G.R. No. 193237 October 9, 2012
G.R. No. 193536
AGAPITO J. CARDINO, Petitioner,
vs.
DOMINADOR G. JALOSJOS, JR., and COMMISSION ON ELECTIONS, Respondents.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
Chief Justice
Footnotes
6 Id. at 46; rollo (G.R. No. 193536), p. 35.
7 Id. at 47; id. at 36.
8 Id. at 55-56; id. at 27-28.
9 Rollo (G.R. No. 193237), p. 360.
10 Id. at 373-393.
11 Rollo (G.R. No. 193536), p. 178.
12 Id. at 215.
13 Id. at 218.
16 133 Phil. 770, 773-774 (1968).
19 442 Phil. 139, 177-178 (2002).
The Lawphil Project - Arellano Law Foundation
Remedy of Cancellation; and Effects of
Disqualification.
cancellation of a CoC, (ii) disqualification,
and (iii) quo warranto
Associate Justice
Footnotes
1 G.R. Nos. 196804 and 197015.
2 G.R. No. 195229.
3 373 Phil. 896, 908 (1999).
24 Section 15 of R.A. No. 9369.
25 Miranda v. Abaya, supra note 9, at 658-660.
26 Section 77 of the OEC expressly allows substitution of a candidate who is "disqualified for any cause."
31 Section 6 of R.A. No. 6646.
The Lawphil Project - Arellano Law Foundation
With all due respect, I dissent from the majority opinion.
The allegations in the petition filed
by Cardino in SPA No. 09-076 (DC)
bespeak of its characterization as
one for disqualification.
Cardino as a mere second placer
cannot be proclaimed mayor of
Dapitan City, Zamboanga del
Norte.
BIENVENIDO L. REYES
Associate Justice
Footnotes
1 G.R. No. 193237 rollo, pp. 40-48.
2 Id. at 49-56.
3 Id. at 355-360.
4 Id. at 360.
5 Id. at 359-360.
6 Id. at 373-393.
7 Id. at 57-58.
8 Id. at 59.
9 Id. at 47.
10 Id. at 53.
20 Id. at 792-796.
23 Id. at 583-584.
24 214 Phil. 126 (1984).
29 G.R. 163776, April 24, 2007, 522 SCRA 23.
30 Id. at 45.
31 Sunga v. COMELEC, 351 Phil. 310, 327 (1998).
32 235 SCRA 436 (1994).
33 Id. at 441-442.
34 G.R. No. 157526, April 28, 2004, 428 SCRA 264.
35 Id. at 274-275.
36 23 Phil. 238 (1912).
37 G.R. No. 193536 rollo, pp. 12-15.
The Lawphil Project - Arellano Law Foundation
Cardino’s petition in SPA Case No. 09-076 (DC)
was a petition to deny due course to
or cancel a CoC under Section 78 of the
Omnibus Election Code
Jalosjos materially misrepresented his eligibility as a
candidate for Mayor of Dapitan City; hence, the
COMELEC properly cancelled his CoC
Jalosjos did not file a valid CoC for the May 10,
2010 elections; not being an official candidate,
votes cast in his favor are considered stray
Associate Justice
Footnotes
1 Rollo, G.R. No. 193237, pp. 49-56.
2 Id. at 40-48.
3 Id. at 49-56.
4 Rollo, G.R. No. 193536, p. 9.
5 Id.
6 Id. at 177.
7 Rollo, G.R. No. 193237, pp. 355-358.
8 Id. at 355-360.
9 Id. at. 373-391.
10 G.R. No. 135886, August 16, 1999, 312 SCRA 447.
11 Id. at 457.
23 Id. at 769.
punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b)
Those removed from office as a result of an administrative case;
xxx
27 Id. at 12-13.
28 G.R. No. 147904, October 4, 2002, 390 SCRA 495.
29 Id. at 500-501.
3 of this article shall last during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office formerly held.
34 Approved on October 5, 1985.
35 Section 4, Presidential Decree No. 968, states:
39 Id. at 27-28.
40 G.R. No. 152319, October 28, 2009, 604 SCRA 599.
41 Id. at 612; emphasis is supplied.
42 Rollo, G.R. No. 193237, pp. 159-160.
43 Id. at 153.
48 Id. at 749.
49 G.R. No. 180051, December 24, 2008, 575 SCRA 590.
50 Id. at 614-615.
DOMINADOR G. JALOSJOS, JR., Petitioner,
vs.
COMMISSION ON ELECTIONS and AGAPITO J. CARDINO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - xvs.
COMMISSION ON ELECTIONS and AGAPITO J. CARDINO, Respondents.
G.R. No. 193536
AGAPITO J. CARDINO, Petitioner,
vs.
DOMINADOR G. JALOSJOS, JR., and COMMISSION ON ELECTIONS, Respondents.
D E C I S I O N
CARPIO, J.:
These are two special civil actions for certiorari1
questioning the resolutions of the Commission on Elections (COMELEC) in
SPA No. 09-076 (DC). In G.R. No. 193237, Dominador G. Jalosjos, Jr.
(Jalosjos) seeks to annul the 10 May 2010 Resolution2 of the COMELEC First Division and the 11 August 2010 Resolution3
of the COMELEC En Banc, which both ordered the cancellation of his
certificate of candidacy on the ground of false material representation.
In G.R. No. 193536, Agapito J. Cardino (Cardino) challenges the 11
August 2010 Resolution of the COMELEC En Banc, which applied the rule on
succession under the Local Government Code in filling the vacancy in
the Office of the Mayor of Dapitan City, Zamboanga del Norte created by
the cancellation of Jalosjos’ certificate of candidacy.
The Facts
Both Jalosjos and Cardino were candidates for Mayor
of Dapitan City, Zamboanga del Norte in the May 2010 elections. Jalosjos
was running for his third term. Cardino filed on 6 December 2009 a
petition under Section 78 of the Omnibus Election Code to deny due
course and to cancel the certificate of candidacy of Jalosjos. Cardino
asserted that Jalosjos made a false material representation in his
certificate of candidacy when he declared under oath that he was
eligible for the Office of Mayor.
Cardino claimed that long before Jalosjos filed his
certificate of candidacy, Jalosjos had already been convicted by final
judgment for robbery and sentenced to prisión mayor by the Regional
Trial Court, Branch 18 (RTC) of Cebu City, in Criminal Case No.
CCC-XIV-140-CEBU. Cardino asserted that Jalosjos has not yet served his
sentence. Jalosjos admitted his conviction but stated that he had
already been granted probation. Cardino countered that the RTC revoked
Jalosjos’ probation in an Order dated 19 March 1987. Jalosjos refuted
Cardino and stated that the RTC issued an Order dated 5 February 2004
declaring that Jalosjos had duly complied with the order of probation.
Jalosjos further stated that during the 2004 elections the COMELEC
denied a petition for disqualification filed against him on the same
grounds.4
The COMELEC En Banc narrated the circumstances of Jalosjos’ criminal record as follows:
As backgrounder, Jalosjos and three (3) others were
accused of the crime of robbery on January 22, 1969 in Cebu City. On
April 30, 1970, Judge Francisco Ro. Cupin of the then Circuit Criminal
Court of Cebu City found him and his co-accused guilty of robbery and
sentenced them to suffer the penalty of prision correccional minimum to
prision mayor maximum. Jalosjos appealed this decision to the Court of
Appeals but his appeal was dismissed on August 9, 1973. It was only
after a lapse of several years or more specifically on June 17, 1985
that Jalosjos filed a Petition for Probation before the RTC Branch 18 of
Cebu City which was granted by the court. But then, on motion filed by
his Probation Officer, Jalosjos’ probation was revoked by the RTC Cebu
City on March 19, 1987 and the corresponding warrant for his arrest was
issued. Surprisingly, on December 19, 2003, Parole and Probation
Administrator Gregorio F. Bacolod issued a Certification attesting that
respondent Jalosjos, Jr., had already fulfilled the terms and conditions
of his probation. This Certification was the one used by respondent
Jalosjos to secure the dismissal of the disqualification case filed
against him by Adasa in 2004, docketed as SPA No. 04-235.
This prompted Cardino to call the attention of the
Commission on the decision of the Sandiganbayan dated September 29, 2008
finding Gregorio F. Bacolod, former Administrator of the Parole and
Probation Administration, guilty of violating Section 3(e) of R.A. 3019
for issuing a falsified Certification on December 19, 2003 attesting to
the fact that respondent Jalosjos had fully complied with the terms and
conditions of his probation. A portion of the decision of the
Sandiganbayan is quoted hereunder:
The Court finds that the above acts of the accused
gave probationer Dominador Jalosjos, Jr., unwarranted benefits and
advantage because the subject certification, which was issued by the
accused without adequate or official support, was subsequently utilized
by the said probationer as basis of the Urgent Motion for
Reconsideration and to Lift Warrant of Arrest that he filed with the
Regional Trial Court of Cebu City, which prompted the said court to
issue the Order dated February 5, 2004 in Crim. Case No.
CCC-XIV-140-CEBU, declaring that said probationer has complied with the
order of probation and setting aside its Order of January 16, 2004
recalling the warrant or [sic] arrest; and that said Certification was
also used by the said probationer and became the basis for the
Commission on Elections to deny in its Resolution of August 2, 2004 the
petition or [sic] private complainant James Adasa for the
disqualification of the probationer from running for re-election as
Mayor of Dapitan City in the National and Local Elections of 2004.5
The COMELEC’s Rulings
On 10 May 2010, the COMELEC First Division granted
Cardino’s petition and cancelled Jalosjos’ certificate of candidacy. The
COMELEC First Division concluded that "Jalosjos has indeed committed
material misrepresentation in his certificate of candidacy when he
declared, under oath, that he is eligible for the office he seeks to be
elected to when in fact he is not by reason of a final judgment in a
criminal case, the sentence of which he has not yet served."6
The COMELEC First Division found that Jalosjos’ certificate of
compliance of probation was fraudulently issued; thus, Jalosjos has not
yet served his sentence. The penalty imposed on Jalosjos was the
indeterminate sentence of one year, eight months and twenty days of
prisión correccional as minimum, to four years, two months and one day
of prisión mayor as maximum. The COMELEC First Division ruled that
Jalosjos "is not eligible by reason of his disqualification as provided
for in Section 40(a) of Republic Act No. 7160."7
On 11 August 2010, the COMELEC En Banc denied
Jalosjos’ motion for reconsideration. The pertinent portions of the 11
August 2010 Resolution read:
With the proper revocation of Jalosjos’ earlier
probation and a clear showing that he has not yet served the terms of
his sentence, there is simply no basis for Jalosjos to claim that his
civil as well as political rights have been violated. Having been
convicted by final judgment,
Jalosjos is disqualified to run for an elective
position or to hold public office. His proclamation as the elected mayor
in the May 10, 2010 election does not deprive the Commission of its
authority to resolve the present petition to its finality, and to oust
him from the office he now wrongfully holds.
WHEREFORE, in view of the foregoing, the Motion for
Reconsideration is denied for utter lack of merit. Jalosjos is hereby
OUSTED from office and ordered to CEASE and DESIST from occupying and
discharging the functions of the Office of the Mayor of Dapitan City,
Zamboanga. Let the provisions of the Local Government Code on succession
apply.
SO ORDERED.8
Jalosjos filed his petition on 25 August 2010,
docketed as G.R. No. 193237, while Cardino filed his petition on 17
September 2010, docketed as G.R. No. 193536.
On 22 February 2011, this Court issued a Resolution dismissing G.R. No. 193237.
WHEREFORE, the foregoing premises considered, the
Petition for Certiorari is DISMISSED. The assailed Resolution dated May
10, 2010 and Resolution dated August 11, 2010 of the Commission on
Elections in SPA Case No. 09-076 (DC) are hereby AFFIRMED.9
Cardino filed a Manifestation on 17 March 2011
praying that this Court take judicial notice of its resolution in G.R.
No. 193237. Jalosjos filed a Motion for Reconsideration10 on 22 March 2011. On 29 March 2011, this Court resolved11
to consolidate G.R. No. 193536 with G.R. No. 193237.Jalosjos then filed
a Manifestation on 1 June 2012 which stated that "he has resigned from
the position of Mayor of the City of Dapitan effective 30 April 2012,
which resignation was accepted by the Provincial Governor of Zamboanga
del Norte, Atty. Rolando E. Yebes."12
Jalosjos’ resignation was made "in deference with the provision of the
Omnibus Election Code in relation to his candidacy as Provincial
Governor of Zamboanga del Sur in May 2013."13
These cases are not rendered moot by Jalosjos’
resignation. In resolving Jalosjos’ Motion for Reconsideration in G.R.
No. 193237 and Cardino’s Petition in G.R. No. 193536, we address not
only Jalosjos’ eligibility to run for public office and the consequences
of the cancellation of his certificate of candidacy, but also COMELEC’s
constitutional duty to enforce and administer all laws relating to the
conduct of elections.
The Issues
In G.R. No. 193237, Jalosjos argues that the COMELEC
committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it (1) ruled that Jalosjos’ probation was revoked; (2)
ruled that Jalosjos was disqualified to run as candidate for Mayor of
Dapitan City, Zamboanga del Norte; and (3) cancelled Jalosjos’
certificate of candidacy without making a finding that Jalosjos
committed a deliberate misrepresentation as to his qualifications, as
Jalosjos relied in good faith upon a previous COMELEC decision declaring
him eligible for the same position from which he is now being ousted.
Finally, the Resolutions dated 10 May 2010 and 11 August 2010 were
issued in violation of the COMELEC Rules of Procedure.
In G.R. No. 193536, Cardino argues that the COMELEC
acted with grave abuse of discretion amounting to lack or excess of
jurisdiction when it added to the dispositive portion of its 11 August
2010 Resolution that the provisions of the Local Government Code on
succession should apply.
This Court’s Ruling
The perpetual special disqualification against
Jalosjos arising from his criminal conviction by final judgment is a
material fact involving eligibility which is a proper ground for a
petition under Section 78 of the Omnibus Election Code. Jalosjos’
certificate of candidacy was void from the start since he was not
eligible to run for any public office at the time he filed his
certificate of candidacy. Jalosjos was never a candidate at any time,
and all votes for Jalosjos were stray votes. As a result of Jalosjos’
certificate of candidacy being void ab initio, Cardino, as the only
qualified candidate, actually garnered the highest number of votes for
the position of Mayor.
The dissenting opinions affirm with modification the
10 May 2010 Resolution of the COMELEC First Division and the 11 August
2010 Resolution of the COMELEC En Banc. The dissenting opinions
erroneously limit the remedy against Jalosjos to disqualification under
Section 68 of the Omnibus Election Code and apply the rule on succession
under the Local Government Code.
A false statement in a certificate of candidacy that a
candidate is eligible to run for public office is a false material
representation which is a ground for a petition under Section 78 of the
same Code. Sections 74 and 78 read:
Sec. 74. Contents of certificate of candidacy. – The
certificate of candidacy shall state that the person filing it is
announcing his candidacy for the office stated therein and that he is
eligible for said office; if for Member of the Batasang Pambansa, the
province, including its component cities, highly urbanized city or
district or sector which he seeks to represent; the political party to
which he belongs; civil status; his date of birth; residence; his post
office address for all election purposes; his profession or occupation;
that he will support and defend the Constitution of the Philippines and
will maintain true faith and allegiance thereto; that he will obey the
laws, legal orders, and decrees promulgated by the duly constituted
authorities; that he is not a permanent resident or immigrant to a
foreign country; that the obligation imposed by his oath is assumed
voluntarily, without mental reservation or purpose of evasion; and that
the facts stated in the certificate of candidacy are true to the best of
his knowledge.
Sec. 78. Petition to deny due course to or cancel a
certificate of candidacy. – A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by the
person exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from
the time of the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days
before the election. (Emphasis supplied)
Section 74 requires the candidate to state under oath
in his certificate of candidacy "that he is eligible for said office." A
candidate is eligible if he has a right to run for the public office.14
If a candidate is not actually eligible because he is barred by final
judgment in a criminal case from running for public office, and he still
states under oath in his certificate of candidacy that he is eligible
to run for public office, then the candidate clearly makes a false
material representation that is a ground for a petition under Section
78.
A sentence of prisión mayor by final judgment is a
ground for disqualification under Section 40 of the Local Government
Code and under Section 12 of the Omnibus Election Code. It is also a
material fact involving the eligibility of a candidate under Sections 74
and 78 of the Omnibus Election Code. Thus, a person can file a petition
under Section 40 of the Local Government Code or under either Section
12 or Section 78 of the Omnibus Election Code. The pertinent provisions
read:
Section 40, Local Government Code:
Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable by one (1) year
or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad;
(f) Permanent residents in a foreign country or those
who have acquired the right to reside abroad and continue to avail of
the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
Section 12, Omnibus Election Code:
Sec. 12. Disqualifications. — Any person who has been
declared by competent authority insane or incompetent, or has been
sentenced by final judgment for subversion, insurrection, rebellion or
for any offense for which he was sentenced to a penalty of more than
eighteen months or for a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein
provided shall be deemed removed upon the declaration by competent
authority that said insanity or incompetence had been removed or after
the expiration of a period of five years from his service of sentence,
unless within the same period he again becomes disqualified.
Section 68, Omnibus Election Code:
Sec. 68. Disqualifications. — Any candidate who, in
an action or protest in which he is a party is declared by final
decision by a competent court guilty of, or found by the Commission of
having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral
functions; (b) committed acts of terrorism to enhance his candidacy; (c)
spent in his election campaign an amount in excess of that allowed by
this Code; (d) solicited, received or made any contribution prohibited
under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections
80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6,
shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident
of or an immigrant to a foreign country shall not be qualified to run
for any elective office under this Code, unless said person has waived
his status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election
laws.
Revised Penal Code:
Art. 27. Reclusion perpetua. — x x x
Prisión mayor and temporary disqualification. — The
duration of the penalties of prisión mayor and temporary
disqualification shall be from six years and one day to twelve years,
except when the penalty of disqualification is imposed as an accessory
penalty, in which case, it shall be that of the principal penalty.
x x x x
Art. 30. Effects of the penalties of perpetual or
temporary absolute disqualification. — The penalties of perpetual or
temporary absolute disqualification for public office shall produce the
following effects:
1. The deprivation of the public offices and
employments which the offender may have held, even if conferred by
popular election.
