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Fermo vs Comelec

Gr 140179

Facts:
Manuel Laxina Sr. and Roque Fermo were candidates for Punong Barangay in Batasan QC in 1997. The
canvassed results showed that Laxina garnered the most number of votes and was proclaimed as duly elected
to the post.
Subsequently, Fermo filed an election protest before the MTC alleging massive fraud on the conduct
of elections. The court ruled in favor of Fermo and declared him the true winner. On the same day of the
proclamation of the decision, Laxina filed a Notice of Appeal before the COMELEC.
A few days after, Fermo moved for execution of the decision pending appeal grounded on alleged
“good and special reason” – possibility of the term of the contested position might have expired before the
appeal has been decided. MTC granted the execution but he COMELEC reversed.

ISSUE:

W/N COMELEC committed grave abuse of discretion amounting to lack of or excess of jurisdiction in
annulling the order of the MTC granting herein petitioner’s motion for execution pending appeal on the ground
that there were no "good reasons" for the issuance therefore.

HELD

No. Execution of judgments pending appeal in election cases is governed by Section 2, Rule 39 of the
Rules of Court . As a general rule, motion for execution pending appeal should be lodged in the appellate court
after the trial court has lost its jurisdiction. However, discretionary execution may be granted by the trial court
upon good reasons to be stated in a special order after due hearing. But a valid exercise of the discretion to
allow execution pending appeal requires that it should be based "upon good reasons to be stated in a special
order." The following constitute "good reasons" and a combination of two or more of them will suffice to grant
execution pending appeal: (1.) public interest involved or will of the electorate; (2.) the shortness of the
remaining portion of the term of the contested office; and (3.) the length of time that the election contest has
been pending (emphasis supplied).[7] In Lauban vs. COMELEC[8], this Court ruled that "shortness of the
remaining term of office and posting a bond are not good reasons for execution of a judgment pending appeal.
In the case at bar, the petitioner relies solely on one ground – shortness of term. Moreover, RA 8254
which was proclaimed in 1998, extended the term of office of local elective officials from 3 years to 5 years.
Hence, even the contention of petitioner of shortness of term is untenable.

Calingin vs. CA
G.R. No. 154616

Date of Promulgation: July 12, 2004


Ponente: Quisambing, J.
Petition: Certiorari
Petitioners: Governor Antonio Calingin
Respondents: Court of Appeals, Executive Secretary Renato De Villa, Dept of Interior & Local Government,
and Regional Officer Director Rodolfo Razul

Facts:

The Office of the President issued a resolution, dated March 22 2001 (during the election period) suspending
Gov. Calingin for 90 days. 12 days after, he filed before the Office a motion for recon. On April 30, 2001,

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Undersecretary Soliman of the DILG issued a memorandum implementing said resolution.

The DILG Memorandum was with the authority of the COMELEC which gave an exemption to suspend
elective officials during the election period from January 2, 2001 to July 13, 2001.

Calingin filed a petitioner for prohibition before the CA, but the petition was dismissed. Hence the appeal.

Petitioner contends that the decisions of the Office of the President on cases where it has original jurisdiction
such as those involving a Provincial Governor will become final and executory only after the lapse of 15 days
from the receipt and that filing a motion for recon would suspend the running of that period. He further
contends that the provision in the LGC saying that decisions of the Office of the President, will not apply to
his case.

Issues/Held:
1. WON the decision is final and executory

Ratio:

Court said that where there are two statutes that apply to a particular case, that which was specially
intended for the case must prevail.

The case involves a disciplinary action against an elective local official. Thus, the Local Government Code is
the applicable law and must prevail over the Administrative Code which is of general application

Further, the Local Government Code of 1991 was enacted much later than the Administrative Code of
1987. In statutory construction, all laws or parts thereof which are inconsistent with the later law are
repealed or modified accordingly.

Since no motion for recon is allowed by law but parties may appeal to the CA and that the LGC says that the
decisions of the Office of the President are executory even pending appeal, then the decision is final and
executory

Decision:
Petition denied

PECSON VS COMELEC

LONZANIDA VS COMELEC

(Local Government, Disqualification: Exception to the 3 term limit rule)

Facts: Petitioner Lonzanida was duly elected and served two consecutive terms as municipal mayor of San Antonio,
Zambales prior to the May 1995 elections. In the May 1995 elections Lonzanida ran for mayor of San Antonio,
Zambales and was again proclaimed winner. He assumed office and discharged the duties thereof. His proclamation
in 1995 was contested by his opponent who filed an election protest. The court rendered a judgment declaring the
results of the said election last May 8, 1995, as null and void on the ground that there was a failure of election.

In the May 11, 1998 elections Lonzanida again filed his certificate of candidacy for mayor of San Antonio and was
proclaimed winner. Prior proclamation, His opponent timely filed a petition to disqualify him from running on the
ground that he had served three consecutive terms in the same post.

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The COMELEC found that Lonzanida’s assumption of office by virtue of his proclamation in May 1995, although he
was later unseated before the expiration of the term, should be counted as service for one full term in computing
the three term limit under the Constitution and the Local Government Code. Hence, COMELEC issued a resolution
granting the petition for disqualification

Petitioner Lonzanida challenges the validity of the COMELEC resolutions maintaining that he was duly elected
mayor for only two consecutive terms and that his assumption of office in 1995 cannot be counted as service of a
term for the purpose of applying the three term limit for local government officials, because he was not the duly
elected mayor of San Antonio in the May 1995 elections.

The private respondent maintains that the petitioner’s assumption of office in 1995 should be considered as service
of one full term because he discharged the duties of mayor for almost three years until March 1, 1998 or barely a
few months before the next mayoral elections.

Issue: WON petitioner’s assumption of office as mayor of San Antonio Zambales from May 1995 to 1998 may be
considered as service of one full term for the purpose of applying the three-term limit for elective local government
officials.

