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DIGESTS by MUSNI, Merwen Wretzel Q.
November 8, 1990
MATEO CAASIvs.CA and MERITO C. MIGUEL, respondents.
FACTS
These two cases were consolidated because they have the same objective; the
disqualification under Section 68 of the Omnibus Election Code of the private respondent,
Merito Miguel for the position of municipal mayor of Bolinao, Pangasinan, to which he waselected in the local elections of January 18, 1988, on the ground that he is a green card
holder, hence, a permanent resident of the United States of America, not of Bolinao.
ISSUES
(1) whether or not a green card is proof that the holder is a permanent resident of the
United StatesYES
(2) whether respondent Miguel had waived his status as a permanent resident of or
immigrant to the U.S.A. prior to the local elections on January 18, 1988NO
REASONING
Section 18, Article XI of the 1987 Constitution provides:
Sec. 18. Public officers and employees owe the State and this Constitution
allegiance at all times, and any public officer or employee who seeks to change hiscitizenship or acquire the status of an immigrant of another country during his
tenure shall be dealt with by law.
In the same vein, but not quite, Section 68 of the Omnibus Election Code of the Philippines
(B.P. Blg. 881) provides:
SEC. 68. Disqualifications... 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. (Sec. 25, 1971, EC).
In the case of Merito Miguel, the Court deems it significant that in the "Application
forImmigrantVisa and Alien Registration" (Optional Form No. 230, Department of State)
which Miguel filled up in his own handwriting and submitted to the US Embassy i n Manila
before his departure for the United States in 1984, Miguel's answer to Question No. 21
therein regarding his "Length of intended stay (if permanently, so state)," Miguel's answer
was,"Permanently."
On its face, the green card that w as subsequently issued by the United Stat es
Department of Justice and Immigration and Registration Service to the respondent M erito
C. Miguel identifies him in clear bold letters as a RESIDENT ALIEN. On the back of the card,
the upper portion, the following information is printed:
Person identified by this card is entitled to reside permanentlyand work in US
Despite his vigorous disclaimer, Miguel's immigration to the Unit ed States in 1984
constituted an abandonment of his domicile and residence in the Philippines. For he did
not go to the United States merely to visit his children or his doctor there; he entered the
US with the intention to have there permanently as evidenced by his application for an
immigrant's (not a visitor's or tourist's) visa. Based on that application of his, he was issued
by the U.S. Government the requisite g reen card or authority to reside there permanently.
Immigration is the removing into one place from another; the act of immigrating the
entering into a country with the intention of residing in it. Animmigrantis a person who
removes into a country for the purpose ofpermanent residence.However, statutes
sometimes give a broader meaning to the t erm "immigrant."
As a resident alien in the U.S., Miguel o wes temporary and local allegiance to the
U.S., the country in which he resides. This is in return for the protection given to him during
the period of his residence therein.In general, aliens residing in the United States, while they are permitted to remain
are entitled to the safeguards of the constitution with regard to their rights of person and
property and to their civil and criminal responsibility. Thus resident alien friends are
entitled to the benefit of the provision of the Fourteenth Amendment to the federal
constitution that no state shall d eprive "any person" of life liberty, or property without due
process of law, or deny to any person the equal protection of the law, and the protection
of this amendment extends to th e right to earn a livelihood by following the ordinary
occupations of life. So an alien is entitled to the protection of the provision of the Fifth
Amendment to the federal constitution that no person shall be deprived of life, liberty, or
property without due process of law.
Section 18, Article XI of the 1987 Constitution which provides that "any public officer
or employee who seeks to change his citizenship or acquire the status of an immigrant of
another country during his tenure shall be d ealt with by law" is not applicable to MeritoMiguel for he acquired the status of an immigrant of the United States beforehe was
elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan.
The law applicable to him is Section 68 of the Omnibus Election Code.
To be "qualified to run for elective office" in the Philippines, the law requires that
the candidate who is a green card holder must have "waived his status as a permanent
resident or immigrant of a foreign country." Therefore, his act of filing a certificate of
candidacy for elective office in the Philippines, did not of itself constitute a waiver of his
status as a permanent resident or immigrant of the United States. The waiver of his
green card should be manifested by some act or acts independent of and done prior to
filing his candidacy for elective office in this country. Without such prior waiver, he was
"disqualified to run for any elective office"
Merito Miguel admits that he holds a green card, which proves that he is a
permanent resident or immigrant it of the United States, but the records of this case are
starkly bare of proof that he had waived his status as such beforehe ran for election as
municipal mayor of Bolinao on January 18, 1988. We, therefore, hold that he was
disqualified to become a candidate for that office.
The reason for Section 68 of the Omnibus Election Code is not hard to find.
Residence in the municipality where he intends to run for elective office for at least one
(1) year at the time of filing his certificate of candidacy, is one of the qualifications that a
candidate for elective public office must possess (Sec. 42, Chap. 1, Title 2, Local
Government Code). Miguel did not possess that qualification because he was a
permanent resident of the United States and he resided in Bolinao for a period of only
three (3) months (not one year) after his return to the Philippines in November 1987 and
before he ran for mayor of that municipality on January 18, 1988.
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In banning from elective public office Philippine citizens who are permanent
residents or immigrants of a foreign country, the Omnibus Election Code has laid down a
clear policy of excluding from the right to hold elective public office those Philippine
citizens who possess dual loyalties and allegiance. The law has reserved that privilege for
its citizens who have cast their lot with our country "without mental reservations or
purpose of evasion." The assumption is that those who are resident aliens of a foreign
country are incapable of such entire devotion to the interest and welfare of their
homeland for with one eye on their public duties here, they must keep another eye on
their duties under the laws of the foreign country of their choice in order to preservetheir status as permanent residents thereof.
Miguel insists that even though he applied for immigration and permanent residence
in the United States, he never really intended to live there permanently, for all that he
wanted was a green card to enable him to come and go to the U.S. with ease. In other
words, he would have this Court believe that he applied for immigration to the U.S. under
false pretenses; that all this time he only had one foot in the U nited States but kept his
other foot in the Philippines. Even if t hat were true, this Court will not allow itself to be a
party to his duplicity by permitting him to benefit from it, and giving him the best of both
worlds so to speak.
Miguel's application for immigrant status and permanent residence in the U.S. and
his possession of a green card attesting to such status are conclusive proof that he is a
permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver
of such immigrant status should be as indubitable as his application for it. Absent clearevidence that he made an irrevocable waiver of that status or that he surrendered his
green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the
local elections on January 18, 1988, our conclusion is that he was disqualified to run for
said public office, hence, his election thereto was null and void.
DISPOSITIVE
The election of respondent Merito C. Miguel as municipal mayor of Bolinao,
Pangasinan is hereby annulled. Costs against the said respondent.
