift through the evidence and re-assess the
factual findings. This the Court cannot do, for being improper and immaterial.
Under Rule 45 of the Rules of Court, only questions of law may be raised, since the Court is not a trier of
facts.
34
As a rule, the Court is not to review evidence on record and assess the probative weight thereof.
In the present case, the appellate court affirmed the factual findings of the Office of the Ombudsman,
which rendered the factual questions beyond the province of the Court.
Moreover, as correctly observed by respondents, the lack of conspiracy cannot be appreciated in favor of
petitioners who were found guilty of simple neglect of duty, for if they conspired to act negligently, their
infraction becomes intentional.
35
There can hardly be conspiracy to commit negligence.
36

Simple neglect of duty is defined as the failure to give proper attention to a task expected from an
employee resulting from either carelessness or indifference.
37
In the present case, petitioners fell short of
the reasonable diligence required of them, for failing to exercise due care and prudence in ascertaining
the legal requirements and fiscal soundness of the projects before stamping their imprimatur and giving
their advice to their superior.
The appellate court correctly ruled that as municipal legal officer, petitioner Salumbides "failed to uphold
the law and provide a sound legal assistance and support to the mayor in carrying out the delivery of
basic services and provisions of adequate facilities when he advised [the mayor] to proceed with the
construction of the subject projects without prior competitive bidding."
38
As pointed out by the Office of the
Solicitor General, to absolve Salumbides is tantamount to allowing with impunity the giving of erroneous
or illegal advice, when by law he is precisely tasked to advise the mayor on "matters related to upholding
the rule of law."
39
Indeed, a legal officer who renders a legal opinion on a course of action without any
legal basis becomes no different from a lay person who may approve the same because it appears
justified.
As regards petitioner Glenda, the appellate court held that the improper use of government funds upon
the direction of the mayor and prior advice by the municipal legal officer did not relieve her of liability for
willingly cooperating rather than registering her written objection
40
as municipal budget officer.
Aside from the lack of competitive bidding, the appellate court, pointing to the improper itemization of the
expense, held that the funding for the projects should have been taken from the "capital outlays" that refer
to the appropriations for the purchase of goods and services, the benefits of which extend beyond the
fiscal year and which add to the assets of the local government unit. It added that current operating
expenditures like MOOE/RMF refer to appropriations for the purchase of goods and services for the
conduct of normal local government operations within the fiscal year.
41

In Office of the Ombudsman v. Tongson,
42
the Court reminded the therein respondents, who were guilty
of simple neglect of duty, that government funds must be disbursed only upon compliance with the
requirements provided by law and pertinent rules.
Simple neglect of duty is classified as a less grave offense punishable by suspension without pay for one
month and one day to six months. Finding no alleged or established circumstance to warrant the
imposition of the maximum penalty of six months, the Court finds the imposition of suspension without
pay for three months justified.
When a public officer takes an oath of office, he or she binds himself or herself to faithfully perform the
duties of the office and use reasonable skill and diligence, and to act primarily for the benefit of the public.
Thus, in the discharge of duties, a public officer is to use that prudence, caution, and attention which
careful persons use in the management of their affairs.
43

Public service requires integrity and discipline. For this reason, public servants must exhibit at all times
the highest sense of honesty and dedication to duty. By the very nature of their duties and
responsibilities, public officers and employees must faithfully adhere to hold sacred and render inviolate
the constitutional principle that a public office is a public trust; and must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty and efficiency.
44

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 96889
are AFFIRMED with MODIFICATION, in that petitioners, Vicente Salumbides, Jr. and Glenda Araa, are
suspended from office for three (3) months without pay.
SO ORDERED.
















Title Two: Elective Officials
Qualifications
RAMON L. LABO, JR., petitioner,
vs.
THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS L. LARDIZABAL, respondents
CRUZ, J .:
The petitioner asks this Court to restrain the Commission on Elections from looking into the question of
his citizenship as a qualification for his office as Mayor of Baguio City. The allegation that he is a
foreigner, he says, is not the issue. The issue is whether or not the public respondent has jurisdiction to
conduct any inquiry into this matter, considering that the petition for quo warranto against him was not
filed on time.
It is noteworthy that this argument is based on the alleged tardiness not of the petition itself but of the
payment of the filing fee, which the petitioner contends was an indispensable requirement. The fee is,
curiously enough, all of P300.00 only. This brings to mind the popular verse that for want of a horse the
kingdom was lost. Still, if it is shown that the petition was indeed filed beyond the reglementary period,
there is no question that this petition must be granted and the challenge abated.
The petitioner's position is simple. He was proclaimed mayor-elect of Baguio City, on January 20, 1988.
The petition for quo warranto was filed by the private respondent on January 26, 1988, but no filing fee
was paid on that date. This fee was finally paid on February 10, 1988, or twenty-one days after his
proclamation. As the petition by itself alone was ineffectual without the filing fee, it should be deemed filed
only when the fee was paid. This was done beyond the reglementary period provided for under Section
253 of the Omnibus Election Code reading as follows:
SEC. 253. Petition for quo warranto. Any voter contesting the election of a Member of
the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility
or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo
warranto with the Commission within ten days after the proclamation of the result of the
election.
The petitioner adds that the payment of the filing fee is required under Rule 36, Section 5, of the
Procedural Rules of the COMELEC providing that
Sec. 5. No petition for quo warranto shall be given due course without the payment of a
filing fee in the amount of Three Hundred Pesos (P300.00) and the legal research fee as
required by law.
and stresses that there is abundant jurisprudence holding that the payment of the filing fee is essential to
the timeliness of the filling of the petition itself. He cites many rulings of the Court to this effect,
specifically Manchester v. Court of Appeals.
1

For his part, the private respondent denies that the filing fee was paid out of time. In fact he says, it was
fliedahead of time. His point is that when he filed his "Petition for Quo Warranto with Prayer for Immediate
Annulment of Proclamation and Restraining Order or Injunction" on January 26, 1988, the COMELEC
treated it as a pre-proclamation controversy and docketed it as SPC Case No. 88-288. No docket fee was
collected although it was offered. It was only on February 8, 1988, that the COMELEC decided to treat his
petition as solely for quo warranto and re-docketed it as EPC Case No. 88-19, serving him notice on
February 10, 1988. He immediately paid the filing fee on that date.
The private respondent argues further that during the period when the COMELEC regarded his petition as
a pre-proclamation controversy, the time for filing an election protest or quo warranto proceeding was
deemed suspended under Section 248 of the Omnibus Election Code.
2
At any rate, he says, Rule 36,
Section 5, of the COMELEC Rules of Procedure cited by the petitioner, became effective only on
November 15, 1988, seven days after publication of the said Rules in the Official Gazette pursuant to
Section 4, Rule 44 thereof.
3
These rules could not retroact to January 26,1988, when he filed his petition
with the COMELEC.
In his Reply, the petitioner argues that even if the Omnibus Election Code did not require it, the payment
of filing fees was still necessary under Res. No. 1996 and, before that, Res. No. 1450 of the respondent
COMELEC, promulgated on January 12, 1988, and February 26, 1980, respectively. To this, the private
respondent counters that the latter resolution was intended for the local elections held on January 30,
1980, and did not apply to the 1988 local elections, which were supposed to be governed by the first-
mentioned resolution. However, Res. No. 1996 took effect only on March 3, 1988, following the lapse of
seven days after its publication as required by RA No. 6646, otherwise known as the Electoral Reform
Law of 1987, which became effective on January 5, 1988. Its Section 30 provides in part:
Sec. 30. Effectivity of Regulations and Orders of the Commission. The rules and
regulations promulgated by the Commission shall take effect on the seventh day after
their publication in the Official Gazette or in at least (2) daily newspapers of general
circulation in the Philippines.
The Court has considered the arguments of the parties and holds that the petition for quo warranto was
filed on time. We agree with the respondents that the fee was paid during the ten-day period as extended
by the pendency of the petition when it was treated by the COMELEC as a pre-proclamation proceeding
which did not require the payment of a filing fee. At that, we reach this conclusion only on the assumption
that the requirement for the payment of the fees in quo warranto proceedings was already effective.
There is no record that Res. No. 1450 was even published; and as for Res. No. 1996, this took effect only
on March 3, 1988, seven days after its publication in the February 25, 1988 issues of the Manila
Chronicle and the Philippine Daily Inquirer, or after the petition was filed.
The petitioner forgets Ta;ada v. Tuvera
4
when he argues that the resolutions became effective
"immediately upon approval" simply because it was so provided therein. We held in that case that
publication was still necessary under the due process clause despite such effectivity clause.
In any event, what is important is that the filing fee was paid, and whatever delay there may have been is
not imputable to the private respondent's fault or neglect. It is true that in the Manchester Case, we
required the timely payment of the filing fee as a precondition for the timeliness of the filing of the case
itself. In Sun Insurance Office, Ltd. v. Asuncion,
5
however this Court, taking into account the special
circumstances of that case, declared:
This Court reiterates the rule that the trial court acquires jurisdiction over a case only
upon the payment of the prescribed filing fee. However, the court may allow the payment
of the said fee within a reasonable time. In the event of non-compliance therewith, the
case shall be dismissed.
The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure adopted on
June 20, 1988, thus:
Sec. 18. Non-payment of prescribed fees. If the fees above prescribed are not paid,
theCommission may refuse to take action thereon until they are paid and may dismiss the
action or the proceeding. (Emphasis supplied.)
The Court notes that while arguing the technical point that the petition for quo warranto should be
dismissed for failure to pay the filing fee on time, the petitioner would at the same time minimize his
alleged lack of citizenship as "a futile technicality," It is regrettable, to say the least, that the requirement
of citizenship as a qualification for public office can be so demeaned. What is worse is that it is regarded
as an even less important consideration than the reglementary period the petitioner insists upon.
This matter should normally end here as the sole issue originally raised by the petitioner is the timeliness
of thequo warranto proceedings against him. However, as his citizenship is the subject of that proceeding,
and considering the necessity for an early resolution of that more important question clearly and urgently
affecting the public interest, we shall directly address it now in this same action.
The Court has similarly acted in a notable number of cases, thus:
From the foregoing brief statement of the nature of the instant case, it would appear that
our sole function in this proceeding should be to resolve the single issue of whether or
not the Court of Appeals erred in ruling that the motion for new trial of the GSIS in
question should indeed be deemedpro forma. But going over the extended pleadings of
both parties, the Court is immediately impressed that substantial justice may not be
timely achieved, if we should decide this case upon such a technical ground alone. We
have carefully read all the allegations and arguments of the parties, very ably and
comprehensively expounded by evidently knowledgeable and unusually competent
counsel, and we feel we can better serve the interests of justice by broadening the scope
of our inquiry, for as the record before us stands, we see that there is enough basis for us
to end the basic controversy between the parties here and now, dispensing, however,
with procedural steps which would not anyway affect substantially the merits of their
respective claims.
6

x x x
While it is the fault of the petitioner for appealing to the wrong court and thereby allowing
the period for appeal to lapse, the more correct procedure was for the respondent court
to forward the case to the proper court which was the Court of Appeals for appropriate
action. Considering, however, the length of time that this case has been pending, we
apply the rule in the case of Del Castillo v. Jaymalin, (112 SCRA 629) and follow the
principle enunciated in Alger Electric, Inc. v. Court of Appeals, (135 SCRA 37) which
states:
... it is a cherished rule of procedure for this Court to always strive to
settle the entire controversy in a single proceeding leaving no root or
branch to bear the seeds of future litigation. No useful purpose will be
served if this case is remanded to the trial court only to have its decision
raised again to the Intermediate Appellate Court and from there to this
Court. (p. 43)
Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et al. (G.R. No.
50141, January 29, 1988), we stated that:
... But all those relevant facts are now before this Court. And those facts dictate the
rendition of a verdict in the petitioner's favor. There is therefore no point in referring the
case back to the Court of Appeals. The facts and the legal propositions involved will not
change, nor should the ultimate judgment. Considerable time has already elapsed and, to
serve the ends of justice, it is time that the controversy is finally laid to rest. (See Sotto v.
Samson, 5 SCRA 733; Republic v. Paredes, 108 Phil. 57; Lianga Lumber Co. v. Lianga
Timber Co., Inc., 76 SCRA 197; Erico v. Heirs of Chigas, 98 SCRA 575; Francisco v. City
of Davao, 12 SCRA 628; Valencia v. Mabilangan, 105 Phil. 162).lwph1.t Sound
practice seeks to accommodate the theory which avoids waste of time, effort and
expense, both to the parties and the government, not to speak of delay in the disposal of
the case (cf. Fernandez v. Garcia, 92 Phil. 592, 597). A marked characteristic of our
judicial set-up is that where the dictates of justice so demand ... the Supreme Court
should act, and act with finality.' (Li Siu Liat v. Republic, 21 SCRA 1039, 1046, citing
Samal v. CA, 99 Phil. 230 and U.S. v. Gimenez, 34 Phil. 74). In this case, the dictates of
justice do demand that this Court act, and act with finality.
7

x x x
Remand of the case to the lower court for further reception of evidence is not necessary
where the court is in a position to resolve the dispute based on the records before it. On
many occasions, the Court, in the public interest and the expeditious administration of
justice, has resolved actions on the merits instead of remanding them to the trial court for
further proceedings, such as where the ends of justice would not be subserved by the
remand of the case or when public interest demands an early disposition of the case or
where the trial court had already received all the evidence of the parties.
8

This course of action becomes all the more justified in the present case where, to repeat for stress, it is
claimed that a foreigner is holding a public office.
We also note in his Reply, the petitioner says:
In adopting private respondent's comment, respondent COMELEC implicitly adopted as
"its own" private respondent's repeated assertion that petitioner is no longer a Filipino
citizen. In so doing, has not respondent COMELEC effectively disqualified itself, by
reason of prejudgment, from resolving the petition for quo warranto filed by private
respondent still pending before it?
9

This is still another reason why the Court has seen fit to rule directly on the merits of this case.
Going over the record, we find that there are two administrative decisions on the question of the
petitioner's citizenship. The first was rendered by the Commission on Elections on May 12, 1982, and
found the petitioner to be a citizen of the Philippines.
10
The second was rendered by the Commission on
Immigration and Deportation on September 13, 1988, and held that the petitioner was not a citizen of the
Philippines.
11

The first decision was penned by then COMELEC Chigas, Vicente Santiago, Jr., with Commissioners
Pabalate Savellano and Opinion concurring in full and Commissioner Bacungan concurring in the
dismissal of the petition "without prejudice to the issue of the respondent's citizenship being raised anew
in a proper case." Commissioner Sagadraca reserved his vote, while Commissioner Felipe was for
deferring decision until representations shall have been made with the Australian Embassy for official
verification of the petitioner's alleged naturalization as an Australian.
The second decision was unanimously rendered by Chairman Miriam Defensor-Santiago and
Commissioners Alano and Geraldez of the Commission on Immigration and Deportation. It is important to
observe that in the proceeding before the COMELEC, there was no direct proof that the herein petitioner
had been formally naturalized as a citizen of Australia. This conjecture, which was eventually rejected,
was merely inferred from the fact that he had married an Australian citizen, obtained an Australian
passport, and registered as an alien with the CID upon his return to this country in 1980.
On the other hand, the decision of the CID took into account the official statement of the Australian
Government dated August 12, 1984, through its Consul in the Philippines, that the petitioner was still an
Australian citizen as of that date by reason of his naturalization in 1976. That statement
12
is reproduced
in full as follows:
I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a certificate of appointment
signed and sealed by the Australian Minister of State for Foreign Affairs on 19 October 1983, and
recognized as such by Letter of Patent signed and sealed by the Philippines Acting Minister of Foreign
Affairs on 23 November 1983, do hereby provide the following statement in response to the subpoena
Testificandum dated 9 April 1984 in regard to the Petition for disqualification against RAMON LABO, JR.
Y LOZANO (SPC No. 84-73), and do hereby certify that the statement is true and correct.
STATEMENT
A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was married in the
Philippines to an Australian citizen. As the spouse of an Australian citizen, he was not
required to meet normal requirements for the grant of citizenship and was granted
Australian citizenship by Sydney on 28 July 1976.
B) Any person over the age of 16 years who is granted Australian citizenship must take
an oath of allegiance or make an affirmation of allegiance. The wording of the oath of
affirmation is: "I ..., renouncing all other allegiance ..." etc. This need not necessarily have
any effect on his former nationality as this would depend on the citizenship laws of his
former country.
C) The marriage was declared void in the Australian Federal Court in Sydney on 27 June
1980 on the ground that the marriage had been bigamous.
D) According to our records LABO is still an Australian citizen.
E) Should he return to Australia, LABO may face court action in respect of Section 50 of
Australian Citizenship Act 1948 which relates to the giving of false or misleading
information of a material nature in respect of an application for Australian citizenship. If
such a prosecution was successful, he could be deprived of Australian citizenship under
Section 21 of the Act.
F) There are two further ways in which LABO could divest himself of Australian
citizenship:
(i) He could make a declaration of Renunciation of Australian citizenship under Section
18 of the Australian Citizenship Act, or
(ii) If he acquired another nationality, (for example, Filipino) by a formal and voluntary act
other than marriage, then he would automatically lose as Australian citizenship under
Section 17 of the Act.
IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL OF THE
AUSTRALIAN EMBASSY, MANILA, THIS 12th DAY OF APRIL 1984. DONE AT MANILA
IN THE PHILIPPINES.
(Signed) GRAHAM C. WEST Consul
This was affirmed later by the letter of February 1, 1988, addressed to the private
respondent by the Department of Foreign Affairs reading as follows:
13

Sir:
With reference to your letter dated 1 February 1988, I wish to inform you that inquiry
made with the Australian Government through the Embassy of the Philippines in
Canberra has elicited the following information:
1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July 1976.
2) That prior to 17 July 1986, a candidate for Australian citizenship had to either swear an
oath of allegiance or make an affirmation of allegiance which carries a renunciation of "all
other allegiance.
Very truly yours, For the Secretary of Foreign Affairs: (SGD) RODOLFO SEVERINO, JR.
Assistant Secretary
The decision also noted the oath of allegiance taken by every naturalized Australian reading as follows:
OATH OF ALLEGIANCE
I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful and
bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs
and successors according to law, and that I will faithfully observe the laws of Australia
and fulfill my duties as an Australian citizen.
14

and the Affirmation of Allegiance, which declares:
AFFIRMATION OF ALLEGIANCE
I, A.B., renouncing all other allegiance, solemnly and sincerely promise and declare that I
will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of
Australia, Her heirs and successors according to law, and that I will faithfully observe the
Laws of Australia and fulfill my duties as an Australian citizen.
15

