Republic of the Philippines

COMELEC EN BANC
Intramuros, Manila

Nestor S Ortiz and

Glorioso Flores
Petitioner,
Election Case No.18-179(DC)
-versus- For: For Disqualification (for lack of
Qualification and/or For Possessing Grounds
for Disqualification)

Rommel C. Arnado
Respondent.

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

MEMORANDUM
Respondent, by undersigned counsel and unto this
Honorable Commission, in substantiation to the allegations
contained in the Answer and in contraversions to the allegations
in the Petition, respectfully submits the present Memorandum
and in support thereto avers the following, to wit:

PREFATORY STATEMENT

The Supreme Court held in Lonzanida v. Comelec, G.R

No. 135150, 28 July 1999, which was reiterated in Dizon v
Comelec, G.R. No. 182088, 30 January 2009 and Abundo v
Comelec, G.R. No. 201716, 08 January 2013 that and to quote:
 "When a candidate is proclaimed as winner for an
elective position and assumes office, his term is
interrupted when he loses in an election protest and is
ousted from office, thus enabling him from serving what
would otherwise be the unexpired portion of his term of
office had the protest been dismissed. The break or
interruption need not be for a full term of three years or
for the major part of the 3 -year term; an interruption for
any lenght of time, provided the cause is involuntary, is
sufficient to break the continuity of service." (Socrates,
citing Lonzanida)

TIMELINESS

That on December 17, 2018, a hearing of the present

case was held for a preliminary conference. After the conclusion
thereof, the parties were directed by the Honorable Commission
to submit within a period of three (3) days from December 17,
2018, the present Memorandum. Reckoning from said date, the
parties have until December 20, 2018 within which to submit the
required Memorandum. Said Memorandum is filed on even date.
Hence, the timelinesss of the filing thereof.

PARTIES

Petitioner Nestor Ortiz is one of the candidates for the

Mayoralty Position on this coming May 14, 2019 Election in the
Municipality of Kauswagan, Lanao del Norte. He is a resident of
Poblacion, Kauswagan, Lanao del Norte and may be served with
summons, notices and orders emanating from the Office of the
Honorable Commission. The other Petitioner, Glorioso Flores, is
one of the candidates for Sangguniang Bayan Member on this
coming May 14, 2019 Election in the Municipality of Kauswagan,
Lanao del Norte. He is a resident of Brgy Tacub, Kauswagan,
Lanao del Norte where he may be served with summons, notices
and orders emanating from the Office of the Honorable
Commission. Both Petitioners had either been authors or
participants to series of harassment suits filed against
respondent Arnado. The instant case is the latest of their
streaks.

On the other hand, respondent Arnado is also candidate

for the Mayoralty Position on this coming May 14, 2019 election
in the Municipality of Kauswagan, Lanao del Norte. He is a
resident of Poblacion, Kauswagan, Lanao del Norte where he
may be served with summons, notices and orders emanating
from the Office of the Honorable Commission.

FACTUAL ANTECEDENT

During the 2010 Election, respondent Arnado won the

mayoralty race in Kauswagan, Lanao del Norte and was
proclaimed winner by the COMELEC. A disqualification case was
filed by his opponent, Linog C. Balua. However, it was Casan
Maquiling, having garnered the Second Highest number of votes
in the mayoralty race, who elevated the Petition before the
Supreme Court as an intervenor. The Supreme Court held and to
quote:

"WHEREFORE, premises considered, the Petition is

GRANTED. The Resolution of the COMELEC En Banc dated
 2 February 2011 is hereby ANNULLED and SET ASIDE.
Respondent ROMMEL ARNADO y CAGOCO is disqualified
from running for any local elective position. CASAN
MACODE MAQUILING is hereby DECLARED the duly
elected Mayor of Kauswagan, Lanao del Norte in the 10
May 2010 elections." (CASAN MACODE MAQUILING vs
COMELEC, et.al G.R. No. 195649, April 16, 2013)

Acting on the aforequoted decision, the Department of

the Interior and Local Government (DILG), implemented the
decision of the Supreme Court on June 9, 2013. Immediately
thereafter, Casan Macode Maquiling took his oath and assumed
the position as Mayor of Kauswagan, Lanao del Norte. He issued
notices to Land Bank, DBP and Office of the Municpal Treasury
directing them to disregard any transactions entered into by
respondent Arnado as signatory for the Local Government of
Kauswagan, as the latter is no longer the incumbent mayor.