July 24, 1996
EDUARDO T. RODRIGUEZ,petitioner, vs. COMMISSION ON
ELECTIONS, BIENVENIDO O. MARQUEZ, JR., respondents.
FACTS
Eduardo T. Rodriguez and private respondent Bienvenido O. Marquez, Jr. were
protagonists for the gubernatorial post of Quezon Province in the May 1992
elections. Rodriguez won and was proclaimed duly-elected governor.
Marquez challenged Rodriguez victory via petition forquo warrantobefore the
COMELEC. Marquez revealed that Rodriguez left the United States where a charge, filed on
November 12, 1985, is pending against the latter before the Los Angeles Municipal Court
for fraudulent insurance claims, grand theft and attempted grand theft of personal
property. Rodriguez is therefore a "fugitive from justice" which is a ground for his
disqualification/ineligibility under Section 40(e) of the Local Government Code (R.A. 7160),
so argued Marquez.
SC in "Marquez, Jr. vs. COMELEC" promulgated on April 18, 1995 (MARQUEZ
Decision) declared that:
fugitive from justiceincludes not only those who f lee after conviction to avoid
punishment but likewise those who, after being charged, flee to avoid prosecution. This
definition truly finds support from jurisprudence and it may be so conceded as
expressing the general and ordinary connotation of the term."
In the May 8, 1995 election, Rodriguez and Marquez renewed their rivalry for the
same position of governor. This time, Marquez challenged Rodriguez' candidacy via
petition for disqualification before the COMELEC, based principally on the same allegationthat Rodriguez is a "fugitive from justice."
COMELEC promulgated a Consolidated Resolution for EPC No. 92-28 (quo
warrantocase) and SPA No. 95-089 (disqualification case). COMELEC, allegedly having kept
in mind the MARQUEZ Decisiondefinition of "fugitive from justice", found Rodriguez to be
one. Such finding was essentially based on Marquez' documentary evidence consisting of
1. an authenticated copy of the November 12, 1995 warrant of arrest issued by
the Los Angeles Municipal Court against Rodriguez, and
2. an authenticated copy of the felony complaint
At any rate, Rodriguez again emerged as the victorious candidate in the May 8, 1995
election for the position of governor.
ISSUE
Whether Rodriguez is a "fugitive from justice" as contemplated by Section 40(e) of theLocal Government Code based on the alleged pendency of a criminal charge against him
NO
REASONING
The definition thus indicates that the intent to evadeis the compelling factor that
animates one's flight from a particular jurisdiction. And obviously, there can only be an
intent to evade prosecution or punishment when there is knowledge by the fleeing
subject of an already instituted indictment, or of a promulgated judgment of conviction.
Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival in
the Philippines from the US on June 25, 1985, as per certifications issued by the Bureau of
Immigrations dated April 27[3] and June 26 of 1995,[4]preceded the filing of the felony
complaint in the Los Angeles Court on November 12, 1985 and of the issuance on even
date of the arrest warrant by that same foreign court, by a lmost five (5) months. It was
clearly impossible for Rodriguez to have known about such felony complaint and arrest
warrant at the time he left the US, as there was in fact no complaint and arrest warrant
much less conviction to speak of yet at such time.
With that, the Court gives due credit to the COMELEC in having made the. same
analysis in its "x x x COMMISSION'S EVALUATION". There are, in fact, other observations
consistent with such analysis made by t he poll body that are equally formidable so as to
merit their adoption as part of this decision, to wit:
"It is acknowledged that there was an attempt by private respondent to show
Rodriguez' intent to evade the law. This was done by offering for admission a voluminous
copy of an investigation report on the alleged crimes committed which led to the filing of
the charges against petitioner. It was offered for the sole purpose of establishing the fact
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that it was impossible for petitioner not to have known of said investigation due to its
magnitude. Unfortunately, such conclusion misleads because investigations of this nature,
no matter how extensive or prolonged, are shrouded with utmost secrecy to afford law
enforcers the advantage of surprise and effect the arrest of those who would be
charged. Otherwise, the indiscreet conduct of the investigation would be nothing short of
a well-publicized announcement to the perpetrators of the imminent filing of charges
against them. And having been forewarned, every effort to sabotage the investigation may
be resorted to by its intended objects. But if private respondent's attempt to show
Rodriguez' intent to evade the law at the time he left the United States has any legalconsequence at all, it will be nothing more than proof that even private respondent
accepts that intent to evade the law is a material element in the definition of a fugitive.
"The circumstantial fact that it was seventeen (17) days after Rodriguez' departure
that charges against him were filed cannot overturn the presumption of good faithin his
favor. The same suggests nothing more than the sequence of events which transpired. A
subjective fact as that of petitioner's purpose cannot be inferred from the objective data at
hand in the absence of further proof to substantiate such claim. In fact, the evidence of
petitioner Rodriguez sufficiently proves that his compulsion to return to the Philippines
was due to his desire to join and participate vigorously in the political campaigns against
former President Ferdinand E. Marcos. For indeed, not long after petitioner's arrival in the
country, the upheaval wrought by the political forces and the avalanche of events which
occurred resulted in one of the more colorful events in Philippine history. The EDSA
Revolution led to the ouster of former Pres. Marcos and precipitated changes in thepolitical climate. And being a figure in these developments, petitioner Rodriguez began
serving his home province as OIC-Board Member of the Sangguniang Panlalawigan ng
Quezon in 1986. Then, he was elected Governor in 1988 and continues to be involved in
politics in the same capacity as re-elected Governor in 1992 and the disputed re-election
in 1995. Altogether, these landmark dates hem in for petitioner a period of relentless,
intensive and extensive activity of varied political campaigns first against the Marcos
government, then for the governorship. And serving the people of Quezon province as
such, the position entails absolute dedication of one's time to the demands of the office.
"Having established petitioner's lack of knowledge of the charges to be filed against
him at the time he left t he United States, it becomes immaterial under such construction to
determine the exact time when he was made aware thereof. While the law, as interpreted
by the Supreme Court, does not countenance flight from justice in the instance that a
person flees the jurisdiction of another state after charges against him or a warrant for his
arrest was issued or even in view of the imminent filing and issuance of t he same,
petitioner's plight is altogether a different situation. When, in good faith, a person leaves
the territory of a state not his own, homeward bound, and learns subsequently of charges
filed against him while in the relative peace and service of his own country, the fact that he
does not subject himself to the jurisdiction of the former state does not qualify him
outright as afugitive from justice.
"The severity of the law construed in the manner as to require of a person that he
subject himself to the jurisdiction of another state while already in his country or else be
disqualified from office, is more apparent when applied in petitioner's case. The criminal
process of the United States extends only within its territorial jurisdiction. That petitioner
has already left said country when the latter sought to subject him to its criminal process is
hardly petitioner's fault. In the absence of an intent to evade the laws of the United States,
petitioner had every right to depart t herefrom at the precise time that he did and to return
to the Philippines. No justifiable reason existed to curtail or fetter petitioner's exercise of
his right to leave the U nited State and return home. Hence, sustaining the contrary
proposition would be to unduly burden and punish petitioner for exercising a right as he
cannot be faulted for the circumstances that brought him within Philippine territory at the
time he was sought to be placed under arrest and to answer for charges filed against him.