The petitioner does not question the authenticity of the above evidence. Neither does he deny that he
obtained Australian Passport No. 754705, which he used in coming back to the Philippines in 1980, when
he declared before the immigration authorities that he was an alien and registered as such under Alien
Certificate of Registration No. B-323985.
16
He later asked for the change of his status from immigrant to
a returning former Philippine citizen and was granted Immigrant Certificate of Residence No.
223809.
17
He also categorically declared that he was a citizen of Australia in a number of sworn
statements voluntarily made by him and. even sought to avoid the jurisdiction of the barangay court on
the ground that he was a foreigner.
18

The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mistakes" that did not divest
the petitioner of his citizenship, although, as earlier noted, not all the members joined in this finding. We
reject this ruling as totally baseless. The petitioner is not an unlettered person who was not aware of the
consequences of his acts, let alone the fact that he was assisted by counsel when he performed these
acts.
The private respondent questions the motives of the COMELEC at that time and stresses Labo's political
affiliation with the party in power then, but we need not go into that now.
There is also the claim that the decision can no longer be reversed because of the doctrine of res
judicata, but this too must be dismissed. This doctrine does not apply to questions of citizenship, as the
Court has ruled in several cases.
19
Moreover, it does not appear that it was properly and seasonably
pleaded, in a motion to dismiss or in the answer, having been invoked only when the petitioner filed his
reply
20
to the private respondent's comment. Besides, one of the requisites of res judicata, to wit, identity
of parties, is not present in this case.
The petitioner's contention that his marriage to an Australian national in 1976 did not automatically divest
him of Philippine citizenship is irrelevant. There is no claim or finding that he automatically ceased to be a
Filipino because of that marriage. He became a citizen of Australia because he was naturalized as such
through a formal and positive process, simplified in his case because he was married to an Australian
citizen. As a condition for such naturalization, he formally took the Oath of Allegiance and/or made the
Affirmation of Allegiance, both quoted above. Renouncing all other allegiance, he swore "to be faithful and
bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia ..." and to fulfill his duties
"as an Australian citizen."
The petitioner now claims that his naturalization in Australia made him at worst only a dual national and
did not divest him of his Philippine citizenship. Such a specious argument cannot stand against the clear
provisions of CA No. 63, which enumerates the modes by which Philippine citizenship may be lost.
Among these are: (1) naturalization in a foreign country; (2) express renunciation of citizenship; and (3)
subscribing to an oath of allegiance to support the Constitution or laws of a foreign country, all of which
are applicable to the petitioner. It is also worth mentioning in this connection that under Article IV, Section
5, of the present Constitution, "Dual allegiance of citizens is inimical to the national interest and shall be
dealt with by law."
Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was annulled after it
was found that his marriage to the Australian citizen was bigamous, that circumstance alone did not
automatically restore his Philippine citizenship. His divestiture of Australian citizenship does not concern
us here. That is a matter between him and his adopted country. What we must consider is the fact that he
voluntarily and freely rejected Philippine citizenship and willingly and knowingly embraced the citizenship
of a foreign country. The possibility that he may have been subsequently rejected by Australia, as he
claims, does not mean that he has been automatically reinstated as a citizen of the Philippines.
Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act of
Congress, by naturalization, or by repatriation. It does not appear in the record, nor does the petitioner
claim, that he has reacquired Philippine citizenship by any of these methods. He does not point to any
judicial decree of naturalization as to any statute directly conferring Philippine citizenship upon him.
Neither has he shown that he has complied with PD No. 725, providing that:
... (2) natural-born Filipinos who have lost their Philippine citizenship may reacquire
Philippine citizenship through repatriation by applying with the Special Committee on
Naturalization created by Letter of Instruction No. 270, and, if their applications are
approved, taking the necessary oath of allegiance to the Republic of the Philippines, after
which they shall be deemed to have reacquired Philippine citizenship. The Commission
on Immigration and Deportation shall thereupon cancel their certificate of registration.
(Emphasis supplied.)
That is why the Commission on Immigration and Deportation rejected his application for the cancellation
of his alien certificate of registration. And that is also the reason we must deny his present claim for
recognition as a citizen of the Philippines.
The petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a citizen of
the Philippines. In fact, he was not even a qualified voter under the Constitution itself because of his
alienage.
21
He was therefore ineligible as a candidate for mayor of Baguio City, under Section 42 of the
Local Government Code providing in material part as follows:
Sec. 42. Qualifications. An elective local official must be a citizen of the Philippines, at
least twenty-three years of age on election day, a qualified voter registered as such in the
barangay, municipality, city or province where he proposes to be elected, a resident
therein for at least one year at the time of the filing of his certificate of candidacy, and
able to read and write English, Filipino, or any other local language or dialect.
The petitioner argues that his alleged lack of citizenship is a "futile technicality" that should not frustrate
the will of the electorate of Baguio City, who elected him by a "resonant and thunderous majority." To be
accurate, it was not as loud as all that, for his lead over the second-placer was only about 2,100 votes. In
any event, the people of that locality could not have, even unanimously, changed the requirements of the
Local Government Code and the Constitution. The electorate had no power to permit a foreigner owing
his total allegiance to the Queen of Australia, or at least a stateless individual owing no allegiance to the
Republic of the Philippines, to preside over them as mayor of their city. Only citizens of the Philippines
have that privilege over their countrymen.
The probability that many of those who voted for the petitioner may have done so in the belief that he was
qualified only strengthens the conclusion that the results of the election cannot nullify the qualifications for
the office now held by him. These qualifications are continuing requirements; once any of them is lost
during incumbency, title to the office itself is deemed forfeited. In the case at bar, the citizenship and
voting requirements were not subsequently lost but were not possessed at all in the first place on the day
of the election. The petitioner was disqualified from running as mayor and, although elected, is not now
qualified to serve as such.
Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition,
can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second
highest number of votes in the election, he was obviously not the choice of the people of Baguio city.
The latest ruling of the Court on this issue is Santos v. Commission on Elections
22
decided in 1985. In
that case, the candidate who placed second was proclaimed elected after the votes for his winning rival,
who was disqualified as a turncoat and considered a non-candidate, were all disregarded as stray. In
effect, the second placer won by default. That decision was supported by eight members of the Court
then
23
with three dissenting
24
and another two reserving their vote.
25
One was on official leave.
26

Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier
case ofGeronimo v. Ramos,
27
Which represents the more logical and democratic rule. That case, which
reiterated the doctrine first announced in 1912 in Topacio vs. Paredes
28
was supported by ten members
of the Court
29
without any dissent, although one reserved his vote,
30
another took no part
31
and two
others were on leave.
32
There the Court held:
... it would be extremely repugnant to the basic concept of the constitutionally guaranteed
right to suffrage if a candidate who has not acquired the majority or plurality of votes is
proclaimed a winner and imposed as the representative of a constituency, the majority of
which have positively declared through their ballots that they do not choose him.
Sound policy dictates that public elective offices are filled by those who have received the
highest number of votes cast in the election for that office, and it is a fundamental Idea in
all republican forms of government that no one can be declared elected and no measure
can be declared carried unless he or it receives a majority or plurality of the legal votes
cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.)
The fact that the candidate who obtained the highest number of votes is later declared to
be disqualified or not eligible for the office to which he was elected does not necessarily
entitle the candidate who obtained the second highest number of votes to be declared the
winner of the elective office. The votes cast for a dead, disqualified, or non-eligible
person may not be valid to vote the winner into office or maintain him there. However, in
the absence of a statute which clearly asserts a contrary political and legislative policy on
the matter, if the votes were cast in the sincere belief that the candidate was alive,
qualified, or eligible, they should not be treated as stray, void or meaningless.
It remains to stress that the citizen of the Philippines must take pride in his status as such and cherish this
priceless gift that, out of more than a hundred other nationalities, God has seen fit to grant him. Having
been so endowed, he must not lightly yield this precious advantage, rejecting it for another land that may
offer him material and other attractions that he may not find in his own country. To be sure, he has the
right to renounce the Philippines if he sees fit and transfer his allegiance to a state with more allurements
for him.
33
But having done so, he cannot expect to be welcomed back with open arms once his taste for
his adopted country turns sour or he is himself disowned by it as an undesirable alien.
Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It may
be restored only after the returning renegade makes a formal act of re-dedication to the country he has
abjured and he solemnly affirms once again his total and exclusive loyalty to the Republic of the
Philippines. This may not be accomplished by election to public office.
WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the Philippines and
therefore DISQUALIFIED from continuing to serve as Mayor of Baguio City. He is ordered to VACATE his
office and surrender the same to the Vice-Mayor of Baguio City, once this decision becomes final and
executory. The temporary restraining order dated January 31, 1989, is LIFTED.
Fernan, (C.J.), Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes,
Grio-Aquino Medialdea and Regalado, JJ., concur.















RAMON L. LABO, JR., vs. THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS L.
LARDIZABAL

In 1988, Ramon Labo, Jr. was elected as mayor of Baguio City. His rival, Luis Lardizabal filed a petition
for quo warranto against Labo as Lardizabal asserts that Labo is an Australian citizen hence disqualified;
that he was naturalized as an Australian after he married an Australian. Labo avers that his marriage with
an Australian did not make him an Australian; that at best he has dual citizenship, Australian and Filipino;
that even if he indeed became an Australian when he married an Australian citizen, such citizenship was
lost when his marriage with the Australian was later declared void for being bigamous. Labo further
asserts that even if hes considered as an Australian, his lack of citizenship is just a mere technicality
which should not frustrate the will of the electorate of Baguio who voted for him by a vast majority.

ISSUES:
1. Whether or not Labo can retain his public office.
2. Whether or not Lardizabal, who obtained the second highest vote in the mayoralty race, can replace
Labo in the event Labo is disqualified.

HELD:
1. No. Labo did not question the authenticity of evidence presented against him. He was naturalized as
an Australian in 1976. It was not his marriage to an Australian that made him an Australian. It was his act
of subsequently swearing by taking an oath of allegiance to the government of Australia. He did not
dispute that he needed an Australian passport to return to the Philippines in 1980; and that he was listed
as an immigrant here. It cannot be said also that he is a dual citizen. Dual allegiance of citizens is inimical
to the national interest and shall be dealt with by law. He lost his Filipino citizenship when he swore
allegiance to Australia. He cannot also claim that when he lost his Australian citizenship, he became
solely a Filipino. To restore his Filipino citizenship, he must be naturalized or repatriated or be declared
as a Filipino through an act of Congress none of this happened.
Labo, being a foreigner, cannot serve public office. His claim that his lack of citizenship should not
overcome the will of the electorate is not tenable. The people of Baguio could not have, even
unanimously, changed the requirements of the Local Government Code and the Constitution simply by
electing a foreigner (curiously, would Baguio have voted for Labo had they known he is Australian). The
electorate had no power to permit a foreigner owing his total allegiance to the Queen of Australia, or at
least a stateless individual owing no allegiance to the Republic of the Philippines, to preside over them as
mayor of their city. Only citizens of the Philippines have that privilege over their countrymen.

2. Lardizabal on the other hand cannot assert, through the quo warranto proceeding, that he should be
declared the mayor by reason of Labos disqualification because Lardizabal obtained the second highest
number of vote. It would be extremely repugnant to the basic concept of the constitutionally guaranteed
right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a
winner and imposed as the representative of a constituency, the majority of which have positively
declared through their ballots that they do not choose him. Sound policy dictates that public elective
offices are filled by those who have received the highest number of votes cast in the election for that
office, and it is a fundamental idea in all republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal
votes cast in the election.


JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS, and RAUL R.
LEE, respondents.
RAUL R. LEE, petitioner, vs. COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.
D E C I S I O N
PANGANIBAN, J .:
The ultimate question posed before this Court in these twin cases is: Who should be declared the
rightful governor of Sorsogon
(i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive
elections but who was twice declared by this Court to be disqualified to hold such office due to his alien
citizenship, and who now claims to have re-assumed his lost Philippine citizenship thru repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in favor of
Frivaldo should be considered void; that the electorate should be deemed to have intentionally thrown
away their ballots; and that legally, he secured the most number of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the position of
governor, but who according to prevailing jurisprudence should take over the said post inasmuch as, by
the ineligibility of Frivaldo, a "permanent vacancy in the contested office has occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies
existing jurisprudence on citizenship and elections, and upholds the superiority of substantial justice over
pure legalisms.
G.R. No. 123755.
This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and preliminary
injunction to review and annul a Resolution of the respondent Commission on Elections (Comelec), First
Division,
1
promulgated on December 19,1995
2
and another Resolution of the Comelec en
bane promulgated February 23, 1996
3
denying petitioner's motion for reconsideration.
The Facts
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the
office of Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee,
another candidate, filed a petition
4
with the Comelec docketed as SPA No. 95-028 praying that Frivaldo
"be disqualified from seeking or holding any public office or position by reason of not yet being a citizen of
the Philippines," and that his Certificate of Candidacy be cancelled. On May 1, 1995, the Second Division
of the Comelec promulgated a Resolution
5
granting the petition with the following disposition:
6

"WHEREFORE, this Division resolves to GRANT the petition and declares that respondent is
DISQUALIFIED to run for the Office of Governor of Sorsogon on the ground that he is NOT a citizen of
the Philippines. Accordingly, respondent's certificate of candidacy is cancelled."
The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8,
1995 elections. So, his candidacy continued and he was voted for during the elections held on said date.
On May 11, 1995, the Comelec en banc
7
affirmed the aforementioned Resolution of the Second Division.
The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate
of Votes
8.
dated May 27, 1995 was issued showing the following votes obtained by the candidates for the
position of Governor of Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
RaulR.Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition
9
praying for his
proclamation as the duly-elected Governor of Sorsogon.
In an order
10
dated June 21, 1995, but promulgated according to the petition "only on June 29,
1995," the Comelec en bane directed "the Provincial Board of Canvassers of Sorsogon to reconvene for
the purpose of proclaiming candidate Raul Lee as the winning gubernatorial candidate in the province of
Sorsogon on June 29,1995 x x x." Accordingly, at 8:30 in the evening ofJune 30,1995, Lee was
proclaimed governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new petition,
11
docketed as SPC No. 95-317,
praying for the annulment of the June 30, 1995 proclamation of Lee and for his own proclamation. He
alleged that on June 30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of
the Philippines after "his petition for repatriation under P.D. 725 which he filed with the Special Committee
on Naturalization in September 1994 had been granted." As such, when "the said order (dated June 21,
1995) (of the Comelec) x x x was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in
the evening, there was no more legal impediment to the proclamation (of Frivaldo) as governor x x x." In
the alternative, he averred that pursuant to the two cases of Labo vs. Comelec,
12
the Vice-Governor not
Lee should occupy said position of governor.
On December 19, 1995, the Comelec First Division promulgated the herein assailed
Resolution
13
holding that Lee, "not having garnered the highest number of votes," was not legally entitled
to be proclaimed as duly-elected governor; and that Frivaldo, "having garnered the highest number of
votes, and xxx having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the
provisions of Presidential Decree No. 725 xxx (is) qualified to hold the office of governor of Sorsogon";
thus:
"PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to GRANT the
Petition.
Consistent with the decisions of the Supreme Court, the proclamation of Raul R. Lee as Governor of
Sorsogon is hereby ordered annulled, being contrary to law, he not having garnered the highest number
of votes to warrant his proclamation.
Upon the finality of the annulment of the proclamation of Raul R. Lee, the Provincial Board of Canvassers
is directed to immediately reconvene and, on the basis of the completed canvass, proclaim petitioner
Juan G. Frivaldo as the duly elected Governor of Sorsogon having garnered the highest number of votes,
and he having reacquired his Filipino citizenship by repatriation on June 30,1995 under the provisions of
Presidential Decree No. 725 and, thus, qualified to hold the office of Governor of Sorsogon.
Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the Clerk of the Commission
is directed to notify His Excellency the President of the Philippines, and the Secretary of the Sangguniang
Panlalawigan of the Province of Sorsogon of this resolution immediately upon the due implementation
thereof."
On December 26,1995, Lee filed a motion for reconsideration which was denied by the Comelec en
banc in its Resolution
14
promulgated on February 23, 1996. On February 26, 1996, the present petition
was filed. Acting on the prayer for a temporary restraining order, this Court issued on February 27, 1996 a
Resolution which inter alia directed the parties "to maintain the status quo prevailing prior to the filing of
this petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand briefly be capsulized in the following propositions":
15