2. The deprivation of the right to vote in any election for any popular elective office or to be elected to such office.
3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned.
In case of temporary disqualification, such
disqualification as is comprised in paragraphs 2 and 3 of this article
shall last during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office formerly held.
Art. 31. Effects of the penalties of perpetual or
temporary special disqualification. — The penalties of perpetual or
temporary special disqualification for public office, profession or
calling shall produce the following effects:
1. The deprivation of the office, employment, profession or calling affected.
2. The disqualification for holding similar offices
or employments either perpetually or during the term of the sentence,
according to the extent of such disqualification.
Art. 32. Effects of the penalties of perpetual or
temporary special disqualification for the exercise of the right of
suffrage. — The perpetual or temporary special disqualification for the
exercise of the right of suffrage shall deprive the offender perpetually
or during the term of the sentence, according to the nature of said
penalty, of the right to vote in any popular election for any public
office or to be elected to such office. Moreover, the offender shall not
be permitted to hold any public office during the period of his
disqualification.
Art. 42. Prisión mayor — its accessory penalties. —
The penalty of prisión mayor shall carry with it that of temporary
absolute disqualification and that of perpetual special disqualification
from the right of suffrage which the offender shall suffer although
pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon. (Emphasis supplied)
The penalty of prisión mayor automatically carries with it, by operation of law,15
the accessory penalties of temporary absolute disqualification and
perpetual special disqualification. Under Article 30 of the Revised
Penal Code, temporary absolute disqualification produces the effect of
"deprivation of the right to vote in any election for any popular
elective office or to be elected to such office." The duration of the
temporary absolute disqualification is the same as that of the principal
penalty. On the other hand, under Article 32 of the Revised Penal Code
perpetual special disqualification means that "the offender shall not be
permitted to hold any public office during the period of his
disqualification," which is perpetually. Both temporary absolute
disqualification and perpetual special disqualification constitute
ineligibilities to hold elective public office. A person suffering from
these ineligibilities is ineligible to run for elective public office,
and commits a false material representation if he states in his
certificate of candidacy that he is eligible to so run.
In Lacuna v. Abes,16
the Court, speaking through Justice J.B.L. Reyes, explained the import
of the accessory penalty of perpetual special disqualification:
On the first defense of respondent-appellee Abes, it
must be remembered that appellee’s conviction of a crime penalized with
prisión mayor which carried the accessory penalties of temporary
absolute disqualification and perpetual special disqualification from
the right of suffrage (Article 42, Revised Penal Code); and Section 99
of the Revised Election Code disqualifies a person from voting if he had
been sentenced by final judgment to suffer one year or more of
imprisonment.
The accessory penalty of temporary absolute
disqualification disqualifies the convict for public office and for the
right to vote, such disqualification to last only during the term of the
sentence (Article 27, paragraph 3, & Article 30, Revised Penal
Code) that, in the case of Abes, would have expired on 13 October 1961.
But this does not hold true with respect to the other
accessory penalty of perpetual special disqualification for the
exercise of the right of suffrage. This accessory penalty deprives the
convict of the right to vote or to be elected to or hold public office
perpetually, as distinguished from temporary special disqualification,
which lasts during the term of the sentence. Article 32, Revised Penal
Code, provides:
Art. 32. Effects of the penalties of perpetual or
temporary special disqualification for the exercise of the right of
suffrage. — The perpetual or temporary special disqualification for the
exercise of the right of suffrage shall deprive the offender perpetually
or during the term of the sentence, according to the nature of said
penalty, of the right to vote in any popular election for any public
office or to be elected to such office. Moreover, the offender shall not
be permitted to hold any public office during the period of
disqualification.
The word "perpetually" and the phrase "during the
term of the sentence" should be applied distributively to their
respective antecedents; thus, the word "perpetually" refers to the
perpetual kind of special disqualification, while the phrase "during the
term of the sentence" refers to the temporary special disqualification.
The duration between the perpetual and the temporary (both special) are
necessarily different because the provision, instead of merging their
durations into one period, states that such duration is "according to
the nature of said penalty" — which means according to whether the
penalty is the perpetual or the temporary special disqualification.
(Emphasis supplied)
Clearly, Lacuna instructs that the accessory penalty
of perpetual special disqualification "deprives the convict of the right
to vote or to be elected to or hold public office perpetually."
The accessory penalty of perpetual special
disqualification takes effect immediately once the judgment of
conviction becomes final. The effectivity of this accessory penalty does
not depend on the duration of the principal penalty, or on whether the
convict serves his jail sentence or not. The last sentence of Article 32
states that "the offender shall not be permitted to hold any public
office during the period of his perpetual special disqualification."
Once the judgment of conviction becomes final, it is immediately
executory. Any public office that the convict may be holding at the time
of his conviction becomes vacant upon finality of the judgment, and the
convict becomes ineligible to run for any elective public office
perpetually. In the case of Jalosjos, he became ineligible perpetually
to hold, or to run for, any elective public office from the time his
judgment of conviction became final.
Perpetual special disqualification is a ground for a
petition under Section 78 of the Omnibus Election Code because this
accessory penalty is an ineligibility, which means that the convict is
not eligible to run for public office, contrary to the statement that
Section 74 requires him to state under oath. As used in Section 74, the
word "eligible" means having the right to run for elective public
office, that is, having all the qualifications and none of the
ineligibilities to run for public office. As this Court held in Fermin
v. Commission on Elections,17
the false material representation may refer to "qualifications or
eligibility." One who suffers from perpetual special disqualification is
ineligible to run for public office. If a person suffering from
perpetual special disqualification files a certificate of candidacy
stating under oath that "he is eligible to run for (public) office," as
expressly required under Section 74, then he clearly makes a false
material representation that is a ground for a petition under Section
78. As this Court explained in Fermin:
Lest it be misunderstood, the denial of due course to
or the cancellation of the CoC is not based on the lack of
qualifications but on a finding that the candidate made a material
representation that is false, which may relate to the qualifications
required of the public office he/she is running for. It is noted that
the candidate states in his/her CoC that he/she is eligible for the
office he/she seeks. Section 78 of the OEC, therefore, is to be read in
relation to the constitutional and statutory provisions on
qualifications or eligibility for public office. If the candidate
subsequently states a material representation in the CoC that is false,
the COMELEC, following the law, is empowered to deny due course to or
cancel such certificate. Indeed, the Court has already likened a
proceeding under Section 78 to a quo warranto proceeding under Section
253 of the OEC since they both deal with the eligibility or
qualification of a candidate, with the distinction mainly in the fact
that a "Section 78" petition is filed before proclamation, while a
petition for quo warranto is filed after proclamation of the winning
candidate.18 (Emphasis supplied)
Conviction for robbery by final judgment with the
penalty of prisión mayor, to which perpetual special disqualification
attaches by operation of law, is not a ground for a petition under
Section 68 because robbery is not one of the offenses enumerated in
Section 68. Insofar as crimes are concerned, Section 68 refers only to
election offenses under the Omnibus Election Code and not to crimes
under the Revised Penal Code. For ready reference, we quote again
Section 68 of the Omnibus Election Code:
Sec. 68. Disqualifications. — Any candidate who, in
an action or protest in which he is a party is declared by final
decision by a competent court guilty of, or found by the Commission of
having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral
functions;
(b) committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an amount in excess of
that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v,
and cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any
person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under this
Code, unless said person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws. (Emphasis supplied)
There is absolutely nothing in the language of
Section 68 that will justify including the crime of robbery as one of
the offenses enumerated in this Section. All the offenses enumerated in
Section 68 refer to offenses under the Omnibus Election Code. The
dissenting opinion of Justice Reyes gravely errs when it holds that
Jalosjos’ conviction for the crime of robbery under the Revised Penal
Code is a ground for "a petition for disqualification under Section 68
of the OEC and not for cancellation of COC under Section 78 thereof."
This Court has already ruled that offenses punished in laws other than
in the Omnibus Election Code cannot be a ground for a petition under
Section 68. In Codilla, Sr. v. de Venecia,19 the Court declared:
The jurisdiction of the COMELEC to disqualify
candidates is limited to those enumerated in Section 68 of the Omnibus
Election Code. All other election offenses are beyond the ambit of
COMELEC jurisdiction.They are criminal and not administrative in nature.
(Emphasis supplied)
A candidate for mayor during the 2010 local elections
certifies under oath four statements: (1) a statement that the
candidate is a natural born or naturalized Filipino citizen; (2) a
statement that the candidate is not a permanent resident of, or
immigrant to, a foreign country; (3) a statement that the candidate is
eligible for the office he seeks election; and (4) a statement of the
candidate’s allegiance to the Constitution of the Republic of the
Philippines.20
We now ask: Did Jalosjos make a false statement of a
material fact in his certificate of candidacy when he stated under oath
that he was eligible to run for mayor? The COMELEC and the dissenting
opinions all found that Jalosjos was not eligible to run for public
office. The COMELEC concluded that Jalosjos made a false material
representation that is a ground for a petition under Section 78. The
dissenting opinion of Justice Reyes, however, concluded that the
ineligibility of Jalosjos is a disqualification which is a ground for a
petition under Section 68 and not under Section 78. The dissenting
opinion of Justice Brion concluded that the ineligibility of Jalosjos is
a disqualification that is not a ground under Section 78 without,
however, saying under what specific provision of law a petition against
Jalosjos can be filed to cancel his certificate of candidacy.
What is indisputably clear is that the false material
representation of Jalosjos is a ground for a petition under Section 78.
However, since the false material representation arises from a crime
penalized by prisión mayor, a petition under Section 12 of the Omnibus
Election Code or Section 40 of the Local Government Code can also be
properly filed. The petitioner has a choice whether to anchor his
petition on Section 12 or Section 78 of the Omnibus Election Code, or on
Section 40 of the Local Government Code. The law expressly provides
multiple remedies and the choice of which remedy to adopt belongs to the
petitioner.
The COMELEC properly cancelled Jalosjos’ certificate
of candidacy. A void certificate of candidacy on the ground of
ineligibility that existed at the time of the filing of the certificate
of candidacy can never give rise to a valid candidacy, and much less to
valid votes.21
Jalosjos’ certificate of candidacy was cancelled because he was
ineligible from the start to run for Mayor. Whether his certificate of
candidacy is cancelled before or after the elections is immaterial
because the cancellation on such ground means he was never a valid
candidate from the very beginning, his certificate of candidacy being
void ab initio. Jalosjos’ ineligibility existed on the day he filed his
certificate of candidacy, and the cancellation of his certificate of
candidacy retroacted to the day he filed it. Thus, Cardino ran
unopposed. There was only one qualified candidate for Mayor in the May
2010 elections – Cardino – who received the highest number of votes.
Decisions of this Court holding that the
second-placer cannot be proclaimed winner if the first-placer is
disqualified or declared ineligible22
should be limited to situations where the certificate of candidacy of
the first-placer was valid at the time of filing but subsequently had to
be cancelled because of a violation of law that took place, or a legal
impediment that took effect, after the filing of the certificate of
candidacy. If the certificate of candidacy is void ab initio, then
legally the person who filed such void certificate of candidacy was
never a candidate in the elections at any time. All votes for such
non-candidate are stray votes and should not be counted. Thus, such
non-candidate can never be a first-placer in the elections. If a
certificate of candidacy void ab initio is cancelled on the day, or
before the day, of the election, prevailing jurisprudence holds that all
votes for that candidate are stray votes.23
If a certificate of candidacy void ab initio is cancelled one day or
more after the elections, all votes for such candidate should also be
stray votes because the certificate of candidacy is void from the very
beginning. This is the more equitable and logical approach on the effect
of the cancellation of a certificate of candidacy that is void ab
initio. Otherwise, a certificate of candidacy void ab initio can operate
to defeat one or more valid certificates of candidacy for the same
position.
Even without a petition under either Section 12 or
Section 78 of the Omnibus Election Code, or under Section 40 of the
Local Government Code, the COMELEC is under a legal duty to cancel the
certificate of candidacy of anyone suffering from the accessory penalty
of perpetual special disqualification to run for public office by virtue
of a final judgment of conviction. The final judgment of conviction is
notice to the COMELEC of the disqualification of the convict from
running for public office. The law itself bars the convict from running
for public office, and the disqualification is part of the final
judgment of conviction. The final judgment of the court is addressed not
only to the Executive branch, but also to other government agencies
tasked to implement the final judgment under the law.
Whether or not the COMELEC is expressly mentioned in
the judgment to implement the disqualification, it is assumed that the
portion of the final judgment on disqualification to run for elective
public office is addressed to the COMELEC because under the Constitution
the COMELEC is duty bound to "enforce and administer all laws and
regulations relative to the conduct of an election."24
The disqualification of a convict to run for public office under the
Revised Penal Code, as affirmed by final judgment of a competent court,
is part of the enforcement and administration of "all laws" relating to
the conduct of elections.
To allow the COMELEC to wait for a person to file a
petition to cancel the certificate of candidacy of one suffering from
perpetual special disqualification will result in the anomaly that these
cases so grotesquely exemplify. Despite a prior perpetual special
disqualification, Jalosjos was elected and served twice as mayor. The
COMELEC will be grossly remiss in its constitutional duty to "enforce
and administer all laws" relating to the conduct of elections if it does
not motu proprio bar from running for public office those suffering
from perpetual special disqualification by virtue of a final judgment.
WHEREFORE, the Motion for Reconsideration in G.R. No.
193237 is DENIED, and the Petition in G.R. No. 193536 is GRANTED. The
Resolutions dated 10 May 2010 and 11 August 2010 of the COMELEC First
Division and the COMELEC En Bane, respectively, in SPA No. 09-076 (DC),
are AFFIRMED with the MODIFICATION that Agapito J. Cardino ran unopposed
in the May 2010 elections and thus received the highest number of votes
for Mayor. The COMELEC En Bane is DIRECTED to constitute a Special City
Board of Canvassers to proclaim Agapito J. Cardino as the duly elected
Mayor of Dapitan City, Zamboanga del Norte.
Let copies of this Decision be furnished the
Secretaries of the Department of Justice and the Department of Interior
and Local Government so they can cause the arrest of, and enforce the
jail sentence on, Dominador G. Jalosjos, Jr. due to his conviction for
the crime of robbery in a final judgment issued by the Regional Trial
Court (Branch 18) of Cebu City in Criminal Case No. CCC-XIV-140-CEBU.
SO ORDERED.ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
Chief Justice
| PRESBITERO J. VELASCO, JR. Associate Justice |
TERESITA J. LEONARDO-DE CASTRO Associate Justice |
| ARTURO D. BRION Associate Justice |
DIOSDADO M. PERALTA Associate Justice |
| LUCAS P. BERSAMIN Associate Justice |
MARIANO C. DEL CASTILLO Associate Justice |
| ROBERTO A. ABAD Associate Justice |
MARTIN S. VILLARAMA, JR. Associate Justice |
| JOSE PORTUGAL PEREZ Associate Justice |
JOSE C. MENDOZA Associate Justice |
| BIENVENIDO L. REYES Associate Justice |
ESTELA M. PERLAS-BERNABE Associate Justice |
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the
Constitution, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer
of the opinion of the Court.
MARIA LOURDES P. A. SERENOChief Justice
Footnotes
1 Under Rule 64 in relation to Rule 65 of the 1997 Rules of Civil Procedure.
2
Rollo (G.R. No. 193237), pp. 40-48; rollo (G.R. No. 193536), pp. 29-37.
Signed by Presiding Commissioner Rene V. Sarmiento, and Commissioners
Armando C. Velasco and Gregorio Y. Larrazabal.
3
Rollo (G.R. No. 193237), pp. 49-56; rollo (G.R. No. 193536), pp. 22-28.
Signed by Chairman Jose A.R. Melo, and Commissioners Rene V. Sarmiento,
Nicodemo T. Ferrer, Lucenito N. Tagle, Armando C. Velasco, Elias R.
Yusoph, and Gregorio Y. Larrazabal.
4
James A. Adasa v. Dominador Jalosjos, Jr., SPA No. 04-235. The
Resolution of the COMELEC Second Division was promulgated on 2 August
2004, while the Resolution of the COMELEC En Banc was promulgated on 16
December 2006. Rollo (G.R. No. 193536), pp. 45-46.
5 Rollo (G.R. No. 193237), pp. 50-51.6 Id. at 46; rollo (G.R. No. 193536), p. 35.
7 Id. at 47; id. at 36.
8 Id. at 55-56; id. at 27-28.
9 Rollo (G.R. No. 193237), p. 360.
10 Id. at 373-393.
11 Rollo (G.R. No. 193536), p. 178.
12 Id. at 215.
13 Id. at 218.
14
The Oxford Dictionary of English (Oxford University Press 2010) defines
the word "eligible" as "having a right to do or obtain something."
15 People v. Silvallana, 61 Phil. 636 (1935).16 133 Phil. 770, 773-774 (1968).
17 G.R. Nos. 179695 and 182369, 18 December 2008, 574 SCRA 782.
18 Id. at 792-794.19 442 Phil. 139, 177-178 (2002).
20
I will support and defend the Constitution of the Republic of the
Philippines and will maintain true faith and allegiance thereto. I will
obey the laws, legal orders and decrees promulgated by the duly
constituted authorities. I impose this obligation upon myself
voluntarily, without mental reservation or purpose of evasion.
21
Bautista v. Commission on Elections, 359 Phil. 1, 16 (1998). See
Miranda v. Abaya, 370 Phil. 642 (1999); Gador v. Commission on
Elections, 184 Phil. 395 (1980).
22 Aquino v. Commission on Elections, 318 Phil. 467 (1995); Labo, Jr. v. Commission on Elections, 257 Phil. 1 (1989).
23 Cayat v. Commission on Elections, G.R. Nos. 163776 and 165736, 24 April 2007, 522 SCRA 23.
24 CONSTITUTION, Art. IX-C, Sec. 2(1).The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
BRION, J.:
Dominador G. Jalosjos, Jr. and Agapito Cardino were
rivals in the mayoralty race in Dapitan City, Zamboanga del Norte in the
May 2010 elections.