"Granting, as the evidence warrants, that petitioner Rodriguez came to know of the
charges only later, and under his circumstances, is there a law that requires petitioner totravel to the United States and su bject himself to the monetary burden and tedious
process of defending himself before the country's courts?
"It must be noted that moral uprightness is not a standard too far-reaching as to
demand of political candidate the performance of duties and obligations that are
supererogatory in nature. We do not dispute that an alleged 'fugitive from justice' must
perform acts in order not to be so categorized. Clearly, a person who is aware of the
imminent filing of charges against him or of the same already filed in connection with acts
he committed in the jurisdiction of a particular state, is under an obligation not to flee said
place of commission. However, as in petitioner's case, his departure from the United States
may not place him under a similar obligation. His subsequent knowledge while in the
Philippines and non-submission to the jurisdiction of t he former country does not operate
to label petitioner automatically afugitive from justice. As he was a public officer
appointed and elected immediately after his return to the country, petitioner Rodriguezhad every reason to devote utmost priority to the service of his office. He could not have
gone back to the United States in the middle of his term nor could he have traveled
intermittently thereto without jeopardizing the interest of the public he serves. To require
that of petitioner would be to put him in a paradoxical quandary where he is compelled to
violate the very functions of his office."
However, Marquez and the COMELEC (in its "COMMISSION'S EVALUATION" as
earlier quoted) seem to urge the Court to re-define "fugitive from justice." They espouse
the broader concept of the term as culled from foreign authorities (mainly of U.S. vintage)
cited in the MARQUEZ Decisionitself, i.e., that one becomes a "fugitive from justice" by the
mere fact that he leaves the jurisdiction where a charge is pending against him, regardless
of whether or not the charge has already been filed at the time of his flight.
Suffice it to say that the " law of the case" doctrine forbids the Court to craft an
expanded re-definition of "fugitive from justice" (which is at variance with theMARQUEZ
Decision) and proceed therefrom in resolving the instant petition. The various definitions of
that doctrine have been laid down in People v.Pinuila, 103 Phil. 992, 999, to wit:
"'Law of the case' has been defined as the o pinion delivered on a former
appeal. More specifically, it means that whatever is once irrevocably established as the
controlling legal rule of decision between the same parties in the same case continues to
be the law of the case, whether correct o n general principles or not, so long as the facts on
which such decision was predicated continue to be the facts of the case before the court."
(21 C.J.S. 330)
To elaborate, the same parties (Rodriguez and Marquez) and issue (whether or not
Rodriguez is a "fugitive from justice") are involved in the MARQUEZ Decisionand the
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instant petition. The MARQUEZ Decisionwas an appeal from EPC No. 92-28 (the
Marquez' quo warrantopetition before the COMELEC). The instant petition is also an
appeal from EPC No. 92-28 although t he COMELEC resolved the latter jointly with SPA No.
95-089 (Marquez' petition for the disqualification of Rodriguez). Therefore, what was
irrevocably established as the controlling legal rule in the MARQUEZ Decisionmust govern
the instant petition. And we specifically refer to the concept of "fugitive from justice" as
defined in the main opinion in the MARQUEZ Decisionwhich highlights the significance of
an intent to evadebut which Marquez and the COMELEC, with their proposed expanded
definition, seem to trivialize.Besides, to re-define "fugitive from justice" would only foment instability in our
jurisprudence when hardly has the ink dried in the MARQUEZ Decision.
To summarize, the term "fugitive from justice" as a ground for the disqualification or
ineligibility of a person seeking to run for any elective local position under Section 40(e) of
the Local Government Code, should be understood according to the definition given in
the MARQUEZ Decision, to wit:
"A 'fugitive from justice' includes not only those who flee after conviction to avoid
punishmentbut likewise those who, after being charged, flee to avoid prosecution."
Intent to evadeon the part of a candidate must therefore be established by proof
that there has already been a conviction or at least, a charge has already been filed, at
the time of flight. Not being a "fugitive from justice" under this definition, Rodriguez
cannot be denied the Quezon Province gubernatorial post.
DISPOSITIVE
The assailed Resolutions of the COMELEC dated May 7, 1995 (Consolidated
Resolution), May 11, 1995 (Resolution suspending Rodriguez' proclamation) and June 23,
1995 (Resolution nullifying Rodriguez' proclamation and ordering the Quezon Province
Provincial Board of Canvassers to explain why they should not be cited in contempt) are
SET ASIDE.
July 5, 1996
ROLANDO P. DELA TORRE,petitioner, vs. COMMISSION ON
ELECTIONS and MARCIAL VILLANUEVA, respondents.
FACTS
Petitioner Rolando P. Dela Torre via the instant petition for certiorariseeks the
nullification of two resolutions issued by the Commission on Elections (COMELEC) allegedly
with grave abuse of discretion amounting to lack of jurisdiction in SPA No. 95 -047, a case
for disqualification filed against petitioner before the COMELEC.[1]
The first assailed resolution dated May 6,1995 declared the petitioner disqualified
from running for the position of Mayor of Cavinti, Laguna in the last May 8,1995 elections,
citing as the ground therefor, Section 40(a) of Republic Act No. 7160 (the Local
Government Code of 1991)[2] which provides as follows:
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) x x x x x x x x x.
In disqualifying the petitioner, the COMELEC held that:
Documentary evidence x x x established that herein respondent (petitioner in this
case) was found guilty by the Municipal Trial Court in Criminal Case No. 14723 for violation
of P.D. 1612, (otherwise known as t he Anti-fencing Law) in a Decision dated June
1,1990. Respondent appealed the said conviction with the Regional Trial Court whichhowever, affirmed respondents conviction in a Decision dated November
14,1990. Respondents conviction became final on January 18,1991.
there exists legal grounds to disqualify respondent as candidate for Mayor of
Cavinti, Laguna this coming elections. Although there is dearth of jurisprudence involving
violation of the Anti-Fencing Law of 1979 or P.D.1612 x x x, the nature of the offense
under P.D. 1612 with which respondent was convicted certainly invo lves moral turpitude x
x x.
Petitioner claimed that Section 40 (a) of the Local Gov ernment Code does not apply
to his case inasmuch as the probation granted him by the MTC on December 21, 1994
which suspended the execution of the judgment of conviction and all other legal
consequences flowing therefrom, rendered inapplicable Section 40 (a) as well.
