Feb 14 Digests

8/13/2019 Feb 14 Digests

1/13

1

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.


2/13

2

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


3/13

3

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


4/13

4

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


5/13

5

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


6/13

6

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.


7/13

7

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."


8/13

8

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 . . . .


9/13

9

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.


10/13

10

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


11/13

11

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.


12/13

12

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,


13/13

13

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

Feb 14 Digests

Documents

Transcript of Feb 14 Digests