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Limbona vs MangelinG.R. No. 80391, February 28, 1989

Sarmiento, J.

Facts:Sultan Alimbusar Limbona was appointed as a member of the Sangguniang Pampook, Regional Autonomous

Government, Region XII, representing Lanao del Sur. He was then elected speaker of the regional legislative assembly of central Mindanao, composed of 18 members. Later, Congressman Datu Guimid Matalam, Chairman of the Committee on Muslim Affairs of the House of Representatives, invited Mr. Xavier Razul, Pampook Speaker of Region XI, Zamboanga City and the petitioner in his capacity as Speaker of the Assembly, Region XII, in a conference. Petitioner then ordered Acting Secretary Alimbuyao to inform the assemblymen that there will be no session on said date as petitioner and Razul are attending the house committee hearing.

The Assembly held session in defiance of petitioner's advice. After declaring the presence of a quorum, the Speaker Pro-Tempore was authorized to preside in the session. On Motion to declare the seat of the Speaker vacant, all Assemblymen in attendance voted in the affirmative, hence, the chair declared said seat of the Speaker vacant.

The petitioner then went to court praying that judgment be rendered declaring the proceedings held by respondents during the session as null and void and holding the election of petitioner as Speaker of said Legislative Assembly or Batasan Pampook, Region XII held on March 12, 1987 valid and subsisting, and(e) Making the injunction permanent.

Issue:WON the expulsion of the petitioner (pending litigation) has made the case moot and academic.

Held:The case has not been rendered moot and academic by reason simply of the expulsion resolution so issued. For, if

the petitioner's expulsion was done purposely to make this petition moot and academic, and to preempt the Court, it will not make it academic.

On the ground of the immutable principle of due process alone, we hold that the expulsion in question is of no force and effect. In the first place, there is no showing that the Sanggunian had conducted an investigation, and whether or not the petitioner had been heard in his defense, assuming that there was an investigation, or otherwise given the opportunity to do so. What appears in the records is an admission by the Assembly that "since November, 1987 up to this writing, the petitioner has not set foot at the Sangguniang Pampook." To be sure, respondents aver that "[t]he Assemblymen, in a conciliatory gesture, wanted him to come to Cotabato City," but that was "so that their differences could be threshed out and settled." Certainly, that avowed wanting or desire to thresh out and settle, no matter how conciliatory it may be cannot be a substitute for the notice and hearing contemplated by law.

In the second place, the resolution appears strongly to be a bare act of vendetta by the other Assemblymen against the petitioner arising from what the former perceive to be abduracy on the part of the latter. Indeed, it (the resolution) speaks of "a case [having been filed] [by the petitioner] before the Supreme Court . . . on question which should have been resolved within the confines of the Assembly ---- an act which some members claimed unnecessarily and unduly assails their integrity and character as representative of the people," an act that cannot possibly justify expulsion. Access to judicial remedies is guaranteed by the Constitution, and, unless the recourse amounts to malicious prosecution, no one may be punished for seeking redress in the courts.

We therefore order reinstatement, with the caution that should the past acts of the petitioner indeed warrant his removal, the Assembly is enjoined, should it still be so minded, to commence proper proceedings therefor in line with the most elementary requirements of due process. And while it is within the discretion of the members of the Sanggunian to punish their erring colleagues, their acts are nonetheless subject to the moderating hand of this Court in the event that such discretion is exercised with grave abuse.

Issue:What is the extent of self-government given to the two autonomous governments of Region IX and XII?

Held:The autonomous governments of Mindanao were organized in Regions IX and XII by Presidential Decree No. 1618.

Among other things, the Decree established "internal autonomy" in the two regions "[w]ithin the framework of the national sovereignty and territorial integrity of the Republic of the Philippines and its Constitution," "with legislative and executive machinery to exercise the powers and responsibilities"' specified therein.

It requires the autonomous regional governments to "undertake all internal administrative matters for the respective regions," except to "act on matters which are within the jurisdiction and competence of the National Government," "which include, but are not limited to, the following: (1) National defense and security; (2) Foreign relations; (3) Foreign trade; (4) Currency, monetary affairs, foreign exchange, banking and quasi-banking, and external borrowing, (5) Disposition, exploration, development, exploitation or utilization of all natural resources; (6) Air and sea transport; (7) Postal matters and telecommunications; (8) Customs and quarantine; (9) Immigration and deportation; (10) Citizenship and naturalization; (11) National economic, social and educational planning; and (12) General auditing."