ISSUES1. Whether or not the crime of fencing involves moral turpitudeYES
2. Whether or not a grant of probation affects Section 40 (a)s applicability NO
REASONING
Court has consistently adopted the definition in Blacks Law Dictionary of moral turpitude
as:
x x x an act of baseness, vileness, or depravity in the private duties which a man
owes his fellowmen, or to society in general, contrary to the accepted and customary
rule of right and duty between man and woman or conduct contrary to justice, honesty,
modesty, or good morals.
Not every criminal act, however, involves moral turpitude. It is for this reason that
as to what crime involves moral turpitude, is for the Supreme Court to determine.In
resolving the foregoing question, the Court is guided by one of the general rules that
crimes mala in seinvolve moral turpitude, while crimes mala prohibitado not, the
rationale of which was set forth in Zari v. Flores,to wit:
It (moral turpitude) implies something immoral in itself, regardless of the fact
that it is punishable by law or not. It must not be merely mala prohibita, but the act
itself must be inherently immoral. The doing of the act itself, and not its prohibition by
statute fixes the moral turpitude. Moral turpitude does not, however, include such acts
as are not of themselves immoral but whose illegality lies in their being positively
prohibited.
This guideline nonetheless proved short of providing a clear-cut solution, for in
International Rice Research Institute v. NLRC,[10] the Court admitted that it cannot always
be ascertained whether moral turpitude does or does not exist by merely classifying a
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crime as malum in seor as malum prohibitum. There are crimes which are mala in seand
yet but rarely involve moral turpitude and t here are crimes which involve moral turpitude
and are mala prohibitaonly. In the final analysis, whether or not a crime involves moral
turpitude is ultimately a question of fact and frequently depends on all the circumstances
surrounding the violation of the statute.[11]
The Court in this case shall nonetheless dispense with a review of the facts and
circumstances surrounding the commission of the crime, inasmuch as petitioner after all
does not assail his conviction. Petitioner has in effect admitted all the elements of the
crime of fencing. At any rate, the determination of whether or not fencing involves moralturpitude can likewise be achieved by analyzing the elements alone.
Fencingis defined in Section 2 of P.D.1612 (Anti-Fencing Law) as:
a. x x x the act of any person who, with intent to gain for himself or for another,
shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell,
or in any manner deal in any article, item, object or anything of value which h e knows, or
should be known to him, to have been derived from the proceeds of t he crime of robbery
or theft.[12]
From the foregoing definition may be gleaned the elements of the crime of fencing
which are:
"1. A crime of robbery or theft has been committed;
2. The accused who is not a principal or accomplice in the crime of robbery or
theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and
sells, or in any manner deals in any article, item, object or anything of value, which havebeen derived from the proceeds of the said crime;
3. The accused knows or should have known that the said article, item, object or
anything of value has been derived from the proceeds of the crime of robbery or theft; and
[Underscoring supplied.]
4. There is, on the part of the accused, intent to gain for himself or for another.
Moral turpitude is deducible from the third element. Actual knowledge by the
fence of the fact that property received is stolen displays the same degree ofmalicious
deprivation of ones rightful property as that which animated the robbery or theft which,
by their very nature, are crimes of moral turpitude.And although the participation of each
felon in the unlawful taking differs in point in time and in degree, both the fence and the
actual perpetrator/s of the robbery or theft invaded ones peaceful dominion for gain -
thus deliberately reneging in the process private duties they owe their fellowmen or
society in a manner contrary to x x x accepted and customary rule of right and duty x x x,
justice, honesty x x x or good morals. The duty not to appropriate, or to return, anything
acquired either by mistake or with malice is so basic it finds expression in some key
provisions of the Civil Code on Human Relations and Solutio Indebiti, to wit:
Article 19. Every person must, in the exercise of his rights and in the performance
of his duties, act with justice, give everyone his due, and observe honesty and goo d faith.
Article 20. Every person who, contrary to law, wilfully or negligently causes damage
to another, shall indemnify the latter for the sam e.
Article 21. Any person who wilfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate the latter for the
damage.
Article 22. Every person who through an act of performance by another, or any
other means, acquires or comes into possession of something at the expense of the latter
without just or legal ground, shall return the same to him.
Article 2154. If something is received when there is no right to demand it, and it
was unduly delivered through mistake, the obligation to return it arises.
The same underlying reason holds even if the fence did not have actual
knowledge, but merely should have known the origin of the property received.In this
regard, the Court held:
When knowledge of the existence of a particular fact is an element of the offense,such knowledge is established if a person is aware of the high probability of its existence
unless he actually believes that it does not exist. On the other hand, the words should
know denote the fact that a person of reasonable prudence and intelligence would
ascertain the fact in the performance of his duty to another or would govern his conduct
upon assumption that such fact exists.
Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant
buyer that the object of the sale may have been derived from the proceeds of robbery or
theft. Such circumstances include the time and place of the sale, both of which may not be
in accord with the usual practices of commerce. The nature and condition of the goods
sold, and the fact that the seller is not regularly engaged in the business of selling goods
may likewise suggest the illegality of their source, and therefore should caution the
buyer. This justifies the presumption found in Section 5 of P.D. No. 1612 that mere
possession of any goods, x x x, object or anything of value which has been the subject ofrobbery or thievery shall be prima facie evidence of fencing- a presumption that is,
according to the Court, reasonable for no other natural or logical inference can arise from
the established fact of x x x possession of the proceeds of the crime of robbery or theft.
All told, the COMELEC did not err in disqualifying the petitioner on the ground that
the offense of fencing of which he had been previously convicted by final judgment was
one involving moral turpitude.
The legal effect of probation is only to suspend the execution of the
sentence. Petitioners conviction of fencing which we have heretofore declared as a
crime of moral turpitude and thus falling squarely under the disqualification found in
Section 40 (a), subsists and remains totally unaffected notwithstanding the grant of
probation. In fact, a judgment of conviction in a criminal case ipso factoattains finality
when the accused applies for probation, although it is not executory pending resolution
of the application for probation.
DISPOSITIVE
Petition for certiorariis hereby DISMISSED.
October 4, 2002
NESTOR B. MAGNO,petitioner, vs. COMMISSION ON ELECTIONS
and CARLOS C. MONTES, respondents.
FACTS
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This petition originated from a case filed by private respondent on March 21, 2001
for the disqualification of petitioner Nestor Magno as mayoralty candidate of San Isidro,
Nueva Ecija during the May 14, 2 001 elections on the ground that petitioner was previously
convicted by the Sandiganbayan of four counts of direct bribery penalized under Article
210 of the Revised Penal Code.
It appears that on July 25, 1995, petitioner was sentenced to suffer the
indeterminate penalty of 3 months and 11 days of arresto mayor as minimum to 1 year 8
months and 21 days ofprision correccionalas maximum, for each of t he four counts of
direct bribery. Thereafter, petitioner applied for probation and was discharged on March5, 1998 upon order of the Regional Trial Court of Gapan, Nueva Ecija.