Held: No. Section 8, Art. X of the Constitution provides that, “the term of office of elective local officials, except
barangay officials, which shall be determined by law shall be three years and no such officials shall serve for more
than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as
an interruption in the continuity of his service for the full term for which he was elected.”

Section 43 of the Local Government Code (R.A. No. 7160) restates the same rule, that: “No local elective official
shall serve for more than three consecutive terms in the same position. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity of service for the full term for which the
elective official concerned was elected.”

The petitioner cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate his
post before the expiration of the term.

Pursuant to the constitutional provision above, voluntary renunciation of a term does not cancel the renounced
term in the computation of the three term limit; conversely, involuntary severance from office for any length of
time short of the full term provided by law amounts to an interruption of continuity of service. The petitioner
vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance
with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from
office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral
term.

Laceda, Sr. vs. Limena G.R. No. 182867, November 25, 2008
Interruption of the three term limit QUISUMBING, J. :

Facts: Laceda admitted having served as Punong Barangay of Panlayaan for three consecutive terms. However, he
asserted that when he was elected for his first two terms, Sorsogon was still a municipality, and that when he
served his third term, the Municipality of Sorsogon had already been merged with the Municipality of Bacon to
form a new political unit, the City of Sorsogon, pursuant to Republic Act No. 8806.

Issue: Thus, he argued that his third term was actually just his first in the new political unit and that he was
accordingly entitled to run for two more terms.

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Ruling: While it is true that under Rep. Act No. 8806 the municipalities of Sorsogon and Bacon were merged and
converted into a city thereby abolishing the former and creating

On January 15, 2008, the COMELEC declared Laceda disqualified and cancelled his certificate of candidacy:

WHEREFORE, this Commission RESOLVED, as it hereby RESOLVED, to declare Respondent Roberto


Laceda, Sr. DISQUALIFIED from running as Punong Barangay of Panlayaan, West District, Sorsogon
City and consequently denies due course and cancels his Certificate of Candidacy.

SO ORDERED.11

Laceda moved for reconsideration, but his motion was denied by the COMELEC in a Resolution dated May 7,
2008. Aggrieved, Laceda filed a petition for certiorari before this Court.

On June 10, 2008, this Court dismissed the petition for failure to sufficiently show that any grave abuse of
discretion was committed by the COMELEC in rendering the assailed Resolutions of January 15, 2008 and
May 7, 2008. Hence, this motion for reconsideration.

Laceda insists that the COMELEC committed grave abuse of discretion in basing its decision on the requisites
enunciated in Lonzanida v. Commission on Elections12 for the application of the three-term prohibition in
Section 4313 of the Local Government Code.14 Laceda argues that said case is inapplicable since it involved
the position of municipal mayor while the instant case concerned the position of Punong Barangay. He
likewise insists that he served his third term in a new political unit and therefore he should not be deemed
already to have served a third term as Punong Barangay for purposes of applying the three-term limit.15

For reasons hereafter discussed, the motion for reconsideration cannot prosper.

Section 2 of Rep. Act No. 9164, like Section 43 of the Local Government Code from which it was taken, is
primarily intended to broaden the choices of the electorate of the candidates who will run for office, and to
infuse new blood in the political arena by disqualifying officials from running for the same office after a term
of nine years. This Court has held that for the prohibition to apply, two requisites must concur: (1) that the
official concerned has been elected for three consecutive terms in the same local government post and (2)
that he or she has fully served three consecutive terms.16

In this case, while it is true that under Rep. Act No. 8806 the municipalities of Sorsogon and Bacon were
merged and converted into a city thereby abolishing the former and creating Sorsogon City as a new political
unit, it cannot be said that for the purpose of applying the prohibition in Section 2 of Rep. Act No. 9164, the
office of Punong Barangay of Barangay Panlayaan, Municipality of Sorsogon, would now be construed as a
different local government post as that of the office of Punong Barangay of Barangay Panlayaan, Sorsogon
City. The territorial jurisdiction of Barangay Panlayaan, Sorsogon City, is the same as before the conversion.
Consequently, the inhabitants of the barangay are the same. They are the same group of voters who elected
Laceda to be their Punong Barangay for three consecutive terms and over whom Laceda held power and
authority as their Punong Barangay. Moreover, Rep. Act No. 8806 did not interrupt Laceda's term.

Facts:

In the May 2004 elections, respondent Marino "Boking" Morales ran as candidate for mayor of Mabalacat,
Pampanga for the term 2004-2007. Petitioner Dee filed with the COMELEC a petition to cancel Morales’ Certificate
of Candidacy on the ground that he was elected and had served three previous consecutive terms as mayor of

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Mabalacat. They alleged that his candidacy violated Section 8, Article X of the Constitution and Section 43 (b) of RA
7160.

Respondent Morales admitted that he was elected mayor of Mabalacat for the term 1995-1998 (first term) and
2001-2004 (third term), but he served the second term from 1998-2001 only as a "caretaker of the office" or as a
"de facto officer" since his proclamation as mayor was declared void by the Regional Trial Court (RTC). He was also
preventively suspended by the Ombudsman in an anti--graft case from January to July 1999.

Issue:

1. Has Morales already served his 3 consecutive term?

2. If so, who should then take his position?

Held:

1. For the three-term limit for elective local government officials to apply, two conditions or requisites must concur,
to wit: (1) that the official concerned has been elected for three consecutive terms in the same local government
post, and (2) that he has fully served three consecutive terms.