In relation to the central government, it provides that "[t]he President shall have the power of general supervision and control over the Autonomous Regions.

Now, autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments "more responsive and accountable," and "ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress." At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises "general supervision" over them,

but only to "ensure that local affairs are administered according to law." He has no control over their acts in the sense that he can substitute their judgments with his own.

Decentralization of power, on the other hand, involves an abdication of political power in the favor of local governments units declared to be autonomous. In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to "self-immolation," since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency.

But the question of whether or not the grant of autonomy to Muslim Mindanao under the 1987 Constitution involves, truly, an effort to decentralize power rather than mere administration is a question foreign to this petition, since what is involved herein is a local government unit constituted prior to the ratification of the present Constitution. Hence, the Court will not resolve that controversy now, in this case, since no controversy in fact exists. We will resolve it at the proper time and in the proper case. Under the 1987 Constitution, local government units enjoy autonomy in these two senses

An autonomous government that enjoys autonomy of the latter category is subject alone to the decree of the organic act creating it and accepted principles on the effects and limits of "autonomy." On the other hand, an autonomous government of the former class is, as we noted, under the supervision of the national government acting through the President (and the Department of Local Government). If the Sangguniang Pampook (of Region XII), then, is autonomous in the latter sense, its acts are, debatably, beyond the domain of this Court in perhaps the same way that the internal acts, say, of the Congress of the Philippines are beyond our jurisdiction. But if it is autonomous in the former category only, it comes unarguably under our jurisdiction.

An examination of the very Presidential Decree creating the autonomous governments of Mindanao persuades us that they were never meant to exercise autonomy in the second sense, that is, in which the central government commits an act of self-immolation. Presidential Decree No. 1618, in the first place, mandates that "[t]he President shall have the power of general supervision and control over Autonomous Regions." 33 the second place, the Sangguniang Pampook, their legislative arm, is made to discharge chiefly administrative services.

Hence, we assume jurisdiction. And if we can make an inquiry in the validity of the expulsion in question, with more reason can we review the petitioner's removal as Speaker.

Municipality of Sta Fe vs Municipality of AritaoDate: September 21, 2007Petitioner: Municipality of Sta FeRespondent: Municipality of Aritao

Ponente: Azcuna

Facts: In 1980, petitioner Municipality of Sta. Fe, in Nueva Vizcaya, filed before the RTC of Bayombong, Nueva Vizcaya for the Determination of Boundary Dispute involving the barangays of Bantinan and Canabuan.The trial was almost over when the court realized its error. The court suspended the proceedings and referred the case to the Sangguniang Panlalawigan of Nueva Vizcaya. The Sanggunian adopted Resolution 64 adjudicating the two barangays as part of respondent’s territory. The Sanggunian approved the Committee’s recommendation but endorsed the boundary dispute to the RTC for further proceedings. In the RTC, respondent moved to consider Resolution 64 as final and executory. The RTC denied the motion ruling that since there was no amicable settlement in the Sanggunian, the latter cannot issue a “decision” favoring a party. The court held that, under the law in force, the purpose of such referral was only to afford the parties an opportunity to amicably settle with the intervention and assistance of the Provincial Board and that in case no such settlement is reached, the court proceedings shall be resumed. Respondent filed a motion praying for the dismissal of the case for lack of jurisdiction since the power to try and decide municipal boundary disputes already belonged to the Sanggunian. The RTC granted the motion. The CA affirmed. According to the CA, a new legislation can be given retroactive effect so long as it is curative in nature. Thus, the LGC vesting jurisdiction to the Sanggunian was given retroactive effect. Since the Local Government Code of 1991 is the latest will of the people expressed through Congress on how boundary disputes should be resolved, the same must prevail over previous ones. It must be emphasized that the laws on the creation of local government units as well as settling boundary disputes are political in character, hence, can be changed from time to time and the latest will of the people should always prevail. In the instant case, there is nothing wrong in holding that Regional Trial Courts no longer have jurisdiction over boundary disputes. Issue: WON the CA erred in affirming the dismissal of the case for lack of jurisdiction

Held: No

Ratio: October 1, 1917 (Revised Administrative Code)- jurisdiction with the provincial boards of the provinces in which the municipalities are situated; June 17, 1970 (RA 6128)- jurisdiction with the CFI of the Province where the municipalities are situated; February 10, 1983 (BP 337 or the 1983 Local Government Code); January 1, 1992 (LGC); - Sangguniang Panlalawigan where the municipalities are situated, appeal with the RTC.