Before election day, Cardino filed with the
Commission on Elections (COMELEC) a Petition to Deny Due Course and/or
Cancel the Certificate of Candidacy against Jalosjos, alleging that the
latter made a material misrepresentation in his Certificate of Candidacy
(CoC) when he declared that he was eligible for the position of mayor
when, in fact, he was disqualified under Section 40 of the Local
Government Code for having been previously convicted by a final judgment
for a crime (robbery) involving moral turpitude.
In his defense, Jalosjos admitted his previous,
conviction but argued that he had been admitted to probation, which
allegedly restored him to all his political rights. Cardino rebutted
Jalosjos' defense, citing a court order revoking the grant of probation
for Jalosjos' failure to comply with the terms and conditions of the
grant of probation.
On the very day of the election, the COMELEC resolved
to grant Cardino's petition and ordered the cancellation of Jalosjos'
CoC. The COMELEC ruled that the rules on succession would then apply.
Both Cardino and Jalosjos came to the Court for redress.
On February 22, 2011, the Court denied Jalosjos’
petition, prompting Jalosjos to move for reconsideration. During the
pendency of his motion, Jalosjos manifested that he had already tendered
his resignation from his office and that the same was duly accepted by
the governor of the province of Zamboanga del Norte.
I dissent from the majority’s (i) position that the
present case involves a cancellation of a certificate of candidacy (CoC)
rather than a case of disqualification and (ii) conclusion that
Cardino, the "second placer" in the 2010 elections for the mayoralty
post of Dapitan City, Zamboanga del Norte, should be the rightful Mayor.
I submit that while Cardino intended to cancel Jalosjos’ CoC, his
petition alleged acts constituting disqualification as its ground. Thus,
the case should be resolved under the rules of disqualification, not
from the point of a cancellation of a CoC.
I point out in this Dissenting Opinion, as I did in the cases of Mayor Barbara Ruby C. Talaga v. Commission on Elections, et al.1 and Efren Racel Aratea v. Commission on Elections, et al.,2
that this case is best resolved through an analytical approach that
starts from a consideration of the nature of a CoC; the distinctions
between eligibility or lack of it and disqualification; the effects of
cancellation and disqualification; and the applicable remedies.
The CoC and the Qualifications for its Filing.
As I discussed in Talaga and Aratea, a basic rule and
one that cannot be repeated often enough is that the CoC is the
document that creates the status of a candidate. In Sinaca v. Mula,3 the Court described the nature of a CoC as follows –
A certificate of candidacy is in the nature of a
formal manifestation to the whole world of the candidate's political
creed or lack of political creed. It is a statement of a person seeking
to run for a public office certifying that he announces his candidacy
for the office mentioned and that he is eligible for the office, the
name of the political party to which he belongs, if he belongs to any,
and his post-office address for all election purposes being as well
stated.
Both the 1973 and 1987 Constitutions left to Congress
the task of providing the qualifications of local elective officials.
Congress undertook this task by enacting Batas Pambasa Bilang (B.P.
Blg.) 337 (Local Government Code or LGC), B.P. Blg. 881 (Omnibus
Election Code or OEC) and, later, Republic Act (R.A.) No. 7160 (Local
Government Code of 1991 or LGC 1991).4
Under Section 79 of the OEC, a political aspirant legally becomes a "candidate" only upon the due filing of his sworn CoC.5
In fact, Section 73 of the OEC makes the filing of the CoC a condition
sine qua non for a person to "be eligible for any elective public
office"6
– i.e., to be validly voted for in the elections. Section 76 of the OEC
makes it a "ministerial duty" for a COMELEC official "to receive and
acknowledge receipt of the certificate of candidacy"7 filed.
COMELEC Resolution No. 8678 provides what a CoC must contain or state:8
Section 2. Contents of certificate of candidacy. -
The certificate of candidacy shall be under oath and shall state that
the person filing it is announcing his candidacy for the office and
constituency stated therein; that he is eligible for said office, his
age, sex, civil status, place and date of birth, his citizenship,
whether natural-born or naturalized; the registered political party to
which he belongs; if married, the full name of the spouse; his legal
residence, giving the exact address, the precinct number, barangay, city
or municipality and province where he is registered voter; his post
office address for election purposes; his profession or occupation or
employment; that he is not a permanent resident or an immigrant to a
foreign country; that he will support and defend the Constitution of the
Republic of the Philippines and will maintain true faith and allegiance
thereto; that he will obey the laws, legal orders, decrees, resolution,
rules and regulations promulgated and issued by the duly-constituted
authorities; that he assumes the foregoing obligations voluntarily
without mental reservation or purpose of evasion; and that the facts
stated in the certificate are true and correct to the best of his own
knowledge. [italics supplied]
From the point of view of the common citizen who
wants to run for a local elective office, the above recital contains all
the requirements that he must satisfy; it contains the basic and
essential requirements applicable to all citizens to qualify for
candidacy for a local elective office. These are their formal terms of
entry to local politics. A citizen must not only possess all these
requirements; he must positively represent in his CoC application that
he possesses them. Any falsity on these requirements constitutes a
material misrepresentation that can lead to the cancellation of the CoC.
On this point, Section 78 of the OEC provides:
Sec. 78. Petition to deny due course to or cancel a
certificate of candidacy. – A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by any
person exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from
the time of the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days
before the election. [italics, emphases and underscores ours]
A necessarily related provision is Section 39 of LGC 1991 which states:
Sec. 39. Qualifications. – (a) An elective local
official must be a citizen of the Philippines; a registered voter in the
barangay, municipality, city, or province or, in the case of a member
of the sangguniang panlalawigan, sangguniang panlungsod, or sanggunian
bayan, the district where he intends to be elected; a resident therein
for at least one (1) year immediately preceding the day of the election;
and able to read and write Filipino or any other local language or
dialect.
x x x x
(c) Candidates for the position of Mayor or
vice-mayor of independent component cities, component cities, or
municipalities must be at least twenty-one (21) years of age on election
day. [italics ours]
Notably, Section 74 of the OEC does not require any
negative qualification except only as expressly required therein. A
specific negative requirement refers to the representation that the
would-be candidate is not a permanent resident nor an immigrant in
another country. This requirement, however, is in fact simply part of
the positive requirement of residency in the locality for which the CoC
is filed and, in this sense, is not strictly a negative requirement.
Neither does Section 74 require any statement that the would-be
candidate does not possess any ground for disqualification specifically
enumerated by law, as disqualification is a matter that the OEC and LGC
1991 separately deal with, as discussed below.
With the accomplishment of the CoC and its filing, a
political aspirant officially acquires the status of a candidate and, at
the very least, the prospect of holding public office; he, too,
formally opens himself up to the complex political environment and
processes. The Court cannot be more emphatic in holding "that the
importance of a valid certificate of candidacy rests at the very core of
the electoral process."9
Pertinent laws10
provide the specific periods when a CoC may be filed; when a petition
for its cancellation may be brought; and the effect of its filing. These
measures, among others, are in line with the State policy or objective
of ensuring "equal access to opportunities for public service,"11
bearing in mind that the limitations on the privilege to seek public
office are within the plenary power of Congress to provide.12
The Concept of Disqualification vis-a-visRemedy of Cancellation; and Effects of
Disqualification.
To disqualify, in its simplest sense, is (1) to
deprive a person of a power, right or privilege; or (2) to make him or
her ineligible for further competition because of violation of the
rules.13 It is in these senses that the term is understood in our election laws.
Thus, anyone who may qualify or may have qualified
under the general rules of eligibility applicable to all citizens
(Section 74 of the OEC) may be deprived of the right to be a candidate
or may lose the right to be a candidate (if he has filed his CoC)
because of a trait or characteristic that applies to him or an act that
can be imputed to him as an individual, separately from the general
qualifications that must exist for a citizen to run for a local public
office.
In a disqualification situation, the grounds are the
individual traits or conditions of, or the individual acts of
disqualification committed by, a candidate as provided under Sections 68
and 12 of the OEC and Section 40 of LGC 1991, and which generally have
nothing to do with the eligibility requirements for the filing of a CoC.14
Sections 68 and 12 of the OEC (together with Section
40 of LGC 1991, outlined below) cover the following as traits,
characteristics or acts of disqualification: (i) corrupting voters or
election officials; (ii) committing acts of terrorism to enhance
candidacy; (iii) overspending; (iv) soliciting, receiving or making
prohibited contributions; (v) campaigning outside the campaign period;
(vi) removal, destruction or defacement of lawful election propaganda;
(vii) committing prohibited forms of election propaganda; (viii)
violating rules and regulations on election propaganda through mass
media; (ix) coercion of subordinates; (x) threats, intimidation,
terrorism, use of fraudulent device or other forms of coercion; (xi)
unlawful electioneering; (xii) release, disbursement or expenditure of
public funds; (xiii) solicitation of votes or undertaking any propaganda
on the day of the election; (xiv) declaration as an insane; and (xv)
committing subversion, insurrection, rebellion or any offense for which
he has been sentenced to a penalty of more than eighteen months or for a
crime involving moral turpitude.
Section 40 of LGC 1991, on the other hand, essentially repeats those already in the OEC under the following disqualifications:
a. Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable by one (1) year
or more of imprisonment, within two (2) years after serving sentence;
b. Those removed from office as a result of an administrative case;
c. Those convicted by final judgment for violating the oath of allegiance to the Republic;
d. Those with dual citizenship;
e. Fugitives from justice in criminal or non-political cases here or abroad;
f. Permanent residents in a foreign country or those
who have acquired the right to reside abroad and continue to avail of
the same right after the effectivity of this Code; and
g. The insane or feeble-minded.
Together, these provisions embody the
disqualifications that, by statute, can be imputed against a candidate
or a local elected official to deny him of the chance to run for office
or of the chance to serve if he has been elected.
A unique feature of "disqualification" is that under
Section 68 of the OEC, it refers only to a "candidate," not to one who
is not yet a candidate. Thus, the grounds for disqualification do not
apply to a would-be candidate who is still at the point of filing his
CoC. This is the reason why no representation is required in the CoC
that the would-be candidate does not possess any ground for
disqualification. The time to hold a person accountable for the grounds
for disqualification is after attaining the status of a candidate, with
the filing of the CoC.
To sum up and reiterate the essential differences
between the eligibility requirements and disqualifications, the former
are the requirements that apply to, and must be complied by, all
citizens who wish to run for local elective office; these must be
positively asserted in the CoC.
The latter refer to individual traits, conditions or
acts applicable to specific individuals that serve as grounds against
one who has qualified as a candidate to lose this status or privilege;
essentially, they have nothing to do with a candidate’s CoC.
When the law allows the cancellation of a candidate’s
CoC, the law considers the cancellation from the point of view of those
positive requirements that every citizen who wishes to run for office
must commonly satisfy. Since the elements of "eligibility" are common,
the vice of ineligibility attaches to and affects both the candidate and
his CoC. In contrast, when the law allows the disqualification of a
candidate, the law looks only at the disqualifying trait or condition
specific to the individual; if the "eligibility" requirements have been
satisfied, the disqualification applies only to the person of the
candidate, leaving the CoC valid. A previous conviction of subversion is
the best example as it applies not to the citizenry at large, but only
to the convicted individuals; a convict may have a valid CoC upon
satisfying the eligibility requirements under Section 74 of the OEC, but
shall nevertheless be disqualified.
Distinctions among (i) denying due course to orcancellation of a CoC, (ii) disqualification,
and (iii) quo warranto
The nature of the eligibility requirements for a
local elective office and the disqualifications that may apply to
candidates necessarily create distinctions on the remedies available, on
the effects of lack of eligibility and on the application of
disqualification. The remedies available are essentially: the
cancellation of a CoC, disqualification from candidacy or from holding
office, and quo warranto, which are distinct remedies with varying
applicability and effects. For ease of presentation and understanding,
their availability, grounds and effects are topically discussed below.
As to the grounds:
In the denial of due course to or cancellation of a
CoC, the ground is essentially lack of eligibility under the pertinent
constitutional and statutory provisions on qualifications or eligibility
for public office;15 the governing provisions are Sections 78 and 69 of the OEC.16
In a disqualification case, as mentioned above, the grounds are traits, conditions, characteristics or acts of disqualification,17
individually applicable to a candidate, as provided under Sections 68
and 12 of the OEC; Section 40 of LGC 1991; and Section 8, Article X of
the Constitution. As previously discussed, the grounds for
disqualification are different from, and have nothing to do with, a
candidate’s CoC although they may result in disqualification from
candidacy whose immediate effect upon finality before the elections is
the same as a cancellation. If they are cited in a petition filed before
the elections, they remain as disqualification grounds and carry
effects that are distinctly peculiar to disqualification.
In a quo warranto petition, the grounds to oust an
elected official from his office are ineligibility and disloyalty to the
Republic of the Philippines. This is provided under Section 253 of the
OEC and governed by the Rules of Court as to procedures. While quo
warranto and cancellation share the same ineligibility grounds, they
differ as to the time these grounds are cited. A cancellation case is
brought before the elections, while a quo warranto is filed after and
may still be filed even if a CoC cancellation case was not filed before
elections.
The only difference between the two proceedings is
that, under section 78, the qualifications for elective office are
misrepresented in the certificate of candidacy and the proceedings must
be initiated before the elections, whereas a petition for quo warranto
under section 253 may be brought on the basis of two grounds - (1)
ineligibility or (2) disloyalty to the Republic of the Philippines, and
must be initiated within ten days after the proclamation of the election
results. Under section 253, a candidate is ineligible if he is
disqualified to be elected to office, and he is disqualified if he lacks
any of the qualifications for elective office.18
Note that the question of what would constitute acts
of disqualification – under Sections 68 and 12 of the OEC and Section 40
of LGC 1991 – is best resolved by directly referring to the provisions
involved. The approach is not as straight forward in a petition to deny
due course to or cancel a CoC and also to a quo warranto petition, which
similarly covers the ineligibility of a candidate/elected official. In
Salcedo II v. COMELEC,19 we ruled that –
In order to justify the cancellation of the
certificate of candidacy under Section 78, it is essential that the
false representation mentioned therein pertain to a material matter for
the sanction imposed by this provision would affect the substantive
rights of a candidate — the right to run for the elective post for which
he filed the certificate of candidacy. Although the law does not
specify what would be considered as a "material representation," the
Court has interpreted this phrase in a line of decisions applying
Section 78 of the Code.
x x x x
Therefore, it may be concluded that the material
misrepresentation contemplated by Section 78 of the Code refer to
qualifications for elective office. This conclusion is strengthened by
the fact that the consequences imposed upon a candidate guilty of having
made a false representation in his certificate of candidacy are grave —
to prevent the candidate from running or, if elected, from serving, or
to prosecute him for violation of the election laws. It could not have
been the intention of the law to deprive a person of such a basic and
substantive political right to be voted for a public office upon just
any innocuous mistake. [emphases ours, citation omitted]
Thus, in addition to the failure to satisfy or comply
with the eligibility requirements, a material misrepresentation must be
present in a cancellation of CoC situation. The law apparently does not
allow material divergence from the listed requirements to qualify for
candidacy and enforces its edict by requiring positive representation of
compliance under oath. Significantly, where disqualification is
involved, the mere existence of a ground appears sufficient and a
material representation assumes no relevance.
As to the period for filing:
The period to file a petition to deny due course to
or cancel a CoC depends on the provision of law invoked. If the petition
is filed under Section 78 of the OEC, the petition must be filed within
twenty-five (25) days from the filing of the CoC.20
However, if the petition is brought under Section 69 of the same law,
the petition must be filed within five (5) days from the last day of
filing the CoC.21
On the other hand, the period to file a
disqualification case is at any time before the proclamation of a
winning candidate, as provided in COMELEC Resolution No. 8696,22 while a quo warranto petition must be filed within ten (10) days from proclamation.23
As to the effects of a successful suit:
A candidate whose CoC was denied due course or
cancelled is not considered a candidate at all. Note that the law fixes
the period within which a CoC may be filed.24
After this period, generally no other person may join the election
contest. A notable exception to this general rule is the rule on
substitution. The application of the exception, however, presupposes a
valid CoC. Unavoidably, a "candidate" whose CoC has been cancelled or
denied due course cannot be substituted for lack of a CoC, to all
intents and purposes.25
Similarly, a successful quo warranto suit results in the ouster of an
already elected official from office; substitution, for obvious reasons,
can no longer apply.
On the other hand, a candidate who was simply
disqualified is merely prohibited from continuing as a candidate or from
assuming or continuing to assume the functions of the office;
substitution can thus take place under the terms of Section 77 of the
OEC.26
As to the effects of a successful suit on the right of the second placer in the elections:
In any of these three remedies, the doctrine of rejection of the second placer applies for the simple reason that –
To simplistically assume that the second placer would
have received the other votes would be to substitute our judgment for
the mind of the voter. The second placer is just that, a second placer.
He lost the elections.1âwphi1 He was repudiated by either a
majority or plurality of voters. He could not be considered the first
among qualified candidates because in a field which excludes the
disqualified candidate, the conditions would have substantially changed.
We are not prepared to extrapolate the results under such
circumstances.27
With the disqualification of the winning candidate
and the application of the doctrine of rejection of the second placer,
the rules on succession under the law accordingly apply, as provided
under Section 44 of LGC 1991.