Copy of the Certification of the DILG attesting to the fact

of its implementation is attached to the Answer as Annex "1".

During the 2013 Election, respondent Arnado again won

the Mayoralty race in Kauswagan, Lanao del Norte and was
proclaimed by the COMELEC as winner. However, respondent
Arnado's lone rival, Florante Capitan, filed a Petition for
Disqualification and/or cancellation of Certificate of Candidacy.
The COMELEC treated said action as one for disqualification with
an alternate prayer to cancel Arnado's COC. Said Petition for
Disqualification was elevated to the Supreme Court but the Court
dismissed the Petition of Respondent on August 18, 2015 and
upheld the COMELEC Resolution which is quoted hereunder, to
wit:
 "WHEREFORE, premises considered, the instant motion
for reconsideration is hereby DISMISSED. The
Proclamation of Private Respondent Rommel C. Arnado as
the duly elected mayor of Kauswagan, Lanao del Norte is
hereby ANNULLED and SET ASIDE. FLORANTE T.
CAPITAN is hereby DECLARED the duly elected Mayor of
Kauswagan, Lanao del Norte in the May 13, 2013
Elections."

On March 30, 2016, Regional Director Arnel M Agabe,

CESO IV of the Office of the DILG-Region X, implemented and
served the decision of the Supreme Court to respondent Arnado,
who subsequently stepped down from the Office of Mayor in
Kauswagan, Lanao del Norte.

Copy of the Certification attesting to the fact of

implementation of the decision is attached to the Answer as
Annex "4".

That albiet respondent Arnado was victorious in the 2010

and 2013 mayoralty elections, he was disqualified from both
races respectively.

During the May 2016 election, respondent Arnado ran for

Mayoralty position. He won and was proclaimed as such. This
time around the political rivals of respondent get tired in filing
and did not disturb the election of the respondent as Mayor of
Kauswagan. Up to the present, respondent is serving his term of
office as Mayor of Kauswagan, Lanao del Norte. And if by any
chance, his service to the term will not be disturb up to June 30,
2019, Respondent, for the first time, will be serving the full term
of his office.
 Althought respondent won the 2010 and 2013 elections
for the Mayoralty post in Kauswagan, Lanao del Norte, he
however, was not able to fully serve the respective term for
2010 and 2013 elections by reason of the fact of disqualification
filed by his political rivals. Considerng the fact that during the
2010 an 2013 elections, there was involuntary interruption in the
service by the respondents in his terms of office, they are not full
terms under the law. Such being the case, respondent is still
eligible to run for mayor for the 2019 election.

ISSUES

1.) May a Petition filed as a Petition for Disqualification

properly invoke, as a ground, that the candidate sought
to be disqualified was barred by the three term limit
under the Constitution and thus not be barred by the
earlier prescriptive period applicable to Petition to Deny
Due Course to or to Cancel Certificate of Candidacy?

2.) May the three term limit provided in the Constitution

apply to respondent?

3.) Was there an involuntary interruption to the term of

the respondent during the 2010 election and 2013
elections?

DISCUSSION
May a Petition filed as a Petition
for Disqualification properly
invoke, as a ground, that the
candidate sought to be
disqualified was barred by the
three term limit under the
Constitution and thus not be
barred by the earlier
prescriptive period applicable to
Petition to Deny Due Course to
or to Cancel Certificate of
Candidacy?