This Court agrees with petitioner’s contention that the trial court had jurisdiction to take cognizance of the complaint when it was filed on October 16, 1980 since the prevailing law then was Section 2167 of the RAC, as amended by Sec. 1 RA 6128, which granted the CFI the jurisdiction to hear and decide cases of municipal boundary disputes. Municipality of Sogod reveal that it dealt with the trial court’s dismissal of cases filed for lack of jurisdiction because at the time of the institution of the civil actions, the law in force was the old provision of Sec. 2167 of the RAC, which empowered the provincial boards, not the trial courts, to hear and resolve such cases. The difference in the factual setting notwithstanding, Municipality of Sogod still applies in the sense that similar thereto the pendency of the present case has also been overtaken by events – the ratification of the 1987 Constitution and the enactment of the LGC of 1991. As shown above, since the effectivity of R.A. No. 6128, the Sangguniang Panlalawigan has been the primary tribunal responsible in the amicable settlement of boundary disputes between or among two or more municipalities located in the same province. With the LGC of 1991, however, a major change has been introduced – that in the event the Sanggunian fails to effect a settlement, it shall not only issue a certification to that effect but must also formally hear and decide the case within the reglementary period. Rule III of the Rules and Regulations Implementing the LGC of 1991 outlines the procedure for the settlement of boundary disputes.

Unlike Ra 6128 and BP 337, the LGC of 1991 grants an expanded role on the Sanggunian concerned in resolving cases of municipal boundary disputes. Aside from having the function of bringing the contending parties together and intervening or assisting in the amicable settlement of the case, the Sangguniang Panlalawigan is now specifically vested with original jurisdiction to actually hear and decide the dispute in accordance with the procedures laid down in the law and its implementing rules and regulations. This situation, in effect, reverts to the old rule under the RAC, prior to its amendment by R.A. No. 6128, under which the provincial boards were empowered to investigate, hear the parties and eventually decide the case on the basis thereof. On the other hand, under the LGC of 1991, the trial court loses its power to try, at the first instance, cases of municipal boundary disputes. Only in the exercise of its appellate jurisdiction can the proper RTC decide the case, on appeal, should any party aggrieved by the decision of the Sangguniang Panlalawigan elevate the same. The RTC correctly dismissed the case for lack of jurisdiction. Under the rules, it was the responsibility of the court to dismiss an action “whenever it appears that [it] has no jurisdiction over the subject matter.” Indeed, the RTC acted accordingly because at the time of the filing of the motion to dismiss its want of jurisdiction was evident. It was duty-bound to take judicial notice of the parameters of its jurisdiction as the choice of the proper forum was crucial – for the decision of a court or tribunal without jurisdiction is a total nullity and may be struck down at any time by this Court as it would never become final and executory. Likewise, the standing rule is that dismissal of a case for lack of jurisdiction may be raised at any stage of the proceedings since jurisdiction is conferred by law and lack of it affects the very authority of the court to take cognizance of and to render judgment on the action; otherwise, the inevitable consequence would make the court’s decision a “lawless” thing. As correctly pointed out by the RTC it will be a futile act for the Court to rule on the case concerning a boundary dispute if its decision will not after all be followed by the people concerned because the decision is totally unacceptable to them. How then can the Court enforce its decision?

Petitioner contends that the provisions of the 1987 Constitution and the LGC of 1991 on the settlement of municipal boundary disputes should be applied prospectively. The Court is not unmindful of the rule that where a court has already obtained and is exercising jurisdiction over a controversy, its jurisdiction to proceed to the final determination of the case is not affected by new legislation placing jurisdiction over such proceedings in another tribunal. An exception to this rule lies where the statute either expressly provides or is construed to the effect that it is intended to operate on actions pending before its enactment. Hence, this Court has held that a law may be given retroactive effect if it so provided expressly or if retroactivity is necessarily implied therefrom and no vested right or obligation of contract is impaired and it does not deprive a person of property without due process of law.