As an exceptional situation, however, the candidate
with the second highest number of votes (second placer) may be validly
proclaimed as the winner in the elections should the winning candidate
be disqualified by final judgment before the elections, as clearly
provided in Section 6 of R.A. No. 6646.28
The same effect obtains when the electorate is fully aware, in fact and
in law and within the realm of notoriety, of the disqualification, yet
they still voted for the disqualified candidate. In this situation, the
electorate that cast the plurality of votes in favor of the notoriously
disqualified candidate is simply deemed to have waived their right to
vote.29
In a CoC cancellation proceeding, the law is silent
on the legal effect of a judgment cancelling the CoC and does not also
provide any temporal distinction. Given, however, the formal initiatory
role a CoC plays and the standing it gives to a political aspirant, the
cancellation of the CoC based on a finding of its invalidity effectively
results in a vote for an inexistent "candidate" or for one who is
deemed not to be in the ballot. Although legally a misnomer, the "second
placer" should be proclaimed the winner as the candidate with the
highest number of votes for the contested position. This same
consequence should result if the cancellation case becomes final after
elections, as the cancellation signifies non-candidacy from the very
start, i.e., from before the elections.
Application of Above Rulings and Principles to the Case.
While it is apparent from the undisputed facts that
Cardino did indeed file a petition for denial and/or the cancellation of
Jalosjos’ CoC, it is obvious as well, based on the above discussions,
that the ground he cited was not appropriate for the cancellation of
Jalosjos’ CoC but for his disqualification. Conviction for a crime
involving moral turpitude is expressly a ground for disqualification
under Section 12 of the OEC. As a ground, it applies only to Jalosjos;
it is not a standard of eligibility that applies to all citizens who may
be minded to run for a local political position; its non-possession is
not a negative qualification that must be asserted in the CoC. Hence,
there can be no doubt that what Cardino filed was effectively a petition
for disqualification. This conclusion, of course, follows the rule that
the nature of a petition is determined not by its title or by its
prayers, but by the acts alleged as basis for the petition.
Unfortunately for Cardino, the position of a second
placer is not given preference, both in law and in jurisprudence with
respect to the consequences of election disputes (except with
well-defined exceptional circumstances discussed above), after election
has taken place.30
This approach and its consequential results are
premised on the general principle that the electorate is supreme; it
registers its choice during the election and, after voting, effectively
rejects the candidate who comes in as the second placer. Under the rule
that a disqualified candidate can still stand as a candidate unless his
disqualification has been ruled upon with finality before the elections,31
Jalosjos validly stood as a candidate in the elections of May 2010 and
won, although he was subsequently disqualified. With his
disqualification while already sitting as Mayor, the winning vice-mayor,
not . Cardino as a mere defeated second placer, should rightfully be
seated as mayor under Section 44 of LGC 1991 on the law on succession.
ARTURO D. BRIONAssociate Justice
Footnotes
2 G.R. No. 195229.
3 373 Phil. 896, 908 (1999).
4
Prior to these laws, the applicable laws were the Revised
Administrative Code of 1917, R.A. No. 2264 (An Act Amending the Laws
Governing Local Governments by Increasing Their Autonomy and
Reorganizing Provincial Governments); and B.P. Blg. 52 (An Act Governing
the Election of Local Government Officials).
5
See, however, Section 15 of R.A. No. 8436, as amended. Penera v.
Commission on Elections, G.R. No. 181613, November 25, 2009, 605 SCRA
574, 581-586, citing Lanot v. COMELEC, G.R. No. 164858, November 16,
2006, 507 SCRA 114.
6 Section 73 of the OEC reads:
Section 73. Certificate of candidacy. - No person
shall be eligible for any elective public office unless he files a sworn
certificate of candidacy within the period fixed herein.
A person who has filed a certificate of candidacy
may, prior to the election, withdraw the same by submitting to the
office concerned a written declaration under oath.
No person shall be eligible for more than one office
to be filled in the same election, and if he files his certificate of
candidacy for more than one office, he shall not be eligible for any of
them.
However, before the expiration of the period for the
filing of certificates of candidacy, the person who has filed more than
one certificate of candidacy may declare under oath the office for which
he desires to be eligible and cancel the certificate of candidacy for
the other office or offices.
The filing or withdrawal of a certificate of
candidacy shall not affect whatever civil, criminal or administrative
liabilities which a candidate may have incurred. [italics supplied]
Section 13 of R.A. No. 9369, however, adds that "any
person who files his certificate of candidacy within this period shall
only be considered as a candidate at the start of the campaign period
for which he filed his certificate of candidacy: Provided, That,
unlawful acts or omissions applicable to a candidate shall effect only
upon that start of the aforesaid campaign period." (italics supplied)
7 See Cipriano v. Commission on Elections, 479 Phil. 677, 689 (2004).
8 The statutory basis is Section 74 of the OEC which provides:
Section 74. Contents of certificate of candidacy. -
The certificate of candidacy shall state that the person filing it is
announcing his candidacy for the office stated therein and that he is
eligible for said office; if for Member of the Batasang Pambansa, the
province, including its component cities, highly urbanized city or
district or sector which he seeks to represent; the political party to
which he belongs; civil status; his date of birth; residence; his post
office address for all election purposes; his profession or occupation;
that he will support and defend the Constitution of the Philippines and
will maintain true faith and allegiance thereto; that he will obey the
laws, legal orders, and decrees promulgated by the duly constituted
authorities; that he is not a permanent resident or immigrant to a
foreign country; that the obligation imposed by his oath is assumed
voluntarily, without mental reservation or purpose of evasion; and that
the facts stated in the certificate of candidacy are true to the best of
his knowledge.
Unless a candidate has officially changed his name
through a court approved proceeding, a certificate shall use in a
certificate of candidacy the name by which he has been baptized, or if
has not been baptized in any church or religion, the name registered in
the office of the local civil registrar or any other name allowed under
the provisions of existing law or, in the case of a Muslim, his Hadji
name after performing the prescribed religious pilgrimage:
Provided, That when there are two or more candidates
for an office with the same name and surname, each candidate, upon being
made aware of such fact, shall state his paternal and maternal surname,
except the incumbent who may continue to use the name and surname
stated in his certificate of candidacy when he was elected. He may also
include one nickname or stage name by which he is generally or popularly
known in the locality.
The person filing a certificate of candidacy shall
also affix his latest photograph, passport size; a statement in
duplicate containing his bio-data and program of government not
exceeding one hundred words, if he so desires.
9 Miranda v. Abaya, 370 Phil. 642, 658 (1999). See also Bautista v. Commission on Elections, 359 Phil. 1 (1998).
10 Section 13 of R.A. No. 9369, COMELEC Resolution No. 8678 and Section 78 of OEC.
11 1987 Constitution, Article II, Section 26.
12 See Pamatong v. Commission on Elections, G.R. No. 161872, April 13, 2004, 427 SCRA 96, 100-103.
13 Merriam-Webster’s 11th Collegiate Dictionary, p. 655.
14
If at all, only two grounds for disqualification under the Local
Government Code may as well be considered for the cancellation of a CoC,
viz.: those with dual citizenship and permanent residence in a foreign
country, or those who have acquired the right to reside abroad and
continue to avail of the same right after January 1, 1992. It may be
argued that these two disqualifying grounds likewise go into the
eligibility requirement of a candidate, as stated under oath by a
candidate in his CoC.
15 Fermin v. Commission on Elections, G.R. Nos. 179695 and 182369, December 18, 2008, 574 SCRA 782, 792-794.
16 See Section 7 of R.A. No. 6646.
17
Sections 68 and 12 of the OEC cover these acts: (i) corrupting voters
or election officials; (ii) committing acts of terrorism to enhance
candidacy; (iii) over spending; (iv) soliciting, receiving or making
prohibited contributions; (v) campaigning outside the campaign period;
(vi) removal, destruction or defacement of lawful election propaganda;
(vii) committing prohibited forms of election propaganda; (viii)
violating rules and regulations on election propaganda through mass
media; (ix) coercion of subordinates; (x) threats, intimidation,
terrorism, use of fraudulent device or other forms of coercion; (xi)
unlawful electioneering; (xii) release, disbursement or expenditure of
public funds; (xiii) solicitation of votes or undertaking any propaganda
on the day of the election; (xiv) declaration as an insane; and (xv)
committing subversion, insurrection, rebellion or any offense for which
he has been sentenced to a penalty of more than eighteen months or for a
crime involving moral turpitude.
18 Salcedo II v. COMELEC, 371 Phil. 377, 387 (1999), citing Aznar v. Commission on Elections, 185 SCRA 703 (1990).
19 Supra, at 386-389.
20 Loong v. Commission on Elections, G.R. No. 93986, December 22, 1992, 216 SCRA 760, 765-766.
21 Section 5(a) of R.A. No. 6646.
22 Section 4(B) of COMELEC Resolution No. 8696 reads:
SEC. 4. Procedure in filing petitions. - For purposes of the preceding sections, the following procedure shall be observed:
x x x x
B. PETITION TO DISOUALIFY A CANDIDATE PURSUANT TO
SECTION 68 OF THE OMNIBUS ELECTION CODE AND PETITION TO DISOUALIFY FOR
LACK OF OUALIFICATIONS OR POSSESSING SOME GROUNDS FOR DISQUALIFICATION
1. A verified petition to disqualify a candidate
pursuant to Section 68 of the OEC and the verified petition to
disqualify a candidate for lack of qualifications or possessing some
grounds for disqualification may be filed on any day after the last day
for filing of certificates of candidacy but not later than the date of
proclamation.
23 Section 253 of the OEC.24 Section 15 of R.A. No. 9369.
25 Miranda v. Abaya, supra note 9, at 658-660.
26 Section 77 of the OEC expressly allows substitution of a candidate who is "disqualified for any cause."
27 Aquino v. Commission on Elections, G.R. No. 120265, September 18, 1995, 248 SCRA 400, 424.
28 Cayat v. Commission on Elections, G.R. Nos. 163776 and 165736, April 24, 2007, 522 SCRA 23, 43-47; Section 6 of R.A. No. 6646.
29 Grego v. Commission on Elections, G.R. No. 125955, June 19, 1997, 274 SCRA 481, 501.
30 See: discussions at pp. 14-15.31 Section 6 of R.A. No. 6646.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
REYES, J.:With all due respect, I dissent from the majority opinion.
Subject of this case are two (2) consolidated
Petitions for Certiorari under Rule 65 of the Rules of Court. In G.R.
No. 193237, petitioner Dominador G. Jalosjos, Jr. (Jalosjos) seeks to
annul and set aside the Resolutions dated May 10, 20101 and August 11, 20102
issued by the Commission on Elections (COMELEC), which respectively
ordered for the cancellation of his Certificate of Candidacy (COC) and
denied his Motion for Reconsideration.
In G.R. No. 193536, petitioner Agapito J.
Cardino"(Cardino) likewise assails the Resolution dated August 11, 2010,
particularly the dispositive portion thereof which contained the
directive to apply the provision of the Local Government Code (LGC) on
succession in filling the vacated office of the mayor.
Jalosjos attributes grave abuse of discretion on the
COMELEC en banc in (1) ruling that the grant of his probation was
revoked, hence, he is disqualified to run as Mayor of Dapitan City,
Zamboanga Del Norte, (2) cancelling his COC without a finding that he
committed a deliberate misrepresentation as to his qualifications,
considering that he merely relied in good faith upon a previous decision
of the COMELEC wherein he was declared eligible to run for public
office, and (3) issuing the Resolutions dated May 10, 2010 and August
11, 2010 in violation of the COMELEC Rules of Procedure.
On February 22, 2011, this Court issued a Resolution3 dismissing G.R. No. 193237, the dispositive portion of which reads:
WHEREFORE, the foregoing premises considered, the
Petition for Certiorari is DISMISSED. The assailed Resolution dated May
10, 2010 and Resolution dated August 11, 2010 of the Commission in (sic)
Elections in SPA Case No. 09-076 (DC) are hereby AFFIRMED.4
This Court ruled that Jalosjos could not have
qualified to run for any public office as the grant of his probation was
revoked by the RTC, as early as March 19, 1987 and that he could not
rely on the Certification dated December 19, 2003 issued by former
Parole and Probation Administrator Gregorio F. Bacolod to assert his
eligibility. We ratiocinated:
It must be remembered that by the time Bacolod
submitted his Termination Report on January 23, 2004, there was no
longer a probation to speak of, the same having been revoked more than
16 years earlier. Under the Probation Law of 1976, the order of
revocation is not appealable. There is no showing that the RTC ever
issued a subsequent order suspending the execution of petitioner’s
sentence and granting him probation again. In fact, the RTC issued an
alias warrant of arrest on January 17, 2004 pursuant to the March 19,
1987 Order of revocation.
Thus, the same order revoking the grant of probation
was valid and subsisting at the time that petitioner supposedly
completed his probation. Petitioner could not have validly complied with
the conditions of his probation and there would have been no basis for
any probation officer to accept petitioner’s compliance with a
non-existent probation order.
This, plus the cloud of doubt created by Bacolod’s
conviction for falsification of the certification relied upon by
petitioner, the Court cannot now rely on the presumption of regularity
in the issuance of said certification in order for us to conclude that
petitioner has in fact completed his probation. Considering that
petitioner likewise has not served the sentence of his conviction for
the crime of robbery, he is disqualified to run for and hold his current
position as Mayor of Dapitan City.5 (Citation omitted)
Undeterred, Jalosjos filed a Motion for Reconsideration6
on March 22, 2011, raising the same issues stated in his petition.
Subsequently, he filed a Manifestation dated May 30, 2012, informing
this Court that he had already tendered his resignation from his
position as Mayor of Dapitan City, Zamboanga del Norte and that the same
was accepted by the Governor of the province, Atty. Rolando E. Yebes.
I will deliberate on the Motion for Reconsideration
filed by Jalosjos in G.R. No. 193237 despite his resignation from
office, in conjunction with the merits of G.R. No. 193536, with which it
shares identical factual background.
by Cardino in SPA No. 09-076 (DC)
bespeak of its characterization as
one for disqualification.
It is well to remember that G.R. Nos. 193237 and
193536 stemmed from the Petition to Deny Due Course and to Cancel
Certificate of Candidacy of Respondent filed by Cardino against
Jalosjos, docketed as SPA No. 09-076 (DC). In the said petition, Cardino
alleged:
3. Respondent Jalosjos is also of legal age, a
resident of Dapitan City, a registered voter of Precinct No. 0187B,
likewise filed his certificate of candidacy for the same position with
the Office of the Comelec, Dapitan City, as that for which petitioner
duly filed a certificate of candidacy, for the May 10, 2010 national and
local elections on December 1, 2009, a certified true copy of said COC
is hereto attached as Annex B;
4. Respondent’s Jalosjos certificate of candidacy
under oath contains material misrepresentation, when he declared under
oath, that respondent Jalosjos is eligible for the office he seeks to be
elected, par. 16, COC for Mayor, considering that he is not eligible
for the position for which he filed a certificate of candidacy because
respondent was convicted by final judgment by the Regional Trial Court
of Cebu City in Crim. Case No. CCC-XIV-140-Cebu for Robbery, an offense
involving moral turpitude and he was sentenced to suffer the penalty of
"one (1) year, eight (8) Months and Twenty (20) days of prision
correctional, as minimum, to Four (4) years, Two 2 months and One (1)
day of prision mayor as maximum," a certified true (sic) of which
decision is hereto attached as Annex C.
5. Respondent Jalosjos failed to serve even a single
day of his sentence. The position requires that a candidate be eligible
and/or qualified to aspire for the position as required under Section 74
of the Omnibus Election Code.7
On the basis of the foregoing allegations, Cardino
prayed (1) that Jalosjos be declared ineligible for the position for
which he filed a COC or that his COC be cancelled or denied due course,
(2) that the Board of Election Inspectors of Dapitan City be directed to
exclude all the votes cast in Jalosjos’ name, (3) that the City Board
of Canvassers be ordered to suspend or hold in abeyance Jalosjos’
proclamation as the winning candidate, and (4) that Jalosjos be held
liable for damages.8
Subsequently, the COMELEC First Division issued its
Resolution dated May 10, 2010, granting Cardino’s petition and
cancelling Jalosjos’ COC. The COMELEC First Division ratiocinated that
Jalosjos "is not eligible by reason of his disqualification as provided
for in Section 40(a) of Republic Act (R.A.) No. 7160."9
Jalosjos promptly filed his Motion for
Reconsideration but the COMELEC en banc denied the same in its
Resolution dated August 11, 2010. Introductory to the ratio decidendi of
its ruling, the COMELEC en banc stated:
It is long settled that for a material representation
to serve as ground for the cancellation of a candidate’s certificate of
candidacy, it must refer to his qualifications for elective office.
Sections 39 and 40 of the Local Government Code or Republic Act No. 7160
prescribes the qualifications and disqualifications for elective
municipal officials, x x x.10
Thereafter, the COMELEC en banc correlated Sections
39 and 40 of the LGC and proceeded to conclude that since Jalosjos was
convicted by final judgment for the crime of robbery, he is disqualified
to run for any elective position or to hold office.
I fully agree with the COMELEC’s ruling that Jalosjos
cannot run for any public office by reason of possession of a ground
for disqualification. However, the COMELEC laid the predicate of said
conclusion on a muddled discussion of the nature of the petition filed
by Cardino and the effects of a judgment on the same on the status of
candidacy.
Verily, a candidate may be prevented from
participating in the electoral race either because he is ineligible or
he suffers from any of the grounds for disqualification. Ineligibility
refers to the lack of the qualifications prescribed in Sections 311 and 612 of Article VI, and Sections 213 and 314
of Article VII of the 1987 Constitution for senatorial, congressional,
presidential and vice-presidential candidates, or under Section 3915
of the LGC for local elective candidates. On the other hand,
disqualification pertains to the commission of acts which the law
perceives as unbecoming of a local servant, or to a circumstance, status
or condition rendering said candidate unfit for public service. To
question the eligibility of a candidate before the elections, the remedy
is to file a petition to deny due course or cancel the COC under
Section 78 of the Omnibus Election Code (OEC). If, on the other hand,
any ground for disqualification exists, resort can be made to the filing
of a petition for disqualification against the candidate thought to be
unqualified for public service under Section 68 of the same Code.
Pertinently, Section 78 of OEC states:
Sec. 78. Petition to deny due course to or cancel a
certificate of candidacy. – A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by any
person exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from
the time of the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days
before the election.