"First - The initiatory petition below was so far insufficient in form and substance to warrant the exercise
by the COMELEC of its jurisdiction with the result that, in effect, the COMELEC acted without jurisdiction
in taking cognizance of and deciding said petition;
Second- The judicially declared disqualification of respondent was a continuing condition and rendered
him ineligible to run for, to be elected to and to hold the Office of Governor;
Third - The alleged repatriation of respondent was neither valid nor is the effect thereof retroactive as to
cure his ineligibility and qualify him to hold the Office of Governor; and
Fourth - Correctly read and applied, the Labo Doctrine fully supports the validity of petitioner's
proclamation as duly elected Governor of Sorsogon."
G.R. No. 120295
This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are
also at issue in G.R. No. 123755, as follows:
1. Resolution
16
of the Second Division, promulgated on May 1, 1995, disqualifying Frivaldo from running
for governor of Sorsogon in the May 8, 1995 elections "on the ground that he is not a citizen of
the Philippines";
2. Resolution
17
of the Comelec en bane, promulgated on May 11, 1995; and
3. Resolution
18
of the Comelec en bane, promulgated also on May 11, 1995 suspending the proclamation
of, among others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in G.R. No. 123755. However, Frivaldo
assails the above-mentioned resolutions on a different ground: that under Section 78 of the Omnibus
Election Code, which is reproduced hereinunder:
"Section 78. Petition to deny due course or to cancel a certificate of candidacy. A verified petition
seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively
on the ground that any material representation contained therein as required under Section 74 hereof is
false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the
certificate of candidacy and shall be decided, after notice and hearing, not later than fifteen days before
the election." (Italics supplied.)
the Comelec had no jurisdiction to issue said Resolutions because they were not rendered "within the
period allowed by law," i.e., "not later than fifteen days before the election."
Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for
disqualification within the period of fifteen days prior to the election as provided by law is a jurisdictional
defect which renders the said Resolutions null and void.
By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they
are intimately related in their factual environment and are identical in the ultimate question
raised, viz., who should occupy the position of governor of the province of Sorsogon.
On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to
file simultaneously their respective memoranda.
The Consolidated Issues
From the foregoing submissions, the consolidated issues may be restated as follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship as to
qualify him to be proclaimed and to hold the Office of Governor? If not, may it be given retroactive effect?
If so, from when?
2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to his
eligibility to run for, be elected to or hold the governorship of Sorsogon?
3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-317 considering
that : said petition is not "a pre-proclamation case, an election protest or a quo warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing
jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed
Resolutions, all of which prevented Frivaldo from assuming the governorship of Sorsogon, considering
that they were not rendered within ( the period referred to in Section 78 of the Omnibus Election
Code, viz., "not later than fifteen days before the elections"?
The First Issue: Frivaldo's Repatriation
The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this
case. All the other matters raised are secondary to this.
The Local Government Code of 1991
19
expressly requires Philippine citizenship as a qualification for
elective local officials, including that of provincial governor, thus:
"Sec. 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered
voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang
panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be
elected; a resident therein for at least one (1) year immediately preceding the day of the election; and
able to read and write Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice governor or member of the sangguniang panlalawigan, or
mayor, vice mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least
twenty-three (23) years of age on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court
20
as a non-citizen, it is therefore incumbent
upon him to show that he has reacquired citizenship; in fine, that he possesses the qualifications
prescribed under the said statute (R. A. 7160).
Under Philippine law,
21
citizenship may be reacquired by direct act of Congress, by naturalization or
by repatriation. Frivaldo told this Court in G.R. No. 104654
22
and during the oral argument in this case
that he tried to resume his citizenship by direct act of Congress, but that the bill allowing him to do so
"failed to materialize, notwithstanding the endorsement of several members of the House of
Representatives" due, according to him, to the "maneuvers of his political rivals." In the same case, his
attempt at naturalization was rejected by this Court because of jurisdictional, substantial and procedural
defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the
electorate of Sorsogon, with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000
in 1995 over the same opponent Raul Lee. Twice, he was judicially declared a non-Filipino and thus twice
disqualified from holding and discharging his popular mandate. Now, he comes to us a third time, with a
fresh vote from the people of Sorsogon and a favorable decision from the Commission on Elections to
boot. Moreover, he now boasts of having successfully passed through the third and last mode of
reacquiring citizenship: by repatriation under P.D. No. 725, with no less than the Solicitor General himself,
who was the prime opposing counsel in the previous cases he lost, this time, as counsel for co-
respondent Comelec, arguing the validity of his cause (in addition to his able private counsel Sixto S.
Brillantes, Jr.). That he took his oath of allegiance under the provisions of said Decree at 2:00
p.m. on June 30, 1995 is not disputed. Hence, he insists that henot Leeshould have been proclaimed
as the duly-elected governor of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m. on
the said date since, clearly and unquestionably, he garnered the highest number of votes in the elections
and since at that time, he already reacquired his citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted ; with serious defects, which we shall
now discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively repealed," asserting that "then President
Corazon Aquino exercising legislative powers under the Transitory Provisions of the 1987 Constitution,
forbade the grant of citizenship by Presidential Decree or Executive Issuances as the same poses a
serious and contentious issue of policy which the present government, in the exercise of prudence and
sound discretion, should best leave to the judgment of the first Congress under the 1987 Constitution,"
adding that in her memorandum dated March 27,1987 to the members of the Special Committee on
Naturalization constituted for purposes of Presidential Decree No. 725, President Aquino directed them
"to cease and desist from undertaking any and all proceedings within your functional area of responsibility
as defined under Letter of Instructions (LOI) No. 270 dated April 11, 1975, as amended."
23

This memorandum dated March 27, 1987
24
cannot by any stretch of legal hermeneutics be
construed as a law sanctioning or authorizing a repeal of P.D. No. 725. Laws are repealed only by
subsequent ones
25
and a repeal may be express or implied. It is obvious that no express repeal
was made because then President Aquino in her memorandum based on the copy furnished us by Lee
did not categorically and/or impliedly state that P.D. 725 was being repealed or was being rendered
without any legal effect. In fact, she did not even mention it specifically by its number or text. On the other
hand, it is a basic rule of statutory construction that repeals by implication are not favored. An implied
repeal will not be allowed "unless it is convincingly and unambiguously demonstrated that the two laws
are clearly repugnant and patently inconsistent that they cannot co-exist."
26

The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for
not every pronouncement of the Chief Executive even under the Transitory Provisions of the 1987
Constitution can nor should be regarded as an exercise of her law-making powers. At best, it could be
treated as an executive policy addressed to the Special Committee to halt the acceptance and processing
of applications for repatriation pending whatever "judgment the first Congress under the 1987
Constitution" might make. In other words, the former President did not repeal P.D. 725 but left it to the
first Congress once createdto deal with the matter. If she had intended to repeal such law, she
should have unequivocally said so instead of referring the matter to Congress. The fact is she carefully
couched her presidential issuance in terms that clearly indicated the intention of "the present government,
in the exercise of prudence and sound discretion" to leave the matter of repeal to the new Congress. Any
other interpretation of the said Presidential Memorandum, such as is now being proffered to the Court by
Lee, would visit unmitigated violence not only upon statutory construction but on common sense as well.
Second. Lee also argues that "serious congenital irregularities flawed the repatriation proceedings,"
asserting that Frivaldo's application therefor was "filed on June 29, 1995 x x x (and) was approved in just
one day or on June 30, 1995 x x x," which "prevented a judicious review and evaluation of the merits
thereof." Frivaldo counters that he filed his application for repatriation with the Office of the President
in Malacanang Palace on August 17, 1994. This is confirmed by the Solicitor General. However, the
Special Committee was reactivated only on June 8, 1995, when presumably the said Committee started
processing his application. On June 29, 1995, he filled up and re-submitted the FORM that the Committee
required. Under these circumstances, it could not be said that there was "indecent haste" in the
processing of his application.
Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was
intended solely for the personal interest of respondent,"
27
the Solicitor General explained during the oral
argument on March 19, 1996 that such allegation is simply baseless as there were many others who
applied and were considered for repatriation, a list of whom was submitted by him to this Court, through a
Manifestation
28
filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced that the presumption of regularity in the
performance of official duty and the presumption of legality in the repatriation of Frivaldo have not been
successfully rebutted by Lee. The mere fact that the proceedings were speeded up is by itself not a
ground to conclude that such proceedings were necessarily tainted. After all, the requirements of
repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious and cumbersome. In
fact, P.D. 725
29
itself requires very little of an applicant, and even the rules and regulations to implement
the said decree were left to the Special Committee to promulgate. This is not unusual since, unlike in
naturalization where an alien covets a first-time entry into Philippine political life, in repatriation the
applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. In
the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully served his
country and his province prior to his naturalization in the United States a naturalization he insists was
made necessary only to escape the iron clutches of a dictatorship he abhorred and could not in
conscience embrace and who, after the fall of the dictator and the re-establishment of democratic
space, wasted no time in returning to his country of birth to offer once more his talent and services to his
people.
So too, the fact that ten other persons, as certified to by the Solicitor General, were granted
repatriation argues convincingly and conclusively against the existence of favoritism vehemently posited
by Raul Lee. At any rate, any contest on the legality of Frivaldo's repatriation should have been pursued
before the Committee itself, and, failing there, in the Office of the President, pursuant to the doctrine of
exhaustion of administrative remedies.
Third. Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could
only be effective as at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by the
Local Government Code "must exist on the date of his election, if not when the certificate of candidacy is
filed," citing our decision in G.R. 104654
30
which held that "both the Local Government Code and the
Constitution require that only Philippine citizens can run and be elected to Public office" Obviously,
however, this was a mere obiter as the only issue in said case was whether Frivaldo's naturalization was
valid or not and NOT the effective date thereof. Since the Court held his naturalization to be invalid,
then the issue of when an aspirant for public office should be a citizen was NOT resolved at all by the
Court. Which question we shall now directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or province x x x where he intends to be
elected;
* a resident therein for at least one (1) year immediately preceding the day of the election;
* able to read and write Filipino or any other local language or dialect."
* In addition, "candidates for the position of governor x x x must be at least twenty-three (23)
years of age on election day."
From the above, it will be noted that the law does not specify any particular date or time when the
candidate must possess citizenship, unlike that for residence (which must consist of at leastone year's
residency immediately preceding the day of election) and age (at least twenty three years of age on
election day).
Philippine citizenship is an indispensable requirement for holding an elective public office,
31
and the
purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing
allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Now, an
official begins to govern or to discharge his functions only upon his proclamation and on the day the law
mandates his term of office to begin. Since Frivaldo re-assumed his citizenship on June 30, 1995the
very day
32
the term of office of governor (and other elective officials) beganhe was therefore already
qualified to be proclaimed, to hold such office and to discharge the functions and responsibilities thereof
as of said date. In short, at that time, he was already qualified to govern his native Sorsogon. This is the
liberal interpretation that should give spirit, life and meaning to our law on qualifications consistent with
the purpose for which such law was enacted. So too, even from a literal (as distinguished
from liberal) construction, it should be noted that Section 39 of the Local Government Code speaks of
"Qualifications" of "ELECTIVE OFFICIALS," not of candidates. Why then should such qualification be
required at the time of election or at the time of the filing of the certificates of candidacies, as Lee insists?
Literally, such qualifications unless otherwise expressly conditioned, as in the case of age and
residence should thus be possessed when the "elective [or elected] official" begins to govern, i.e., at
the time he is proclaimed and at the start of his term in this case, on June 30, 1995. Paraphrasing this
Court's ruling in Vasquez vs. Giapand Li Seng Giap & Sons,
33
if the purpose of the citizenship
requirement is to ensure that our people and country do not end up being governed by aliens, i.e.,
persons owing allegiance to another nation, that aim or purpose would not be thwarted but instead
achieved by construing the citizenship qualification as applying to the time of proclamation of the elected
official and at the start of his term.
But perhaps the more difficult objection was the one raised during the oral argument
34
to the effect
that the citizenship qualification should be possessed at the time the candidate (or for that matter the
elected official) registered as a voter. After all, Section 39, apart from requiring the official to be a citizen,
also specifies as another item of qualification, that he be a "registered voter." And, under the law
35
a
"voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a voter-much less
a validly registered one if he was not a citizen at the time of such registration.
The answer to this problem again lies in discerning the purpose of the requirement. If the law
intended the citizenship qualification to be possessed prior to election consistent with the requirement of
being a registered voter, then it would not have made citizenship a SEPARATE qualification. The law
abhors a redundancy. It therefore stands to reason that the law intended CITIZENSHIP to be a
qualification distinct from being a VOTER, even if being a voter presumes being a citizen first. It also
stands to reason that the voter requirement was included as another qualification (aside from
"citizenship"), not to reiterate the need for nationality but to require that the official be registered as a voter
IN THE AREA OR TERRITORY he seeks to govern, i.e., the law states: "a registered voter in the
barangay, municipality, city, or province x x x where he intends to be elected." It should be emphasized
that the Local Government Code requires an elective official to be a registered voter. It does not require
him to vote actually. Hence, registrationnot the actual votingis the core of this "qualification." In other
words, the law's purpose in this second requirement is to ensure that the prospective official is actually
registered in the area he seeks to govern and not anywhere else.
Before this Court, Frivaldo has repeatedly emphasizedand Lee has not disputed that he "was
and is a registered voter of Sorsogon, and his registration as a voter has been sustained as valid by
judicial declaration x x x In fact, he cast his vote in his precinct on May 8, 1995."
36

So too, during the oral argument, his counsel stead-fastly maintained that "Mr. Frivaldo has always
been a registered voter of Sorsogon. He has voted in 1987,1988,1992, then he voted again in 1995. In
fact, his eligibility as a voter was questioned, but the court dismissed (sic) his eligibility as a voter and he
was allowed to vote as in fact, he voted in all the previous elections including on May 8,1995.
37

It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected.
There is yet another reason why the prime issue of citizenship should be reckoned from the date of
proclamation, not necessarily the date of election or date of filing of the certificate of candidacy. Section
253 of the Omnibus Election Code
38
gives any voter, presumably including the defeated candidate, the
opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the
Code that authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility arising
from failure to meet the qualifications enumerated under Sec. 39 of the Local Government Code. Such
remedy of Quo Warranto can be availed of "within ten days after proclamation" of the winning candidate.
Hence, it is only at such time that the issue of ineligibility may be taken cognizance of by the Commission.
And since, at the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was
already and indubitably a citizen, having taken his oath of allegiance earlier in the afternoon of the same
day, then he should have been the candidate proclaimed as he unquestionably garnered the highest
number of votes in the immediately preceding elections and such oath had already cured his previous
"judicially-declared" alienage. Hence, at such time, he was no longer ineligible.
But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo
RETRO ACTED to the date of the filing of his application on August 17,1994.
It is true that under the Civil Code of the Philippines,
39
"(l)aws shall have no retroactive effect, unless
the contrary is provided." But there are settled exceptions
40
to this general rule, such as when the statute
is CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS.
According to Tolentino,
41
curative statutes are those which undertake to cure errors and
irregularities, thereby validating judicial or administrative proceedings, acts of public officers, or private
deeds and contracts which otherwise would not produce their intended consequences by reason of some
statutory disability or failure to comply with some technical requirement. They operate on conditions
already existing, and are necessarily retroactive in operation. Agpalo,
42
on the other hand, says that
curative statutes are "healing acts x x x curing defects and adding to the means of enforcing existing
obligations x x x (and) are intended to supply defects, abridge superfluities in existing laws, and curb
certain evils x x x By their very nature, curative statutes are retroactive xxx (and) reach back to past
events to correct errors or irregularities and to render valid and effective attempted acts which would be
otherwise ineffective for the purpose the parties intended."
On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of
procedure, which do not create new or take away vested rights, but only operate in furtherance of the
remedy or confirmation of such rights, ordinarily do not come within the legal meaning of a retrospective
law, nor within the general rule against the retrospective operation of statutes.
43

A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new
remedy, thereby filling certain voids in our laws. Thus, in its preamble, P.D. 725 expressly recognizes the
plight of "many Filipino women (who) had lost their Philippine citizenship by marriage to aliens" and who
could not, under the existing law (C. A. No. 63, as amended) avail of repatriation until "after the death of
their husbands or the termination of their marital status" and who could neither be benefitted by the 1973
Constitution's new provision allowing "a Filipino woman who marries an alien to retain her Philippine
citizenship xxx" because "such provision of the new Constitution does not apply to Filipino women who
had married aliens before said constitution took effect." Thus, P.D. 725 granted a new right to these
womenthe right to re-acquire Filipino citizenship even during their marital coverture, which right did not
exist prior to P.D. 725. On the other hand, said statute also provided a new remedy and a new right in
favor of other "natural born Filipinos who (had) lost their Philippine citizenship but now desire to re-
acquire Philippine citizenship," because prior to the promulgation of P.D. 725 such former Filipinos would
have had to undergo the tedious and cumbersome process of naturalization, but with the advent of P.D.
725 they could now re-acquire their Philippine citizenship under the simplified procedure of repatriation.
The Solicitor General
44
argues:
"By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342), since they are
intended to supply defects, abridge superfluities in existing laws (Del Castillo vs. Securities and Exchange
Commission, 96 Phil. 119) and curb certain evils (Santos vs. Duata, 14 SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the defect in the existing naturalization law, specifically C.
A. No. 63 wherein married Filipino women are allowed to repatriate only upon the death of their
husbands, and natural-born Filipinos who lost their citizenship by naturalization and other causes faced
the difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of Filipino citizenship by
naturalization.
Presidential Decree No. 725 provided a remedy for the aforementioned legal aberrations and thus its
provisions are considered essentially remedial and curative."
In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the
legislative intent was precisely to give the statute retroactive operation. "(A) retrospective operation is
given to a statute or amendment where the intent that it should so operate clearly appears from a
consideration of the act as a whole, or from the terms thereof."
45
It is obvious to the Court that the statute
was meant to "reach back" to those persons, events and transactions not otherwise covered by prevailing
law and jurisprudence. And inasmuch as it has been held that citizenship is a political and civil right
equally as important as the freedom of speech, liberty of abode, the right against unreasonable searches
and seizures and other guarantees enshrined in the Bill of Rights, therefore the legislative intent to give
retrospective operation to P.D. 725 must be given the fullest effect possible. "(I)t has been said that a
remedial statute must be so construed as to make it effect the evident purpose for -which it was enacted,
so that if the reason of the statute extends to past transactions, as well as to those in the future, then it
will be so applied although the statute does not in terms so direct, unless to do so would impair some
vested right or violate some constitutional guaranty."
46
This is all the more true of P.D. 725, which did not
specify any restrictions on or delimit or qualify the right of repatriation granted therein.
At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo
considering that said law was enacted on June 5,1975, while Frivaldo lost his Filipino citizenship much
later, on January 20, 1983, and applied for repatriation even later, on August 17, 1994?
While it is true that the law was already in effect at the time that Frivaldo became an American
citizen, nevertheless, it is not only the law itself (P.D. 725) which is tobe given retroactive effect, but even
the repatriation granted under said law to Frivaldo on June 30, 1995 is to be deemed to have retroacted
to the date of his application therefor, August 17, 1994. The reason for this is simply that if, as in this
case, it was the intent of the legislative authority that the law should apply to past events i.e., situations
and transactions existing even before the law came into being in order to benefit the greatest number
of former Filipinos possible thereby enabling them to enjoy and exercise the constitutionally guaranteed
right of citizenship, and such legislative intention is to be given the fullest effect and expression,
then there is all the more reason to have the law apply in a retroactive or retrospective manner to
situations, events and transactions subsequent to the passage of such law. That is, the repatriation
granted to Frivaldo on June 30, 1995 can and should be made to take effect as of date of his application.
As earlier mentioned, there is nothing in the law that would bar this or would show a contrary intention on
the part of the legislative authority; and there is no showing that damage or prejudice to anyone, or
anything unjust or injurious would result from giving retroactivity to his repatriation. Neither has Lee
shown that there will result the impairment of any contractual obligation, disturbance of any vested right or
breach of some constitutional guaranty.
Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal
interpretation of Philippine laws and whatever defects there were in his nationality should now be deemed
mooted by his repatriation.
Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants.
If P.D. 725 were not to be given retroactive effect, and the Special Committee decides not to act, i.e., to
delay the processing of applications for any substantial length of time, then the former Filipinos who may
be stateless, as Frivaldohaving already renounced his American citizenship was, may be prejudiced
for causes outside their control. This should not be. In case of doubt in the interpretation or application of
laws, it is to be presumed that the law-making body intended right and justice to prevail.
47