The new provisions and requirements regarding changes in the constitution of political units are intended to apply to all existing political subsidiaries immediately, i.e., including those with pending cases filed under the previous regime, since the overarching consideration of these new provisions is the need to empower the local government units without further delay. Furthermore, the RTC can still review the decision of the Sangunian under the new set-up, in the exercise of its appellate jurisdiction, so no substantial prejudice is caused by allowing retroactivity.

Aquilino Pimentel vs. Aguirre(G.R. No. 132988, July 19, 2000)

FACTS of the Case:

On December, 1997, the President issued AO 372 (Adoption of Economy Measures in Government for FY 1998). The AO provided that (a) 10% of the Internal Revenue allotment to LGUs is withheld. Further it (b) "directs" LGUs to reduce their expenditures by 25 percent Subsequently, on December 10, 1998, President Estrada issued AO 43, amending Section 4 of AO 372, by reducing to five percent (5%) the amount of internal revenue allotment (IRA) to be withheld from the LGUs.

Petitioner contends that by issuing AO 372, the President exercised the power of control over LGUs in contravention of law. Moreover, withholding 10% of the IRA is in contravention of Sec 286 LGC and of Sec 6 Article X of the Constitution, providing for the automatic release to each of these units its share in the national internal revenue.

The Solicitor General, on the other hand, argues that the aforesaid AO was purportedly in order to cope with the nation’s economic difficulties brought about by the peso depreciation on that said period. Further, he claims that AO 372 was issued merely as an exercise of the President’s power of supervision over LGUs. It allegedly does not violate local fiscal autonomy, because it merely directs local governments to identify measures that will reduce their total expenditures for non-personal services by at least 25 percent. Likewise, the withholding of 10 percent of the LGUs’ IRA does not violate the statutory prohibition on the imposition of any lien or holdback on their revenue shares, because such withholding is "temporary in nature pending the assessment and evaluation by the Development Coordination Committee of the emerging fiscal situation."

ISSUES:

1. WON Section 1 of AO 372, insofar as it "directs" LGUs to reduce their expenditures by 25 percent is a valid exercise of the President's power of general supervision over local governments.

2. WON Section 4 of AO 372, which withholds 10 percent of their internal revenue allotments, are valid exercises of the President's power of general supervision over local governments.

HELD:

1. YES. There are several requisites before the President may interfere in local fiscal matters: (1) an unmanaged public sector deficit of the national government; (2) consultations with the presiding officers of the Senate and the House of Representatives and the presidents of the various local leagues; and (3) the corresponding recommendation of the secretaries of the Department of Finance, Interior and Local Government, and Budget and Management. Furthermore, any adjustment in the allotment shall in no case be less than thirty percent (30%) of the collection of national internal revenue taxes of the third fiscal year preceding the current one.1

Petitioner points out that respondents failed to comply with the above requisites before the issuance and the implementation of AO 372. At the very least, the respondents did not even try to show that the national government was suffering from an unmanageable public sector deficit. Neither did they claim having conducted consultations with the different leagues of local governments. Without these requisites, the President has no authority to adjust, much less to reduce, unilaterally the LGU's internal revenue allotment.

Although the Supreme Court agrees with the Petitioner that the requisites were not complied with, it still holds that the President’s directive in AO 372 is in conformity with law, and does constitute interference to local autonomy. There is interference if Section 1 of AO 372 was couched in mandatory or binding language. While the wordings of Section 1 of AO 3722 have a rather commanding tone, the provision is merely an advisory to prevail

1 284 (c) of the Local Government Code.

2

upon local executives to recognize the need for fiscal restraint in a period of economic difficulty. Indeed, all concerned would do well to heed the President's call to unity, solidarity and teamwork to help alleviate the crisis. It is understood, however, that no legal sanction may be imposed upon LGUs and their officials who do not follow such advice.

2. NO. A basic feature of local fiscal autonomy is the automatic release of the shares of LGUs in the national internal revenue as mandated by the Constitution. The Local Government Code. specifies further that the release shall be made directly to the LGU concerned within five (5) days after every quarter of the year and " shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose.