Respondent Morales was elected for the term 1998-2001. He assumed the position. He was mayor for the entire
period notwithstanding the Decision of the RTC in the electoral protest case filed by petitioner Dee ousting him
(Morales) as mayor (because the trial court’s ruling was promulgated only after the expiry of the 1998-2001 term).
Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously without any
break since 1995. In just over a month, by June 30, 2007, he will have been mayor of Mabalacat for twelve (12)
continuous years. His assumption of office for the second term constituted “service for the full term” and should be
counted as a full term served in contemplation of the three--term limit prescribed by the constitutional and
statutory provisions barring local elective officials from being elected and serving for more than three consecutive
terms for the same position.

The framers of the Constitution, by including this exception, wanted to establish some safeguards against the
excessive accumulation of power as a result of consecutive terms. Therefore, having found respondent Morales
ineligible, his Certificate of Candidacy dated December 30, 2003 should be cancelled. Not being a candidate, the
votes cast for him SHOULD NOT BE COUNTED and must be considered stray votes.

2. The question now is whether it is the vice-mayor or petitioner Dee who shall serve for the remaining portion of
the 2004 to 2007 term. In Labo v. Comelec, this Court has ruled that a second place candidate cannot be
proclaimed as a substitute winner, thus:
The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate
receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be
deemed elected to the office.
As a consequence of petitioner’s ineligibility, a permanent vacancy in the contested office has occurred. This should
now be filled by the vice-mayor in accordance with Section 44 of the Local Government Code, to wit:
Sec. 44. Permanent vacancies in the Offices of the Governor, Vice-Governor, Mayor and Vice-Mayor. – (a) If a
permanent vacancy occurs in the office of the governor or mayor, the vice-governor or the vice-mayor concerned
shall become the governor or mayor. (Rivera III vs. Comelec, G.R. No. 167591. May 9, 2007)

62. Provincial Government of Camarines Norte v. Beatriz GonzalesDoctrine: Congress has the power and
prerogative to introduce substantial changes in theprovincial administrator position and to reclassify it as a
primarily confidential, non-career service position. Flowing from the legislative power to create public offices is the
power to abolish and modify them to meet the demands of society; Congress can change the qualifications for and
shorten the term of existing statutory offices. When done in good faith, these acts would not violate a public

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officer’s security of tenure, even if they result in his removal from office or the shortening of his term.Modifications
in public office, such as changes in qualifications or shortening of its tenure, are made in good faith so long as they
are aimed at the office and not at the incumbent.Facts: Gonzales was appointed as the provincial administrator of
the Province of Camarines Norte by then Governor Roy A. Padilla, Jr. on April 1, 1991. Her appointment was on a
permanent capacity. On March 8, 1999, Governor Jess B. Pimentel sent Gonzales a memorandum directing her to
explain in writing why no administrative charges should be filed against her for gross insubordination/gross
discourtesy in the course of official duties, and conduct grossly prejudicial to the best interest of the service.After
Gonzales submitted her comment, an Ad Hoc Investigation Committee found her guilty of the charges against her,
and recommended to Governor Pimentel that she be held administratively liable. On September 30, 1999,
Governor Pimentel adopted the Ad Hoc Investigation Committee’s recommendation and dismissed
Gonzales.Gonzales appealed Governor Pimentel’s decision to the Civil Service Commission(CSC). The CSC issued
resolution modifying Governor Pimentel’s decision, finding Gonzales guilty of insubordination and suspending her
for six months. This decision was appealed by Governor Pimentel, which the CSC denied.Gonzales then filed a
motion for execution and clarification, in which she claimedthat she had already served her six-month suspension
and asked to be reinstated. The CSC issued resolution directing Gonzales’ reinstatement.Governor Pimentel
reinstated Gonzales as provincial administrator on October 12,2000, but terminated her services the next day for
lack of confidence. He then wrote a letterto the CSC reporting his compliance with its order, and Gonzales’
subsequent dismissal as a confidential employee. In his letter, Governor Pimentel he cited the resolution where the
CSC ruled that the provincial administrator position is highly confidential and is coterminous in nature.The CSC
responded which again directed Gonzales’ reinstatement as provincial administrator. It clarified that while the
Local Government Code of 1991 (Republic Act No. RA 7160) made the provincial administrator position
coterminous and highly confidential in nature, this conversion cannot operate to prejudice officials who were
Background image of page 1

NAVAL VS COMELEC

9 Naval vs COMELECG.R. No. 207851 July 8, 2014


CASE:A provincial board member cannot be elected and serve for more than three consecutive terms. Before the
Court is a Petition for Certiorari to assail the (a) COMELEC Second Division’s Resolution granting the petition filed by
Julia, seeking tocancel the COC as Member of the Sangguniang Panlalawigan of Camarines Sur of Naval, who is
allegedly violating the three-term limit imposed upon elective local officials; and (b) COMELEC En Banc’sResolution
denying Naval’s Motion for Reconsideration to the Resolution issued by COMELEC Second Diviosn.FACTS:From
2004 to 2007 and 2007 to 2010, Naval had been elected and had served as a member of the Sanggunian, Second
District, Province of Camarines Sur. On October 12, 2009, the President approved Republic Act (R.A.) No. 9716,
which reapportioned the legislative districts in Camarines Sur. Notably, 8 out of 10 towns were taken from the old
Second District to form the present Third District. The present Second District is composed of the two remaining
towns, Gainza and Milaor,merged with five towns from the old First District.In the 2010 elections, Naval once again
won as among the members of the Sanggunian, Third District. He served until 2013.In the 2013 elections, Naval ran
anew and was re-elected as Member of the Sanggunian, Third District.Julia was likewise a Sanggunian Member
candidate from the Third District in the 2013 elections. He filed before the COMELEC a Verified Petition to Deny
Due Course or to Cancel COC of Naval. Julia posited that Naval had fully served the entire Province of Camarines Sur
for three consecutive terms as a member of the Sanggunian, irrespective of the district he had been elected from.
Allowing Naval to run as a Sanggunian member for the fourth time is violative of the inflexible three-term limit rule
enshrined in the Constitution and the LGC, which must be strictly construed.Naval alleges: First, Second and Third
Legislative Districts of Camarines Sur are not merely renamed but are composed of new sets of municipalities. With
the separation of Gainza and Milaor from the other eight towns which used to comprise the Second District, the
voters from the Third Legislative District are no longer the same ones as those who had elected him to office in the
2004 and 2007 elections.OSG contends: Seeking the denial of the instant petition, OSG contends that Navalhad
been elected and had fully served the same local elective post for three consecutive terms. Naval thus violated
Section 78 of the OEC when he filed his COC despite knowledge of his ineligibility.
COMELEC Second Division’s Resolution: Cancelled Naval’s COC on grounds: When a candidate for public office
swears in his COC that he is eligible for the elective posts he seeks, while, in reality, he knowingly lacks the
necessary requirements for eligibility, he commits a false material misrepresentation cognizable under Section 78