Meanwhile, Sonia Lorenzo was proclaimed by the COMELEC as the duly elected
mayor of San Isidro, Nueva Ecija.
ISSUE
Whether or not petitioner was disqualified to run for mayor in the 2001 electionsNO
In resolving this, two sub-issues need to be threshed out, namely:
(1) whether the crime of direct bribery involves moral turpitudeYES
(2) whether it is the Omnibus Election Code or the Local Government Code that should
apply in this situationLGC (2 years)
REASONING
Regarding the first sub-issue, the Court has consistently adopted the definition inBlacks Law Dictionary of moral turpitude as:
x x x an act of baseness, vileness, or depravity in the private duties which a man
owes his fellow men, or to society in general, contrary to the accepted and customary rule
of right and duty between man and woman or conduct contrary to justice, honesty,
modesty, or good morals.
Not every criminal act, however, involves moral turpitude. It frequently depends on
the circumstances surrounding the violation of the law.
In this case, we need not r eview the facts and circumstances relating to the
commission of the crime considering that petitioner did not assail his conviction. By
applying for probation, petitioner in effect admitted all the elements of the crime of direct
bribery:
1. the offender is a public officer;
2. the offender accepts an offer or promise or receives a gift or present by himself or
through another;
3. such offer or promise be accepted or gift or present be received by the public
officer with a view to committing some crime, o r in consideration of the execution of an act
which does not constitute a crime but the act must be unjust, or to refrain from doing
something which it is his official duty to do; and
4. the act which the offender agrees to perform or which he executes is connected
with the performance of his official duties.
Moral turpitude can be inferred from the third element. The fact that the offender
agrees to accept a promise or gift and deliberately commits an unjust act or refrains from
performing an official duty in exchange for some favors, denotes a malicious intent on
the part of the offender to renege on the duties which he owes his fellowmen and society
in general. Also, the fact that the offender takes advantage of his office and position is a
betrayal of the trust reposed on him by the public. It is a conduct clearly contrary to the
accepted rules of right and duty, justice, honesty and good morals. In all respects, direct
bribery is a crime involving moral turpitude.
It is the second sub-issue which is problematical. There appears to be a glaring
incompatibility between the five-year disqualification period provided in Section 12 of the
Omnibus Election Code and the two -year disqualification period in Section 40 of the Local
Government Code.It should be noted that t he Omnibus Election Code (BP 881) was approved on
December 3, 1985 while the Local Government Code (RA 7160) took effect on January 1,
1992. It is basic in statutory construction that in case of irreconcilable conflict between
two laws, the later enactment must prevail, being the more recent expression of legislative
will. Legis posteriores priores contrarias abrogant. In enacting the later law, the legislature
is presumed to have knowledge of the older law and intended to change it. Furthermore,
the repealing clauseof Section 534 of RA 7160 or the Local Government Code states that:
(f) All general and special laws, acts, city charters, decrees, executive orders,
proclamations and administrative regulations, or part or parts thereof which are
inconsistent with any provisions of this Code are hereby repealed or modified accordingly.
In accordance therewith, Section 40 of RA 7160 is deemed to have repealed Section
12 of BP 881. Furthermore, Article 7 of the Civil Codeprovides that laws are repealed only
by subsequent ones, and not the other way around. When a subsequent law entirelyencompasses the subject matter of the former enactment, the latter is deemed repealed.
In David vs. COMELEC, we declared that RA 7160 is a codified set of laws that
specifically applies to local government units. Section 40 thereof specially and definitively
provides for disqualifications of candidates for elective local positions. It is applicable to
them only. On the other hand, Section 12 of BP 881 speaks of disqualifications of
candidates for any public office. It deals with theelection of all public officers. Thus,
Section 40 of RA 7160, insofar as it governs the disqualifications of candidates for local
positions, assumes the nature of a special law which ought to prevail.
The intent of the legislature to reduce the disqualification period of candidates for
local positions from five to two years is evident. The cardinal rule in the interpretation of
all laws is to ascertain and give effect to the intent of the law. The reduction of the
disqualification period from five to two years is the manifest intent.
Therefore, although his crime of direct bribery involved moral turpitude, petitioner
nonetheless could not be disqualified from running in the 2001 elections. Article 12 of
the Omnibus Election Code (BP 881) must yield to Article 40 of the Local Government Code
(RA 7160). Petitioners disqualification ceased as of March 5, 2000 and he was t herefore
under no such disqualification anymore when he ran for mayor of San Isidro, Nueva Ecija in
the May 14, 2001 elections.
Unfortunately, however, neither this Court nor this case is the proper forum to rule
on (1) the validity of Sonia Lorenzos proclamation and (2) the declaration of petitioner as
the rightful winner. Inasmuch as Sonia Lorenzo had already been proclaimed as the
winning candidate, the legal remedy of petitioner would have been a timely election
protest.
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DISPOSITIVE
Petitioners prayer in his supplemental petition for his proclamation as the winner in
the May 14, 2001 mayoralty elections in San Isidro, Nueva Ecija, not being within our
jurisdiction, is hereby denied.
November 13, 2002
ATTY. MIGUEL M. LINGATING vs.COMELEC and CESAR B. SULONG
FACTSOn May 3, 2001, petitioner filed with the Provincial Election Supervisor in Pagadian
City a petition for the disqualification of respondent Sulong, pursuant to 40(b) of Republic
Act No. 7160 (Local Government Code), which disqualifies from running for any elective
local position "those removed from office as a result of an administrative case."3
It appears that respondent Sulong had previously won as mayor of Lapuyan on
January 18, 1988. In the May 11, 1992, and again in the May 8, 1995 elections, he was
reelected. In a petition for disqualification, petitioner alleged that in 1991, during his first
term as mayor of Lapuyan, respondent Sulong, along with a municipal councilor of Lapuyan
and several other individuals,4was administratively charged (AC No. 12 -91) with various
offenses,5and that, on February 4, 1992, the Sangguniang Panlalawigan of Zamboanga del
Sur found him guilty of the charges and ordered his removal from office. Petitioner claimed
that this decision had become final and executory, and consequently the then vice-mayor
of Lapuyan, Vicente Imbing, took his oath as mayor vice respondent Sulong on March 3,1992.
6
Respondent Sulong denied that the decision in AC No. 12-91 had become final and
executory. He averred that after receiving a copy of the decision on February 17, 1992, he
filed a motion for reconsideration and/or notice of appeal thereof on February 18, 1992;
that on February 27, 1992, the Sangguniang Panlalawigan required Jim Lingating, the
complainant in AC No. 12-91, to comment on respondent Sulongs motion for
reconsideration and/or notice of appeal; that the said complainant had not yet complied
therewith and his (respondent Sulongs) motion had consequently remained pending.