The Petition filed is one for disqualification. For a Petition

for disqualification, the law expressly enumerates the grounds in
Section 68 of Batas Pambansa Blg. 881and to quote:

Sec. 68. Disqualifications. - Any candidate who, in

an action or protest in which he is a party is declared by final
decision of a competent court guilty of, or found by the
Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of
terrorism to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by this Code; (d)
solicited, received or made any contribution prohibited under
Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections
80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc,
subparagraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any
person who is a permanent resident of or an immigrant to a
foreign country shall not be qualified to run for any elective
office under this Code, unless said person has waived his status
as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the
election laws.

Section 12 of the OMNIBUS ELECTION CODE (BP 881)

also provided grounds for Disqualification and to quote:

"Sec. 12. Disqualifications. - Any person who has

been declared by competent authority insane or incompetent, or
has been sentenced by final judgment for subversion,
insurrection, rebellion or for any offense for which he has been
sentenced to a penalty of more than eighteen months or for a
crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given
plenary pardon or granted amnesty.

These disqualifications to be a candidate herein

provided shall be deemed removed upon the declaration by
competent authority that said insanity or incompetence had been
removed or after the expiration of a period of five years from his
service of sentence, unless within the same period he again
becomes disqualified. "

The Local Goverment Code, Section 40 thereof also

provided for grounds of disqualification and to quote:

"SEC. 40. Disqualifications. - The following persons

are disqualified from running for any elective local
position:

(a) Those sentenced by final judgment for an offense

involving moral turpitude or for an offense punishable by
 one (1) year or more of imprisonment, within two (2)
years after serving sentence;
(b) Those removed from office as a result of an
administrative case;
(c) Those convicted by final judgment for violating the
oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical cases
here or abroad;
(f) Permanent residents in a foreign country or those who
have acquired the right to reside abroad and continue to
avail of the same right after the effectivity of this Code;
and
(g) The insane or feeble-minded."

In application to the present case, none of the

aforequoted grounds is found to be the basis by Petitioners to
institute a dsiqualification case against herein respondent.
Petitioners sought to disqualify respondent Arnado by claiming
that the latter is barred from running by the three term limit
imposed by the Constitution on all local elective officials.
However, said ground does not qualify for a disqualification case
set forth under Section 12 or Section 68 of BP 881 and by
Section 40 of the Local Government Code, hence the present
Petition must be outrightly dismissed.

In the case of ALFAIS T. MUNDER, vs COMELEC, et.al,

G.R. No. 194076 and ATTY. TAGO R. SARIP, vs ALFAIS T.
MUNDER, et.al G.R. No. 194160, the Court held and to quote:

"The grounds in Section 68 maybe categorized into two.

First, those comprising prohibited acts of candidates; and
second, the fact of their permanent residency in another
 country when that fact affects the residency requirement
of a candidate according to the law."

A careful examination of the present Petition, it can be

readily observed that the same failed to raise grounds befitting
that of a disqualification case. Such being the case, the
Honorable Commission cannot tackle on the factual issue as it
could not properly take cognizance of the present case as the
same is infirmed right in the beginning.

In the same case, the COURT as well held and to quote:

"the Court has debunked the interpretation that a petition

for disqualification covers the absence of the substantive
qualifications of a candidate (with the exception of the
existence of the fact of the candidate's permanent residency
abroad)."

Hence, to bar any attempt of considering that the present

petition qualifies that of a disqualification case, the Supreme
Court is quite categorical on its guidance that petition for
disqualification does not cover absence of the substantive
qualification of a candidate (except permanent residency
abroad.)

Even if the COMELEC will consider the present Petition as

a Petition to Deny to or to Cancel Certificate of Candidacy, the
same is also barred by its prescriptive period. The Petition to
Deny or Cancel COC has to be filed at anytime not later than
twenty five (25) days from the time of filing of the COC.
 Respondent has filed his COC on October 11, 2018,
Twenty Five days from October 11, 2018 is November 5, 2018.
The present Petition was filed only on November 12, 2018.
Hence, the same was filed out of time. Such being the case, if
the Honorable Commission will consider the present Petition as
one for cancellation or to deny the COC still the same has to be
dismissed for being filed out of time.