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of the OEC.The new Third District where Naval was elected and has served is composed of the same municipalities
comprising the previous Second District, absent the towns Gainza and Milaor. The territorial jurisdiction Naval
seeks to serve for the term 2013-2016 is the same as the territorial jurisdiction he previously served. The electorate
who voted for him in 2004, 2007 and 2010 is the same electorate who shall vote forhim come May 13, 2013
Elections. They are the same group of voters who elected him into office for three consecutive terms.COMELEC en
banc’s Resolution:Denied Naval’s Motion for Reconsideration to the above. The COMELEC pointed out that absent
the verification required under Section 3, Rule 19 of the COMELEC Rules of Procedure, Naval’s motion was instantly
dismissible. Nonetheless, according to the COMELEC, it is clear that the position to which Naval has filed his
candidacy for the 13 May 2013 elections is the same position for which he had been elected and had served for the
past nine (9) years. The enactment of R.A. No. 9716 did not convert Naval’s post into one different from what he
previously had.

ISSUE:WON Naval’s, a provincial board member, election to the same position for the third and fourth time, but
now in representation of the renamed district, a violation of thethree-term limit rule.

RULING:YES. With 26 in favor and 17 against, the Constitutional Commission approved that there is no immediate
reelection after three successive terms. For the Body believedthat the imposition of term limits would be
tantamount to squandering the experience of seasoned public servants and a curtailment of the power of the
citizens to elect whoever they want to remain in the office. As worded, the constitutional provision fixes the term
of a local elective office and limits an elective official’s stay in office to no more than three consecutive terms. The
“limitation” under this first branch of the provision is expressed in the negative—“no such official shall serve for
more than three consecutive terms.” This formulation—no more than three consecutive terms—is a clear
command suggesting the existence of an inflexible rule. This examination of the wording of the constitutional
provision and of the circumstances surrounding its formulation impresses upon us the clear intent to make term
limitation a high priority constitutional objective whose terms must be strictly construed and which cannot be
defeated by, nor sacrificed for, values of less than equal constitutional worth.
In Naval’s case, the words of R.A. No. 9716 plainly state that the new Second District is to be created, but the Third
District is to be renamed. Verba legis non est recedendum. The terms used in a legal provision to be construed
compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers mean
what they say.The rationale behind reapportionment is the constitutional requirement to achieve equality of
representation among the districts.The aim of legislative apportionment is to equalize population and voting power
among districts. The basis for districting shall be the number of the inhabitants of a city or a province and not the
number of registered voters therein. It is with this mindset that the Court should consider Naval’s argument anent
having a new set of constituents electing him into office in 2010 and 2013.Reapportionment is “the realignment or
change in legislative districts brought about by changes in population and mandated by the constitutional
requirement of equality of representation.” Naval’s ineligibility to run, by reason of violation of the three-term limit
rule, does not undermine the right to equal representation of any of the districts in Camarines Sur. With or without
him, the renamed Third District, which he labels as a new set ofconstituents, would still be represented, albeit by
another eligible person.In sum, the Court finds no compelling reason to grant the reliefs prayed for by Naval. For
the Court to declare otherwise would be to create a dangerous precedentunintended by the drafters of our
Constitution and of R.A. No. 9716. Considering that the one-term gap or rest after three consecutive elections is a
result of a compromise among the members of the Constitutional Commission, no cavalier exemptions or
exceptions to its application is to be allowed. Further, sustaining Naval’s arguments would practically allow him to
hold the same office for 15 years. The Court accords primacy to upholding the will of the voting public, the real
sovereign, so to speak. However, let all the candidates for public office be remindedthat as citizens, we have a
commitment to be bound by our Constitution and laws. Side by side our privileges as citizens are restrictions
too.The drafters of the Constitution recognized the propensity of public officers to perpetuate themselves in
power, hence, the adoption of term limits and a guarantee of every citizen’s equal access to public service. These
are the restrictions statesmen should observe for they are intended to help ensure the continued vitality of our
republican institutions.Petition is DENIED. The Resolutions of the COMELEC are AFFIRMED.