To be clear, it is not the mere ineligibility or lack
of qualification which warrants the filing of a petition to deny due
course or cancel the COC but the material representation of his
qualifications. Material misrepresentation as a ground to deny due
course or cancel a COC refers to the falsity of a statement required to
be entered therein, as enumerated in
Section 74 of the OEC,16 which reads:
Sec. 74. Contents of certificate of candidacy. – The
certificate of candidacy shall state that the person filing it is
announcing his candidacy for the office stated therein and that he is
eligible for said office; if for Member of the Batasang Pambansa, the
province, including its component cities, highly urbanized city or
district or sector which he seeks to represent; the political party to
which he belongs; civil status; his date of birth; residence; his post
office address for all election purposes; his profession or occupation;
that he will support and defend the Constitution of the Philippines and
will maintain true faith and allegiance thereto; that he will obey the
laws, legal orders, and decrees promulgated by the duly constituted
authorities; that he is not a permanent resident or immigrant to a
foreign country; that the obligation imposed by his oath is assumed
voluntarily, without mental reservation or purpose of evasion; and that
the facts stated in the certificate of candidacy are true to the best of
his knowledge.
Succinctly, the material misrepresentation
contemplated by Section 78 of the OEC refers to qualifications for
elective office. This conclusion is strengthened by the fact that the
consequences imposed upon a candidate guilty of having made a false
representation in his COC are grave — to prevent the candidate from
running or, if elected, from serving, or to prosecute him for violation
of the election laws. It could not have been the intention of the law to
deprive a person of such a basic and substantive political right to be
voted for a public office upon just any innocuous mistake.17
Aside from the requirement of materiality, the false
representation must consist of a deliberate attempt to mislead,
misinform or hide a fact which would otherwise render a candidate
ineligible. In other words, it must be with an intention to deceive the
electorate as to one’s qualification for public office.18
On the other hand, a petition for disqualification
may be filed if the candidate committed any of the acts considered as an
election offense stated in Section 68 of the OEC which reads:
Sec. 68. Disqualifications. – Any candidate who, in
an action or protest in which he is a party is declared by final
decision of a competent court guilty of, or found by the Commission of
having: (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral
functions; (b) committed acts of terrorism to enhance his candidacy; (c)
spent in his election campaign an amount in excess of that allowed by
this Code; (d) solicited, received or made any contribution prohibited
under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections
80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6,
shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident
of or an immigrant to a foreign country shall not be qualified to run
for any elective office under this Code, unless said person has waived
his status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election
laws.
The same petition may be filed on the ground of
possession of a status or condition which makes the candidate incapable
of assuming the stern demands of public service or which places him in
serious contradiction with his oath of office, as enumerated in Section
12 of the OEC and Section 40 of the LGC:
Section 12 of the OEC
Sec. 12. Disqualifications. – Any person who has been
declared by competent authority insane or incompetent, or has been
sentenced by final judgment for subversion, insurrection, rebellion, or
for any offense for which he has been sentenced to a penalty of more
than eighteen months or for a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein
provided shall be deemed removed upon the declaration by competent
authority that said insanity or incompetence had been removed or after
the expiration of a period of five years from his service of sentence,
unless within the same period he again becomes disqualified.
Section 40 of the LGC
Sec. 40. Disqualifications. – The following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable by one (1) year
or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad;
(f) Permanent residents in a foreign country or those
who have acquired the right to reside abroad and continue to avail of
the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
The petition filed by Cardino in SPA No. 09-076 (DC)
is a confusion of the remedies of petition to deny due course or cancel a
COC and petition for disqualification. It must be remembered that while
both remedies aim to prevent a candidate from participating in the
elections, they are separate and distinct from one another. They are
embraced by distinct provisions of law, which provide for their
respective prescriptive periods and particular sets of grounds. Further,
each remedy entails diverging effects on the status of candidacy of the
concerned candidate thus subsuming one remedy within the coverage of
the other is a dangerous feat.
In Fermin v. Commission on Elections,19 we had the occasion to ponder on the substantial differences between the two remedies, thus:
Lest it be misunderstood, the denial of due course to
or the cancellation of the CoC is not based on the lack of
qualifications but on a finding that the candidate made a material
representation that is false, which may relate to the qualifications
required of the public office he/she is running for. It is noted that
the candidate states in his/her CoC that he/she is eligible for the
office he/she seeks. Section 78 of the OEC, therefore, is to be read in
relation to the constitutional and statutory provisions on
qualifications or eligibility for public office. If the candidate
subsequently states a material representation in the CoC that is false,
the COMELEC, following the law, is empowered to deny due course to or
cancel such certificate. Indeed, the Court has already likened a
proceeding under Section 78 to a quo warranto proceeding under Section
253 of the OEC since they both deal with the eligibility or
qualification of a candidate, with the distinction mainly in the fact
that a "Section 78" petition is filed before proclamation, while a
petition for quo warranto is filed after proclamation of the wining
candidate.
At this point, we must stress that a "Section 78"
petition ought not to be interchanged or confused with a "Section 68"
petition. They are different remedies, based on different grounds, and
resulting in different eventualities. Private respondent’s insistence,
therefore, that the petition it filed before the COMELEC in SPA No.
07-372 is in the nature of a disqualification case under Section 68, as
it is in fact captioned a "Petition for Disqualification," does not
persuade the Court.
x x x x
To emphasize, a petition for disqualification, on the
one hand, can be premised on Section 12 or 68 of the OEC, or Section 40
of the LGC. On the other hand, a petition to deny due course to or
cancel a CoC can only be grounded on a statement of a material
representation in the said certificate that is false. The petitions also
have different effects. While a person who is disqualified under
Section 68 is merely prohibited to continue as a candidate, the person
whose certificate is cancelled or denied due course under Section 78 is
not treated as a candidate at all, as if he/she never filed a CoC. Thus,
in Miranda v. Abaya, this Court made the distinction that a candidate
who is disqualified under Section 68 can validly be substituted under
Section 77 of the OEC because he/she remains a candidate until
disqualified; but a person whose CoC has been denied due course or
cancelled under Section 78 cannot be substituted because he/she is never
considered a candidate.20 (Citations omitted)
It is beyond dispute that Jalosjos cannot run for
public office because of a prior conviction for a crime involving moral
turpitude. While he was granted probation, his failure to comply with
the terms and conditions of this privilege resulted to the revocation of
the same on March 19, 1987. It bears reiterating that probation is not a
right of an accused but a mere privilege, an act of grace and clemency
or immunity conferred by the state, which may be granted to a seemingly
deserving defendant who thereby escapes the extreme rigors of the
penalty imposed by law for the offense for which he was convicted.21
As a mere discretionary grant, he must pay full obedience to the terms
and conditions appertaining thereto or run the risk of the State
revoking this privilege. In Soriano v. Court of Appeals,22 this Court underscored the import of the terms and conditions of probation, to wit:
These conditions are not whims of the trial court but
are requirements laid down by statute. They are among the conditions
that the trial court is empowered to impose and the petitioner, as
probationer, is required to follow. Only by satisfying these conditions
may the purposes of probation be fulfilled. These include promoting the
correction and rehabilitation of an offender by providing him with
individualized treatment, and providing an opportunity for the
reformation of a penitent offender which might be less probable if he
were to serve a prison sentence. Failure to comply will result in the
revocation of the order granting probation, pursuant to the Probation
Law:
Sec. 11. Effectivity of Probation Order. — A
probation order shall take effect upon its issuance, at which time the
court shall inform the offender of the consequences thereof and explain
that upon his failure to comply with any of the conditions prescribed in
the said order or his commission of another offense, he shall serve the
penalty imposed for the offense under which he was placed on probation.
Probation is not an absolute right. It is a mere
privilege whose grant rests upon the discretion of the trial court. Its
grant is subject to certain terms and conditions that may be imposed by
the trial court. Having the power to grant probation, it follows that
the trial court also has the power to order its revocation in a proper
case and under appropriate circumstances.23 (Citations omitted)
On the ground of Jalosjos’ failure to comply with the
terms and conditions of his probation, the RTC revoked said grant and
ordered for the issuance of an alias warrant of arrest against him.
Stripped of the privilege, he becomes an ordinary convict who is imposed
with restraints in the exercise of his civil and political rights.
Specifically, under Section 40(a) of the LGC, he is disqualified to run
for any local elective office. His disqualification cannot be defeated
by bare allegation that he was earlier granted probation as this does
not perfunctorily obliterate the fact of conviction and the
corresponding accessory penalties.
Further, in Baclayon v. Hon. Mutia,24
we emphasized that an order placing defendant on "probation" is not a
"sentence" but is rather a suspension of the imposition of sentence. It
is not a final judgment but is rather an "interlocutory judgment" in the
nature of a conditional order placing the convicted defendant under the
supervision of the court for his reformation, to be followed by a final
judgment of discharge, if the conditions of the probation are complied
with, or by a final judgment of sentence if the conditions are violated.25
With the revocation of the grant of Jalosjos’ probation, the temporary
suspension of his sentence is lifted and all the ensuing
disqualifications regain full effect.
Remarkably, Cardino’s challenge to Jalosjos’
candidacy was not based squarely on the fact that there is a final
judgment of conviction for robbery against him but on the ground that he
made a material misrepresentation in his COC by declaring that he is
eligible to run for public office when there is an existing circumstance
which renders his candidacy unacceptable. Based on the designation of
his petition in SPA No. 09-076 (DC), Cardino intends to file a petition
to cancel the COC of Jalosjos, an action which is governed by Section
74, in relation with Section 78 of the OEC. The combined application of
these sections requires that the facts stated in the COC by the would-be
candidate be true, as any false representation of a material fact is a
ground for the COC’s cancellation or the withholding of due course.26
Essentially, the details required to be stated in the COC are the
personal circumstances of the candidate, i.e., name/stage name, age,
civil status, citizenship and residency, which serve as basis of his
eligibility to become a candidate taking into consideration the
standards set under the law. The manifest intent of the law in imposing
these qualifications is to confine the right to participate in the
elections to local residents who have reached the age when they can
seriously reckon the gravity of the responsibility they wish to take on
and who, at the same time, are heavily acquainted with the actual state
and urgent demands of the community.
A painstaking examination of the petition filed by
Cardino with the COMELEC would reveal that while it is designated as a
petition to deny due course to or cancel a COC, the ground used to
support the same actually partake of a circumstance which is more
fittingly used in a petition for disqualification. Section 40(a) of the
LGC clearly enumerates a final judgment of conviction for a crime
involving moral turpitude as a ground for disqualification. That Cardino
employed the term "material misrepresentation" in his disputations
cannot give his petition a semblance of what is properly a petition to
cancel a COC. It bears reiterating that a petition to deny due course to
or cancel a COC and a petition for disqualification are two separate
and distinct actions which may be filed based on grounds pertaining to
it. Thus, a petition for cancellation of COC cannot be predicated on a
ground which is proper only in a petition for disqualification. The
legislature would not have found it wise to provide for two different
remedies to challenge the candidacy of an aspiring local servant and
even provide for an enumeration of the grounds on which they may be
based if they were intended to address the same predicament. The fact
that the mentioned remedies were covered by separate provisions of law
which relate to distinct set of grounds is a manifestation of the
intention to treat them severally.
Considering that the core of Cardino’s petition in
SPA No. 09-076 (DC) is the existence of a final judgment of conviction
against Jalosjos, this material allegation is controlling of the
characterization of the nature of the petition regardless of the caption
used to introduce the same. Cardino’s petition must therefore be
treated and evaluated as a petition for disqualification and not for
cancellation of COC. Well-settled rule is that the caption is not
determinative of the nature of the petition. What characterizes the
nature of the action or petition are the material allegations therein
contained, irrespective of whether the petitioner is entitled to the
reliefs prayed for therein.27
In order to conform with existing laws and
established jurisprudence, the Resolution dated February 22, 2011 of
this Court in G.R. No. 193237 must accordingly be modified to reflect
the foregoing clarification on the nature of Cardino’s petition in SPA
No. 09-076 (DC) and the ensuing consequences of the judgment on the
same.
Turning to G.R. No. 193536, it is Cardino’s
contention that with the cancellation of Jalosjos’ COC, he should
succeed to the office of the mayor of Dapitan City, Zamboanga del Norte
as he was the only remaining qualified candidate for said position. He
posits that the cancellation of Jalosjos’ COC retroacted to the date of
its filing and rendered the latter a non-candidate as if he never filed
one at all. Consequently, all the votes cast in his favor are considered
stray and his proclamation as winning candidate did not produce any
legal effect.
Further, Cardino imputes grave abuse of discretion on
the part of the COMELEC for stating in the dispositive portion of its
Resolution dated August 11, 2010 that the provisions on succession in
the LGC will apply in filling the post vacated by Jalosjos. To begin
with, he argues that Section 44 of the LGC applies only when a permanent
vacancy occurs in the office of the mayor. A permanent vacancy
contemplates a situation whereby the disqualified mayor was duly elected
to the position and lawfully assumed the office before he vacated the
same for any legal cause. It does not embrace cancellation of COC since
this eventuality has the effect of rendering the individual a
non-candidate, who cannot be voted for and much less, be proclaimed
winner in the elections.28
Cardino’s disputations fail to persuade.Cardino as a mere second placer
cannot be proclaimed mayor of
Dapitan City, Zamboanga del
Norte.
Truly, a judgment on a petition to cancel a COC
impinges on the very eligibility of an individual to qualify as a
candidate and that its ultimate effect is to render the person a
non-candidate as if he never filed a COC at all. The votes in favor of
the candidate whose COC was cancelled are considered stray even if he
happens to be the one who gathered the majority of the votes. In such
case, the candidate receiving the second highest number of votes may be
proclaimed the winner as he is technically considered the one who
received the highest number of votes. Further, the judgment on a
petition to cancel a COC does not distinguish whether the same attained
finality before or after the elections since the consequences retroact
to the date of filing of the COC. Regardless of the point in time when
the cancellation of the COC was adjudged, the effect is nevertheless the
same: the person is stripped of his status as an official candidate.
Cardino’s disputations could have been tenable if the
petition he filed in SPA No. 09-076 (DC) is a petition to cancel a COC.
However, the pertinent allegations of his petition bespeak of the fact
that the same is actually a petition for disqualification, the effect of
which is covered by Section 6 of R.A. No. 6646, which repealed Section
72 of the OEC, to wit:
Sec. 6. Effect of Disqualification Case. – Any
candidate who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted.
If for any reason a candidate is not declared by final judgment before
an election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry, or protest
and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong. (Italics ours)
Unlike a judgment on a petition to cancel a COC, the
effects of a judgment on a petition for disqualification distinguish
whether the same attained finality before or after the elections. If the
judgment became final before the elections, the effect is identical to
that of cancellation of a COC.
If, however, the judgment attained finality after the
elections, the individual is still considered an official candidate and
may even be proclaimed winner should he muster the majority votes of
the constituency.
In Cayat v. Commission on Elections,29 we cogitated on the import of Section 6 of R.A. No. 6646, to wit:
Section 6 of the Electoral Reforms Law of 1987 covers
two situations. The first is when the disqualification becomes final
before the elections, which is the situation covered in the first
sentence of Section 6.The second is when the disqualification becomes
final after the elections, which is the situation covered in the second
sentence of Section 6.
The present case falls under the first situation.
Section 6 of the Electoral Reforms Law governing the first situation is
categorical: a candidate disqualified by final judgment before an
election cannot be voted for, and votes cast for him shall not be
counted. The Resolution disqualifying Cayat became final on 17 April
2004, way before the 10 May 2004 elections. Therefore, all the 8,164
votes cast in Cayat’s favor are stray. Cayat was never a candidate in
the 10 May 2004 elections. Palileng’s proclamation is proper because he
was the sole and only candidate, second to none.30 (Emphasis supplied)
The instant case falls under the second situation
contemplated in Section 6 of R.A. No. 6646. The petition to disqualify
Jalosjos was filed on December 6, 2009 and was resolved by the COMELEC
on the very day of elections of May 10, 2010. Thus, on the election day,
Jalosjos is still considered an official candidate notwithstanding the
issuance of the COMELEC Resolution disqualifying him from holding public
office. The pendency of a disqualification case against him or even the
issuance of judgment of disqualification against him does not forthwith
divest him of the right to participate in the elections as a candidate
because the law requires no less than a final judgment. Thus, the votes
cast in his name were rightfully counted in his favor and, there being
no order suspending his proclamation, the City Board of Canvassers
lawfully proclaimed him as the winning candidate. However, upon the
finality of the judgment of disqualification against him on August 11,
2010, a permanent vacancy was created in the office of the mayor which
must be filled in accordance with Section 44 of the LGC, which states:
Sec. 44. Permanent Vacancies in the Offices of the
Governor, Vice Governor, Mayor, and Vice-Mayor. – If a permanent vacancy
occurs in the office of the governor or mayor, the vice-governor or
vice-mayor concerned shall become the governor or mayor. x x x.
x x x x
For purposes of this Chapter, a permanent vacancy
arises when an elective local official fills a higher vacant office,
refuses to assume office, fails to qualify, dies, is removed from
office, voluntarily resigns, or is otherwise permanently incapacitated
to discharge the functions of his office.
The language of the law is clear, explicit and unequivocal, thus admits no room for interpretation but merely application.31
Accordingly, when Jalosjos was adjudged to be disqualified, a permanent
vacancy was created in the office of the mayor for failure of the
elected mayor to qualify for the position. As provided by law, it is the
duly-elected vice-mayor of the locality who should succeed to the
vacated office.
Following the foregoing ratiocination, Cardino’s
contention that he should be proclaimed mayor of Dapitan City, Zamboanga
del Norte lacks legal basis. That he was the one who received the
second highest number of votes does not entitle him to any right or
preference to succeeding the vacated post. Unmistakably, he did not have
the mandate of the voting populace and this must not be defeated by
substituting him, a losing candidate, in place of the disqualified
candidate who received the majority votes. In Benito v. Commission on
Elections,32 we held:
In every election, the people’s choice is the
paramount consideration and their expressed will must, at all times, be
given effect. When the majority speaks and elects into office a
candidate by giving him the highest number of votes cast in the election
for that office, no one can be declared elected in his place.