And as experience will show, the Special Committee was able to process, act upon and grant applications
for repatriation within relatively short spans of time after the same were filed.
48
The fact that such
interregna were relatively insignificant minimizes the likelihood of prejudice to the government as a result
of giving retroactivity to repatriation. Besides, to the mind of the Court, direct prejudice to the government
is possible only where a person's repatriation has the effect of wiping out a liability of his to the
government arising in connection with or as a result of his being an alien, and accruing only during the
interregnum between application and approval, a situation that is not present in the instant case.
And it is but right and just that the mandate of the people, already twice frustrated, should now
prevail. Under the circumstances, there is nothing unjust or iniquitous in treating Frivaldo's repatriation as
having become effective as of the date of his application, i.e., on August 17, 1994. This being so, all
questions about his possession of the nationality qualification whether at the date of proclamation (June
30, 1995) or the date of election (May 8, 1995) or date of filing his certificate of candidacy (March 20,
1995) would become moot.
Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be
deemed settled. Inasmuch as he is considered as having been repatriatedi.e., his Filipino citizenship
restored as ofAugust 17, 1994, his previous registration as a voter is likewise deemed validated as of
said date.
It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his
repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code
would disqualify him "from running for any elective local position?"
49
We answer this question in the
negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said
oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo
wrote that he "had long renounced and had long abandoned his American citizenshiplong before May
8, 1995. At best, Frivaldo was stateless in the interim when he abandoned and renounced
his US citizenship but before he was repatriated to his Filipino citizenship."
50

On this point, we quote from the assailed Resolution dated December 19, 1995:
51

"By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath
of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every
certificate of candidacy contains an oath of allegiance to the Philippine Government."
These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995
have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission
are conclusive upon this Court, absent any showing of capriciousness or arbitrariness or abuse.
52

The Second Issue: Is Lack of Citizenship a Continuing Disqualification?
Lee contends that the May 1,1995 Resolution
53
of the Comelec Second Division in SPA No. 95-028
as affirmed in toto by Comelec En Banc in its Resolution of May 11, 1995 "became final and executory
after five (5) days or on May 17,1995, no restraining order having been issued by this Honorable
Court."
54
Hence, before Lee "was proclaimed as the elected governor on June 30, 1995, there was
already a final and executory judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings
(which Frivaldo now concedes were legally "correct") declaring Frivaldo an alien have also become final
and executory way before the 1995 elections, and these "judicial pronouncements of his political status as
an American citizen absolutely and for all time disqualified (him) from running for, and holding any public
office in the Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in
connection with the 1988 elections while that in G.R. No. 104654 was in connection with the 1992
elections. That he was disqualified for such elections is final and can no longer be changed. In the words
of the respondent Commission (Second Division) in its assailed Resolution:
55

"The records show that the Honorable Supreme Court had decided that Frivaldo was not a Filipino citizen
and thus disqualified for the purpose of the 1988 and 1992 elections. However, there is no record of any
'final judgment' of the disqualification of Frivaldo as a candidate for the May 8, 1995 elections. What the
Commission said in its Order of June 21, 1995 (implemented on June 30, 1995), directing the
proclamation of Raul R. Lee, was that Frivaldo was not a Filipino citizen 'having been declared by the
Supreme Court in its Order dated March 25, 1995, not a citizen of the Philippines.' This declaration of the
Supreme Court, however, was in connection with the 1992 elections."
Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future
status with finality. This is because a person may subsequently reacquire, or for that matter lose, his
citizenship under any of the modes recognized by law for the purpose. Hence, in Lee vs. Commissioner
of Immigration,
56
we held:
"Everytime the citizenship of a person is material or indispensable in a judicial or administrative case,
whatever the corresponding court or administrative authority decides therein as to such citizenship is
generally not considered res judicata, hence it has to be threshed out again and again, as the occasion
demands."
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95-
317 because the only "possible types of proceedings that may be entertained by the Comelec are a pre-
proclamation case, an election protest or a quo warranto case." Again, Lee reminds us that he was
proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation
only on July 6, 1995 "beyond the 5-day reglementary period." Hence, according to him, Frivaldo's
"recourse was to file either an election protest or a quo warranto action."
This argument is not meritorious. The Constitution
57
has given the Comelec ample power to
"exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications
of all elective x x x provincial x x x officials." Instead of dwelling at length on the various petitions that
Comelec, in the exercise of its constitutional prerogatives, may entertain, suffice
it to say that this Court has invariably recognized the Commission's authority to hear and decide
petitions for annulment of proclamations of which SPC No. 95-317 obviously is one.
58
Thus, in Mentang
vs. COMELEC,
59
we ruled:
"The petitioner argues that after proclamation and assumption of office, a pre-proclamation controversy is
no longer viable. Indeed, we are aware of cases holding that pre-proclamation controversies may no
longer be entertained by the COMELEC after the winning candidate has been proclaimed, (citing
Gallardo vs. Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513;
Casimiro vs. COMELEC, 171 SCRA 468.) This rule, however, is premised on an assumption that the
proclamation is no proclamation at all and the proclaimed candidate's assumption of office cannot deprive
the COMELEC of the power to make such declaration of nullity. (citing Aguam vs. COMELEC, 23 SCRA
883; Agbayani vs. COMELEC, 186 SCRA 484.)"
The Court however cautioned that such power to annul a proclamation must "be done within ten (10)
days following the proclamation." Inasmuch as Frivaldo's petition was filed only six (6) days after Lee's
proclamation, there is no question that the Comelec correctly acquired jurisdiction over the same.
The Fourth Issue: Was Lee's Proclamation Valid
Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons:
First. To paraphrase this Court in Labo vs. COMELEC,
60
"the fact remains that he (Lee) was not the
choice of the sovereign will," and in Aquino vs. COMELEC,
61
Lee is "a second placer, xxx just that, a
second placer."
In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the
aforesaid Labo
62
case, as follows:
"The rule would have been different if the electorate fully aware in fact and in law of a candidate's
disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their
votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived the
validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes,
in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected."
But such holding is qualified by the next paragraph, thus:
"But this is not the situation obtaining in the instant dispute. It has not been shown, and none was alleged,
that petitioner Labo was notoriously known as an ineligible candidate, much less the electorate as having
known of such fact. On the contrary, petitioner Labo was even allowed by no less than the Comelec itself
in its resolution dated May 10, 1992 to be voted for the office of the city mayor as its resolution dated May
9,1992 denying due course to petitioner Labo's certificate of candidacy had not yet become final and
subject to the final outcome of this case."
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case
because Frivaldo was in 1995 in an identical situation as Labo was in 1992 when the Comelec's
cancellation of his certificate of candidacy was not yet final on election day as there was in both cases a
pending motion for reconsideration, for which reason Comelec issued an (omnibus) resolution declaring
that Frivaldo (like Labo in 1992) and several others can still be voted for in the May 8, 1995 election, as in
fact, he was.
Furthermore, there has been no sufficient evidence presented to show that the electorate of
Sorsogon was "fully aware in fact and in law" of Frivaldo's alleged disqualification as to "bring such
awareness within the realm of notoriety", in other words, that the voters intentionally wasted their ballots
knowing that, in spite of their voting for him, he was ineligible. If Labo has any relevance at all, it is that
the vice-governor and not Leeshould be proclaimed, since in losing the election, Lee was, to
paraphrase Labo again, "obviously not the choice of the people" of Sorsogon. This is the emphatic
teaching of Labo:
"The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible
candidate receiving the next highest number of votes to be declared elected. A minority or defeated
candidate cannot be deemed elected to the office."
Second. As we have earlier declared Frivaldo to have seasonably re-acquired his citizenship and
inasmuch as he obtained the highest number of votes in the 1995 elections, henot Lee should be
proclaimed. Hence, Lee's proclamation was patently erroneous and should now be corrected.
The Fifth Issue: Is Section 78 of the Election Code Mandatory?
In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second Division)
dated May 1, 1995 and the confirmatory en banc Resolution of May 11, 1995 disqualifying him for want of
citizenship should be annulled because they were rendered beyond the fifteen (15) day period prescribed
by Section 78 of the Omnibus Election Code which reads as follows:
"Section 78. Petition to deny due course or to cancel a certificate of candidacy. A verified petition
seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively
on the ground that any material representation contained therein as required under Section 74 hereof is
false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the
certificate of candidacy and shall be decided after notice and hearing, not later than fifteen days before
the election" (italics supplied.)
This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the
subsequent ones issued by the Commission (First Division) on December 19, 1995, affirmed en
banc
63
on February 23, 1996, which both upheld his election. At any rate, it is obvious that Section 78 is
merely directory as Section 6 of R.A. No. 6646 authorizes the Commission to try and decide petitions for
disqualifications even after the elections, thus:
"SEC. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and he is voted for and
receives the -winning number of votes in such election, the Court or Commission shall continue with the
trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the proclamation of such candidate whenever
the evidence of his guilt is strong." (Italics supplied)
Refutation of Mr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President
Aquino's memorandum dated March 27, 1987 should be viewed as a suspension (not a repeal, as urged
by Lee) of P.D. 725. But whether it decrees a suspension or a repeal is a purely academic distinction
because the said issuance is not a statute that can amend or abrogate an existing law. The existence and
subsistence of P.D. 725 were recognized in the first Frivaldo case;
64
viz, "(u)nder CA No. 63 as amended
by CA No. 473 and P.D. No. 725, Philippine citizenship maybe reacquired by xxx repatriation" He also
contends that by allowing Frivaldo to register and to remain as a registered voter, the Comelec and in
effect this Court abetted a "mockery" of our two previous judgments declaring him a non-citizen. We do
not see such abetting or mockery. The retroactivity of his repatriation, as discussed earlier, legally cured
whatever defects there may have been in his registration as a voter for the purpose of the 1995 elections.
Such retroactivity did not change his disqualifications in 1988 and 1992, which were the subjects of such
previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility
of a candidate, citing the Comelec's authority under Section 78 of the Omnibus Election Code allowing
the denial of a certificate of candidacy on the ground of a false material representation therein as required
by Section 74. Citing Loong, he then states his disagreement with our holding that Section 78 is merely
directory. We really have no quarrel. Our point is that Frivaldo was in error in his claim in G.R. No. 120295
that the Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995 were invalid because they
were issued "not later than fifteen days before the election" as prescribed by Section 78. In dismissing the
petition in G.R. No. 120295, we hold that the Comelec did not commit grave abuse of discretion because
"Section 6 of R. A. 6646 authorizes the Comelec to try and decide disqualifications even after the
elections." In spite of his disagreement with us on this point, i.e., that Section 78 "is merely directory," we
note that just like us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No. 120295." One other
point.Loong, as quoted in the dissent, teaches that a petition to deny due course under Section 78 must
be filed within the 25-day period prescribed therein. The present case however deals with the period
during which the Comelec may decide such petition. And we hold that it may be decided even after
the fifteen day period mentioned in Section 78. Here, we rule that a decision promulgated by the Comelec
even after the elections is valid but Loong held that a petition filed beyond the 25-day period is out of
time. There is no inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual
circumstances of Frivaldo, repatriation may be given retroactive effect. He argues that such retroactivity
"dilutes" our holding in the first Frivaldo case. But the first (and even the second Frivaldo) decision did not
directly involve repatriation as a mode of acquiring citizenship. If we may repeat, there is no question that
Frivaldo was not a Filipino for purposes of determining his qualifications in the 1988 and 1992 elections.
That is settled. But his supervening repatriation has changed his political status not in 1988 or 1992,
but only in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation,
saying that "informal renunciation or abandonment is not a ground to lose American citizenship." Since
our courts are charged only with the duty of the determining who are Philippine nationals, we cannot rule
on the legal question of who are or who are not Americans. It is basic in international law that a State
determines ONLY those who are its own citizens not who are the citizens of other countries.
65
The
issue here is: the Comelec made a finding of fact that Frivaldo was stateless and such finding has not
been shown by Lee to be arbitrary or whimsical. Thus, following settled case law, such finding is binding
and final.
The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three
previous elections, should be declared winner because "Frivaldo's ineligibility for being an American was
publicly known." First, there is absolutely no empirical evidence for such "public" knowledge. Second,
even if there is, such knowledge can be true post facto only of the last two previous elections. Third, even
the Comelec and now this Court were/are still deliberating on his nationality before, during and after the
1995 elections. How then can there be such "public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications
of elective local officials, i.e., candidates, and not elected officials, and that the citizenship qualification
[under par. (a) of that section] must be possessed by candidates, not merely at the commencement of the
term, but by election day at the latest. We see it differently. Section 39, par. (a) thereof speaks of "elective
local official" while par. (b) to (f) refer to "candidates." If the qualifications under par. (a) were intended to
apply to "candidates" and not elected officials, the legislature would have said so, instead of differentiating
par. (a) from the rest of the paragraphs. Secondly, if Congress had meant that the citizenship qualification
should be possessed at election day or prior thereto, it would have specifically stated such detail, the
same way it did in pars. (b) to (f) for other qualifications of candidates for governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the
ground, among others, that the law specifically provides that it is only after taking the oath of allegiance
that applicants shall be deemed to have reacquired Philippine citizenship. We do not question what the
provision states. We hold however that the provision should be understood thus:that after taking the oath
of allegiance the applicant is deemed to have reacquired Philippine citizenship, which reacquisition (or
repatriation) is deemed for all purposes and intents to have retroacted to the date of his application
therefor.
In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference
to Section 39 of the Local Government Code, as well as regarding Mr. Justice Davide's thesis that the
very wordings of P.D. 725 suggest non-retroactivity, were already taken up rather extensively earlier in
this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule
of Law." We agree we must all follow the rule of law. But that is NOT the issue here. The issue
is how should the law be interpreted and applied in this case so it can be followed, so it can rule!
At balance, the question really boils down to a choice of philosophy and perception of how to
interpret and apply laws relating to elections: literal or liberal; the letter or the spirit; the naked provision or
its ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions;
harshly against or gently in favor of the voters' obvious choice. In applying election laws, it would be far
better to err in favor of popular sovereignty than to be right in complex but little understood legalisms.
Indeed, to inflict a thrice rejected candidate upon the electorate of Sorsogon would constitute unmitigated
judicial tyranny and an unacceptable assault upon this Court's conscience.
EPILOGUE
In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed
by an elective official at the latest as of the time he is proclaimed and at the start of the term of office to
which he has been elected. We further hold P.D. No. 725 to be in full force and effect up to the present,
not having been suspended or repealed expressly nor impliedly at any time, and Frivaldo's repatriation by
virtue thereof to have been properly granted and thus valid and effective. Moreover, by reason of the
remedial or curative nature of the law granting him a new right to resume his political status and the
legislative intent behind it, as well as his unique situation of having been forced to give up his citizenship
and political aspiration as his means of escaping a regime he abhorred, his repatriation is to be given
retroactive effect as of the date of his application therefor, during the pendency of which he was stateless,
he having given ' up his U. S. nationality. Thus, in contemplation of law, he possessed the vital
requirement of Filipino citizenship as of the start of the term of office of governor, and should have been
proclaimed instead of Lee. Furthermore, since his reacquisition of citizenship retroacted to August 17,
1994, his registration as a voter of Sorsogon is deemed to have been validated as of said date as well.
The foregoing, of course, are precisely consistent with our holding that lack of the citizenship requirement
is not a continuing disability or disqualification to run for and hold public office. And once again, we
emphasize herein our previous rulings recognizing the Comelec's authority and jurisdiction to hear and
decide petitions for annulment of proclamations.
This Court has time and again liberally and equitably construed the electoral laws of our country to
give fullest effect to the manifest will of our people,
66
for in case of doubt, political laws must be
interpreted to give life and spirit to the popular mandate freely expressed through the ballot.
Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will.
Consistently, we have held:
"x x x (L)aws governing election contests must be liberally construed to the end that the will of the people
in the choice of public officials may not be defeated by mere technical objections (citations omitted)."
67

The law and the courts must accord Frivaldo every possible protection, defense and refuge, in
deference to the popular will. Indeed, this Court has repeatedly stressed the importance of giving effect to
the sovereign will in order to ensure the survival of our democracy. In any action involving the possibility
of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a
manner that would give effect to the will of the majority, for it is merely sound public policy to cause
elective offices to be filled by those who are the choice of the majority. To successfully
challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility
is so patently antagonistic
68
to constitutional and legal principles that overriding such ineligibility and
thereby giving effect to the apparent will of the people, would ultimately create greater prejudice to the
very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and
promote. In this undertaking, Lee has miserably failed.
In Frivaldo's case, it would have been technically easy to find fault with his cause. The Court could
have refused to grant retroactivity to the effects of his repatriation and hold him still ineligible due to his
failure to show his citizenship at the time he registered as a voter before the 1995 elections. Or, it could
have disputed the factual findings of the Comelec that he was stateless at the time of repatriation and
thus hold his consequent dual citizenship as a disqualification "from running for any elective local
position." But the real essence of justice does not emanate from quibblings over patchwork legal
technicality. It proceeds from the spirit's gut consciousness of the dynamic role of law as a brick in the
ultimate development of the social edifice. Thus, the Court struggled against and eschewed the easy,
legalistic, technical and sometimes harsh anachronisms of the law in order to evoke substantial justice in
the larger social context consistent with Frivaldo's unique situation approximating venerability in Philippine
political life. Concededly, he sought American citizenship only to escape the clutches of the dictatorship.
At this stage, we cannot seriously entertain any doubt about his loyalty and dedication to this country. At
the first opportunity, he returned to this land, and sought to serve his people once more. The people of
Sorsogon overwhelmingly voted for him three times. He took an oath of allegiance to this Republic every
time he filed his certificate of candidacy and during his failed naturalization bid. And let it not be
overlooked, his demonstrated tenacity and sheer determination to re-assume his nationality of birth
despite several legal set-backs speak more loudly, in spirit, in fact and in truth than any legal technicality,
of his consuming intention and burning desire to re-embrace his native Philippines even now at the ripe
old age of 81 years. Such loyalty to and love of country as well as nobility of purpose cannot be lost on
this Court of justice and equity. Mortals of lesser mettle would have given up. After all, Frivaldo was
assured of a life of ease and plenty as a citizen of the most powerful country in the world. But he opted,
nay, single-mindedly insisted on returning to and serving once more his struggling but beloved land of
birth. He therefore deserves every liberal interpretation of the law which can be applied in his favor. And
in the final analysis, over and above Frivaldo himself, the indomitable people of Sorsogon most certainly
deserve to be governed by a leader of their overwhelming choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the
respondent Commission are AFFIRMED.
(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event,
it has no merit.
No costs.
SO ORDERED.