Respondent Sulong denied he had been removed from office by vi rtue of the decision in AC
No. 12-91.
Petitioner contends that the COMELEC en banc erred in applying the ruling in
Aguinaldo v. Commission on Elections13
in holding that the reelection of respondent Sulong
in 1992 and 1995 as mayor of Lapuyan had the effect of condoning the misconduct for
which he was ordered dismissed by the Sangguniang Panlalawigan of Zamboanga del Sur.
Petitioner cites Reyes v. Commission on Elections14
in which we held that an elective local
executive officer, who is removed before the expiration of the term for which he was
elected, is disqualified from being a candidate for a local elective position under 40(b) of
the Local Government Code.
ISSUE
WON Sulong is disqualifiedNO
REASONING
We stated in Reyes:
Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was held t hat a
public official could not be removed for misconduct committed during a prior term and
that his reelection operated as a condonation of the officers previous misconduct to the
extent of cutting off the right to remove him therefor. But that wa s because in that case,
before the petition questioning the validity of the administrative decision removing
petitioner could be decided, the term of office during which the alleged misconduct was
committed expired. Removal cannot extend beyond the term during which the alleged
misconduct was committed. If a public official is not removed before his term of office
expires, he can no longer be removed if he is thereafter reelected [for] another term. Thisis the rationale for the ruling in the two Aguinaldo cases.
The case at bar is the very opposite of those cases. Here, . . . the decision in the
administrative case, . . . was served on petitioner and it thereafter became final on April 3,
1995, because petitioner failed to appeal to the Office of the President. He was thus validly
removed from office and, pursuant to 40(b) of the Local Government Code, he was
disqualified from running for reelection.
It is noteworthy that at the time the Aguinaldo cases were decided there was no
provision similar to 40(b) which disqualifies any person from ru nning for any elective
position on the ground that he has been removed as a result o f an administrative case. The
Local Government Code of 1991 (R.A. No. 7160) could not be given retroactive effect.
However, Reyes cannot be applied to this case because it appears that the 1992
decision of the Sangguniang Panlalawigan, finding respondent Sulong guilty of dishonesty,falsification and malversation of public funds, has not until now become final. The records
of this case show that t he Sangguniang Panlalawigan of Zamboanga del Sur rendered
judgment in AC No. 12-91 on February 4, 1992, a copy of which was received by
respondent Sulong on February 17, 1992; that on February 18, 1992, he filed a "motion for
reconsideration and/or notice of appeal;" that on February 27, 1992, the Sangguniang
Panlalawigan, required Jim Lingating, the complainant in AC No. 12 -91, to comment; and
that the complainant in AC No. 12-91 has not filed a comment nor has the Sangguniang
Panlalawigan resolved respondents motion. The filing of his motion for reconsideration
prevented the decision of Sangguniang Panlalawigan from becoming final.
While R.A. No. 7160 on disciplinary actions is silent on the filing of a motion for
reconsideration, the same cannot be interpreted as a prohibition against t he filing of a
motion for reconsideration. Thus, it was held15
that a party in a disbarment proceeding
under Rule 139-B, 12(c) can move for a reconsideration of a resolution of the Integrated
Bar of the Philippines although Rule 139-B does not so provide:
Although Rule 139-B, 12(c) makes no mention of a motion for reconsideration,
nothing in its text or history suggests that such motion is prohibited. It may therefore be
filed . . . . Indeed, the filing of such motion should be encouraged before [an appeal is]
resort[ed] to . . . as a matter of exhaustion of administrative remedies, to afford the agency
rendering the judgment [an] opportunity to correct any error it may have committed
through a misapprehension of facts or misappreciation of evidence.
There is thus no decision finding respondent guilty to speak of. As Provincial
Secretary of Zamboanga del Sur Wilfredo Cimafranca attested, the Sangguniang
Panlalawigan simply considered the matter as having become moot and academic
because it was "overtaken by the local elections of May [11,]1992."
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Neither can the succession of the then vice-mayor of Lapuyan, Vicente Imbing, and
the highest ranking municipal councilor of Lapuyan, Romeo Tan, to the offices of mayor
and vice-mayor, respectively, be considered proof that the decision in AC No. 12-91 had
become final because it appears to have been made pursuant to 6816
of the Local
Government Code, which makes decisions in administrative cases immediately
executory.
Indeed, considering the failure of the Sangguniang Panlalawigan to resolve
respondents motion, it is unfair to the electorate to be told after they have voted for
respondent Sulong that after all he is disqualified, especially since, at the time of theelections on May 14, 2001, the d ecision of the Sangguniang Panlalawigan had been
rendered nearly ten years ago.
Having come to the conclusion that respondent Sulong is not disqualified from
holding the position of mayor of Lapuyan, it is unnecessary to pass upon petitioners
contention that, as the candidate who obtained the second highest number of votes, he is
entitled to be installed as mayor because the votes cast in favor of respondent Sulong were
void.
DISPOSITIVE
Petition for certiorari is DISMISSED
June 22, 1993
ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO,DOMINGO A. JADLOC, CARLITO T. CRUZ and MANUEL P.
REYES, petitioner,
vs.
HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J.
GORDON, respondents.
FACTS
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 oficiochairman 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 co nstitutional 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 otherwiseprovided for by law, and those whom he may be
authorized by law to appoint",
4
since it was Congress through the questionedprovisoandnot the President who appointed the Mayor to the subject posts;
5and, (c) Sec. 261, par.
(g), of the Omnibus Election Code1, 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.
ISSUE
Whether theproviso 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 YES
REASONINGIn 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 t he 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 p ublic office is a
1Sec. 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 . . . .
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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, andAnti-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 anexecutive position in government, and thus neglect his constituents . . . ."7
In the case before us, the subjectproviso 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 theproviso 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 legislativeact 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 anelective 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;9the Vice-President, who may be appointed Member of the
Cabinet;10
and, a member of Congress who may be designated ex officio member of the
Judicial and Bar Council.11
The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not
accidental when drawn, and not without reason. It was p urposely sought by the drafters o f
the Constitution as shown in t heir deliberation, thus
MR. MONSOD. In other words, what 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 o fficials 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 officioto the position of
Mayor of Olongapo City, hence, an excepted circumstance, citing Civil Liberties Union v.Executive Secretary,
13where 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 C ity 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
subjectproviso 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 subjectproviso 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
challengedproviso 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 compensation16
would
be useless, is non sequitur since Sec. 8 does not affect the constitutionality of the
subjectproviso. 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.
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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 O fficer 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 thesame.18
In his treatise, Philippine Political Law,19
Senior Associate Justice Isagani A. Cruz
defines appointment as "the selection, by the authority vested with the power, of an
individual who is to exercise the functions of a given office."