The fact that the candidate who obtained the highest
number of votes dies, or is later declared to be disqualified or not
eligible for the office to which he was elected does not necessarily
entitle the candidate who obtained the second highest number of votes to
be declared the winner of the elective office. For to allow the
defeated and repudiated candidate to take over the mayoralty despite his
rejection by the electorate is to disenfranchise the electorate without
any fault on their part and to undermine the importance and meaning of
democracy and the people’s right to elect officials of their choice.33 (Citations omitted)
Further, in Kare v. Commission on Elections,34 we further deliberated on the reason behind the doctrine of rejection of the second placer. We enunciated:
Theoretically, the second placer could receive just
one vote. In such a case, it would be absurd to proclaim the totally
repudiated candidate as the voters’ choice. Moreover, there are
instances in which the votes received by the second placer may not be
considered numerically insignificant. In such situations, if the
equation changes because of the disqualification of an ineligible
candidate, voters’ preferences would nonetheless be so volatile and
unpredictable that the results for qualified candidates would not be
self-evident. The absence of the apparent though ineligible winner among
the choices could lead to a shifting of votes to candidates other than
the second placer. Where an "ineligible" candidate has garnered either a
majority or a plurality of the votes, by no mathematical formulation
can the runner-up in the election be construed to have obtained the
majority or the plurality of votes cast.35 (Citations omitted)
In other words, a second placer cannot bank on a mere
supposition that he could have won the elections had the winning
candidate, who was eventually adjudged disqualified, been excluded in
the roster of official candidates. It is erroneous to assume that the
sovereign will could have opted for the candidate who received the
second highest number of votes had they known of the disqualification of
the winning candidate early on. For in such event, they could have cast
their votes in favor of another candidate, not necessarily the one who
received the second highest number of votes.
Finally, Cardino impugns the wisdom of the doctrine
of rejection of second placer which was first enunciated in Topacio v.
Paredes36
on the ground that the doctrine effectively discourages qualified
candidates for the same position for which the disqualified candidate
was elected, in initiating a disqualification case because the prospect
of being proclaimed to the position is nil.37
The doctrine of rejection of the second placer was
not conceived to suit the selfish interests of losing candidates or arm
them with a weapon to retaliate against the prevailing candidates. The
primordial consideration in adhering to this doctrine is not simply to
protect the interest of the other qualified candidates joining the
electoral race but more than that, to safeguard the will of the people
in whom the sovereignty resides. The doctrine ensures that only the
candidate who has the people’s faith and confidence will be allowed to
run the machinery of the government. It is a guarantee that the popular
choice will not be compromised, even in the occasion that the prevailing
candidate is eventually disqualified, by replacing him with the
next-in-rank official who was also elected to office by the authority of
the electorate.
It is of no moment that, as Cardino surmised, the
doctrine of rejection of the second placer dissuades other qualified
candidates in filing a disqualification case against the prevailing
candidate for lack of expectation of gain. To justify the abandonment of
the doctrine following Cardino’s asseveration is to reduce its
significance and put premium on the interest of the candidate rather
than of the electorate for whose interest the election is being
conducted. The doctrine was for the protection of the public and not for
any private individual’s advantage. Thus, the right to file a petition
for disqualification is not exclusive to the opposing candidate but may
also be pursued by any citizen of voting age, or duly registered
political party, organization or coalition of political parties,38 who are minded to do so.
In ruling therefore that the provisions of the LGC
shall apply in determining the rightful successor to the office of the
mayor of Dapitan City, Zamboanga del Norte, the COMELEC did not commit
any grave abuse of discretion. The application of the provisions of the
LGC is the necessary consequence of Jalosjos' disqualification.
In view of the foregoing disquisitions, I respectfully vote to:
(1) DISMISS G.R. No. 193536 for lack of merit.
(2) MODIFY the Resolution dated February 22, 2011 of
this Court in G.R. No. 193237. The Resolutions dated May 10, 2010 and
August 11, 2010 of the COMELEC in SPA No. 09-076 (DC) should be AFFIRMED
with MODIFICATION in that Dominador G. Jalosjos, Jr. should be declared
disqualified to run as Mayor of Dapitan City, Zamboanga del Norte and
the provisions of the Local Government Code on succession be applied in
filling the vacated office.
Associate Justice
Footnotes
2 Id. at 49-56.
3 Id. at 355-360.
4 Id. at 360.
5 Id. at 359-360.
6 Id. at 373-393.
7 Id. at 57-58.
8 Id. at 59.
9 Id. at 47.
10 Id. at 53.
11
Art. VI, Sec. 3. No person shall be a Senator unless he is a
natural-born citizen of the Philippines, and, on the day of the
election, is at least thirty-five years of age, able to read and write, a
registered voter, and a resident of the Philippines for not less than
two years immediately preceding the day of the election.
12
Art. VI, Sec. 6. No person shall be a Member of the House of
Representatives unless he is a natural-born citizen of the Philippines
and, on the day of the election, is at least twenty-five years of age,
able to read and write, and, except the party-list representatives, a
registered voter in the district in which he shall be elected, and a
resident thereof for a period of not less than one year immediately
preceding the day of the election.
13
Art. VII, Sec. 2. No person may be elected President unless he is a
natural-born citizen of the Philippines, a registered voter, able to
read and write, at least forty years of age on the day of the election,
and a resident of the Philippines for at least ten years immediately
preceding such election.
14
Art. VII, Sec. 3. There shall be a Vice-President who shall have the
same qualifications and term of office and be elected with and in the
same manner as the President. He maybe removed from office in the same
manner as the President. x x x.
15
Sec. 39. Qualifications. – (a) An elective local official must be a
citizen of the Philippines; a registered voter in the barangay,
municipality, city, or province or, in the case of a member of the
sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan,
the district where he intends to be elected; a resident therein for at
least one (1) year immediately preceding the day of the election; and
able to read and write Filipino or any other local language or dialect.
(b) Candidates for the position of governor,
vice-governor, or member of the sangguniang panlalawigan, or mayor,
vice-mayor or member of the sangguniang panlungsod of highly urbanized
cities must be at least twenty-three (23) years of age on election day.
(c) Candidates for the position of mayor or
vice-mayor of independent component cities, component cities, or
municipalities must be at least twenty-one (21) years of age on election
day.
(d) Candidates for the position of member of the
sangguniang panlungsod or sangguniang bayan must be at least eighteen
(18) years of age on election day.
(e) Candidates for the position of punong barangay or
member of the sangguniang barangay must be at least eighteen (18) years
of age on election day.
(f) Candidates for the sangguniang kabataan must be
at least fifteen (15) years of age but not more than twenty-one (21)
years of age on election day.
16 Justimbaste v. Commission on Elections, G.R. No. 179413, November 28, 2008, 572 SCRA 736, 740.
17 Salcedo II v. COMELEC, 371 Phil. 377, 389 (1999).
18
Gonzalez v. Commission on Elections, G.R. No. 192856, March 8, 2011,
644 SCRA 761, 775-776, citing Salcedo II v. Commission on Elections,
supra note 37, at 390, citing Romualdez-Marcos v. Commission on
Elections, G.R. No. 119976, September 18, 1995, 248 SCRA 300, Abella v.
Larrazabal, 259 Phil. 992 (1989), Aquino v. Commission on Elections, 318
Phil. 467 (1995), Labo, Jr. v. Commission on Elections, G.R. No.
105111, July 3, 1992, 211 SCRA 297, Frivaldo v. COMELEC, 327 Phil. 521
1996), Republic v. De la Rosa, G.R. No. 104654, June 6, 1994, 232 SCRA
785.
19 G.R. No. 179695, December 18, 2008, 574 SCRA 782.20 Id. at 792-796.
21 Santos v. Court of Appeals, 377 Phil. 642, 652 (1999), citing Francisco v. CA, 313 Phil. 241, 254(1995).
22 363 Phil. 573 (1999).23 Id. at 583-584.
24 214 Phil. 126 (1984).
25 Id. at 132, citing Commonwealth ex rel. Paige vs. Smith, 198 A. 812, 813, 815, l30 Pa. Super. 536.
26 Velasco v. Commission on Elections, G.R. No. 180051, December 24, 2008, 575 SCRA 590, 602.
27 Guiang v. Co, 479 Phil. 473, 480 (2004), citing Ty v. Court of Appeals, 408 Phil. 792 (2001).
28 G.R. No. 193536 rollo, pp. 11-12.29 G.R. 163776, April 24, 2007, 522 SCRA 23.
30 Id. at 45.
31 Sunga v. COMELEC, 351 Phil. 310, 327 (1998).
32 235 SCRA 436 (1994).
33 Id. at 441-442.
34 G.R. No. 157526, April 28, 2004, 428 SCRA 264.
35 Id. at 274-275.
36 23 Phil. 238 (1912).
37 G.R. No. 193536 rollo, pp. 12-15.
38 The 1993 COMELEC Rules of Procedure, Rule 25, Section 1.
The Lawphil Project - Arellano Law Foundation
CONCURRING OPINION
BERSAMIN, J.:
The all-important concern here is the effect of the
conviction for robbery by final judgment of and the probation allegedly
granted to Dominador G. Jalosjos, petitioner in G.R. No. 193237, on his
candidacy for the position of Mayor of Dapitan City; and the
determination of the rightful person to assume the contested elective
position upon the ineligibility of Jalosjos.
I easily CONCUR with the insightful opinion delivered
for the Majority by our esteemed colleague, Senior Associate Justice
Carpio. As I see it, these consolidated cases furnish to the Court the
appropriate occasion to look again into the candidacy of a clearly
ineligible candidate garnering the majority of the votes cast in an
election and being proclaimed as the winning candidate to the detriment
of the valid candidacy of his rival who has all the qualifications and
suffers none of the disqualifications. The ineligible candidate thereby
mocks the sanctity of the ballot and reduces the electoral exercise into
an expensive joke.
G.R. No. 193237 is a special civil action for certiorari brought by Jalosjos to assail the Resolution dated August 11, 2010,1 whereby the Commission on Elections (COMELEC) En Banc affirmed the Resolution dated May 10, 20102
issued by the COMELEC First Division in SPC No. 09-076 (DC). Both
Resolutions declared Jalosjos ineligible to run as Mayor of Dapitan
City, Zamboanga Del Norte in the May 10, 2010 national and local
elections pursuant to Section 40(a) of The Local Government Code (LGC),
viz:
Section 40. Disqualifications. – The following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable by one (1) year
or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
xxx
Additionally, the COMELEC cancelled Jalosjos’
certificate of candidacy (CoC) on the ground of material
misrepresentation made therein.
Jalosjos charges the COMELEC En Banc with committing
grave abuse of discretion when it ruled that he was disqualified to run
as Mayor of Dapitan City in view of the revocation of his probation; and
when it cancelled his CoC without finding that he had deliberately
misrepresented his qualifications to run as Mayor.
G.R. No. 193536 is a special civil action for
certiorari commenced by Agapito J. Cardino, the only other candidate
against Jalosjos, in order to set aside the COMELEC En Banc’s Resolution
dated August 11, 2010,3
to the extent that the Resolution directed the application of the rule
of succession as provided in the LGC. Cardino challenges the COMELEC En
Banc’s application of the rule of succession under the LGC, contending
that he should be considered elected as Mayor upon the cancellation of
Jalosjos’ CoC because he had been the only bona fide candidate for the
position of Mayor of Dapitan City.4
Cardino insists that the cancellation of Jalosjos’ CoC retroacted to
the date of its filing, thereby reducing him into a non-candidate.5
The special civil actions were consolidated on March 29, 2011.6
Antecedents
The antecedents are narrated in the Resolution the Court has promulgated on February 22, 2011 in G.R. No. 193237, to wit:
On December 6, 2009, private respondent Agapito J.
Cardino filed a Petition to Deny Due Course to and Cancel Certificate of
Candidacy of petitioner before respondent Comelec. Petitioner and
private respondent were both candidates for Mayor of Dapitan City,
Zamboanga del Norte during the 2010 Elections. Private respondent
alleged that petitioner misrepresented in his CoC that he was eligible
to run for Mayor, when, in fact, he was not, since he had been convicted
by final judgment of robbery, a crime involving moral turpitude, and he
has failed to serve a single day of his sentence.
The final judgment for robbery stems from the following factual antecedents:
On April 30, 1970, the then Circuit Criminal Court
(now Regional Trial Court RTC) of Cebu City convicted petitioner of the
crime of robbery and sentenced him to suffer the penalty of one (1)
year, eight (8) months, and twenty (20) days of prision correccional, as
minimum, to four (4) years, two (2) months, and one (1) day of prision
mayor, as maximum. Petitioner appealed his conviction to the Court of
Appeals (CA). He later abandoned the appeal, which was thus dismissed on
August 9, 1973. Sometime in June 1985, petitioner filed a petition for
probation.
On July 9, 1985, Gregorio F. Bacolod (Bacolod), who
was then the Supervising Probation Officer of the Parole and Probation
Office, recommended to the RTC the grant of petitioner's application for
probation. On the same day, the RTC issued an Order granting the
probation for a period of one year subject to the terms and conditions
stated therein.
However, on August 8, 1986, Bacolod filed a Motion
for Revocation of the probation on the ground that petitioner failed to
report to him, in violation of the condition of the probation.
Accordingly, the RTC issued an Order dated March 19, 1987, revoking the
probation and ordering the issuance of a warrant of arrest. A warrant of
arrest was issued but remained unserved.
More than 16 years later, or on December 19, 2003,
petitioner secured a Certification from the Central Office of the Parole
and Probation Administration (PPA), which was signed by Bacolod, now
Administrator of the PPA, attesting that petitioner had fulfilled the
terms and conditions of his probation.
At this time, the prosecution also decided to stir
the case. It filed a motion for the issuance of an alias warrant of
arrest. The RTC granted the motion on January 16, 2004 and issued an
Order for the Issuance of an Alias Warrant of Arrest against petitioner.
On January 23, 2004, Bacolod submitted to the RTC a
Termination Report stating that petitioner had fulfilled the terms and
conditions of his probation and, hence, his case should be deemed
terminated. On the same day, petitioner filed an Urgent Motion to
Reconsider its January 16, 2004 Order and to Lift the Warrant of Arrest.
On January 29, 2004, James A. Adasa (Adasa),
petitioner's opponent for the mayoralty position during the 2004
Elections, filed a Petition for Disqualification against petitioner,
based on Section 40(a) of Republic Act (R.A.) No. 7160, the Local
Government Code of 1991, on the ground that the latter has been
convicted of robbery and failed to serve his sentence. Adasa later
amended his petition to include Section 40(e) of the same law, claiming
that petitioner is also a "fugitive from justice."
Meanwhile, acting on petitioner's urgent motion, the
RTC issued an Order dated February 5, 2004, declaring that petitioner
had duly complied with the order of probation, setting aside its January
16, 2004 Order, and recalling the warrant of arrest.
Thus, in resolving Adasa's petition, the Comelec
Investigating Officer cited the February 5, 2004 RTC Order and
recommended that petitioner be declared qualified to run for Mayor. In
the Resolution dated August 2, 2004, the Comelec-Second Division adopted
the recommendation of the Investigating Officer and denied the petition
for disqualification. It held that petitioner has amply proven that he
had complied with the requirements of his probation as shown by the
Certification from the PPA dated December 19, 2003, which was the basis
of the February 5, 2004 RTC Order.
Adasa filed a motion for reconsideration, which the Comelec En Banc denied on December 13, 2006.
Adasa then filed a petition for certiorari with the
Supreme Court (G.R. No. 176285). In a Resolution dated June 3, 2008, the
Court dismissed the petition for being moot and academic, the
three-year term of office having expired.
In a related incident, Bacolod, who issued the
Certification dated December 19, 2003 to petitioner, was charged with
violation of Section 3(e) of R.A. No. 3019 and falsification of public
document under the Revised Penal Code for issuing said Certification. On
September 29, 2008, the Sandiganbayan rendered a decision finding
Bacolod guilty as charged. It held that the Certification he issued was
definitely false because petitioner did not actually fulfill the
conditions of his probation as shown in the RTC Order dated March 19,
1987, which states that the probation was being revoked. Hence, at the
time the Certification was issued, there was no longer a probation order
to be fulfilled by petitioner.
On May 10, 2010, the elections were held, and petitioner won as Mayor of Dapitan City.
On the same day, the Comelec-First Division issued a
resolution granting the Petition to Deny Due Course and cancelling
petitioner's CoC.The Comelec noted that the dismissal of Adasa's
petition for disqualification hinged on the presumption of regularity in
the issuance of the PPA Certification dated December 19, 2003,
declaring that petitioner had complied with the requirements of his
probation. It opined that, with the decision of the Sandiganbayan
convicting Bacolod, it would now appear that the December 19, 2003
Certification was fraudulently issued and that petitioner had not
actually served his sentence; thus, the ruling on Adasa’s petition is
"left with no leg to stand on."
Petitioner moved for reconsideration. The Comelec En
Banc denied the motion in a resolution dated August 11, 2010. The
Comelec ordered him to cease and desist from occupying and discharging
the functions of the Office of the Mayor of Dapitan City.7
Through the Resolution promulgated on February 22, 2011,8 the Court dismissed G.R. No. 193237, disposing:
WHEREFORE, the foregoing premises considered, the
Petition for Certiorari is DISMISSED. The assailed Resolution dated May
10, 2010 and Resolution dated August 11, 2010 of the Commission on
Elections in SPA Case No. 09-076 (DC) are hereby AFFIRMED.
On March 22, 2011, Jalosjos moved for the reconsideration of the February 22, 2011 Resolution,9 raising the same issues he had averred in his petition.
On June 1, 2012, however, Jalosjos filed a
manifestation dated May 30, 2012, informing the Court that he had
meanwhile tendered his resignation as Mayor of Dapitan City effective
April 30, 2012; that his resignation had been accepted by Governor
Rolando E. Yebes of
Zamboanga del Norte; and that Vice Mayor Patri Bajamunde-Chan had taken her oath of office as the new Mayor of Dapitan City.