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Menzon vs Petilla
Date: May 20, 1991Petitioner: Aurelio MenzonRespondents: Leopoldo Petilla and Florencio LunaPonente: Gutierrez
Jr

Facts: On February 16, 1988, by virtue of the fact that no Governor had been proclaimed in the province of Leyte,
the Secretary of Local Government Luis Santos designated the Vice-Governor, Leopoldo E. Petilla as Acting
Governor of Leyte. On March 25, 1988, Aurelio D. Menzon, a senior member of the Sangguniang Panlalawigan was
also designated by Secretary Luis Santos to act as the Vice-Governor for the province of Leyte. Menzon took his
oath of officebefore Senator Alberto Romulo. The Provincial Administrator, Tente U. Quintero inquired from the
Undersecretary of the DILG as to the legality of the appointment of the petitioner to act as the Vice-Governor of
Leyte. Undersecretary Rubllar stated that since B.P. 337 has no provision relating to succession in the Office of the
Vice-Governor in case of a temporary vacancy, the appointment of the petitioner as the temporary Vice- Governor
is not necessary since the Vice-Governor who is temporarily performing the functions of the Governor, could
concurrently assume the functions of both offices. As a result of the foregoing communications between Tente U.
Quintero and Jacinto T. Rubillar, Jr.,the Sangguniang Panlalawigan, in a special session held on July 7, 1989, issued
Resolution No. 505 where it held invalid the appointment ofthe petitioner as acting Vice-Governor of Leyte. The
petitioner through the acting LDP Regional Counsel, Atty. Zosimo Alegre, sought clarification from Undersecretary
Rubillar, Jr. regarding the June 22, 1989 opinion. Undersecretary Rubillar replied and explained his opinion: “On the
basis of the foregoing and considering that the law is silent in case of temporary vacancy, in the Office of the Vice-
Governor, it is our view that the peculiar situation in the Province of Leyte, where the electoral controversy in the
Office of the Governor has not yet been settled, calls for the designation of the Sangguniang Member to act as vice-
governor temporarily.” In view, of theclarificatory letter of Undersecretary Rubillar, the Regional Director of the
DILG, Region 8, Resurreccion Salvatierra, on July 17, 1989, wrote a letter addressed to the Acting-Governor of
Leyte, Leopoldo E. Petilla, requesting the latter that Resolution No. 505 of the Sangguniang Panlalawigan be
modified accordingly. Despite these several letters of request, the Acting Governor and the Sangguniang
Panlalawigan, refused to correct Resolution No. 505 and correspondingly to pay the petitioner the emoluments
attached to the Office of Vice-Governor. Thus, petitioner filed before this Court a petition for certiorari and
mandamus. The petition sought the nullification of Resolution No. 505 and for the payment of his salary for his
services as the acting Vice-Governor of Leyte. In the meantime, however, the issue on the governorship of Leyte
was settled and Adelina Larrazabal was proclaimed the Governor of the province of Leyte.

Issue:WON there was a vacancy

Held: Yes

Ratio:The law on Public Officers is clear on the matter. There is no vacancy whenever the officeis occupied by a
legally qualified incumbent. A sensu contrario, there is a vacancy when there isno person lawfully authorized to
assume and exercise at present the duties of the office. Applying the definition of vacancy to this case, it can be
readily seen that the office of the Vice-Governor was left vacant when the duly elected Vice-Governor Leopoldo
Petilla was appointed Acting Governor. In the eyes of the law, the office to which he was elected was left barren of
a legally qualified person to exercise the duties of the office of the Vice-Governor. There is no satisfactory showing
that Petilla, notwithstanding his succession to the Office of the Governor, continued to simultaneously exercise the
duties of the Vice-Governor. The nature of the duties of a Provincial Governor call for a full-time occupant to
discharge them. More so when the vacancy is for an extended period. Precisely, it was Petilla's automatic
assumption to the acting Governorship that resulted in the vacancy in the office of the Vice-Governor. The fact that
the Secretary of Local Government was prompted to appoint the petitioner shows the need to fill up the position
during the period it was vacant. The Department Secretary had the discretion to ascertain whether or not the
Provincial Governor should devote all his time to that particular office. Moreover, it is doubtful if the Provincial
Board, unilaterally acting, may revoke an appointment made by a higher authority.

Issue:WON the Secretary of Local Government had the authority to designate the petitioner.

Held:Yes

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Ratio: The Local Government Code is silent on the mode of succession in the event of a temporary vacancy in the
Office of the Vice-Governor. However, the silence of the law mustnot be understood to convey that a remedy in
law is wanting. The circumstances of the case reveal that there is indeed a necessity for the appointment of an
acting Vice-Governor. For about two years after the governatorial elections, there had been no de jure permanent
Governor for the province of Leyte, Governor Adelina Larrazabal, at that time, had not yet been proclaimed due to
a pending election case before the Commission on Elections. The two-year interregnum which would result from
the respondents' view of the law is disfavored as it would cause disruptions and delays in the delivery of basic
services to the people and in the proper management of the affairs of the local government of Leyte. Definitely, it is
incomprehensible that to leave the situation without affording any remedy was ever intended by the Local
Government Code. Under the circumstances of this case and considering the silence of the Local Government Code,
the Court rules that, in order to obviate the dilemma resulting from an interregnum created by the vacancy, the
President, acting through her alter ego, the Secretary of Local Government, may remedy the situation. We declare
valid the temporary appointment extended to the petitioner to act as the Vice-Governor. The exigencies of public
service demanded nothing less than the immediate appointment of an acting Vice-Governor. It may be noted that
under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, thePresident is empowered to
make temporary appointments in certain public offices, in case of any vacancy that may occur. Albeit both laws
deal only with the filling of vacancies in appointive positions. However, in the absence of any contrary provision in
the Local Government Code and in the best interest of public service, we see no cogent reason why the procedure
thus outlined by the two laws may not be similarly applied in the present case. The respondents contend that the
provincial board is the correct appointing power. This argument has no merit. As between the President who has
supervision over local governments as provided by law and the members of the board who are junior to the vice-
governor, we have no problem ruling in favor of the President, until the law provides otherwise. A vacancy creates
an anomalous situation and finds no approbation under the law for it deprives the constituents oftheir right of
representation and governance in their own local government. In a republican form of government, the majority
rules through their chosen few, and if one of them is incapacitated or absent, etc., the management of
governmental affairs to that extent, may be hampered. Necessarily, there will be a consequent delay in the delivery
of basic services to the people of Leyte if the Governor or the Vice-Governor is missing. The appointment of the
petitioner, moreover, is in full accord with the intent behind the Local Government Code. There is no question that
Section 49 in connection with Section 52 of the Local Government Code shows clearly the intent to provide for
continuity in the performance of the duties of theVice-Governor.By virtue of the surroundings circumstance of this
case, the mode of succession provided forpermanent vacancies may likewise be observed in case of a temporary
vacancy in the same office. In thiscase, there was a need to fill the vacancy. The petitioner is himself the member of
the Sangguniang Panlalawigan who obtained the highest number of votes. The Department Secretary acted
correctly in extending the temporary appointment. In view of the foregoing, the petitioner's right to be paid the
salary attached to the Office of the Vice Governor is indubitable. The compensation, however, to be remunerated
to the petitioner, following the example in Commonwealth Act No. 588 and the Revised Administrative Code,
andpursuant to the proscription against double compensation must only be such additional compensation as, with
his existing salary, shall not exceed the salary authorized by law for the Office of the Vice-Governor. And finally,
even granting that the President, acting through the Secretary of Local Government, possesses no power to appoint
the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation. There is no denying
that the petitioner assumed the Office of the Vice-Governor under color of a known appointment. As revealed by
the records, the petitioner was appointed by no less than the alter ego of the President, the Secretary of Local
Government, after which he took his oath of office before Senator Alberto Romulo in the Office of Department of
Local Government Regional Director ResSalvatierra. Concededly, the appointment has the color of validity. The
respondents themselves acknowledged the validity of the petitioner's appointment and dealt with him as such. It
was onlywhen the controversial Resolution No. 505 was passed by the same persons who recognized him as the
acting Vice-Governor that the validity of the appointment of the petitioner was made an issue and the recognition
withdrawn. The petitioner, for a long period of time, exercised the duties attached to the Office of the Vice-
Governor. He was acclaimed as such by the people of Leyte. Upon the principle of public policy on which the de
facto doctrine is based and basic considerations of justice, it would be highly iniquitous to now deny him the salary
due him for the services he actually rendered as the acting Vice-Governor of the province of Leyte.