Considering that appointment calls for a selection, the appointing power necessarily
exercises a discretion. According to Woodbury, J.,20
"the choice of a person to fill an o ffice
constitutes the essence of his appointment,"21
and Mr. Justice Malcolm adds that an
"[a]ppointment to office is intrinsically an executive act involving the exercise of
discretion."22
In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court23
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 isa prerogative of the appointing power . . . .
Indeed, the power of choice is the heart o f the power to appoint. Appointment
involves an exercise of discretion of whom t o 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 th e choice of the President to only one candidate.
Once the power of appointment is conferred on t he 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 f illed with a
presidential appointee for the first year of its operations from the effectivity of R.A. 7227,
theprovisonevertheless limits the appointing authority to only one eligible,i.e., the
incumbent Mayor of Olongapo City. Since only o ne 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 provisomerely 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 co nferment of the appointing power
on the President is a perfectly valid legislative act, theproviso 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.
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 th e
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 isnot 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, 6 1 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
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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 allper 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 questionedproviso as well as the appointment of said
respondent made pursuant thereto need no longer be discussed.
One of the characteristics of the Constitution is permanence, i.e., "its capacity toresist 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
DISPOSITIVE
Theproviso 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, allper diems, allowances and other emoluments received by respondentGordon, 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.
April 18, 1997
LYNETTE G. GARVIDA,petitioner, vs.FLORENCIO G. SALES, JR., THE
HONORABLE COMMISSION ON ELECTIONS, ELECTION OFFICER
DIONISIO F. RIOS and PROVINCIAL SUPERVISOR NOLI
PIPO, respondents., supra
January 18, 1991
PERFECTO V. GALIDO, petitioner,
vs.
COMMISSION ON ELECTIONS and SATURNINO R.
GALEON, respondents.
FACTS
Petitioner and private respondent were candidates during the 18 January 1988 local
elections for the position of mayor in the Municipality of Garcia-Hernandez, Province of
Bohol. Petitioner was proclaimed duly-elected Mayor of Garcia-Hernandez, by the
Municipal Board of Canvassers.
On 25 January 1988, private respondent Saturnino R. Galeon filed an election
protest before the Regional Trial Court of B ohol, 7th Judicial Region, Branch I, Tagbilaran
City. After hearing, the said court upheld the proclamation of petitioner as the duly-elected
Mayor of Garcia-Hernandez, by a majority of eleven (11) votes.
Private respondent appealed the RTC decision to the Commission on Elections
(COMELEC). Through its First Division, the COMELEC reversed the trial court's decision and
declared private respondent the duly-elected mayor by a plurality of five (5) votes.
COMELEC en bancaffirmed the decision of its First Division. The COMELEC held
that the fifteen (15) ballots in the same precinct containing the initial "C" after the name
"Galido" were marked ballots and, therefore, invalid.
ISSUE
WON petition must be grantedNO
REASONING
The Commission on Elections (COMELEC) has exclusive original jurisdiction over all
contests relating to the elections, returns, and qualifications of all elective regional,
provincial, and city officials and has appellate jurisdiction over all cont ests involving
elective municipal officials decided by trial courts of general jurisdiction or involving
elective barangay officials decided by trial courts of limited jurisdiction. (Article IX (C),
Section 2 (2), paragraph 1 of the 1987 Constitution).
In the present case, after a review of the trial court's decision, the respondent
COMELEC found that fifteen (15) ballots in t he same precinct containing the letter "C" after
the name Galido are clearly marked ballots. May this COMELEC decision be brought to thiscourt by a petition for certiorariby the aggrieved party (the herein petitioner)?
Under Article IX (A) Section 7 of the Co nstitution, which petitioner cites in support of
this petition, it is stated: "(U)nless otherwise provided by this Constitution or by law, any
decision, order, or ruling of each (Constitutional) Commission may be brought to the
Supreme Court on certiorariby the aggrieved party within th irty days from receipt of a
copy thereof."
On the other hand, private respondent relies on Article IX, (C), Section 2(2),
paragraph 2 of the Constitution which provides that decisions, final orders, or rulings of the
Commission on Elections in contests involving elective municipal and barangay offices shall
befinal, executory, and not appealable. (Emphasis supplied)
We resolve this issue in favor of the petitioner. The fact that decisions, final orders
or rulings of the Commission o n Elections in contests involving elective municipal and
barangay offices are final, executory and not appealable, does not preclude a recourse to
this Court by way of a special civil action of certiorari. The proceedings in the Constitutional
Commission on this matter are enlightening. Thus
MR. FOZ. So, the amendment is to delete the word "inappealable."
MR. REGALADO. Before that, on page 26, line 26, we should have a
transposition because decisions are always final, as distinguished from interlocutory
orders. So, it should read: "However, decisions, final orders or rulings," to distinguish
them from intercolutory orders, ". . . of the Commission on Elections on municipal and
barangay officials shall be final and IMMEDIATELY executory."
That would be my proposed amendment.
MR. FOZ. Accepted, Mr. Presiding Officer.
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MR. REGALADO. It is understood, however, that while t hese decisions with
respect to barangay and municipal officials are final and immediately executory and,
therefore, not appealable, that does not rule out the possibility of an original special
civil action for certiorari, prohibition, or mandamus, as the case may be, under Rule 65
of the Rules of Court.
MR. FOZ. That is understood, Mr. Presiding Officer.
MR. REGALADO. At least it is on record.
Thank you, Mr. Presiding Officer.1
We do not, however, believe that the respondent COMELEC committed grave abuseof discretion amounting to lack or excess of jurisdiction in rendering the questioned
decision. It is settled that the function of a writ of certiorariis to keep an inferior court or
tribunal within the bounds of its jurisdiction or to prevent it from committing a grave abuse
of discretion amounting to lack or excess of jurisdiction.
As correctly argued by public respondent COMELEC, it has the inherent power to
decide an election contest on physical evidence, equity, law and justice, and apply
established jurisprudence in support of its findings and conclusions; and that the extent to
which such precedents apply rests on its discretion, the exercise of which should not be
controlled unless such discretion has been abused to the prejudice of either party. (Rollo,
p. 107)
Finally, the records disclose that private respondent had already assumed the
position of Mayor of Garcia-Hernandez as the duly-elected mayor of the municipality by
virtue of the COMELEC decision. The main purpose of prohibition is to suspend all actionand prevent the further performance of the act complained of. In this light, the petition at
bar has become moot and academic.
DISPOSITIVE
Petition is DISMISSSED.
July 12, 1991
JUAN GARCIA RIVERA, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN MITRE GARCIA
II, respondents.
FACTS
Petitioner Juan Garcia Rivera and private respondent Juan Mitre Garcia II were
candidates for the position of Mayor of Guinobatan, Albay, during the local elections in
January 1988. The Municipal Board of Canvassers proclaimed Rivera as the duly elected
Mayor by a majority of ten (10) votes.