Disposition
I vote to affirm the disqualification of Jalosjos as a
candidate for Mayor of Dapitan City; and to sustain the Resolution of
the COMELEC En Banc cancelling his CoC.
I agree with the Majority that the rule of succession
provided by the LGC does not apply to determine who should now sit as
Mayor of Dapitan City. Thus, I hold that Cardino, the only other
candidate with a valid CoC for Mayor of Dapitan City in the May 10, 2010
elections, had the legal right to assume the position of City Mayor.
Let me specify the reasons for this humble concurrence.
1.Cardino’s petition in SPA Case No. 09-076 (DC)
was a petition to deny due course to
or cancel a CoC under Section 78 of the
Omnibus Election Code
The COMELEC En Banc correctly held that the petition
of Cardino in SPA Case No. 09-076 (DC) was in the nature of a petition
to deny due course to or cancel a CoC under Section 78 of the Omnibus
Election Code.
In Salcedo II v. Commission on Elections,10 the Court pointed out that there are two remedies available to challenge the qualifications of a candidate, namely:
(1) Before the election, pursuant to Section 78 of the Omnibus Election Code, to wit:
Section 78. Petition to deny due course or to cancel a
certificate of candidacy. - A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by any
person exclusively on the ground that any material misrepresentation
contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from
the time of the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days
before the election.
and –
(2) After the election, pursuant to Section 253 of the Omnibus Election Code, viz:
Section 253. Petition for quo warranto. - Any voter
contesting the election of any Member of the Batasang Pambansa,
regional, provincial, or city officer on the ground of ineligibility or
of disloyalty to the Republic of the Philippines shall file a sworn
petition for quo warranto with the Commission within ten days after the
proclamation of the results of the election.
The Court has explained that the only difference
between the two remedies is that, under Section 78, the qualifications
for elective office are misrepresented in the CoC, and the proceedings
must be initiated prior to the elections, while under Section 253, a
petition for quo warranto may be brought within ten days after the
proclamation of the election results on either of two grounds, to wit:
(a) ineligibility; or (b) disloyalty to the Republic of the Philippines.
A candidate is ineligible under Section 253 if he is disqualified to be
elected to office; and he is disqualified if he lacks any of the
qualifications for elective office.11
In describing the nature of a Section 78 petition, the Court said in Fermin v. Commission on Elections:12
Lest it be misunderstood, the denial of due course to
or the cancellation of the CoC is not based on the lack of
qualifications but on a finding that the candidate made a material
representation that is false, which may relate to the qualifications
required of the public office he/she is running for. It is noted that
the candidate states in his/her CoC that he/she is eligible for the
office he/she seeks. Section 78 of the OEC, therefore, is to be read in
relation to the constitutional and statutory provisions on
qualifications or eligibility for public office. If the candidate
subsequently states a material representation in the CoC that is false,
the COMELEC, following the law, is empowered to deny due course to or
cancel such certificate. Indeed, the Court has already likened a
proceeding under Section 78 to a quo warranto proceeding under Section
253 of the OEC since they both deal with the eligibility or
qualification of a candidate, with the distinction mainly in the fact
that a "Section 78" petition is filed before proclamation, while a
petition for quo warranto is filed after proclamation of the winning
candidate.13
Clearly, the only instance where a petition assailing
the qualifications of a candidate for elective office can be filed
prior to the elections is when the petition is filed under Section 78.14
A Section 78 petition is not to be confused with a
Section 12 or Section 68 petition. The two are different remedies, are
based on different grounds, and can result in different eventualities.15 A person who is disqualified under either Section 1216 or Section 6817
is prohibited to continue as a candidate, but a person whose CoC is
cancelled or denied due course under Section 78 is not considered a
candidate at all because his status is that of a person who has not
filed a CoC.18
To ascertain whether Cardino’s petition against
Jaloslos was a petition under Section 78, on one hand, or under Section
12 or Section 68, on the other hand, it is necessary to look at its
averments and relief prayed for, viz:
1. Petitioner is of legal age, Filipino citizen,
married, able to read and write, a registered voter of Precinct No.
0019A, and is and has been a resident of Dapitan City, continuously
since birth up to the present;
2. Petitioner duly filed his certificate of candidacy
for the position of City Mayor of Dapitan for the election on May 10,
2010, with the Office of the Commission on Election, Dapitan City, on
December 1, 2009, which accepted and acknowledged the same, a copy of
which is hereto attached as Annex A;
3. Respondent is also of legal age, a resident of
Dapitan City, a registered voter of Precinct No. 0187B, likewise filed
his certificate of candidacy for the same position with the Office of
the Comelec, Dapitan City, as that for which petitioner duly filed a
certificate of candidacy, for the May 10, 2010 national and local
elections on December 1, 2009, a certified true copy of said COC is
hereto attached as Annex B;
4. Respondent’s certificate of candidacy under oath
contains material misrepresentation, when he declared under oath, that
respondent is eligible for the office he seeks to be elected, par. 16,
COC for Mayor, considering that he is not eligible for the position for
which he filed a certificate of candidacy because respondent was
convicted by final judgment by the Regional Trial Court of Cebu City in
Crim. Case No. CCC-XIV-140-Cebu for Robbery, an offense involving moral
turpitude and he was sentenced to suffer the penalty of "one (1) year,
eight (8) Months and Twenty (20) Days of prision correctional, as
minimum, to Four (4) years, Two (2) months and One (1) day of prision
mayor as maximum, a certified true copy of which decision is hereto
attached as Annex C;
5. Respondent failed to serve even a single day of
his sentence. The position requires that a candidate be eligible and/or
qualified to aspire for the position as required under Section 74 of the
Omnibus Election Code;
6. This petition is being filed within the
reglementary period of within five days following the last day for the
filing of certificate of candidacy.
WHEREFORE, it is most respectfully prayed of this Honorable Commission:
1. Declaring respondent, Dominador G. Jalosjos, Jr.
ineligible for the position for which he filed certificate of candidacy
and to deny due course to such filing and to cancel the certificate of
candidacy Annex B; x x x19 (Emphasis supplied)
The foregoing make it evident that Cardino’s petition
contained the essential allegations pertaining to a Section 78
petition, namely: (a) Jalosjos made a false representation in his CoC;
(b) the false representation referred to a material matter that would
affect the substantive right of Jalosjos to run in the elections for
which he filed his CoC; and (c) Jalosjos made the false representation
with the intention to deceive the electorate as to his qualification for
public office or to deliberately attempt to mislead, misinform, or hide
a fact that would otherwise render him ineligible.20
Worthy of noting is that the specific reliefs prayed
for by the petition, supra, were not only for the declaration that
Jalosjos was "ineligible for the position for which he filed certificate
of candidacy" but also for denying "due course to such filing and to
cancel the certificate of candidacy." Thereby, Cardino’s petition
attacked both Jalosjos’ qualifications to run as Mayor of Dapitan City
and the validity of Jalosjos’ CoC based on the latter’s assertion of his
eligibility despite knowledge of his conviction and despite his failure
to serve his sentence. The petition was properly considered to be in
all respects as a petition to deny due course to or cancel Jalosjos’ CoC
under Section 78 of the Omnibus Election Code.
2.Jalosjos materially misrepresented his eligibility as a
candidate for Mayor of Dapitan City; hence, the
COMELEC properly cancelled his CoC
The denial of due course to or the cancellation of
the CoC under Section 78 of the Omnibus Election Code involves a finding
not only that a person lacked the qualifications but also that he made a
material representation that was false.21 In Mitra v. Commission on Elections,22 the
Court added that there must also be a deliberate attempt to mislead, thus:
The false representation under Section 78 must
likewise be a "deliberate attempt to mislead, misinform, or hide a fact
that would otherwise render a candidate ineligible." Given the purpose
of the requirement, it must be made with the intention to deceive the
electorate as to the would-be candidate’s qualifications for public
office. Thus, the misrepresentation that Section 78 addresses cannot be
the result of a mere innocuous mistake, and cannot exist in a situation
where the intent to deceive is patently absent, or where no deception on
the electorate results. The deliberate character of the
misrepresentation necessarily follows from a consideration of the
consequences of any material falsity: a candidate who falsifies a
material fact cannot run; if he runs and is elected, he cannot serve; in
both cases, he can be prosecuted for violation of the election laws.23
A petition for the denial of due course to or cancellation of a CoC that is short of the requirements should not be granted.
Based on the antecedents narrated herein, I consider
to be warranted the COMELEC En Banc’s conclusion to the effect that,
firstly, his conviction for robbery absolutely disqualified Jalosjos
from running as Mayor of Dapitan City, and, secondly, Jalosjos
deliberately misrepresented his eligibility when he filed his CoC.
First of all, the records show that the erstwhile
Circuit Criminal Court in Cebu City had convicted Jalosjos of the felony
of robbery on April 30, 1970 and had sentenced him to suffer the
indeterminate penalty of one year, eight months and 20 days of prision
correccional, as minimum, to four years, two months and one day of
prision mayor, as maximum. Although he had appealed, his appeal was
turned down on August 9, 1973. In June 1985, or more than 15 years after
his conviction by the Circuit Criminal Court, he filed a petition for
probation.
Pursuant to Section 40(a) of the LGC,24
his having been sentenced by final judgment for an offense involving
moral turpitude or for an offense punishable by one year or more of
imprisonment rendered Jalosjos ineligible to run for Mayor of Dapitan
City. There is no quibbling about the felony of robbery being an offense
involving moral turpitude. As the Court has already settled,
"embezzlement, forgery, robbery, and swindling are crimes which denote
moral turpitude and, as a general rule, all crimes of which fraud is an
element are looked on as involving moral turpitude."25
Anent moral turpitude for purposes of the election laws, the Court has stated in Teves v. Commission on Elections:26
Moral turpitude has been defined as everything which
is done contrary to justice, modesty, or good morals; an act of
baseness, vileness or depravity in the private and social duties which a
man owes his fellowmen, or to society in general.
x x x
Thus, in Dela Torre v. Commission on Elections, the Court clarified that:
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 se involve moral turpitude, while crimes mala prohibita
do 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."27
It is relevant to mention at this juncture that the
ineligibility of a candidate based on his conviction by final judgment
for a crime involving moral turpitude is also dealt with in Section 12
of the Omnibus Election Code, which specifically states: –
Section 12. Disqualifications. – Any person who has
been declared by competent authority insane or incompetent, or has been
sentenced by final judgment for subversion, insurrection, rebellion, or
for any offense for which he has been sentenced to a penalty of more
than eighteen months or for a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.
This disqualifications to be a candidate herein
provided shall be deemed removed upon the declaration by competent
authority that said insanity or incompetence had been removed or after
the expiration of a period of five years from his service of sentence,
unless within the same period he again becomes disqualified. (Emphasis
supplied.)
Pursuant to Section 12, Jalosjos remained ineligible
to run for a public office considering that he had not been granted
plenary pardon for his criminal offense. The expiration of the five-year
period defined in Section 12 counted from his service of sentence did
not affect the ineligibility, it being indubitable that he had not even
served his sentence at all.
It is relevant to clarify, moreover, that the
five-year period defined in Section 12 is deemed superseded by the LGC,
whose Section 40(a) expressly sets two years after serving sentence as
the period of disqualification in relation to local elective positions.
To reconcile the incompatibility between Section 12 and Section 40(a),
the Court has discoursed in Magno v. Commission on Elections:28
It should be noted that the 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
clause of 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 Code provides that laws are repealed only by subsequent ones,
and not the other way around. When a subsequent law entirely encompasses
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
the election 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. (Bold emphases supplied)29
Regardless of whether the period applicable was five
years or two years, Jalosjos was still ineligible to run for any public
office in any election by virtue of his having been sentenced to suffer
prision mayor. That sentence perpetually disqualified him from running
for any elective office considering that he had not been meanwhile
granted any plenary pardon by the Chief Executive.
Indeed, in accordance with the express provisions of
the Revised Penal Code, the penalty of prision mayor imposed on Jalosjos
for the robbery conviction carried the accessory penalties of temporary
absolute disqualification and of perpetual special disqualification
from the right of suffrage. The effects of the accessory penalty of
temporary absolute disqualification included the deprivation during the
term of the sentence of the right to vote in any election for any
popular elective office or to be elected to such office.30
The effects of the accessory penalty of perpetual special
disqualification from the right of suffrage was to deprive the convict
perpetually of the right to vote in any popular election for any public
office or to be elected to such office; he was further prohibited from
holding any public office perpetually.31
These accessory penalties would remain even though the convict would be
pardoned as to the principal penalty, unless the pardon expressly
remitted the accessory penalties.32
Secondly, Jalosjos had no legal and factual bases to
insist that he became eligible to run as Mayor of Dapitan City because
he had been declared under the RTC order dated February 5, 2004 to have
duly complied with the order of his probation. His insistence has no
merit whatsoever.
Probation, by its legal definition, is only "a
disposition under which a defendant, after conviction and sentence, is
released subject to conditions imposed by the court and to the
supervision of a probation officer."33
The grant of probation cannot by itself remove a person’s
disqualification to be a candidate or to hold any office due to its not
being included among the grounds for the removal of the disqualification
under Section 12 of the Omnibus Election Code, supra. Although the
original text of Section 4 of Presidential Decree No. 968 (Probation Law
of 1976) stated that: -
xxx an application for probation shall be filed with
the trial court, with notice to the appellate court if an appeal has
been taken from the sentence of conviction. The filing of the
application shall be deemed a waiver of the right to appeal, or the
automatic withdrawal of a pending appeal.
the amendment of Presidential Decree No. 968 by Presidential Decree No. 199034
has made more explicit that probation only suspends the execution of
the sentence under certain conditions set by the trial court, viz:
Section 4. Grant of Probation. — Subject to the
provisions of this Decree, the trial court may, after it shall have
convicted and sentenced a defendant, and upon application by said
defendant within the period for perfecting an appeal, suspend the
execution of the sentence and place the defendant on probation for such
period and upon such terms and conditions as it may deem best; Provided,
That no application for probation shall be entertained or granted if
the defendant has perfected the appeal from the judgment of conviction.
Probation may be granted whether the sentence imposes
a term of imprisonment or a fine only. An application for probation
shall be filed with the trial court. The filing of the application shall
be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be appealable.
For sure, probation or its grant has not been
intended to relieve the convict of all the consequences of the sentence
imposed on his crime involving moral turpitude. Upon his final discharge
as a probationer, the convict is restored only to "all civil rights
lost or suspended as a result of his conviction." This consequence is
according to the second paragraph of
Section 16 of the Probation Law of 1976, which
states: "The final discharge of the probationer shall operate to restore
to him all civil rights lost or suspended as a result of his conviction
and to fully discharge his liability for any fine imposed as to the
offense for which probation was granted." There is no question that
civil rights are distinct and different from political rights, like the
right of suffrage or the right to run for a public office.
Even assuming that Jalosjos had been validly granted
probation despite his having appealed his conviction (considering that
the amendment stating that an appeal barred the application for
probation took effect only on October 5, 1985 but his application for
probation was earlier made in June 1985), his disqualification pursuant
to Section 40(a) of the LGC would have still attached simply because the
legal effect of a validly-granted probation was only to suspend the
execution of sentence,35 not to obliterate the consequences of the sentence on his political rights.
In reality, Jalosjos could not even legitimately and
sincerely rely on his supposed final discharge from probation. He was
fully aware that he did not at all satisfy the conditions of his
probation,36 contrary to what Section 10 and Section 16 of the Probation Law definitely required, to wit:
Section 10. Conditions of Probation. — Every
probation order issued by the court shall contain conditions requiring
that the probationer shall:
(a) present himself to the probation officer
designated to undertake his supervision at such place as may be
specified in the order within seventy-two hours from receipt of said
order; .
(b) report to the probation officer at least once a month at such time and place as specified by said officer. x x x
Section 16. Termination of Probation. — After the
period of probation and upon consideration of the report and
recommendation of the probation officer, the court may order the final
discharge of the probationer upon finding that he has fulfilled the
terms and conditions of his probation and thereupon the case is deemed
terminated.
The final discharge of the probationer shall operate
to restore to him all civil rights lost or suspend as a result of his
conviction and to fully discharge his liability for any fine imposed as
to the offense for which probation was granted.
The probationer and the probation officer shall each be furnished with a copy of such order.
The records indicate that the RTC revoked the order
of probation on March 19, 1987 upon a motion filed by one Gregorio
Bacolod, the Supervising Probation Officer who had recommended the
approval of the application for probation. The revocation was premised
on Jalosjos’ failure to report to Bacolod in violation of the conditions
of his probation. Following the revocation, the RTC issued a warrant
for the arrest of Jalosjos, but the warrant has remained unserved until
this date. With the revocation of his probation and in the absence of an
order of final discharge, Jalosjos was still legally bound to serve the
sentence for robbery.
I point out for emphasis that the February 5, 2004
order of the RTC declaring that Jalosjos had duly complied with the
order of probation deserved no consideration for the following reasons,
namely: (a) the certification attesting that Jalosjos had fulfilled the
terms and conditions of his probation was secured by and issued to him
only on December 19, 2003, more than 16 years from the issuance of the
RTC order revoking his probation; (b) the certification was issued by
Bacolod, the same Supervising Probation Officer who had moved for the
revocation of the probation; and (c) the Sandiganbayan later on found
the certification to have been falsified by Bacolod considering that at
the time of its issuance there was no longer a probation order to be
fulfilled by Jalosjos.37
And, thirdly, Jalosjos argues that he acted in good
faith in representing in his CoC that he was qualified to run as Mayor
of Dapitan City,38 having relied on the previous ruling of the COMELEC adjudging him eligible to run and to be elected as Mayor of Dapitan City;39 and that it cannot then be said that he deliberately attempted to mislead or to deceive the electorate as to his eligibility.
The argument is devoid of merit.
The COMELEC Resolution dated August 2, 2004, on which
Jalosjos has anchored his claim of good faith, was rendered on the
basis of the RTC order dated February 5, 2004 that had declared Jalosjos
to have sufficiently complied with the conditions of his probation
based on the certification dated December 19, 2003. As earlier
emphasized, however, the issuance of the certification dated December
19, 2003 that became the basis for the RTC order dated February 5, 2004
proved to be highly irregular, and culminated in the Sandiganbayan
convicting Bacolod of falsification in relation to his issuance of the
certification.