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DOCENA V. SANGGUNIANG PANLALAWIGAN OF EASTERN SAMAR

FACTS:

The case arose when Luis B. Capito, who had been elected to and was serving as a member of the Sangguniang
Panlalawigan of Eastern Samar (SPES) died in office and petitioner Agustin B. Docena was appointed to succeed
him. The appointment was issued on November 19, 1990, by Secretary Luis T. Santos of the Department of Local
Government. Docena took his oath of office before Speaker Ramon V. Mitra of the House of Representatives on
November 22, 1990, and assumed office as member of the SPES on November 26, 1990. On November 27, 1990,
private respondent Socrates B. Alar was appointed, also by Secretary Luis T. Santos, to the position already
occupied by Docena. On December 18, 990, the SPES passed Resolution No. 75 recognizing Alar rather than Docena
as the legitimate successor of the late Board Member Capito. The following day, the SPES was reversed by
Secretary Santos. On January 8, 1991, SPES passed a resolution reiterating the appointment of Alar and declaring
void the recall issued by Secretary Santos. Docena filed a petition for mandamus to compel the respondents (SPES)
to recognize and admit him as a lawfully appointed member of the Sangguniang Panlalawigan of Eastern Samar.

ISSUE:

Whether Docena’s appointment was already complete?

HELD

YES. The said appointment had been accepted by Docena, who had in fact already assumed office as member of the
SPES as per certification of the Provincial Secretary. For all legal intents and purposes, the petitioner’s appointment
had already become complete and enforceable at the time it was supposed to have been “superseded” by the
appointment in favor of Alar. Docena’s appointment having been issued and accepted earlier, and the petitioner
having already assumed office, he could not thereafter be just recalled and replaced to accommodate Alar. The
appointment was permanent in nature, and for the unexpired portion of the deceased predecessor’s term. Docena
had already acquired security of tenure in the position and could be removed therefrom only for any of the causes,
and conformably to the procedure, prescribed by the Local Government Code. These requirements could not be
circumvented by the simple process of recalling his appointment.

Victoria vs. Comelec [299 SCRA 269]

Posted by Pius Morados on November 6, 2011


(Local Government, Succession, Ranking in the Sanggunian)

Facts: Under the LGC, the position of vice-governor should be occupied by the highest ranking Sanggunian member,
and for purposes of succession, ranking in the Sanggunian shall be determined on the basis of the proportion of
votes obtained by each winning candidate to the total number of registered voters in each district.

In the Elections, petitioner candidate Victoria from the 2nd district garnered 32, 918 votes and respondent
candidate Calisin from the 1st district garnered 28, 335 votes.

The COMELEC issued a resolution certifying respondent as 1st in the order of ranking with petitioner as 2nd ranking
member pursuant to the provisions above.

Petitioner claims that the ranking should not only be based on the number of votes obtained in relation to the total
number of registered voters, but also on the number of voters in the district who actually voted therein.

Issue: Whether or not the proportion of the the votes obtained to the number of registered voters of each district
shall be factored to the number of voters who actually voted in determining the ranking in the Sanggunian.

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Held: No. The law is clear that the ranking in the Sangguninan shall be determined on the basis of the proportion of
the votes obtained by each winning candidate to the total number of registered voters of each district.