On 26 January 1988, Garcia filed an election protest with the Regional Trial Court,
Legazpi City, docketed as Case No. 01-88. After due hearing, and upon considering the
report of a Revision Committee it had earlier created, the trial court rendered its verdict on
9 September 1989, finding Garcia to have obtained 6,376 votes as against Rivera's 6,222.
Rivera appealed to the COMELEC. Through its First Division, the COMELEC sustained
with modification the appealed judgment of the Regional Trial Court, as follows:
1. Affirming the Trial court's annulment of the Board of Canvasser's
proclamation of Protestee-Appellant Juan G. Rivera as the duly elected Municipal
Mayor;
2. Declaring Protestant-Appellee Juan Mitre Garcia II as the duly elected
Municipal Mayor of Guinobatan, Albay, by a majority of ONE HUNDRED FIFTY THREE
(153) votes over Protestee-Appellant Juan G. Rivera instead of a plurality of ONE
HUNDRED FIFTY FOUR (154) votes; and
3. Protestee-Appellant Juan Garcia Rivera is hereby directed to turn over the
Office of the Municipal Mayor to Protestant-Appellee Juan Mitre Garcia II.xxx xxx xxx
Rivera's motion for reconsideration was acted upon by t he COMELEC en banc. In
itsper curiamdecision, dated 6 September 1990, the CO MELEC denied the motion and re-
affirmed the decision of its First Division declaring Garcia as the duly elected Mayor of
Guinobatan, Albay but with a winning margin of one hundred twenty-three (123) votes
over Rivera.
Garcia commenced to discharge the duties and functions of Mayor of Guinobatan on
10 October 1990, by virtue of a writ of execution implementing the COMELEC decision of 6
September 1990. He continued as mayor until 10 November 1990 when he was served
notice of this Court's temporary restraining order, issued upon Rivera's motion.
Rivera filed the present petition on 5 O ctober 1990 seeking annulment of the
COMELEC en bancdecision rendered in favor of respondent Garcia. He also prayed for the
issuance of an order restraining the implementation of the said judgment, arguing that thesame had not yet become final and executory as of the time this petition was filed. He cites
Article IX-C, Section 2, Par. (2) of the 1987 Constitution, in relation to Part VII, Rule 39,
Section 1 of the COMELEC Rules of Procedure. He also contends that since the COMELEC
decision of 6 September 1990 has not yet become final and executory, the COMELEC has
no authority to issue the assailed order and writ of execution. Petitioner maintains further
that he has a period of thirty (30) days from 6 September 1990 or until 6 October 1990
within which to elevate the COMELEC decision, on certiorari, to this Court, pursuant to
Section 1, Rule 39 of the COMELEC Rules of Procedure. He submits that the questioned
COMELEC decision is not one that became final and executory unless restrained by this
Court as provided under Section 3, Rule 39 of the COMELEC Rules, as said rule applies only
to "decisions in pre-proclamation cases and petitions to deny due course or to disqualify a
candidate, and postpone or suspend elections."
Lastly, according to petitioner, Section 13(a) of Rule 18 (finality of Comelec decisions
or resolutions) and Section 1 of Rule 39 (review by the Supreme Court o f Comelec
decisions, orders and rulings) of the COMELEC Rules of Procedure, should be read in the
context of Section 7, Article IX-A of the Constitution (Supreme Court authority to review
on certioraria Comelec decision, order or ruling).
Upon the other hand, respondent Garcia contends that:
1. The Constitution declares the decisions of the COMELEC on election contests
involving elective municipal and barangay officials to be final, executory and not
appealable (Article IX-C, Sec. 2, par. (2), second sentence, 1987 Constitution).
2. In an earlier petition for certiorarifiled by Rivera with this Court , docketed as G.R.
No. 87046, charging the Regional Trial Court of grave abuse of discretion in Case No. 01-88,
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wherein the same issue now raised in this petition was raised by Rivera, this Court
dismissed the petition for lack of merit on 7 March 1989.
3. The supplemental ground raised by petitioner Rivera that the COMELEC
committed grave abuse of discretion "by not excluding from the total votes of Garcia at
least ten (10) votes which were misappreciated in Garcia's favor, outside of those objected
votes already ruled upon by the COMELEC" does not deserve any consideration. If true, it is
an error in judgment, correctible by appeal, not by a petition for certioraripursuant to Rule
65, Section 1, of the Rules of Court.
ISSUE
WON the petition must be granted NO
REASONING
The environmental facts of this petition are similar to those in the Galidocase (G.R.
No. 95346, decided 18 January 1991). The issue of whether the decisions of t he COMELEC
in election contests involving elective municipal and barangay officials, being final and
executory and not appealable, preclude the filing of a special civil action o f certiorari, was
decided in the said Galido case. The Court held:
Under Article IX (A), Section 7 of the Constitution, which petitioner cites in
support of this petition, it i s stated: "(U)nless otherwise provided by the Constitution
or by law, any decision, order, or ruling of each (Constitutional) Commission may be
brought to the Supreme Court on certiorariby the aggrieved party within thirty daysfrom receipt of a copy thereof."
On the other hand, private respondent relies on Article IX, (C), Section 2 (2),
paragraph 2 of the Constitution which provides that decisions, final orders, or rulings
of the Commission on Elections in contests involving elective municipal and barangay
offices shall befinal, executory and not appealable. (Emphasis supplied)
We resolve this issue in favor of the petitioner. The fact that decisions, final
orders or rulings of the Co mmission on Elections in contests involving elective
municipal and barangay offices are final, executory and not appealable, does not
preclude a recourse to this Court by way of a special civil action of certiorari. The
proceedings in the Constitutional Commission on this matter are enlightening. Thus
MR. FOZ. So, the amendment is to delete the word "inappealable".
MR. REGALADO. Before that, on page 26, line 26, we should have a
transposition because decisions are always orders. So, it should read:
"However, decisions, final orders or rulings," to distinguish them from
interlocutory orders. ". . . of the Commission on Elections on municipal and
barangay officials shall be final and IMMEDIATELY executory."
That would be my proposed amendment.
MR. FOZ. Accepted, Mr. Presiding Officer.
MR. REGALADO. It is understood, however, that while these decisions
with respect to barangay and municipal officials are final and immediately
executory and, therefore, not appealable, that does not rule o ut the
possibility of an original special civil action for certiorari, prohibition,
or mandamus, as the case may be, under Rule 65 of the Rules of Court.
MR. FOZ. That is understood, Mr. Presiding Officer.
MR. REGALADO. At least it is o n record.
Thank you, Mr. Presiding Officer.
Earlier, the Court had occasion to resolve th e same issue in the case of Flores
vs.COMELEC(G.R. No. 89604, 20 April 1990) where the Court stated:
Obviously, the provision of Article IX-C, Section 2(2) of the
Constitution that "decisions, final orders, or rulings of the Commission
on election contests involving elective municipal and barangay offices
shall be final, e