The use of the term "shall" shows that the provision is imperative. Therefore, Section 4 of AO 372, which orders the withholding of 10 percent of the LGUs' IRA "pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation" in the country clearly contravenes the Constitution and the law. Although temporary, it is equivalent to a holdback, which means "something held back or withheld, often temporarily”. Hence, the "temporary" nature of the retention by the national government does not matter. Any retention is prohibited. Therefore, the President clearly overstepped the bounds of his lawful authority when he issued Section 4 of AO 372.

DISSENT: Kapunan

On the President's power as chief fiscal officer of the country. Justice Kapunan posits that Section 4 of AO 372 conforms with the President's role as chief fiscal

officer, who allegedly "is clothed by law with certain powers to ensure the observance of safeguards and auditing requirements, as well as the legin the release

and use of IRAs, taking into account the constitutional and statutory mandates, citing instances when the President may lawfully intervene in the fiscal affairs of LGUs.

Emmanuel Pelaez Vs. Auditor-General (1965)

This is a special civil action for a writ of prohibition with preliminary injunction instituted by Emmanuel Pelaez, as Vice President of the Philippines and as taxpayer, against the Auditor General, to restrain him, as well as his representatives and agents, from passing in audit any expenditure of public funds in implementation of the EOs issued by the President creating 33 municipalities and/or any disbursement by said municipalities.

FACTS:

In 1964, the President, pursuant to Section 68 of the Revised Administrative Code issued Executive Orders Nos. 93 to 121, 124 and 126 to 129; creating thirty-three (33) municipalities.

Petitioner alleges that said executive orders are null and void on the ground that said Section 68 has been impliedly repealed by Republic Act No. 2370 and constitutes an undue delegation of legislative power.

When RA 2370 (The Barrio Charter) provides that barrios may "not be created or their boundaries altered nor their names changed" except by Act of Congress or of the corresponding provincial board "upon petition of a majority of the voters in the areas affected" and the "recommendation of the council of the municipality or municipalities.

Section 68 of RAC, which said EOs are based, provides that the President may define or divide the boundary or boundaries of any province, sub-province, municipality, municipal district XXX as the public welfare may require provided, that the authorization of the Congress of the Philippines shall first be obtained.

Petitioner argues that the President under the new law cannot create a barrio, how much more of a municipality which is composed of several barrios.

Respondent answered that a new municipality can be created without creating new barrios, such as, by placing old barrios under the jurisdiction of the new municipality. This answer however overlooks on the main import of the petitioners argument, which questions the President’s authority to create municipalities.

Respondent alleges that the power of the President to create municipalities under this section does not amount to an undue delegation of legislative power, relying upon Municipality of Cardona vs. Municipality of Binañgonan.

ISSUE:

WON the President has the legislative authority to issue the EOs creating municipalities.

DECISION:

The Court declared the EOs null and void. The Auditor General permanently restrained from passing in audit any expenditure of public funds in implementation of said EOs or any disbursement by the created municipalities.

RATIO:

The Court said that the respondent’s argument based on Cardona vs. Binangonan is untenable because the case do not involve a creation of municipality but a transfer of municipality.

The authority to create municipal corporations is essentially legislative in nature. It is strictly a legislative function. The power to fix such common boundary, in order to avoid or settle conflicts of jurisdiction between adjoining municipalities, may partake of an administrative nature in the adoption of means and ways to carry into effect the law creating said municipalities.

Although Congress may delegate to another branch of the Government the power to fill in the details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law:

(a) be complete in itself — it must set forth therein the policy to be executed, carried out or implemented by the delegate.

(b) fix a standard — the limits of which are sufficiently determinate or determinable — to which the delegate must conform in the performance of his functions.

Without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. Hence, he could thereby arrogate upon himself the power, not only to make the law, but worse, to adopt measures inconsistent with the end sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers and the system of checks and balances, and, consequently, undermining the very foundation of our Republican system.

The Court said that Section 68 of the RAC does not meet these well settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President.

It can be noted that the executive orders in question were issued after the legislative bills for the creation of the municipalities involved in this case had failed to pass Congress. A better proof of the fact that the issuance of said executive orders entails the exercise of purely legislative functions can hardly be given.

MAYOR MAGTAJAS & CITY OF CAGAYAN v. PRYCE PROPERTIES & PAGCOR

Facts:

PAGCOR decided to expand its operations to Cagayan de Oro City. To this end, it leased a portion of a building belonging to Pryce Properties Corporation, Inc., renovated and equipped the same, and prepared to inaugurate its casino there during the Christmas season.