COMELEC came up with the following ranking of the top 3:

District Registered Voters Votes Obtained Percent Rank

Calisin 1st 130,085 28,335 21.78 1st

Victoria 2nd 155.318 32,918 21.19 2nd

Marcellana 2nd 155.318 26,030 16.76 3rd

Fariñas vs. Barba, G.R. No. 116763. April 19, 1996


Facts: Carlito B. Domingo was a member of the Sangguniang Bayan of San Nicolas, Ilocos Norte. On March 24, 1994,
he resigned after going without leave to the United States. The Mayor, Angelo Barba, recommended Edward
Farinas to fill the vacancy. He is also recommended by the Sangguniang Bayan of San Nicolas directed to the Mayor.
The resolution regarding to the recommendation was submitted to Sangguniang Panlalawigan of Ilocos Norte in
compliance with Section 56 of the Local Government Code. Sangguniang Panlalawigan disapproved the resolution
for the reason that the authority and power to appoint Sangguniang Bayan members are lodged to the Governor.
On the other hand, despite the disapproval, the respondent still appointed Farinas. Later on, he took an oath. On
June 14, 1994, petitioners filed with the RTC of Ilocos Norte a petition quo warranto and prohibition. The Trial
Court uphold the appointment.

Issue: Who can appoint the replacement in case of a permanent vacancy in Sangguniang Bayan caused by the
cessation from office of a member who does not belong to any political part.

Held: There is only one governing appointment to Sanggunian Bayan. Any vacancy therein caused by the cessation
from office of a member with or without a political party must be made by the Governor upon the recommendtion
of the said Sanggunian.

Gamboa v. Aguirre

July 20, 1999


ROMEO J. GAMBOA, JR., petitioner, vs.
MARCELO AGUIRRE, JR., and JUAN Y. ARANETA, respondents.
YNARES-SANTIAGO, J.:

SUMMARY: Negros Oriental Governor went on an official trip abroad and designated Vice-Governor Gamboa as
Acting Governor. When the SP held session, SP Members Aguirre and Araneta (AA) questioned Gamboa’s authority
to preside over the SP, conisdering that he was the Acting Governor. Gamboa refused to vacate the Chair. Later, SP
voted 7-4-1 to allow Gamboa to continue presiding. AA filed a declaratory relief and prohibition action against
Gamboa. RTC ruled that Gamboa cannot preside over the SP while he is Acting Governor. ISSUE: W/N an incumbent
Vice-Governor, while concurrently the Acting Governor, can continue to preside over the sessions of the
Sangguniang Panlalawigan. On appeal by Gamboa, SC upheld RTC, holding that when the Vice-Governor becomes
Acting Governor, he does not relinquish his original post and thus, only a temporary vacancy is created in the Vice-
Governorship because there is no person legally authorized to discharge the functions of Vice-Governor. LGC did
not provide for this situation where a temporary vacancy is created in the Vice-Governorship, so SC used the rule

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on permanent vacancies – and the SP must elect an Acting Presiding Officer. VG cannot preside over the SP because
under the LGC, the executive and legislative functions have been separated at the provincial level. The office of the
Governor is purely executive in nature [not like in the old LGC, where the Governor also presides over the SP], while
the SP is purely legislative in nature. Thus the Vice-Governor who becomes Acting Governor cannot preside over
the SP, since he would be performing executive and legislative functions simultaneously, contrary to the separation
policy of the LGC, which is intended to promote better service delivery and provide a system of checks and
balances. SC resolved the issue despite its mootness [terms of everyone involved expired in 1998] because of its
novelty, and being “capable of repetition yet evading review”.
DOCTRINE: The creation of a temporary vacancy in the office of the Governor creates a corresponding temporary
vacancy in the office of the Vice-Governor whenever the latter acts as Governor by virtue of such temporary
vacancy. This event constitutes an "inability" on the part of the regular presiding officer (Vice Governor) to preside
during the SP sessions, which thus calls for the operation of the remedy set in LGC 49(b) - concerning the election
of a temporary presiding officer. The continuity of the Acting Governor's (Vice-Governor) powers as presiding
officer of the SP is suspended so long as he is in such capacity. Under LGC 49(b), "(i)n the event of the inability of
the regular presiding officer to preside at the sanggunian session, the members present and constituting a quorum
shall elect from among themselves a temporary presiding officer.".
Effective absence is one that renders the officer concerned powerless, for the time being, to discharge the powers
and prerogatives of his office.
NATURE: Petition for review. Original action for declaratory relief and prohibition.
FACTS
• Trouble in hacendero paradise, i.e., Sangguniang Panlalawigan (SP) of Negros Occidental. 1995-1998 term.
• PARTIES INVOLVED
o Rafael COSCOLLUELA – Governor
o Romeo GAMBOA, Jr. – Vice Governor and Presiding Officer of SP
o Marcelo AGUIRRE and Juan ARANETA (AA) – SP members
• Aug. 1995 – Coscolluela went on an official trip abroad. He designated Gamboa as Acting Governor for the
duration of his trip..
• Sep. 6, 1995 – SP held its regular session, with Gamboa presiding.
o AA questioned Gamboa’s authority to preside over the session in view of his designation as Acting Governor.
Alis ka diyan. Gamboa refused to vacate the Chair.
• Another SP Session – Gamboa was allowed to continue presiding by a vote of 7-4-1.
• Sep. 22. 1995 – AA filed an action for declaratory relief and prohibition.
• Oct. 2, 1995 – Coscolluela reassumed office.
• RTC DECISION
o Gamboa temporarily incapacitated to preside over SP sessions for the period that he Acting Governor.
• Gamboa filed the present petition for review.
• Although mooted by the expiry of the officials’ terms, SC resolved to dispose of the issues in light of their
controversy and novelty.
ISSUE (HELD): W/N an incumbent Vice-Governor, while concurrently the Acting Governor, can continue to preside
over the sessions of the Sangguniang Panlalawigan (NO)
RATIO
• Under LGC 49(a) and 466(a)(1), the Vice-Governor is the Presiding Officer of the SP.
• Vice-Governor also assumes the Governorship for the unexpired term of his predecessor, in case of
permanent vacancy.
• When the vacancy is temporary, the Vice-Governor "shall automatically exercise the powers (subject to
certain limitations) and perform the duties and functions" of the Governor.
• RA 7160 does not supply a rule of succession in case of a temporary vacancy in the Vice-Governorship (unlike
its predecessor law, BP 337).
• When the Vice-Governor fills a temporary vacancy in the Governorship, he does not assume the office; but
simply acts as Governor. Kaya Acting Governor. He does not relinquish his position and title as Vice-Governor.
• This temporary assumption of governor duties by the vice-governor does not create a permanent vacancy in
the vice-governorship.