G.R. No. 120295. June 28, 1996]
JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS, and RAUL R. LEE,
respondents.
[G.R. No. 123755. June 28, 1996]
RAUL R. LEE, petitioner, vs. COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the office of
Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee, another
candidate, filed a petition with the Comelec praying that Frivaldo "be disqualified from seeking or holding
any public office or position by reason of not yet being a citizen of the Philippines," and that his Certificate
of Candidacy be cancelled. On May 1, 1995, the Second Division of the Comelec promulgated a
Resolution granting the petition.
The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8, 1995
elections. So, his candidacy continued and he was voted for during the elections held on said date. On
May 11, 1995, the Comelec en banc affirmed the aforementioned Resolution of the Second Division.
The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of
Votes was issued showing the following votes obtained by the candidates for the position of Governor of
Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
RaulR.Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed a (supplemental) petition praying for his proclamation as the duly-elected
Governor of Sorsogon.
In an orderdated June 21, 1995, but promulgated according to the petition "only on June 29, 1995," the
Comelec en bane directed "the Provincial Board of Canvassers of Sorsogon to reconvene for the purpose
of proclaiming candidate Raul Lee as the winning gubernatorial candidate in the province of Sorsogon on
June 29,1995 x x x." Accordingly, at 8:30 in the evening of June 30,1995, Lee was proclaimed governor
of Sorsogon.
Frivaldo filed with the Comelec a new petition praying for the annulment of the June 30, 1995
proclamation of Lee and for his own proclamation. He alleged that on June 30, 1995, at 2:00 in the
afternoon, he took his oath of allegiance as a citizen of the Philippines after "his petition for repatriation
under P.D. 725 which he filed with the Special Committee on Naturalization in September 1994 had been
granted." As such, when "the said order (dated June 21, 1995) (of the Comelec) x x x was released and
received by Frivaldo on June 30, 1995 at 5:30 o'clock in the evening, there was no more legal impediment
to the proclamation (of Frivaldo) as governor x x x." In the alternative, he averred that pursuant to the two
cases of Labo vs. Comelec, the Vice-Governor not Lee should occupy said position of governor.
On December 19, 1995, the Comelec First Division promulgated the herein assailed Resolution holding
that Lee, "not having garnered the highest number of votes," was not legally entitled to be proclaimed as
duly-elected governor; and that Frivaldo, "having garnered the highest number of votes, and having
reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential
Decree No. 725 is qualified to hold the office of governor of Sorsogon".
Issues:
1. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to his
eligibility to run for, be elected to or hold the governorship of Sorsogon NO.
2. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing
jurisprudence? NO.
Held:
1.) It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in
connection with the 1988 elections while that in G.R. No. 104654 was in connection with the 1992
elections. That he was disqualified for such elections is final and can no longer be changed.
Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future status
with finality. This is because a person may subsequently reacquire, or for that matter lose, his citizenship
under any of the modes recognized by law for the purpose.
"Everytime the citizenship of a person is material or indispensable in a judicial or administrative case,
whatever the corresponding court or administrative authority decides therein as to such citizenship is
generally not considered res judicata, hence it has to be threshed out again and again, as the occasion
demands."
2.) Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons:
First. To paraphrase this Court in Labo vs. COMELEC, "the fact remains that he (Lee) was not the choice
of the sovereign will," and in Aquino vs. COMELEC, Lee is "a second placer, just that, a second placer."
"The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible
candidate receiving the next highest number of votes to be declared elected. A minority or defeated
candidate cannot be deemed elected to the office."
Second. As we have earlier declared Frivaldo to have seasonably re-acquired his citizenship and
inasmuch as he obtained the highest number of votes in the 1995 elections, henot Lee should be
proclaimed. Hence, Lee's proclamation was patently erroneous and should now be corrected.

==========================================================
CONCLUSION OF THE COURT
In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed by an
elective official at the latest as of the time he is proclaimed and at the start of the term of office to which
he has been elected. We further hold P.D. No. 725 to be in full force and effect up to the present, not
having been suspended or repealed expressly nor impliedly at any time, and Frivaldo's repatriation by
virtue thereof to have been properly granted and thus valid and effective. Moreover, by reason of the
remedial or curative nature of the law granting him a new right to resume his political status and the
legislative intent behind it, as well as his unique situation of having been forced to give up his citizenship
and political aspiration as his means of escaping a regime he abhorred, his repatriation is to be given
retroactive effect as of the date of his application therefor, during the pendency of which he was stateless,
he having given ' up his U. S. nationality.
Thus, in contemplation of law, he possessed the vital requirement of Filipino citizenship as of the start of
the term of office of governor, and should have been proclaimed instead of Lee. Furthermore, since his
reacquisition of citizenship retroacted to August 17, 1994, his registration as a voter of Sorsogon is
deemed to have been validated as of said date as well. The foregoing, of course, are precisely consistent
with our holding that lack of the citizenship requirement is not a continuing disability or disqualification to
run for and hold public office. And once again, we emphasize herein our previous rulings recognizing the
Comelec's authority and jurisdiction to hear and decide petitions for annulment of proclamations.
This Court has time and again liberally and equitably construed the electoral laws of our country to give
fullest effect to the manifest will of our people, for in case of doubt, political laws must be interpreted to
give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal
niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held:
"x x x (L)aws governing election contests must be liberally construed to the end that the will of the people
in the choice of public officials may not be defeated by mere technical objections (citations omitted)."
The law and the courts must accord Frivaldo every possible protection, defense and refuge, in deference
to the popular will. Indeed, this Court has repeatedly stressed the importance of giving effect to the
sovereign will in order to ensure the survival of our democracy. In any action involving the possibility of a
reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a
manner that would give effect to the will of the majority, for it is merely sound public policy to cause
elective offices to be filled by those who are the choice of the majority. To successfully challenge a
winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so
patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby
giving effect to the apparent will of the people, would ultimately create greater prejudice to the very
democratic institutions and juristic traditions that our Constitution and laws so zealously protect and
promote. In this undertaking, Lee has miserably failed.
In Frivaldo's case, it would have been technically easy to find fault with his cause. The Court could have
refused to grant retroactivity to the effects of his repatriation and hold him still ineligible due to his failure
to show his citizenship at the time he registered as a voter before the 1995 elections. Or, it could have
disputed the factual findings of the Comelec that he was stateless at the time of repatriation and thus hold
his consequent dual citizenship as a disqualification "from running for any elective local position." But the
real essence of justice does not emanate from quibblings over patchwork legal technicality. It proceeds
from the spirit's gut consciousness of the dynamic role of law as a brick in the ultimate development of the
social edifice. Thus, the Court struggled against and eschewed the easy, legalistic, technical and
sometimes harsh anachronisms of the law in order to evoke substantial justice in the larger social context
consistent with Frivaldo's unique situation approximating venerability in Philippine political life.
Concededly, he sought American citizenship only to escape the clutches of the dictatorship. At this stage,
we cannot seriously entertain any doubt about his loyalty and dedication to this country. At the first
opportunity, he returned to this land, and sought to serve his people once more. The people of Sorsogon
overwhelmingly voted for him three times. He took an oath of allegiance to this Republic every time he
filed his certificate of candidacy and during his failed naturalization bid. And let it not be overlooked, his
demonstrated tenacity and sheer determination to re-assume his nationality of birth despite several legal
set-backs speak more loudly, in spirit, in fact and in truth than any legal technicality, of his consuming
intention and burning desire to re-embrace his native Philippines even now at the ripe old age of 81
years. Such loyalty to and love of country as well as nobility of purpose cannot be lost on this Court of
justice and equity. Mortals of lesser mettle would have given up. After all, Frivaldo was assured of a life of
ease and plenty as a citizen of the most powerful country in the world. But he opted, nay, single-mindedly
insisted on returning to and serving once more his struggling but beloved land of birth. He therefore
deserves every liberal interpretation of the law which can be applied in his favor. And in the final analysis,
over and above Frivaldo himself, the indomitable people of Sorsogon most certainly deserve to be
governed by a leader of their overwhelming choice.















ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS MANZANO and the COMMISSION ON
ELECTIONS, respondents.
D E C I S I O N
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 COMELECs Second Division said:
What is presented before the Commission is a petition for disqualification of Eduardo Barrios Manzano as
candidate for the office of Vice-Mayor of Makati City in the May 11, 1998 elections. The petition is based
on the ground that the respondent is an American citizen based on the record of the Bureau of
Immigration and misrepresented himself as a natural-born Filipino citizen.
In his answer to the petition filed on April 27, 1998, the respondent admitted that he is registered as a
foreigner with the Bureau of Immigration under Alien Certificate of Registration No. B-31632 and alleged
that he is a Filipino citizen because he was born in 1955 of a Filipino father and a Filipino mother. He
was born in the United States, San Francisco, California, on September 14, 1955, and is considered an
American citizen under US Laws. But notwithstanding his registration as an American citizen, he did not
lose his Filipino citizenship.
Judging from the foregoing facts, it would appear that respondent Manzano is both a Filipino and a US
citizen. In other words, he holds dual citizenship.
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 motion remained
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]
Petitioners motion
was opposed by private respondent.
The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its
resolution. Voting 4 to 1, with one commissioner abstaining, the COMELEC en banc reversed the ruling
of its Second Division and declared private respondent qualified to run for vice mayor of the City of Makati
in the May 11, 1998 elections.
[5]
The pertinent portions of the resolution of the COMELEC en banc read:
As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco, California, U.S.A. He
acquired US citizenship by operation of the United States Constitution and laws under the principle of jus
soli.
He was also a natural born Filipino citizen by operation of the 1935 Philippine Constitution, as his father
and mother were Filipinos at the time of his birth. At the age of six (6), his parents brought him to the
Philippines using an American passport as travel document. His parents also registered him as an alien
with the Philippine Bureau of Immigration. He was issued an alien certificate of registration. This,
however, did not result in the loss of his Philippine citizenship, as he did not renounce Philippine
citizenship and did not take an oath of allegiance to the United States.
It is an undisputed fact that when respondent attained the age of majority, he registered himself as a
voter, and voted in the elections of 1992, 1995 and 1998, which effectively renounced his US citizenship
under American law. Under Philippine law, he no longer had U.S. citizenship.
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) votes. In applying
election laws, it would be far better to err in favor of the popular choice than be embroiled in complex
legal issues involving private international law which may well be settled before the highest court
(Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727).
WHEREFORE, the Commission en banc hereby REVERSES the resolution of the Second Division,
adopted on May 7, 1998, ordering the cancellation of the respondents certificate of candidacy.
We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a candidate for the position
of vice-mayor of Makati City in the May 11, 1998, elections.
ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon proper notice to the
parties, to reconvene and proclaim the respondent Eduardo Luis Barrios Manzano as the winning
candidate for vice-mayor of Makati City.
Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening of
August 31, 1998, proclaimed private respondent as vice mayor of the City of Makati.
This is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en banc
and to declare private respondent disqualified to hold the office of vice mayor of Makati City. Petitioner
contends that
[T]he COMELEC en banc ERRED in holding that:
A. Under Philippine law, Manzano was no longer a U.S. citizen when he:
1. He renounced his U.S. citizenship when he attained the age of majority when he was already 37
years old; and,
2. He renounced his U.S. citizenship when he (merely) registered himself as a voter and voted in the
elections of 1992, 1995 and 1998.
B. Manzano is qualified to run for and or hold the elective office of 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 that, effectively, petitioner may not be declared the winner even assuming that
Manzano is disqualified to run for and hold the elective office of Vice-Mayor of the City of Makati.
We first consider the threshold procedural issue raised by private respondent Manzano whether
petitioner Mercado has personality to bring this suit considering that he was not an original party in the
case for disqualification filed by Ernesto Mamaril nor was petitioners motion for leave to intervene
granted.
I. PETITIONER'S RIGHT TO BRING THIS SUIT
Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the
COMELEC in support of his claim that petitioner has no right to intervene and, therefore, cannot bring this
suit to set aside the ruling denying his motion for intervention:
Section 1. When proper and when may be permitted to intervene. Any person allowed to initiate an
action or proceeding may, before or during the trial of an action or proceeding, be permitted by the
Commission, in its discretion to intervene in such action or proceeding, if he has legal interest in the
matter in litigation, or in the success of either of the parties, or an interest against both, or when he is so
situated as to be adversely affected by such action or proceeding.
. . . .
Section 3. Discretion of Commission. In allowing or disallowing a motion for intervention, the
Commission or the Division, in the exercise of its discretion, shall consider whether or not the intervention
will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not the
intervenors rights may be fully protected in a separate action or proceeding.
Private respondent argues that petitioner has neither legal interest in the matter in litigation nor an interest
to protect because he is a defeated candidate for the vice-mayoralty post of Makati City [who] cannot be
proclaimed as the Vice-Mayor of Makati City even if the private respondent be ultimately disqualified by
final and executory judgment.
The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the
proceedings before the COMELEC, there had already been a proclamation of the results of the election
for the vice mayoralty contest for Makati City, on the basis of which petitioner came out only second to
private respondent. The fact, however, is that there had been no proclamation at that time. Certainly,
petitioner had, and still has, an interest in ousting private respondent from the race at the time he sought
to intervene. The rule in Labo v. COMELEC,
[6]
reiterated in several cases,
[7]
only applies to cases in
which the election of the respondent is contested, and the question is whether one who placed second to
the disqualified candidate may be declared the winner. In the present case, at the time petitioner filed a
Motion for Leave to File Intervention on May 20, 1998, there had been no proclamation of the winner,
and petitioners purpose was precisely to have private respondent disqualified from running for [an]
elective local position under 40(d) of R.A. No. 7160. If Ernesto Mamaril (who originally instituted the
disqualification proceedings), a registered voter of Makati City, was competent to bring the action, so was
petitioner since the latter was a rival candidate for vice mayor of Makati City.
Nor is petitioners interest in the matter in litigation any less because he filed a motion for intervention
only on May 20, 1998, after private respondent had been shown to have garnered the highest number of
votes among the candidates for vice mayor. That petitioner had a right to intervene at that stage of the
proceedings for the disqualification against private respondent is clear from 6 of R.A. No. 6646,
otherwise known as the Electoral Reforms Law of 1987, which provides:
Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest
and, upon motion of the complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of guilt is strong.
Under this provision, intervention may be allowed in proceedings for disqualification even after
election if there has yet been no final judgment rendered.
The failure of the COMELEC en banc to resolve petitioners motion for intervention was tantamount
to a denial of the motion, justifying petitioner in filing the instant petition for certiorari. As the COMELEC
en banc instead decided the merits of the case, the present petition properly deals not only with the denial
of petitioners motion for intervention but also with the substantive issues respecting private respondents
alleged disqualification on the ground of dual citizenship.
This brings us to the next question, namely, whether private respondent Manzano possesses dual
citizenship and, if so, whether he is disqualified from being a candidate for vice mayor of Makati City.
II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION
The disqualification of private respondent Manzano is being sought under 40 of the Local
Government Code of 1991 (R.A. No. 7160), which declares as disqualified from running for any elective
local position: . . . (d) Those with dual citizenship. This provision is incorporated in the Charter of the City
of Makati.
[8]

Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him
in this case, contends that through 40(d) of the Local Government Code, Congress has command[ed] in
explicit terms the ineligibility of persons possessing dual allegiance to hold local elective office.
To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result
of the concurrent application of the different laws of two or more states, a person is simultaneously
considered a national by the said states.
[9]
For instance, such a situation may arise when a person whose
parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which
follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is
concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our
Constitution, it is possible for the following classes of citizens of the Philippines to possess dual
citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus
soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers
country such children are citizens of that country;
(3) Those who marry aliens if by the laws of the latters country the former are considered citizens,
unless by their act or omission they are deemed to have renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines may, without performing any act,
be also a citizen of another state; but the above cases are clearly possible given the constitutional
provisions on citizenship.
Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by
some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is
the result of an individuals volition.
With respect to dual allegiance, Article IV, 5 of the Constitution provides: Dual allegiance of
citizens is inimical to the national interest and shall be dealt with by law. This provision was included in
the 1987 Constitution at the instance of Commissioner Blas F. Ople who explained its necessity as
follows:
[10]

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

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

By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other
country of which they are also citizens and thereby terminate their status as dual citizens. It may be that,
from the point of view of the foreign state and of its laws, such an individual has not effectively renounced
his foreign citizenship. That is of no moment as the following discussion on 40(d) between Senators
Enrile and Pimentel clearly shows:
[13]

SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: Any person
with dual citizenship is disqualified to run for any elective local position. Under the present
Constitution, Mr. President, someone whose mother is a citizen of the Philippines but his father is
a foreigner is a natural-born citizen of the Republic. There is no requirement that such a natural
born citizen, upon reaching the age of majority, must elect or give up Philippine citizenship.
On the assumption that this person would carry two passports, one belonging to the country of his or
her father and one belonging to the Republic of the Philippines, may such a situation disqualify
the person to run for a local government position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he would
want to run for public office, he has to repudiate one of his citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the
country of the father claims that person, nevertheless, as a citizen? No one can renounce. There
are such countries in the world.
SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an
election for him of his desire to be considered as a Filipino citizen.
SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an
election. Under the Constitution, a person whose mother is a citizen of the Philippines is, at birth,
a citizen without any overt act to claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentlemans example,
if he does not renounce his other citizenship, then he is opening himself to question. So, if he is
really interested to run, the first thing he should do is to say in the Certificate of Candidacy that: I
am a Filipino citizen, and I have only one citizenship.
SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He will
always have one citizenship, and that is the citizenship invested upon him or her in the
Constitution of the Republic.
SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he
also acknowledges other citizenships, then he will probably fall under this disqualification.
This is similar to the requirement that an applicant for naturalization must renounce all allegiance
and fidelity to any foreign prince, potentate, state, or sovereignty
[14]
of which at the time he is a subject or
citizen before he can be issued a certificate of naturalization as a citizen of the Philippines. In Parado v.
Republic,
[15]
it was held:
[W]hen a person applying for citizenship by naturalization takes an oath that he renounces his loyalty to
any other country or government and solemnly declares that he owes his allegiance to the Republic of the
Philippines, the condition imposed by law is satisfied and complied with. The determination whether such
renunciation is valid or fully complies with the provisions of our Naturalization Law lies within the province
and is an exclusive prerogative of our courts. The latter should apply the law duly enacted by the
legislative department of the Republic. No foreign law may or should interfere with its operation and
application. If the requirement of the Chinese Law of Nationality were to be read into our Naturalization
Law, we would be applying not what our legislative department has deemed it wise to require, but what a
foreign government has thought or intended to exact. That, of course, is absurd. It must be resisted by
all means and at all cost. It would be a brazen encroachment upon the sovereign will and power of the
people of this Republic.
III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP

The record shows that private respondent was born in San Francisco, California on September 4,
1955, of Filipino parents. Since the Philippines adheres to the principle of jus sanguinis, while the United
States follows the doctrine of jus soli, the parties agree that, at birth at least, he was a national both of the
Philippines and of the United States. However, the COMELEC en banc held that, by participating in
Philippine elections in 1992, 1995, and 1998, private respondent effectively renounced his U.S.
citizenship under American law, so that now he is solely a Philippine national.
Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is not
sufficient evidence of renunciation and that, in any event, as the alleged renunciation was made when
private respondent was already 37 years old, it was ineffective as it should have been made when he
reached the age of majority.
In holding that by voting in Philippine elections private respondent renounced his American
citizenship, the COMELEC must have in mind 349 of the Immigration and Nationality Act of the United
States, which provided that A person who is a national of the United States, whether by birth or
naturalization, shall lose his nationality by: . . . (e) Voting in a political election in a foreign state or
participating in an election or plebiscite to determine the sovereignty over foreign territory. To be sure
this provision was declared unconstitutional by the U.S. Supreme Court in Afroyim v. Rusk
[16]
as beyond
the power given to the U.S. Congress to regulate foreign relations. However, by filing a certificate of
candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect
renounced his American citizenship. Private respondents certificate of candidacy, filed on March 27,
1998, contained the following statements made under oath:
6. I AM A FILIPINO CITIZEN (STATE IF NATURAL-BORN OR
NATURALIZED) NATURAL-BORN
. . . .
10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN
LORENZO, CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR .
11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN
COUNTRY.
12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT
AND DEFEND THE CONSTITUTION OF THE PHILIPPINES AND WILL MAINTAIN TRUE
FAITH AND ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS, LEGAL ORDERS
AND DECREES PROMULGATED BY THE DULY CONSTITUTED AUTHORITIES OF THE
REPUBLIC OF THE PHILIPPINES; AND THAT I IMPOSE THIS OBLIGATION UPON
MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION OR PURPOSE OF
EVASION. I HEREBY CERTIFY THAT THE FACTS STATED HEREIN ARE TRUE AND
CORRECT OF MY OWN PERSONAL KNOWLEDGE.
The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively
removing any disqualification he might have as a dual citizen. Thus, in Frivaldo v. COMELEC it was
held:
[17]

It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his
repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code
would disqualify him from running for any elective local position? We answer this question in the
negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said
oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo
wrote that he had long renounced and had long abandoned his American citizenship-long before May 8,
1995. At best, Frivaldo was stateless in the interim-when he abandoned and renounced his US
citizenship but before he was repatriated to his Filipino citizenship.
On this point, we quote from the assailed Resolution dated December 19, 1995:
By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath
of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in
1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government.
These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have
not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are
conclusive upon this Court, absent any showing of capriciousness or arbitrariness or abuse.
There is, therefore, no merit in petitioners contention that the oath of allegiance contained in private
respondents certificate of candidacy is insufficient to constitute renunciation of his American
citizenship. Equally without merit is petitioners contention that, to be effective, such renunciation should
have been made upon private respondent reaching the age of majority since no law requires the election
of Philippine citizenship to be made upon majority age.
Finally, much is made of the fact that private respondent admitted that he is registered as an
American citizen in the Bureau of Immigration and Deportation and that he holds an American passport
which he used in his last travel to the United States on April 22, 1997. There is no merit in this. Until the
filing of his certificate of candidacy on March 21, 1998, he had dual citizenship. The acts attributed to him
can be considered simply as the assertion of his American nationality before the termination of his
American citizenship. What this Court said in Aznar v. COMELEC
[18]
applies mutatis mutandis to private
respondent in the case at bar:
. . . Considering the fact that admittedly Osmea was both a Filipino and an American, the mere fact that
he has a Certificate stating he is an American does not mean that he is not still a Filipino. . . . [T]he
Certification that he is an American does not mean that he is not still a Filipino, possessed as he is, of
both nationalities or citizenships. Indeed, there is no express renunciation here of Philippine citizenship;
truth to tell, there is even no implied renunciation of said citizenship. When We consider that the
renunciation needed to lose Philippine citizenship must be express, it stands to reason that there can be
no such loss of Philippine citizenship when there is no renunciation, either express or implied.
To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a
permanent resident or immigrant of another country; that he will defend and support the Constitution of
the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation,
private respondent has, as far as the laws of this country are concerned, effectively repudiated his
American citizenship and anything which he may have said before as a dual citizen.
On the other hand, private respondents oath of allegiance to the Philippines, when considered with
the fact that he has spent his youth and adulthood, received his education, practiced his profession as an
artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine
citizenship.
His declarations will be taken upon the faith that he will fulfill his undertaking made under
oath. Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine
citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago,
[19]
we sustained
the denial of entry into the country of petitioner on the ground that, after taking his oath as a naturalized
citizen, he applied for the renewal of his Portuguese passport and declared in commercial documents
executed abroad that he was a Portuguese national. A similar sanction can be taken against any one
who, in electing Philippine citizenship, renounces his foreign nationality, but subsequently does some act
constituting renunciation of his Philippine citizenship.
WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Quisumbing, Buena, Gonzaga-
Reyes, and Ynares-Santiago, JJ., concur.
Panganiban, and Purisima, JJ., on leave.
Pardo, J., no part.













MERCADO vs. MANZANO
G.R. No. 135083. May 26, 1999

FACTS:

Ernesto Mamaril filed a disqualification case against vice-mayoralty candidate Manzano on the ground
that he is not a citizen of the Philippines but of the UnitedStates. In its resolution, the second division of
the COMELEC granted the petition of Mamaril and ordered the cancellation of the certificate of candidacy
of Manzano on the ground that he is a dual citizen and, under Section 40(d) of the Local Government
Code and the Makati charter, persons with dual citizenship are disqualified from running for any
electiveposition. The Commission found out that Manzano was born in 1955, of a Filipino father and a
Filipino mother, in San Francisco, California, in the United States. Hence, he is an American citizen,
following the jus soli rule, and at the same time, a Filipino citizen for being born of Filipino parents.

Manzano filed a motion for reconsideration. Pending such motion, the 1998 elections was held and
Manzano garnered the highest number of votes for vice-mayor in the city of Makati. His proclamation was
suspended, pending resolution of the case. Petitioner Mercado, who garnered the second highest number
of votes to Manzano, intervened in the disqualification case. Without resolving Manzano's motion, the
COMELEC en banc reversed the ruling of the COMELEC second division and declared Manzano
qualified to run for vice-mayor. Hence, Mercado filed a petition for certiorari to the Supreme Court seeking
to set aside the resolution of the COMELEC en banc.

ISSUES/HELD:
1. Whether the petitioner has personality to bring this suit considering that he was not the original
party in the disqualification case.

Yes. Section 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987 provides:

Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest
and, upon motion of the complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of guilt is strong.

Under this provision, intervention may be allowed in proceedings for disqualification even after election if
there has yet been no final judgment rendered.



2. Whether or not dual citizenship is a ground for disqualification.

No. 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. For instance, such a situation may arise when a person whose
parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which
follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is
concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our
Constitution, it is possible for the following classes of citizens of the Philippines to possess dual
citizenship:

(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli;

(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers
country such children are citizens of that country;

(3) Those who marry aliens if by the laws of the latters country the former are considered citizens, unless
by their act or omission they are deemed to have renounced Philippine citizenship.

There may be other situations in which a citizen of the Philippines may, without performing any act, be
also a citizen of another state; but the above cases are clearly possible given the constitutional provisions
on citizenship.

Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by
some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is
the result of an individuals volition.

In including 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual
citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even
after their naturalization. Hence, the phrase dual citizenship in R.A. No. 7160, 40(d) and in R.A. No.
7854, 20 must be understood as referring to dual allegiance. Consequently, persons with mere dual
citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore,
be subject to strict process with respect to the termination of their status, for candidates with dual
citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine
citizenship to terminate their status as persons with dual citizenship considering that their condition is the
unavoidable consequence of conflicting laws of different states.

3. Whether or not Manzano is disqualified to run

No. 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. The filing of such certificate of
candidacy sufficed to renounce his American citizenship, effectively removing any disqualification he
might have as a dual citizen.

By declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident
or immigrant of another country; that he will defend and support the Constitution of the Philippines and
bear true faith and allegiance thereto and that he does so without mental reservation, private respondent
has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and
anything which he may have said before as a dual citizen. On the other hand, private respondents oath
of allegiance to the Philippine, 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.
NOTA BENE: Under RA 9225 (effective August 29, 2003), the mere filing of a certificate of candidacy is
no longer deemed an express renunciation of foreign citizenship in order to run for public office. The
candidate for public office with dual citizenship must (1) take an oath of allegiance and (2) execute a
renunciation of foreign citizenship.
















ROGELIO M. TORAYNO SR., GENEROSO ELIGAN and JACQUELINE M. SERIO, petitioners,
vs. COMMISSION ON ELECTIONS and VICENTE Y. EMANO, respondents.
D E C I S I O N
PANGANIBAN, J .:
The Constitution and the law requires residence as a qualification for seeking and holding elective
public office, in order to give candidates the opportunity to be familiar with the needs, difficulties,
aspirations, potentials for growth and all matters vital to the welfare of their constituencies; likewise, it
enables the electorate to evaluate the office seekers' qualifications and fitness for the job they aspire
for. Inasmuch as Vicente Y. Emano has proven that he, together with his family, (1) had actually resided
in a house he bought in 1973 in Cagayan de Oro City; (2) had actually held office there during his three
terms as provincial governor of Misamis Oriental, the provincial capitol being located therein; and (3) has
registered as voter in the city during the period required by law, he could not be deemed "a stranger or
newcomer" when he ran for and was overwhelmingly voted as city mayor. Election laws must be liberally
construed to give effect to the popular mandate.
The Case
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court seeking to set aside the
January 18, 1999 Resolution
[1]
of the Commission on Elections (Comelec) en banc in SPA No. 98-298,
which upheld the July 14, 1998 Resolution
[2]
of the Comelec First Division. The assailed Resolutions
ruled that Private Respondent Vicente Y. Emano possessed the minimum period of residence to be
eligible to vote in Cagayan de Oro City, as well as be voted mayor thereof.
The Facts
The pertinent facts of the case, as culled from the records, are as follows.
During the 1995 elections, Vicente Y. Emano ran for, was elected, and proclaimed provincial
governor of Misamis Oriental. It was his third consecutive term as governor of the province. In his
Certificate of Candidacy dated March 12, 1995, his residence was declared to be in Tagoloan, Misamis
Oriental.
On June 14, 1997, while still the governor of Misamis Oriental, Emano executed a Voter Registration
Record in Cagayan de Oro City (geographically located in the Province of Misamis Oriental), a highly
urbanized city, in which he claimed 20 years of residence. On March 25, 1998, he filed his Certificate of
Candidacy for mayor of the city, stating therein that his residence for the preceding two years and five
months was at 1409 San Jose Street, Capistrano Subdivision, Gusa, Cagayan de Oro City.
Among those who ran for the mayorship of the city in 1998, along with Emano, was Erasmo B.
Damasing, counsel of herein petitioners. On May 15, 1998, Petitioners Rogelio M. Torayno Sr.,
Generoso Q. Eligan and Jacqueline M. Serio, all residents of Cagayan de Oro City, filed a Petition
before the Comelec, docketed as SPA No. 98-298, in which they sought the disqualification of Emano as
mayoral candidate, on the ground that he had allegedly failed to meet the one-year residence
requirement. Prior to the resolution of their Petition, the Comelec proclaimed private respondent as the
duly elected city mayor. Thus, on May 29, 1998, petitioners filed another Petition before the Comelec,
this time for quo warranto,
[3]
in which they sought (1) the annulment of the election of private respondent;
and (2) the proclamation of Erasmo B. Damasing, who had garnered the next highest number of votes, as
the duly elected mayor of the city.
In its Resolution dated July 14, 1998, the Comelec First Division denied the Petition for
Disqualification. Upon petitioners' Motion for Reconsideration and Motion for Consolidation, the two
cases were consolidated.
[4]

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

"1. Whether or not private respondent Emano's
(a) remaining as governor of Misamis Oriental until he filed his certificate of candidacy for mayor of
Cagayan de Oro City on March 25, 1998 in the May 11, 1998 election;
(b) asserting under oath [that he was] qualified to act as governor of said province until said date; and
(c) admitting, in sworn statements, [that he was] a resident of Misamis Oriental,
precluded him from acquiring a bona fide domicile of choice for at least one (1) year in Cagayan de Oro
City prior to the May 11, 1998 elections, as to disqualify him for being a candidate for city mayor of said
City.
2. Differently stated, whether or not Emano's securing a residence certificate in Cagayan de Oro City,
holding offices as governor of Misamis Oriental in the Capitol Building located in Cagayan de Oro City
and having a house therein where [he had] stay[ed] during his tenure as governor, and registering as a
voter in said City in June 1997, would be legally sufficient, as against the undisputed facts above
enumerated, to constitute a change of his domicile of birth in Tagoloan, Misamis Oriental in favor of a new
domicile of choice in Cagayan de Oro City for at least one (1) year for purposes of qualifying him to run
for city mayor in the May 11, 1998 elections.
3. Whether or not Erasmo Damasing, the candidate for mayor of Cagayan de Oro City in the May 11,
1998 elections, who received the second highest number of votes, can be declared winner, considering
that respondent Emano was disqualified to run for and hold said office and considering that his
disqualification or ineligibility had been extensively brought to the attention and consciousness of the
voters prior to the May 11, 1998 election as to attain notoriety, notwithstanding which they still voted for
him."
Petitioners are seeking the resolution of essentially two questions: (1) whether private respondent
had duly established his residence in Cagayan de Oro City at least one year prior to the May 11, 1998
elections to qualify him to run for the mayorship thereof; and (2) if not, whether Erasmo Damasing, the
candidate who had received the second highest number of votes, should be proclaimed mayor of the city.
The Courts Ruling
The Petition has no merit.
Preliminary Matter: Locus Standi of Petitioners
Although not raised by the parties, the legal standing of the petitioners was deliberated upon by the
Court. We note that petitioners pray, among others, for judgment "declaring Atty. Erasmo B. Damasing
as entitled to be proclaimed winner as mayor in the May 11, 1998 elections in Cagayan de Oro
City."
[8]
And yet, Damasing is not a party to the instant "Petition for Certioraripursuant to Rule[s] 64 and
65" brought before us.
Under the Rules of Court, a quo warranto may be brought only by (1) the solicitor general or (2) a
public prosecutor or (3) a person claiming to be entitled to the public office or position usurped or
unlawfully held or exercised by another.
[9]
A reading of the Rules shows that petitioners, none of whom
qualify under any of the above three categories, are without legal standing to bring this suit.
However, the present Petition finds its root in two separate cases filed before the Comelec: (1) SPC
98-298 for disqualification and (2) EPC 98-62 for quo warranto. Under our election laws and the Comelec
Rules of Procedure, any voter may file a petition to disqualify a candidate on grounds provided by
law,
[10]
or to contest the election of a city officer on the ground of ineligibility or disloyalty to the
Republic.
[11]
The petitioners herein, being "duly-registered voters" of Cagayan de Oro City, therefore
satisfy the requirement of said laws and rules.
[12]