. Civic organizations angrily denounced the project. The religious elements echoed the objection and so did the women's groups and the youth. Demonstrations were led by the mayor and the city legislators. The media trumpeted the protest, describing the casino as an affront to the welfare of the city.

The contention of the petitioners is that it is violative of the Sangguniang Panlungsod of Cagayan de Oro City Ordinance No. 3353 prohibiting the use of buildings for the operation of a casino and Ordinance No. 3375-93 prohibiting the operation of casinos.

On the other hand, the respondents invoke P.D. 1869 which created PAGCOR to help centralize and regulate all games of chance, including casinos on land and sea within the territorial jurisdiction of the Philippines.

The Court of Appeals ruled in favor of the respondents. Hence, the petition for review.

Issue: Whether or not the Ordinance No. 3353 and Ordinance No. 3375-93 are valid

Held: No

Ratio:

Cagayan de Oro City, like other local political subdivisions, is empowered to enact ordinances for the purposes indicated in the Local Government Code. It is expressly vested with the police power under what is known as the General Welfare Clause now embodied in Section 16 as follows:

***Sec. 16. — General Welfare. — Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

There is a requirement that the ordinances should not contravene a statute. Municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local government units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute.

Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be amended or nullified by a mere ordinance.

Therefore, the petition is DENIED and the challenged decision of the Court of Appeals is AFFIRMED.

LTO versus CITY OF BUTUAN G.R. No. 131512 January 20, 2000

Facts:

Local Council of the City of Butuan passed an ordinance entitled "An Ordinance Regulating the Operation of Tricycles-for-Hire, providing mechanism for the issuance of Franchise, Registration and Permit, and imposing Penalties for Violations thereof and for other Purposes." The ordinance provided for, among other things, the payment of franchise fees for the grant of the franchise of tricycles-for-hire, fees for the registration of the vehicle, and fees for the issuance of a permit for the driving thereof.

Main Issue:

The Court is asked in this instance to resolve the issue of whether under the present set up the power of the Land Registration Office ("LTO") to register, tricycles in particular, as well as to issue licenses for the driving thereof, has likewise devolved to local government units.

Relevant Questions and Answers:

What is the primary function of Land Transportation Board?

The LTO is a line agency under the DOTC whose powers and functions, pursuant to Article III, Section 4 (d) [1],10 of R.A. No. 4136, otherwise known as Land Transportation and Traffic Code, as amended, deal primarily with the registration of all motor vehicles and the licensing of drivers thereof.

What is the primary function of Land Transportation and Franchising Board?

The LTFRB, upon the other hand, is the governing body tasked by E.O. No. 202, dated 19 June 1987, to regulate the operation of public utility or "for hire" vehicles and to grant franchises or certificates of public convenience ("CPC").

Finely put, registration and licensing functions are vested in the LTO while franchising and regulatory responsibilities had been vested in the LTFRB.

Under the Local Government Code, what certain functions of DOTC were transferred to the Local Government Units?

Under the LGUs indubitably now have the power to regulate the operation of tricycles-for-hire and to grant franchises for the operation thereof. Under the Local Government Code, certain functions of the DOTC were transferred to the LGUs, thusly:

Sec. 458. Powers, Duties, Functions and Compensation. —

x x x x x x x x x

(3) Subject to the provisions of Book II of this Code, enact ordinances granting franchises and authorizing the issuance of permits or licenses, upon such conditions and for such purposes intended to promote the general welfare of the inhabitants of the city and pursuant to this legislative authority shall:

x x x x x x x x x

(VI) Subject to the guidelines prescribed by the Department of Transportation and Communications, regulate the operation of tricycles and grant franchises for the operation thereof within the territorial jurisdiction of the city. (Emphasis supplied).

Relying on the foregoing provision of law, are the powers of the LTO (1) to register tricycles-for-hire and (2) to issue license for driving thereof now devolved to Local Government Units?

No. The newly delegated powers pertain to the franchising and regulatory powers theretofore exercised by the LTFRB and not to the functions of the LTO relative to the registration of motor vehicles and issuance of licenses for the driving thereof.