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• The crux of the matter: When the Vice-Governor acts as Governor, does he temporarily relinquish the
powers, functions, duties, and responsibilities of the Vice-Governor, including the power to preside over SP
sessions? RA 7160 is silent on the matter, but SC says YES.
• A Vice-Governor who is concurrently Acting Governor is actually a quasi-Governor, meaning that, for the
purposes of of exercising his legislative prerogative and power, he is deemed a non-member of the SP for the time
being.
• Governor and Vice-Governor are executive offices by nature while SP is legislative in nature, because the
authority vested in the SP is a Congressional delegation of legislative power.
• RA 7160 separated the executive and legislative functions at the local level, except in the Barangay. Thus,
while under BP 337, the Governor presided over the SP and was considered a member thereof, that is no longer
true under RA 7160.
• This is clear from the law, which states that “local legislative power shall be vested in the SP”; and
enumerates who are members of the SP [When the law enumerates, it necessarily excludes.]:
o Vice-Governor (as Presiding Officer)
o Regular elected members
o 3 elected sectoral representatives
o Ex officio members [Provincial Liga President, Provincial SK Liga President, and Provincial ULAP President
(municipalities and component cities)]
• En contrario, the provincial executive power is vested in the Governor alone.
• “Consequently, the union of legislative-executive powers in the office of the local chief executive under the
former Code has been disbanded, so that either department now comprises different and non-intermingling official
personalities with the end in view of ensuring a better delivery of public service and provide a system of check and
balance between the two.”
• Paredes v. Antillon: If the Mayor is out of the country and thus effectively absent, the Vice-Mayor should
discharge the duties of the mayor during the latter’s absence
• This rule applies to the Vice-Governor as well, because he is similarly situated with the Vice-Mayor. “
• "Effective" absence: one that renders the officer concerned powerless, for the time being, to discharge the
powers and prerogatives of his office.
• There is no vacancy whenever the office is occupied by a legally qualified incumbent. A vacancy occurs when
there is no person lawfully authorized to assume the powers and duties of the office. Thus, the designation,
appointment or assumption of the Vice-Governor as the Acting Governor creates a corresponding temporary
vacancy in the office of the Vice-Governor during such contingency.
• Considering the silence of the law on the matter, the mode of succession provided for permanent vacancies,
under RA 7160, in the office of the Vice-Governor may likewise be observed in the event of temporary vacancy
occurring in the same office
• REASON: in the eyes of the law, the office to which he was elected was left barren of a legally qualified
person to exercise the duties of the office of the Vice-Governor.
• Being the Acting Governor, the Vice-Governor cannot continue to simultaneously exercise the duties of the
latter office, since the nature of the duties of the provincial Governor call for a full-time occupant to discharge
them. Such is not only consistent with but also appears to be the clear rationale of the new Code wherein the
policy of performing dual functions in both offices has already been abandoned.
• The creation of a temporary vacancy in the office of the Governor creates a corresponding temporary
vacancy in the office of the Vice-Governor whenever the latter acts as Governor by virtue of such temporary
vacancy. This event constitutes an "inability" on the part of the regular presiding officer (Vice Governor) to preside
during the SP sessions, which thus calls for the operation of the remedy set in LGC 49(b) - concerning the election
of a temporary presiding officer. The continuity of the Acting Governor's (Vice-Governor) powers as presiding
officer of the SP is suspended so long as he is in such capacity. Under LGC 49(b), "(i)n the event of the inability of
the regular presiding officer to preside at the sanggunian session, the members present and constituting a quorum
shall elect from among themselves a temporary presiding officer.".
DISPOSITION: Petition denied.

Navarro v. Court of Appeals, G.R. No. 141307. March 28, 2001

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digested by Ms. Iola Vianka M. Pińon

Facts: On March 25, 1999, elected Mayor Calimlim died thus creating a vacancy in his position. By virtue of Section
44 of the Local Government Code, Vice Mayor Aquino succeeded him. Since a vacancy occurred inthe Sangguniang
Bayan by the elevation of Tamayo, the highest ranking member of Sanggunian, to the Vice Mayor's position. Gov.
Agbayani of Pangasinan appointed herein petitioner Navarro as member of the said Sanggunian. Navarro belonged
to the same party as that of Tamayo. Private respondents filed an action to nullify the appointment of Navarro.
They argued in the CA that the former Vice Mayor who created the permanent vacancy, thus, the appointees
should come from the former Vice Mayor's political party. In the decision of the CA, it concluded that according to
the hierarchy, it was the appointment of the 8th Counselor to the 7th position which created the vacancy,
therefore, the appointee should come from his party.

Issue: Whether or not the appointment of Navarro as a member of the Sangguniang Bayan is valid.

Held: Yes. It is pursuant to Section 44 and 45 of the Local Government Code.

The reason behind the right given to a political party to nominate a replacement where a permanent vacancy
occurs is to maintain the party representation as willed by the people in the election. Such appointment is required
to have a nomination and certification or it would be null and void ab initio.

The term "last vacancy" by no means refers to the vacancy of the *th position in the Sangguniang Bayan. Such
construction will result to absurdity.

In Aratea vs. COMELEC (2012) and Maquiling vs. COMELEC (2013), the Supreme Court made a categorical
pronouncement that an ineligible candidate is not considered a candidate at all. A void Certificate of Candidacy
(COC) cannot produce any legal effect. All the votes for the ineligible candidate are stray votes.

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