Main Issue: Residence Qualification for Candidacy
Petitioners argue that private respondent maintains his domicile in Tagoloan, Misamis Oriental, not in
Cagayan de Oro City, as allegedly shown by the following facts: (1) he had run and won as governor of
the province of Misamis Oriental for three consecutive terms immediately preceding the 1998 elections;
(2) in the pleadings he filed in connection with an election protest against him relating to the 1995
election, he had stated that he was a resident of Tagoloan, Misamis Oriental; (3) he had fully exercised
the powers and prerogatives of governor until he filed his Certificate of Candidacy for mayor on March 25,
1998.
Petitioners claim that in discharging his duties as provincial governor, private respondent remained a
resident of the province. They aver that residence is a continuing qualification that an elective official
must possess throughout his term. Thus, private respondent could not have changed his residence to
Cagayan de Oro City while he was still governor of Misamis Oriental.
Petitioners further contend that the following were not sufficient to constitute a change of
domicile: having a house in Cagayan de Oro City, residing therein while exercising one's office as
governor (the city being the seat of government of the province), securing a residence certificate and
registering as voter therein.
Private respondent, on the other hand, alleges that he actually and physically resided in Cagayan de
Oro City while serving as provincial governor for three consecutive terms, since the seat of the provincial
government was located at the heart of that city.
[13]
He also avers that one's choice of domicile is a matter
of intention, and it is the person concerned who would be in the best position to make a choice. In this
case, Emano decided to adopt Cagayan de Oro City as his place of residence after the May 1995
elections. In fact, in January 1997, he secured his Community Tax Certificate at the City Treasurer's
Office, stating therein that he was a resident of 1409 San Jose Street, Capistrano Subdivision, Gusa,
Cagayan de Oro City. During the general registration of voters in June 1997, he registered in one of the
precincts of Gusa, Cagayan de Oro City. This meant that, at the time, Emano had been a voter of the city
for the minimum period required by law. No one has ever challenged this fact before any tribunal.
Private respondent contends further that his transfer of legal residence did not ipso facto divest him
of his position as provincial governor. First, there is no law that prevents an elected official from
transferring residence while in office. Second, an elective official's transfer of residence does not prevent
the performance of that official's duties, especially in private respondent's case in which the seat of
government became his adopted place of residence. Third, as ruled in Frivaldo v. Comelec,
[14]
the loss of
any of the required qualifications for election merely renders the official's title or right to office open to
challenge. In Emano's case, no one challenged his right to the Office of Provincial Governor when he
transferred his residence to Cagayan de Oro City. Naturally, he continued to discharge his functions as
such, until he filed his candidacy for mayor in March 1998.
Lastly, Emano urges that the sanctity of the people's will, as expressed in the election result, must be
respected. He is not, after all, a stranger to the city, much less to its voters. During his three terms as
governor of Misamis Oriental, his life and actuations have been closely interwoven with the pulse and
beat of Cagayan de Oro City.
Public Respondent Comelec relies essentially on Romualdez-Marcos v. Comelec
[15]
in its
Memorandum
[16]
which supports the assailed Resolutions, and which has been filed in view of the solicitor
general's Manifestation and Motion in Lieu of Comment.
[17]
Thus, the poll body argues that "x x x the fact
of residence x x x ought to be decisive in determining whether or not an individual has satisfied the
Constitution's residency qualification requirement."
Law on Qualifications of Local Elective Officials
The pertinent provision sought to be enforced is Section 39 of the Local Government Code (LGC) of
1991,
[18]
which provides for the qualifications of local elective officials, as follows:
"SEC. 39. Qualifications. - (a) An elective local official must be a citizen of the Philippines; a registered
voter in the barangay, municipality, city, or province x x x where he intends to be elected; a resident
therein for at least one (1) year immediately preceding the day of the election; and able to read and write
Filipino or any other local language or dialect."
Generally, in requiring candidates to have a minimum period of residence in the area in which they
seek to be elected, the Constitution or the law intends to prevent the possibility of a "stranger or
newcomer unacquainted with the conditions and needs of a community and not identified with the latter
from [seeking] an elective office to serve that community."
[19]
Such provision is aimed at excluding
outsiders "from taking advantage of favorable circumstances existing in that community for electoral
gain."
[20]
Establishing residence in a community merely to meet an election law requirement defeats the
purpose of representation: to elect through the assent of voters those most cognizant and sensitive to the
needs of the community. This purpose is "best met by individuals who have either had actual residence
in the area for a given period or who have been domiciled in the same area either by origin or by
choice."
[21]

Facts Showing Change of Residence
In the recent en banc case Mamba-Perez v. Comelec,
[22]
this Court ruled that private respondent
therein, now Representative Rodolfo E. Aguinaldo of the Third District of Cagayan, had duly proven his
change of residence from Gattaran, Cagayan (part of the First District) to Tuguegarao, Cagayan (part of
the Third District in which he sought election as congressman). He proved it with the following facts: (1)
in July 1990, he leased and lived in a residential apartment in Magallanes Street, Tuguegarao, Cagayan;
(2) in July 1995, he leased another residential apartment in Kamias Street, Tanza, Tuguegarao, Cagayan;
(3) the January 18, 1998 Certificate of Marriage between Aguinaldo and his second wife, Lerma
Dumaguit; (4) the Certificate of Live Birth of his second daughter; and (5) various letters addressed to him
and his family showed that he had been a resident of Tuguegarao for at least one year immediately
preceding the May 1998 elections. The Court also stated that it was not "of much importance that in his
[Aguinaldo's] certificates of candidacy for provincial governor in the elections of 1988, 1992, and 1995,
private respondent stated that he was a resident of Gattaran."
[23]

In the case at bar, the Comelec found that private respondent and his family had actually been
residing in Capistrano Subdivision, Gusa, Cagayan de Oro City, in a house he had bought in
1973. Furthermore, during the three terms (1988-1998) that he was governor of Misamis Oriental, he
physically lived in that city, where the seat of the provincial government was located. In June 1997, he
also registered as voter of the same city. Based on our ruling in Mamba-Perez, these facts indubitably
prove that Vicente Y. Emano was a resident of Cagayan de Oro City for a period of time sufficient to
qualify him to run for public office therein. Moreover, the Comelec did not find any bad faith on the part of
Emano in his choice of residence.
Petitioners put much emphasis on the fact that Cagayan de Oro City is a highly urbanized city whose
voters cannot participate in the provincial elections. Such political subdivisions and voting restrictions,
however, are simply for the purpose of parity in representation. The classification of an area as a highly
urbanized or independent component city, for that matter, does not completely isolate its residents,
politics, commerce and other businesses from the entire province -- and vice versa -- especially when the
city is located at the very heart of the province itself, as in this case.
Undeniably, Cagayan de Oro City was once an integral part of Misamis Oriental and remains a
geographical part of the province. Not only is it at the center of the province; more important, it is itself
the seat of the provincial government. As a consequence, the provincial officials who carry out their
functions in the city cannot avoid residing therein; much less, getting acquainted with its concerns and
interests. Vicente Y. Emano, having been the governor of Misamis Oriental for three terms and
consequently residing in Cagayan de Oro City within that period, could not be said to be a stranger or
newcomer to the city in the last year of his third term, when he decided to adopt it as his permanent place
of residence.
Significantly, the Court also declared in Mamba-Perez that "although private respondent declared in
his certificates of candidacy prior to the May 11, 1998 elections that he was a resident of Gattaran,
Cagayan, the fact is that he was actually a resident of the Third District not just for one (1) year prior to
the May 11, 1998 elections but for more than seven (7) years since July 1990. His claim that he ha[s]
been a resident of Tuguegarao since July 1990 is credible considering that he was governor from 1988 to
1998 and, therefore, it would be convenient for him to maintain his residence in Tuguegarao, which is the
capital of the province of Cagayan."
Similarly in the instant case, private respondent was actually and physically residing in Cagayan de
Oro City while discharging his duties as governor of Misamis Oriental. He owned a house in the city and
resided there together with his family. He even paid his 1998 community tax and registered as a voter
therein. To all intents and purposes of the Constitution and the law, he is a resident of Cagayan de Oro
City and eligible to run for mayor thereof.
To petitioners' argument that Emano could not have continued to qualify as provincial governor if he
was indeed a resident of Cagayan de Oro City, we respond that the issue before this Court is whether
Emano's residence in the city qualifies him to run for and be elected as mayor, not whether he could have
continued sitting as governor of the province. There was no challenge to his eligibility to continue running
the province; hence, this Court cannot make any pronouncement on such issue. Considerations of due
process prevent us from adjudging matters not properly brought to us. On the basis, however, of the
facts proven before the Comelec, we hold that he has satisfied the residence qualification required by law
for the mayorship of the city.
We stress that the residence requirement is rooted in the desire that officials of districts or localities
be acquainted not only with the metes and bounds of their constituencies but, more important, with the
constituents themselves -- their needs, difficulties, aspirations, potentials for growth and development,
and all matters vital to their common welfare. The requisite period would give candidates the opportunity
to be familiar with their desired constituencies, and likewise for the electorate to evaluate the former's
qualifications and fitness for the offices they seek.
In other words, the actual, physical and personal presence of herein private respondent in Cagayan
de Oro City is substantial enough to show his intention to fulfill the duties of mayor and for the voters to
evaluate his qualifications for the mayorship. Petitioners' very legalistic, academic and technical
approach to the residence requirement does not satisfy this simple, practical and common-sense
rationale for the residence requirement.
Interpretation to Favor Popular Mandate
There is no question that private respondent was the overwhelming choice of the people of Cagayan
de Oro City. He won by a margin of about 30,000 votes.
[24]
Thus, we find it apt to reiterate the principle
that the manifest will of the people as expressed through the ballot must be given fullest effect. In case of
doubt, political laws must be interpreted to give life and spirit to the popular mandate.
[25]
Verily, in Frivaldo
v. Comelec,
[26]
the Court held:
"x x x [T]his Court has repeatedly stressed the importance of giving effect to the sovereign will in order to
ensure the survival of our democracy. In any action involving the possibility of a reversal of the popular
electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give
effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by
those who are the choice of the majority. To successfully challenge a winning candidate's qualifications,
the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic to constitutional and
legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people
would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our
Constitution and laws so zealously protect and promote."
In the same vein, we stated in Alberto v. Comelec
[27]
that "election cases involve public interest; thus,
laws governing election contests must be liberally construed to the end that the will of the people in the
choice of public officials may not be defeated by mere technical objections."
Indeed, "it would be far better to err in favor of popular sovereignty than to be right in complex but
little understood legalisms."
[28]

In sum, we hold that Respondent Comelec cannot be faulted with abuse, much less grave abuse, of
discretion in upholding private respondent's election.
Corollary Issue: Effect of Disqualification of Winner on Second Placer
With the resolution of the first issue in the positive, it is obvious that the second one posited by
petitioners has become academic and need not be ruled upon.
WHEREFORE, the Petition is DISMISSED and the assailed Comelec
Resolutions AFFIRMED. Costs against petitioners.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena,
Gonzaga-Reyes, Ynares-Santiago, and De Leon Jr., JJ., concur.
Bellosillo, J., abroad on official business.






















Torayno v COMELEC G.R. No. 137329. August 9, 2000.

Facts:
During the 1995 elections, Vicente Y. Emano ran for, was elected, and proclaimed provincial governor of
Misamis Oriental. It was his third consecutive term as governor of the province. In his Certificate of
Candidacy dated March 12, 1995, his residence was declared to be in Tagoloan, Misamis Oriental. On
March 25, 1998, he filed his Certificate of Candidacy for mayor of the city, stating therein that his
residence for the preceding two years and five months was at 1409 San Jose Street, Capistrano
Subdivision, Gusa, Cagayan de Oro City.
On May 29, 1998, petitioners filed another Petition before the COMELEC, this time for quo warranto,
in which they sought (1) the annulment of the election of private respondent; and (2) the proclamation of
Erasmo B. Damasing, who had garnered the next highest number of votes, as the duly elected mayor of
the city.
Issue:
In their Memorandum, petitioners submit that the main issue is whether the "COMELEC gravely abused
its discretion amounting to lack of jurisdiction in issuing the questioned Resolutions." Allegedly, the
resolution of this issue would depend on the following:
1. Whether or not private respondent Emano's (a) remaining as governor of Misamis Oriental until he
filed his certificate of candidacy for mayor of Cagayan de Oro City on March 25, 1998 in the May 11, 1998
election; (b) asserting under oath [that he was] qualified to act as governor of said province until said
date; and (c) admitting, in sworn statements, [that he was] a resident of Misamis Oriental, precluded him
from acquiring a bona fide domicile of choice for at least one (1) year in Cagayan de Oro City prior to the
May 11, 1998 elections, as to disqualify him for being a candidate for city mayor of said City.

2. Differently stated, whether or not Emano's securing a residence certificate in Cagayan de Oro City,
holding offices as governor of Misamis Oriental in the Capitol Building located in Cagayan de Oro City
and having a house therein where he had stayed during his tenure as governor, and registering as a voter
in said City in June 1997, would be legally sufficient, as against the undisputed facts above enumerated,
to constitute a change of his domicile of birth in Tagoloan, Misamis Oriental in favor of a new domicile of
choice in Cagayan de Oro City for at least one (1) year for purposes of qualifying him to run for city mayor
in the May 11, 1998 elections.
3. Whether or not Erasmo Damasing, the candidate for mayor of Cagayan de Oro City in the May 11,
1998 elections, who received the second highest number of votes, can be declared winner, considering
that respondent Emano was disqualified to run for and hold said office and considering that his
disqualification or ineligibility had been extensively brought to the attention and consciousness of the
voters prior to the May 11, 1998 election as to attain notoriety, notwithstanding which they still voted for
him."

Held: WHEREFORE, the Petition is DISMISSED and the assailed COMELEC Resolutions AFFIRMED.
Costs against petitioners.
Ratio: In the case at bar, the COMELEC found that private respondent and his family had actually been
residing in Capistrano Subdivision, Gusa, Cagayan de Oro City, in a house he had bought in 1973.
Furthermore, during the three terms (1988-1998) that he was governor of Misamis Oriental, he physically
lived in that city, where the seat of the provincial government was located. In June 1997 he also
registered as voter of the same city.
We stress that the residence requirement is rooted in the desire that officials of districts or localities be
acquainted not only with the metes and bounds of their constituencies but, more important, with the
constituents themselves their needs, difficulties, aspirations, potentials for growth and development,
and all matters vital to their common welfare. The requisite period would give candidates the opportunity
to be familiar with their desired constituencies, and likewise for the electorate to evaluate the former's
qualifications and fitness for the offices they seek.


In view of locus standi of petitioners
Under the Rules of Court, a quo warranto may be brought only by (1) the solicitor general or (2) a
public prosecutor or (3) a person claiming to be entitled to the public office or position usurped or
unlawfully held or exercised by another. A reading of the Rules shows that petitioners, none of whom
qualify under any of the above three categories, are without legal standing to bring this suit.

Under our election laws and the COMELEC Rules of Procedure, any voter may file a petition to
disqualify a candidate on grounds provided by law, or to contest the election of a city officer on the ground
of ineligibility or disloyalty to the Republic. The petitioners herein, being "duly-registered voters" of
Cagayan de Oro City, therefore satisfy the requirement of said laws and rules.
In view of residence qualification for candidacy
Private respondent contends further that his transfer of legal residence did not ipso facto divest
him of his position as provincial governor. First, there is no law that prevents an elected official from
transferring residence while in office. Second, an elective official's transfer of residence does not prevent
the performance of that official's duties, especially in private respondent's case in which the seat of
government became his adopted place of residence. Third, as ruled in Frivaldo v. COMELEC, the loss of
any of the required qualifications for election merely renders the official's title or right to office open to
challenge. In Emano's case, no one challenged his right to the Office of Provincial Governor when he
transferred his residence to Cagayan de Oro City. Naturally, he continued to discharge his functions as
such, until he filed his candidacy for mayor in March 1998.
In view of law on qualifications of local elective officials
Such provision is aimed at excluding outsiders "from taking advantage of favorable
circumstances existing in that community for electoral gain." Establishing residence in a community
merely to meet an election law requirement defeats the purpose of representation: to elect through the
assent of voters those most cognizant and sensitive to the needs of the community. This purpose is
"best met by individuals who have either had actual residence in the area for a given period or who have
been domiciled in the same area either by origin or by choice."
In view of interpretation to favor popular mandate
There is no question that private respondent was the overwhelming choice of the people of
Cagayan de Oro City. He won by a margin of about 30,000 votes. Thus, we find it apt to reiterate the
principle that the manifest will of the people as expressed through the ballot must be given fullest effect.

To successfully challenge a winning candidate's qualifications, the petitioner must clearly
demonstrate that the ineligibility is so patently antagonistic to constitutional and legal principles that
overriding such ineligibility and thereby giving effect to the apparent will of the people would ultimately
create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and
laws so zealously protect and promote.
In sum, we hold that COMELEC cannot be faulted with abuse, much less grave abuse, of
discretion in upholding private respondent's election.
With the resolution of the first issue in the positive, it is obvious that the second one posited by
petitioners has become academic and need not be ruled upon.
NELSON T. LLUZ and CATALINO C. ALDEOSA, petitioners,
vs.
COMMISSION ON ELECTIONS and CAESAR O. VICENCIO, respondents.
D E C I S I O N
CARPIO, J .:
The Case
This petition for certiorari
1
seeks to annul the Resolutions of the Commission on Elections
(COMELEC) En Bancdated 1 February 2006 and 25 May 2006 in E.O. Case No. 04-5. The 1 February
2006 resolution ruled that no probable cause exists to charge private respondent Caesar O. Vicencio with
violation of Section 262 in relation to Section 74 of Batas Pambansa Blg. 881 (B.P. 881), otherwise
known as the Omnibus Election Code. The 25 May 2006 resolution denied petitioners Nelson T. Lluz and
Catalino C. Aldeosas motion for reconsideration of the 1 February 2006 resolution.
The Facts
Private respondent was a candidate for the post of punong barangay of Barangay 2, Poblacion, Catubig,
Samar in the 15 July 2002 Synchronized Barangay and Sangguniang Kabataan Elections. In his
certificate of candidacy, private respondent stated his profession or occupation as a certified public
accountant (CPA). Private respondent won in the elections.
Sometime after private respondents proclamation, petitioners charged him before the Law Department of
the COMELEC (Law Department) with violation of Section 262 in relation to Section 74 of B.P. 881.
Petitioners claimed they had proof that private respondent misrepresented himself as a CPA. Attached to
petitioners complaint was a Certification signed by Jose Ariola, Director II, Regulations Office of the
Professional Regulation Commission (PRC), stating that private respondents name does not appear in
the book of the Board of Accountancy. The book contains the names of those duly authorized to practice
accountancy in the Philippines.
In his Answer, private respondent maintained that he was a CPA and alleged that he passed the CPA
Board Examinations in 1993 with a rating of 76%. Private respondent argued that he could not be held
liable for an election offense because his alleged misrepresentation of profession was not material to his
eligibility as a candidate.
On 21 September 2004, the Law Department through its Director Alioden D. Dalaig issued a subpoena
requiring the Chief of the PRCs Records Section to appear before it and settle the controversy on
whether private respondent was indeed a CPA. On 6 October 2004, PRC Records Section Officer-in-
Charge Emma T. Francisco appeared before the Law Department and produced a Certification showing
that private respondent had taken the 3 October 1993 CPA Board Examinations and obtained a failing
mark of 40.71%.
Nevertheless, the Law Department recommended the dismissal of petitioners complaint. Citing the
rulings of this Court in Romualdez-Marcos v. COMELEC
2
and Salcedo II v. COMELEC,
3
the Law
Department held that the misrepresentation in private respondents certificate of candidacy was not
material to his eligibility as a candidate and could not be a ground for his prosecution.
However, upon motion of petitioners, the COMELEC En Banc by Resolution dated 5 October
2005 ordered the Law Department to file an information against private respondent for violation of Section
262 in relation to Section 74 of B.P. 881. In reversing the resolution of the Law Department, the
COMELEC En Banc ruled that Romualdez-Marcos and Salcedo were disqualification cases not
applicable to the case of private respondent who is sought to be prosecuted for an election offense. As
such, the misrepresentation made by private respondent need not be material to his eligibility as a
candidate in order to hold him liable under Section 262. The COMELEC En Bancfurther ruled that
election offenses are mala prohibita, in which case no proof of criminal intent is required and good faith,
ignorance, or lack of malice are not valid defenses.
On 18 October 2005, private respondent moved for reconsideration.
The Ruling of the COMELEC
On 1 February 2006, the COMELEC En Banc reconsidered its earlier Resolution, explaining thus:
After a careful evaluation x x x [w]e rule to grant the motion for reconsideration.
Criminal intent is not absolutely disregarded in election offense cases. A good example is the provision of
Section 261(y)(17) of [B.P. 881], which requires malicious intent in order that a person may be charged
for omitting, tampering, or transferring to another list the name of a registered voter from the official list of
voters posted outside the polling place.
In relation thereto, the fact that an offense is malum prohibitum does not exempt the same from the
coverage of the general principles of criminal law. In this case, the provisions of Section 261 of [B.P. 881]
must not be taken independent of the concepts and theories of criminal law.
The offense allegedly committed by the respondent is for failure to disclose his true occupation as
required under Section 74 of [B.P. 881]. Apparently, respondent misrepresented himself as a CPA when
in fact he is not. The misrepresentation having been established, the next issue posited by the
parties is whether or not the misrepresentation should be material before it can be considered as
an election offense.
We answer in the affirmative. Violation of Section 74 is a species of perjury, which is the act of knowingly
making untruthful statements under oath. Settled is the rule that for perjury to be committed, it must be
made with regard to a material matter.
Clearly, the principle of materiality remains to be a crucial test in determining whether a person can be
charged with violating Section 74 of [B.P. 881] in relation to Section 262 thereof.
The case of [Salcedo] sheds light as to what matters are deemed material with respect to the certificate of
candidacy, to wit: citizenship, residency and other qualifications that may be imposed. The nature of a
candidates occupation is definitely not a material matter. To be sure, we do not elect a candidate on the
basis of his occupation.
4