Clearly, Jalosjos’ reliance on the COMELEC Resolution
dated August 2, 2004 was definitely not in good faith, but was contrary
to every juridical conception of good faith, which, according to Heirs
of the Late Joaquin Limense v. Vda. De Ramos,40 is –
xxx an intangible and abstract quality with no
technical meaning or statutory definition; and it encompasses, among
other things, an honest belief, the absence of malice and the absence of
a design to defraud or to seek an unconscionable advantage. An
individual’s personal good faith is a concept of his own mind and,
therefore, may not conclusively be determined by his protestations
alone. It implies honesty of intention, and freedom from knowledge of
circumstances which ought to put the holder upon inquiry. The essence of
good faith lies in an honest belief in the validity of one’s right,
ignorance of a superior claim, and absence of intention to overreach
another.41
In contrast, Jalosjos had knowledge of the
circumstances surrounding the finality of his conviction and the
revocation of his probation. He never denied and cannot now dispute his
failure to comply with the conditions of his probation, for he fully
knew that he had never duly reported to Bacolod during the period of his
probation. The following findings rendered by the Sandiganbayan in its
Decision dated September 29, 2008 convicting Bacolod of falsification of
a public document and violation of Republic Act No. 3019 sustained the
fact that Jalosjos had been unable to fulfil the terms of his probation:
–
xxx The subject Certification of the accused
[Bacolod] attesting that "as per records" Mr. Jalosjos "has fulfilled
the terms and conditions of his probation and his case is deemed
terminated," is nevertheless false because the PPA Central Office had no
records of an order of final discharge issued by the court to support
the facts narrated in the subject certification that Mr. Jalosjos has
fulfilled the terms and conditions of his probation and that his case is
deemed terminated.
Besides, the accused failed to submit any oral or
documentary evidence to establish that at the time he issued the subject
Certification on December 19, 2003, Mr. Jalosjos has already fulfilled
the terms and conditions of his probation. His belated submission on
January 23, 2004 of a termination report dated January 12, 2004 does not
cure or remedy the falsity of the facts narrated in the subject
certification. Rather, it strengthens the theory of the prosecution that
at the time the accused issued the subject Certification on December
19, 2003, probationer Jalosjos had not yet fulfilled the terms and
conditions of his probation because, if it were so, his submission of
the said termination report would no longer be necessary. Since the PPA
Central Office had no record of a court order of final discharge of the
probationer from probation, then he should have been truthful and
certified to that effect.42
Nor could Jalosjos even feign a lack of awareness of
the issuance of the warrant for his arrest following the revocation of
his probation by the RTC on March 19, 1987. This is because he filed an
Urgent Motion for Reconsideration and to Lift Warrant of Arrest in the
RTC upon obtaining the falsified certification issued by Bacolod.43
The absurdity of his claim of good faith was well-known even to him
because of his possession at the time he filed his CoC of all the
information material to his conviction and invalid probation. Being
presumed to know the law, he knew that his conviction for robbery and
his failure to serve his sentence rendered him ineligible to run as
Mayor of Dapitan City. As a result, his affirmation of his eligibility
in his CoC was truly nothing but an act tainted with bad faith.
3.Jalosjos did not file a valid CoC for the May 10,
2010 elections; not being an official candidate,
votes cast in his favor are considered stray
The filing of a CoC within the period provided by law
is a mandatory requirement for any person to be considered a candidate
in a national or local election. This is clear from Section 73 of the
Omnibus Election Code, to wit:
Section 73. Certificate of candidacy — No person
shall be eligible for any elective public office unless he files a sworn
certificate of candidacy within the period fixed herein.
In turn, Section 74 of the Omnibus Election Code specifies the contents of a CoC, viz:
Section 74. Contents of certificate of candidacy.—The
certificate of candidacy shall state that the person filing it is
announcing his candidacy for the office stated therein and that he is
eligible for said office; if for Member of the Batasang Pambansa, the
province, including its component cities, highly urbanized city or
district or sector which he seeks to represent; the political party to
which he belongs; civil status; his date of birth; residence; his post
office address for all election purposes; his profession or occupation;
that he will support and defend the Constitution of the Philippines and
will maintain true faith and allegiance thereto; that he will obey the
laws, legal orders, and decrees promulgated by the duly constituted
authorities; that he is not a permanent resident or immigrant to a
foreign country; that the obligation imposed by his oath is assumed
voluntarily, without mental reservation or purpose of evasion; and that
the facts stated in the certificate of candidacy are true to the best of
his knowledge. x x x (Emphasis supplied)
A CoC, according to Sinaca v. Mula,44
"is in the nature of a formal manifestation to the whole world of the
candidate’s political creed or lack of political creed. It is a
statement of a person seeking to run for a public office certifying that
he announces his candidacy for the office mentioned and that he is
eligible for the office, the name of the political party to which he
belongs, if he belongs to any, and his post-office address for all
election purposes being as well stated."
Accordingly, a person’s declaration of his intention
to run for public office and his declaration that he possesses the
eligibility for the position he seeks to assume, followed by the timely
filing of such declaration, constitute a valid CoC that render the
declarant an official candidate.
In Bautista v. Commission on Elections,45
the Court stated that a cancelled CoC does not give rise to a valid
candidacy. A person without a valid CoC cannot be considered a candidate
in much the same way as any person who has not filed any CoC cannot at
all be a candidate.46
Hence, the cancellation of Jalosjos’ CoC rendered him a non-candidate in the May 10, 2010 elections.
But, even without the cancellation of his CoC,
Jalosjos undeniably possessed a disqualification to run as Mayor of
Dapitan City. The fact of his ineligibility was by itself adequate to
invalidate his CoC without the necessity of its express cancellation or
denial of due course by the COMELEC. Under no circumstance could he have
filed a valid CoC. The accessory penalties that inhered to his penalty
of prision mayor perpetually disqualified him from the right of suffrage
as well as the right to be voted for in any election for public office.
The disqualification was by operation of a mandatory penal law. For him
to be allowed to ignore the perpetual disqualification would be to
sanction his lawlessness, and would permit him to make a mockery of the
electoral process that has been so vital to our democracy. He was not
entitled to be voted for, leaving all the votes cast for him stray and
legally non-existent.
In contrast, Cardino, the only remaining candidate,
was duly elected and should legally assume the position of Mayor of
Dapitan City. According to the Court in Santos v. Commission on
Elections:47
Anent petitioner’s contention that his
disqualification does not ipso facto warrant the proclamation of private
respondent, We find the same untenable and without legal basis since
votes cast for a disqualified candidate fall within the category of
invalid non-existent votes because a disqualified candidate is no
candidate at all in the eyes of the law. Section 155 of the Election
Code provides —
"Any vote cast in favor of a candidate who has been
disqualified shall be considered as stray and shall not be counted but
it shall not invalidate the ballot." (Italics supplied)
Considering that all the votes garnered by the
petitioner are stray votes and therefore should not be counted, We find
no error, much less any grave abuse of discretion on the part of the
Comelec, in proclaiming private respondent Ricardo J. Rufino the duly
elected Mayor of Taytay, Rizal, he having obtained the highest number of
votes as appearing and certified in the canvass of votes submitted by
the Municipal Board of Canvassers petitioner having been legally
disqualified. Such a proclamation finds legal support from the case of
Ticzon vs. Comelec 103 SCRA 671, wherein disqualified candidate Ticzon
likewise questioned the legality of the Resolution of the Comelec which
not only disqualified him but further proclaimed Dizon, the only
candidate left for the disputed position, and this Court upheld the
proclamation of Cesar Dizon as Mayor of San Pablo City.48
Although the doctrine of the sovereign will has
prevailed several times in the past to prevent the nullification of an
election victory of a disqualified candidate, or of one whose CoC was
cancelled, the Court should not now be thwarted from enforcing the law
in its letter and spirit by any desire to respect the will of the people
expressed in an election. The objective of prescribing
disqualifications in the election laws as well as in the penal laws is
obviously to prevent the convicted criminals and the undeserving from
running and being voted for. Unless the Court leads the way to see to
the implementation of the unquestionable national policy behind the
prescription of disqualifications, there would inevitably come the time
when many communities of the country would be electing convicts and
misfits. When that time should come, the public trust would be
trivialized and the public office degraded. This is now the appropriate
occasion, therefore, to apply the law in all its majesty in order to
enforce its clear letter and underlying spirit. Thereby, we will prevent
the electoral exercise from being subjected to mockery and from being
rendered a travesty.
In closing, I consider to be appropriate and fitting the Court’s following pronouncement in Velasco v. Commission on Elections:49
x x x We have ruled in the past that a candidate’s
victory in the election may be considered a sufficient basis to rule in
favor of the candidate sought to be disqualified if the main issue
involves defects in the candidate’s certificate of candidacy. We said
that while provisions relating to certificates of candidacy are
mandatory in terms, it is an established rule of interpretation as
regards election laws, that mandatory provisions requiring certain steps
before elections will be construed as directory after the elections, to
give effect to the will of the people. We so ruled in Quizon v. COMELEC
and Saya-ang v. COMELEC.
The present case perhaps presents the proper time and
opportunity to fine-tune our above ruling. We say this with the
realization that a blanket and unqualified reading and application of
this ruling can be fraught with dangerous significance for the rule of
law and the integrity of our elections. For one, such
blanket/unqualified reading may provide a way around the law that
effectively negates election requirements aimed at providing the
electorate with the basic information to make an informed choice about a
candidate’s eligibility and fitness for office.
The first requirement that may fall when an
unqualified reading is made is Section 39 of the LGC which specifies the
basic qualifications of local government officials. Equally susceptive
of being rendered toothless is Section 74 of the OEC that sets out what
should be stated in a COC. Section 78 may likewise be emasculated as
mere delay in the resolution of the petition to cancel or deny due
course to a COC can render a Section 78 petition useless if a candidate
with false COC data wins. To state the obvious, candidates may risk
falsifying their COC qualifications if they know that an election
victory will cure any defect that their COCs may have. Election victory
then becomes a magic formula to bypass election eligibility
requirements.
In the process, the rule of law suffers; the clear
and unequivocal legal command, framed by a Congress representing the
national will, is rendered inutile because the people of a given
locality has decided to vote a candidate into office despite his or her
lack of the· qualifications Congress has determined to be necessary.
In the present case, Velasco is not only going around
the law by his claim that he is registered voter when he is not, as has
been determined by a court in a final judgment. Equally important is
that he has made a material misrepresentation under oath in his COC
regarding his qualification. For these violations, he must pay the
ultimate price - the nullification of his election victory. He may also
harve to account in a criminal court for making a false statement under
oath, but this is a matter for the proper authorities to decide upon.
We distinguish our ruling in this case from others
that we have made in the past by the clarification that COC defects
beyond matters of form and that involve material misrepresentations
cannot avail of the benefit of our ruling that COC mandatory
requirements before elections are considered merely directory after the
people shall have spoken. A mandatory and material election law
requirement involves more than the will of the people in any given
locality. Where a material COC misrepresentation under oath is made,
thereby violating both our election and criminal laws, we are faced as
well with an assault on the will of the people of the Philippines as
expressed in our laws. In a choice between provisions on material
qualifications of elected officials, on the one hand, and the will of
the electorate in any given locality, on the other, we believe and so
hold that we cannot choose the electorate will. The balance must always
tilt in favor of upholding and enforcing the law. To rule otherwise is
to slowly gnaw at the rule of law. 50
ACCORDINGLY, I JOIN the Majority in granting the
petition in G.R. No. 193536; in dismissing the petition in G.R. No.
193237 for lack of merit; and in affirming the COMELEC En Bane
Resolution dated February 22, 2011 subject to the modification that
Agapito J. Cardino be proclaimed as the duly elected Mayor of Dapitan
City, Zamboanga during the May 10, 2010 national and local elections,
and thus entitled to assume the office of Mayor of Dapitan City.
LUCAS P. BERSAMINAssociate Justice
Footnotes
2 Id. at 40-48.
3 Id. at 49-56.
4 Rollo, G.R. No. 193536, p. 9.
5 Id.
6 Id. at 177.
7 Rollo, G.R. No. 193237, pp. 355-358.
8 Id. at 355-360.
9 Id. at. 373-391.
10 G.R. No. 135886, August 16, 1999, 312 SCRA 447.
11 Id. at 457.
12 G.R. No. 179695 & 182369, December 18, 2008, 574 SCRA 782.
13 Id., pp. 792-794; emphases are part of the original text.
14 Gonzales v. Commission on Elections, G.R. No. 192856, March 8, 2011, 644 SCRA 761, 777.
15 Fermin v. Commission on Elections, supra, note 12, p. 794.
16
Section 12. Disqualifications. - Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion or for any
offense for which he has been sentenced to a penalty of more than
eighteen months or for a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.
This disqualification to be a candidate herein
provided shall be deemed removed upon the declaration by competent
authority that said insanity or incompetence had been removed or after
the expiration of a period of five years from his service of sentence,
unless within the same period he again becomes disqualified.
17
Section 68. Disqualifications. ̶ Any candidate who, in an action or
protest in which he is a party is declared by final decision of a
competent court guilty of, or found by the Commission of having (a)
given money or other material consideration to influence, induce or
corrupt the voters or public officials performing electoral functions;
(b) committed acts of terrorism to enhance his candidacy; (c) spent in
his election campaign an amount in excess of that allowed by this Code;
(d) solicited, received or made any contribution prohibited under
Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83,
85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be
disqualified from continuing as a candidate, or if he has been elected,
from holding the office. Any person who is a permanent resident of or
an immigrant to a foreign country shall not be qualified to run for any
elective office under this Code, unless said person has waived his
status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election
laws.
18 Fermin v. Commission on Elections, supra, note 12, at pp. 794-796, to wit:
x x x A petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the
Omnibus Election Code, or Section 40 of the Local
Government Code. On the other hand, a petition to deny due course to or
cancel a CoC can only be grounded on a statement of a material
representation in the said certificate that is false. The petitions also
have different effects. While a person who is disqualified under
Section 68 is merely prohibited to continue as a candidate, the person
whose certificate is cancelled or denied due course under Section 78 is
not treated as a candidate at all, as if he/she never filed a CoC.
19 Rollo, G.R. No. 193237, pp. 58-59.
20 See Fermin v. Commission on Elections, supra, note 12; Salcedo II v. Commission on Elections, supra, note 10.
21
Section 78. Petition to deny due course to or cancel a certificate of
candidacy. ̶ A verified petition seeking to deny due course or to cancel
a certificate of candidacy may be filed by the person exclusively on
the ground that any material representation contained therein as
required under Section 74 hereof is false.
The petition may be filed at any time not later than
twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later
than fifteen days before the election.
22 G.R. No. 191938, July 2, 2010, 622 SCRA 744.23 Id. at 769.
24 Section 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 offensepunishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b)
Those removed from office as a result of an administrative case;
xxx
25
Republic v. Marcos, G.R. Nos. 130371 & 130855, August 4, 2009, 595
SCRA 43, 63; see also De Jesus-Paras v. Vailoces, A.C. No. 439, April
12, 1961, 1 SCRA 954, 956.
26 G.R. No. 180363, April 28, 2009, 587 SCRA 1.27 Id. at 12-13.
28 G.R. No. 147904, October 4, 2002, 390 SCRA 495.
29 Id. at 500-501.
30
Article 30 of the Revised Penal Code gives the effects of the accessory
penalties of perpetual or temporary absolute disqualification, to wit:
Article 30. Effects of the penalties of perpetual or
temporary absolute disqualification. — The penalties of perpetual or
temporary absolute disqualification for public office shall produce the
following effects:
1. The deprivation of the public offices and employments which the offender may have held even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular office or to be elected to such office.
3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and3 of this article shall last during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office formerly held.
31 Article 32 of the Revised Penal Code expressly declares:
Article 32. Effect of the penalties of perpetual or
temporary special disqualification for the exercise of the right of
suffrage. — The perpetual or temporary special disqualification for the
exercise of the right of suffrage shall deprive the offender perpetually
or during the term of the sentence, according to the nature of said
penalty, of the right to vote in any popular election for any public
office or to be elected to such office. Moreover, the offender shall not
be permitted to hold any public office during the period of his
disqualification.
32 Article 42 of the Revised Penal Code reads:
Article 42. Prision mayor; Its accessory penalties. —
The penalty of prision mayor shall carry with it that of temporary
absolute disqualification and that of perpetual special disqualification
from the right of suffrage which the offender shall suffer although
pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon.
33 Section 3(a), Presidential Decree No. 968.34 Approved on October 5, 1985.
35 Section 4, Presidential Decree No. 968, states:
Section 4. Grant of Probation. — Subject to the
provisions of this Decree, the court may, after it shall have convicted
and sentenced a defendant and upon application at any time of said
defendant, suspend the execution of said sentence and place the
defendant on probation for such period and upon such terms and
conditions as it may deem best.
36 Rollo, G.R. No. 193237, pp. 159-160.
37
On that basis, the Sandiganbayan convicted Bacolod of two crimes, one,
for a violation of Section 3(e) of Republic Act No. 3019, and, two, for
falsification of public document under the Revised Penal Code.
38 Id. at 28.39 Id. at 27-28.
40 G.R. No. 152319, October 28, 2009, 604 SCRA 599.
41 Id. at 612; emphasis is supplied.
42 Rollo, G.R. No. 193237, pp. 159-160.
43 Id. at 153.
44 G.R. No. 135691, September 27, 1999, 315 SCRA 266, 276.
45 G.R. No. 133840, November 13, 1998, 298 SCRA 480, 493.
46 Miranda v. Abaya, G.R. No. 136351, July 28, 1999, 311 SCRA 617, 624.
47 G.R. No. L-58512, July 23, 1985, 137 SCRA 740.48 Id. at 749.
49 G.R. No. 180051, December 24, 2008, 575 SCRA 590.
50 Id. at 614-615.
No comments:
Post a Comment