May the three term limit

provided in the Constitution
apply to respondent?

Albiet respondent Arnado was victorious in the 2010 and

2013 mayoralty elections, he was disqualified from both races
respectively.

Section 6 of Republic Act No. 6646 provided and to quote:

"Section 6. Effect of Disqualification Case. - Any candidate

who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final
judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial
and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation
of such candidate whenever the evidence of his guilt is
strong."
 In relation to the present case, respondent Arnado was
disqualified during the 2010 and 2013 elections, therefore his
proclamations were void and his assumptions to the office of
Mayor following the both elections were not valid.

In the case of Borja, the Court held and to quote:

"It is not enough that an individual has served three

consecutive terms in an elective local office, he must also
have been elected to the same position for the same
number of times before the disqualification can apply."
(G.R. No. 133495, September 3, 1998, Benjamin Borja Jr
vs. COMELEC and Jose Capco)

In the present case, respondent Arnado was not validly elected

during the 2010 and 2013 elections, hence, the three term limit
will not apply to him.

Was there an involuntary

interruption to the term of the
respondent during the 2010
election and 2013 elections,

Granting that the pronouncements by the Court in Borja

Case will not apply to respondent Arnado, still the three - term
limit will not apply for the reason that the proclamations of the
respondent were voided prior to the expiration of the mayoralty
term. For local officials elected during the 2010 election, their
term of office ended on June 30, 2013. Respondent Arnado was
not able to fully serve his term of office for the reason that on
June 10, 2013, the decision of the Supreme Court was
implemented by the DILG.

Starting June 10, 2013 up to June 30, 2013, respondent

Arnado was prevented involuntarily from discharging the
functions of a Mayor, hence his term was involuntarily
interrupted. In fact, during these periods, respondent did not
claim his salary as he was not a Mayor during this period. He
also was prevented to sign disbursement vouchers and payrolls
of the employees. Proof thereof is a Certification from the Office
of the Municipal Treasurer certifying to the fact of non claims,
and no transactions or signing of disbursement was made or
entered into by respondent.

The office of the Sangguniang Bayan also certifies that

during this period respondent was not conferred any authority to
enter into a conract, memorandum or compromise. Respondent
also did not approve resolutions or ordinances during this period
as he was not anymore a Mayor.

Copy of the Certification from the Municipal Treasurer's

Office is hereto attached as Exhibit 1. Copy of the Certification
from the Office of the Sangguniang Bayan is hereto attached as
Exhibit 2.

It is also worthy to cite at this juncture the publish

interview of Casan Maquiling made by SunStar Philippines and
wrote by Ryan D. Rosauro on June 12, 2013
(https://www.sunstar.com.ph/article/288909/Maquiling-assumes-
post-in-Kauswagan-Lanao-del-Norte-), and to quote:

"Maquiling told Sun.Star Cagayan de Oro by phone that

with the service of the writ of execution, he has officially
 assumed the mantle of power as the duly elected
Kauswagan mayor for the next 20 days.

On Tuesday morning, Maquiling said he has officially

informed Lanao del Norte governor Khalid Dimaporo
about the situation and wrote the depository banks of the
local government, telling them not to honor any financial
transactions authorized by unseated mayor Rommel
Arnado.

Maquiling further said that he has ordered the chief of the

town police to disperse the barricade around the local
government center so that he can already hold office
inside the town hall."

From the foregoing, it is crystal clear that from June 10,

2013 up tp June 30, 2013, the term of office by respondent was
involuntarily interrupted.