Petitioners filed a motion for reconsideration, which the COMELEC En Banc denied in the assailed
Resolution dated 25 May 2006. The COMELEC declared that while it "condemn[ed] in the strongest
possible terms" private respondents "morally appalling, devious, calculating, [and] deceitful" act, it could
not prosecute private respondent for an election offense, but possibly only for an administrative or
criminal offense.
Hence, this petition.
The Issues
Petitioners argue that:
1. The assailed resolutions failed to consider that a violation of Section 262 in relation to Section
74 of B.P. 881 is malum prohibitum;
2. The ruling in Salcedo is not applicable to petitioners complaint, that is, a fact misrepresented in
a certificate of candidacy need not be material in order to constitute a violation of Section 262 in
relation to Section 74 of B.P. 881; and
3. Assuming arguendo that materiality of a misrepresentation is required to constitute a violation
of Section 262 in relation to Section 74 of B.P. 881, the assailed resolutions should have
held material private respondents misrepresentation because it increased his chances of winning in the
elections.
The Ruling of the Court
Petitioners come to us on a single question of law: is an alleged misrepresentation of profession or
occupation on a certificate of candidacy punishable as an election offense under Section 262 in relation to
Section 74 of B.P. 881?
We rule in the negative.
In urging the Court to order the COMELEC to file the necessary information against private respondent,
petitioners invoke Sections 262 and 74 of B.P. 881, which we reproduce below:
Section 262. Other election offenses.Violation of the provisions, or pertinent portions, of the
following sections of this Code shall constitute election offenses: Sections 9, 18, 74, 75, 76, 80, 81,
82, 83, 84, 85, 86, 87, 88, 89, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110,
111, 112, 122, 123, 127, 128, 129, 132, 134, 135, 145, 148, 150, 152, 172, 173, 174, 178, 180, 182, 184,
185, 186, 189, 190, 191, 192, 194, 195, 196, 197, 198, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211,
212, 213, 214, 215, 216, 217, 218, 219, 220, 223, 229, 230, 231, 233, 234, 235, 236, 239 and 240.
(Emphasis supplied)
Section 74. Contents of certificate of candidacy.The certificate of candidacy shall state that the person
filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for
Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or
district or sector which he seeks to represent; the political party to which he belongs; civil status; his date
of birth; residence; his post office address for all election purposes; his profession or occupation; that
he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance
thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted
authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation
imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that
the facts stated in the certificate of candidacy are true to the best of his knowledge.
Unless a candidate has officially changed his name through a court approved proceeding, a candidate
shall use in a certificate of candidacy the name by which he has been baptized, or he has not been
baptized in any church or religion, the name registered in the office of the local civil registrar or any other
name allowed under the provisions of existing law or, in the case [of] a Muslim, his Hadji name after
performing the prescribed religious pilgrimage: Provided, That when there are two or more candidates for
an office with the same name and surname, each candidate, upon being made aware or such fact, shall
state his paternal and maternal surname, except the incumbent who may continue to use the name and
surname stated in his certificate of candidacy when he was elected. He may also include one nickname
or stage name by which he is generally or popularly known in the locality.
The person filing a certificate of candidacy shall also affix his latest photograph, passport size; a
statement in duplicate containing his bio-data and program of government not exceeding one hundred
words, if he so desires. (Emphasis supplied)
The penal coverage of Section 262 is limited.
From a cursory reading of Sections 262 and 74 of B.P. 881, one may possibly conclude that an act or
omission in violation of any of the provisions of Section 74 ipso facto constitutes an election offense.
Indeed, petitioners point out that private respondents misrepresentation of profession having been
proved before the COMELEC, the latter is compelled to prosecute him for violation of Section 262.
Petitioners argue that such a violation being an election offense, it is malum prohibitum and immediately
gives rise to criminal liability upon proof of commission.
Petitioners stance assumes that Section 262 penalizes without qualification the violation of the sections it
enumerates. This assumption is uncalled for in view of the wording of Section 262.
The listing of sections in Section 262 is introduced by the clause: "Violation of the provisions, or pertinent
portions, of the following sections shall constitute election offenses: x x x." The phraseology of this
introductory clause alerts us that Section 262 itself possibly limits its coverage to only pertinent portions of
Section 74. That such a possibility exists must not be taken lightly for two reasons. First, were the phrase
not necessary, the laws framers would have instead directly declared that violation of "the provisions" or
"any provision" of the enumerated sections without any qualification would constitute an election
offense. It is a settled principle in statutory construction that whenever possible, a legal provision, phrase,
or word must not be so construed as to be meaningless and a useless surplusage in the sense of adding
nothing to the law or having no effect on it.
5
Second, equally well-settled is the rule that a statute imposing
criminal liability should be construed narrowly in its coverage such that only those offenses clearly
included, beyond reasonable doubt, will be considered within the operation of the statute.
6
A return to
Section 74 is thus imperative.
Section 74 enumerates all information which a person running for public office must supply the
COMELEC in a sworn certificate of candidacy. Section 74 specifies that a certificate of candidacy shall
contain, among others, a statement that the person is announcing his or her candidacy for the office and
is eligible for such office, the unit of government which the person seeks to represent, his or her political
party, civil status, date of birth, residence, and profession or occupation. Section 74 further requires that
the person make several declarations: "that he will support and defend the Constitution of the Philippines
and will maintain true faith and allegiance" to it, "that he will obey the laws, legal orders, and decrees
promulgated by the duly constituted authorities," "that he is not a permanent resident or immigrant to a
foreign country," "that the obligation imposed by his oath is assumed voluntarily," and "that the facts
stated in the certificate of candidacy are true to the best of his knowledge."
Section 74 does not expressly mention which portion in its provisions is pertinent to Section 262, or which
among its provisions when violated is punishable as an election offense. Nothing in Section 74 partakes
unmistakably of a penal clause or a positive prohibition comparable to those found in other sections
7
also
mentioned in Section 262 that use the words "shall not." The Court is then left to interpret the meaning of
Section 74 to determine which of its provisions are penalized under Section 262, and particularly if
disclosure of profession or occupation is among such provisions.
Our rulings in Abella v. Larrazabal
and Salcedo clarify the concept of
misrepresentation under B.P. 881.
The issue in this case is novel, yet the facts and provisions of law now before us call to mind the cases
of Abella v. Larrazabal
8
and Salcedo, perhaps the closest this case has to a relevant precedent.
Abella dwelt on the issue of misrepresentation of residence in a certificate of candidacy. Petitioner Abella
had filed a case against private respondent Larrazabal before the COMELEC on the ground that the latter
falsely claimed to be a resident of Kananga, Leyte in her certificate of candidacy. In the course of the
hearing, Larrazabal moved for clarification of the nature of the proceedings, asking the COMELEC to
determine under what law her qualifications were being challenged. The COMELEC, by process of
elimination, determined that the proceeding was not (1) intended against a nuisance candidate under
Section 69 of B.P. 881, as Larrazabal was obviously a bona fide candidate; (2) a petition for quo warranto
under Section 253 which could be filed only after Larrazabals proclamation, as Larrazabal had not yet
been proclaimed; (3) a petition to deny due course to Larrazabals certificate of candidacy under Section
78, as Abellas petition did not contain such prayer and was not filed in the manner required by the
COMELEC Rules of Procedure; or (4) a petition for disqualification under Section 68, as Larrazabal was
not being charged with the commission of any election offense mentioned under the section. The
COMELEC concluded that "the subject of the petition, to wit, misrepresentation in the certificate of
candidacy, was actually a violation of Section 74" and must be prosecuted as an election offense under
Section 262. The COMELEC dismissed the petition and referred the case to its Law Department for
prosecution.
We held that the dismissal was improper. There we reasoned that the issue of residence having been
squarely raised before the COMELEC
x x x it should not have been shunted aside to the Law Department for a roundabout investigation of
[Larrazabals] qualification through the filing of a criminal prosecution, if found to be warranted, with
resultant disqualification of the accused in case of conviction. The COMELEC should have opted for a
more direct and speedy process available under the law, considering the vital public interest involved and
the necessity of resolving the question at the earliest possible time for the benefit of the inhabitants of
Leyte.
9

By "direct and speedy process," the Court referred to Section 78 of B.P. 881, which states:
Section 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition
seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively
on the ground that any material representation contained therein as required under Section 74
hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the
filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than
fifteen days before the election. (Emphasis supplied)
Thus, upon considering the facts and seeing that Larrazabals misrepresentation of her residence put her
qualification as a candidate at issue,
10
the Court found that the case fell squarely within the provisions of
Section 78 and directed the COMELEC to determine the residence qualification of Larrazabal. Notably,
the Court did not make a finding that Abella had no cause of action under Section 262, but only
characterized the criminal case as involving a "roundabout investigation" seeking an end Larrazabals
disqualification that could be achieved more speedily through an administrative proceeding under
Section 78. The ruling in Abella recognized that Larrazabals act of misrepresenting her residence, a fact
required to be stated in her certificate of candidacy under Section 74 and which was also a qualification
for all elective local officials, gave rise to two causes of action against her under B.P. 881: one, a criminal
complaint under Section 262; and second, a petition to deny due course to or cancel a certificate of
candidacy under Section 78.
The case of Salcedo six years after Abella tested the limits of Section 78 on the specific question of what
constitutes a material misrepresentation. In Salcedo, petitioner Victorino Salcedo prayed for the
disqualification of private respondent Emelita Salcedo (Emelita) from the mayoralty race in Sara, Iloilo on
the basis of the use of her surname. Petitioner alleged that Emelitas marriage to Neptali Salcedo
(Neptali) was void and therefore Emelitas use of Neptalis surname constituted a material
misrepresentation. The COMELEC ruled in favor of Emelita, finding that she committed no
misrepresentation. On appeal by petitioner, the Court held:
In case there is a material misrepresentation in the certificate of candidacy, the Comelec is authorized to
deny due course to or cancel such certificate upon the filing of a petition by any person pursuant to
Section 78 x x x.
x x x x
As stated in the law, in order to justify the cancellation of the certificate of candidacy under Section
78, it is essential that the false representation mentioned therein pertain[s] to a material matter for
the sanction imposed by this provision would affect the substantive rights of a candidate the
right to run for the elective post for which he filed the certificate of candidacy. Although the law
does not specify what would be considered as a "material representation," the Court has interpreted this
phrase in a line of decisions applying Section 78 of [B.P. 881].
x x x x
Therefore, it may be concluded that the material misrepresentation contemplated by Section 78 of
the Code refer[s] to qualifications for elective office. This conclusion is strengthened by the fact
that the consequences imposed upon a candidate guilty of having made a false representation in
[the] certificate of candidacy are grave to prevent the candidate from running or, if elected,
from serving, or to prosecute him for violation of the election laws. It could not have been the
intention of the law to deprive a person of such a basic and substantive political right to be voted for a
public office upon just any innocuous mistake.
x x x x
Aside from the requirement of materiality, a false representation under Section 78 must consist of a
"deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate
ineligible." In other words, it must be made with an intention to deceive the electorate as to ones
qualifications for public office. x x x
11
(Emphasis supplied)
From these two cases several conclusions follow. First, a misrepresentation in a certificate of candidacy is
material when it refers to a qualification for elective office and affects the candidates eligibility. Second,
when a candidate commits a material misrepresentation, he or she may be proceeded against through a
petition to deny due course to or cancel a certificate of candidacy under Section 78, or through criminal
prosecution under Section 262 for violation of Section 74. Third, a misrepresentation of a non-material
fact, or a non-material misrepresentation, is not a ground to deny due course to or cancel a certificate of
candidacy under Section 78. In other words, for a candidates certificate of candidacy to be denied due
course or canceled by the COMELEC, the fact misrepresented must pertain to a qualification for the office
sought by the candidate.
Profession or occupation is not a qualification
for elective office, and therefore not a material
fact in a certificate of candidacy.
No elective office, not even the office of the President of the Republic of the Philippines, requires a certain
profession or occupation as a qualification. For local elective offices including that of punong barangay,
Republic Act No. 7160 (R.A. 7160) or the Local Government Code of 1991 prescribes only qualifications
pertaining to citizenship, registration as a voter, residence, and language. Section 39 of R.A. 7160 states:
Section 39. Qualifications.
(a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay,
municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at
least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any
other local language or dialect.
x x x x
Profession or occupation not being a qualification for elective office, misrepresentation of such does not
constitute a material misrepresentation. Certainly, in a situation where a candidate misrepresents his or
her profession or occupation in the certificate of candidacy, the candidate may not be disqualified from
running for office under Section 78 as his or her certificate of candidacy cannot be denied due course or
canceled on such ground.
In interpreting a law, the Court must avoid
an unreasonable or unjust construction.
Were we to follow petitioners line of thought, for misrepresentation of a non-material fact, private
respondent could be prosecuted for an election offense and, if found guilty, penalized with imprisonment
and other accessory penalties. B.P. 881 prescribes a uniform penalty for all election offenses under it to
cover those defined in Sections 262 and 261, to wit:
Section 264. Penalties. Any person found guilty of any election offense under this Code shall be
punished with imprisonment of not less than one year but not more than six years and shall not be subject
to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office
and deprivation of the right of suffrage. If he is a foreigner, he shall be sentenced to deportation which
shall be enforced after the prison term has been served. Any political party found guilty shall be
sentenced to pay a fine of not less than ten thousand pesos, which shall be imposed upon such party
after criminal action has been instituted in which their corresponding officials have been found guilty.
The position taken by petitioners merely highlights for us the absurdity of not applying here the reasons
given by the Court in Salcedo, a mere disqualification case. In the present case, private respondent not
only could be disqualified from holding public office and from voting but could also be deprived of his
liberty were the COMELEC to pursue a criminal case against him. If in Salcedo the Court could not
conceive the law to have intended that a person be deprived "of such a basic and substantive political
right to be voted for a public office upon just any innocuous mistake" on the certificate of candidacy,
weightier considerations here demand that materiality of the misrepresentation also be held an essential
element of any violation of Section 74. Otherwise, every detail or piece of information within the four
corners of the certificate of candidacy, even that which has no actual bearing upon the candidates
eligibility, could be used as basis for the candidates criminal prosecution.
Further compelling us to dismiss this petition is the consideration that any complaint against private
respondent for perjury under the Revised Penal Code would necessarily have to allege the element of
materiality. The pertinent section of the Revised Penal Code states:
Art. 183. False testimony in other cases and perjury in solemn affirmation. The penalty of arresto
mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any
person who, knowingly making untruthful statements and not being included in the provision of the
next preceding articles, shall testify under oath, or make an affidavit, upon any material
matter before a competent person authorized to administer an oath in cases in which the law so requires.
(Emphasis supplied)
The basis of the crime of perjury is the willful assertion of a falsehood under oath upon a material matter.
Although the term "material matter" under Article 183 takes on a fairly general meaning, that is, it refers to
the main fact which is the subject of inquiry,
12
in terms of being an element in the execution of a
statement under oath it must be understood as referring to a fact which has an effect on the outcome of
the proceeding for which the statement is being executed.
13
Thus, in the case of a certificate of
candidacy, a material matter is a fact relevant to the validity of the certificate and which could serve as
basis to grant or deny due course to the certificate in case it is assailed under Section 78. Of course, such
material matter would then refer only to the qualifications for elective office required to be stated in the
certificate of candidacy.
Perjury under Article 183 of the Revised Penal Code carries the penalty of arresto mayor in its maximum
period toprision correccional in its minimum period and translates to imprisonment for four months and
one day up to two years and four months. The duration of this imprisonment is a far cry from that meted
by Section 264 of B.P. 881, which is a minimum of one year up to a maximum of six years. With the
gravity of the punishment provided by B.P. 881 for violation of election offenses, we glean the intention of
the law to limit culpability under Section 262 for violation of Section 74 only to a material
misrepresentation. We thus adhere to the more reasonable construction of the term "pertinent portions"
found in Section 262, in particular reference to Section 74, to mean only those portions of Section 74
which prescribe qualification requirements of a candidate.
WHEREFORE, we DISMISS the petition. We AFFIRM the En Banc Resolutions of the Commission on
Elections dated 1 February 2006 and 25 May 2006.
SO ORDERED.