With respect to the 2013 elections, the term of office of

the local officials elected ended on June 30, 2016. However,
respondent Arnado was not able to fully serve the term of his
office for the reason that on March 30, 2016 the decision of the
Supreme Court disqualifying him was served and implemented
by DILG. Starting March 30, 2016 up to June 30, 2016,
respondent Arnado was not discharging the functions of a
Mayor, hence his term was again involuntarily interrupted.
 It is also worthy to note of the report made by Region X
Director Agabe, which is found in Annex 2-B and attached to the
Answer, who said and to quote:

"Subsequently, our team informed through cellular phone

Petiitoner Florante T. Capitan of the fact of the substituted
service of the afore-mentioned documents to Respondent
Rommel C. Arnado and the consequences of the service,
the implications of his assumption to Office as the
Municipal Mayor included."

From the foregoing, it is crystal clear that from March 30,

2016 up to June 30, 2016, respondent's term of office was again
involuntarily interrupted. He was not the mayor during this
period of time and was again unable to discharge the functions
that said office entails, such as the signing of disbursement
voucher, payrolls, contracts, memorandums and/or compromise
in behalf of the Local Government of Kauswagan, Lanao del
Norte. Proof thereof are the Certifications issued from the Office
of the Municipal Treasurer and from the Office of the
Sangguniang Bayan respectively attached as "Exhibit 2 and 2-
A".

Considering the foregoing fact of involuntary

interruptions, the pronouncement of the Supreme Court is quite
instructive and to quote:

"When a candidate is proclaimed as winner for an

elective position and assumes office, his term is interrupted
when he loses in an election protest and is ousted from
office, thus disenabling him from serving what would
 otherwise be the unexpired portion of his term of office
had the protest been dismissed (Lonzanida and Dizon).
The break or interruption need not be for a full term of
three years or for the major part of the 3-year term; an
interruption for any length of time, provided the cause is
involuntary, is sufficient to break the continuity of service
(Socrates, citing Lonzanida)." (G.R.NO.201716, January 8,
2013, Mayor Abelardo Abundo, Sr. vs COMELEC and
Ernesto R. Vega.)

In the same case, the Supreme Court further held that and to
quote:

"An involuntary interrupted term, cannot, in the context

of the disqualification rule, be considered as one term for
purposes of counting the three-term threshold."

xxxx

"When the Constitution and the LGC of 1991 speak of

interruption, the reference is to the obstruction to the
continuance of the service by the concerned elected official
by effectively cutting short the service of a term or giving a
hiatus in the occupation of the elective office."

Clearly, no matter the length of the interruption is, the

fact that respondent Arnado was not able to fully serve the term
of his office due to his being disqualified to hold the same during
the 2010 election and 2013 election, the three term limit doe not
yet apply against him. Technically, considering the interruption,
respondent Arnado was still in his first term when he won the
2016 election. In the 2019 election, if in the event he will win the
 mayoralty race, respondent Arnado will be on his second term as
Mayor of the Municipality of Kauswagan, Lanao del Norte.

PRAYER

Wherefore, premises considered, it is most respectfully prayed

of the Honorable Office of the Commission that after due notice and
hearing an Order be issued dismissing the present Petition for
availing a wrong mode of action and for lack of merit.

Other reliefs and remedies as may be just and equitable under

the premises are likewise prayed for.

Poblacion, Tubod, Lanao del Norte, Philippines, December ____,

2018.

ATTY. NESTLE S. AGOPITAC

Counsel for Respondent
PTR NO. 3520073 – 2/5/2018
IBP NO. 025988 – 1/08/2018
ROLL No.61982
MCLE Cert. of Compliance No. VI-00000276
Valid until April 4, 2022
Notarial Certificate Serial Number 033-07-2015
Poblacion, Tubod, Lanao del Norte
Mobile No: 0917-150-0168
Email Address: [email protected]

Copy Furnished:

• Nestor S. Ortiz
Poblacion, Kauswagan, Lanao del Norte
• Glorioso Flores
Tacub, Kauswagan, Lanao del Norte