Clearly unaffected by the Local Government Code are the powers of LTO under R.A. No. 4136 requiring the registration of all kinds of motor vehicles "used or operated on or upon any public highway" in the country. Thus

—

Sec. 5. All motor vehicles and other vehicles must be registered. —

(a) No motor vehicle shall be used or operated on or upon any public highway of the Philippines unless the same is properly registered for the current year in accordance with the provisions of this Act (Article 1, Chapter II, R.A. No. 4136).

The Commissioner of Land Transportation and his deputies are empowered at anytime to examine and inspect such motor vehicles to determine whether said vehicles are registered, or are unsightly, unsafe, improperly marked or equipped, or otherwise unfit to be operated on because of possible excessive damage to highways, bridges and other infrastructures.17 The LTO is additionally charged with being the central repository and custodian of all records of all motor vehicles.18

Ergo, the registration of the tricycles and issuance of a license for the driving thereof is maintained by the LTO.

What is the rationale why said functions of LTO were not devolved to Local Government Code?

If the tricycle registration function of respondent LTO is decentralized, the incidence of theft of tricycles will most certainly go up, and stolen tricycles registered in one local government could be registered in another with ease. The determination of ownership thereof will also become very difficult.

Fake driver's licenses will likewise proliferate. This likely scenario unfolds where a tricycle driver, not qualified by petitioner LTO's testing, could secure a license from one municipality, and when the same is confiscated, could just go another municipality to secure another license.

Devolution will entail the hiring of additional personnel charged with inspecting tricycles for road worthiness, testing drivers, and documentation.

Revenues raised from tricycle registration may not be enough to meet salaries of additional personnel and incidental costs for tools and equipment.

TRICYCLES

LTO Registration of tricycles and issuance of license for the driving thereof.

LTFRB

LGU Power to regulate the operation of tricycle-for-hire and to grant franchises thereof.

Abbas v. COMELEC, 179 SCRA 287

Facts: Datu Firdausi Abbas, et.al. challenged the constitutionality of R.A. 6734 on the following grounds:1) R. A. 6734 conflicts with the Tripoli Agreement (what conflicts the case doesn’t say)2) R. A. 6734 provides for the unconditional creation of the ARMM and not through the mode of a plebiscite as provided in the Constitution3) The Constitution provides that ARMM shall be approved by a majority of votes cast in a plebiscite by all voters residing in the provinces and cities affected, but R.A. 6734 says “by a majority or votes cast by the constituent units in a plebiscite and only those provinces and cities where a majority of votes cast in favor of the Organic Act shall be included in the Autonomous Region. R.A. 6734 thus conflicts the Constitution4) R. A. 6734 includes provinces and cities which do not have the same cultural and historical heritage and other relevant characteristics needed for admission to the ARMM5) R. A. 6734 violates constitutional guarantee on freedom of exercise of religion as some its provisions run counter to the Koran6) The creation of an Oversight Committee to supervise the transfer of power to the ARMM is contrary to the constitutional mandate that the creation of the autonomous region hinges solely on the result of the plebiscite7)R. A. 6734 says “…that only the provinces and cities voting favorably in such plebiscite shall be included in the ARMM. The provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain in the existing administrative regions: Provided however, that the President may, by administrative determination, merge the existing regions. This provision, Abbas claims, is contrary to the Constitutional mandate that, “No province city, municipality or barangay may be created, divided, merged,abolished or its boundary substantially altered, except in accordance with the criteria established with thelocal government code and subject to approval by a majority of the votes cast in a plebiscite in the unitsdirectly affected.” (Art. 10, Sec. 10, 1987 Constitution)

Held: Abbas is wrong. Reasons:1) R. A. 6734 as an enactment of Congress, is superior to the Tripoli Agreement, being a subsequent law to the Tripoli Agreement (though in my opinion it wouldn’t matter if R. A. 6734 was prior to the Tripoli Agreement)2) The transitory provisions of R. A. 6734 does provide for a plebiscite (1 guess nobody reads the transitory provisions)3) The framers of the Constitution must have intended that the majority of votes must come from each of the constituent units and not all the votes of the provinces and cities (I couldn’t understand how the justices arrived at this conclusion)4) It is not for the Court to decide on the wisdom of the law concerning the inclusion of provinces and cities which Abbas claims should not be included in a plebiscite5) There is no actual controversy yet as to any violation of freedom of religion, only a potential one6) The creation of an Oversight Committee is merely procedural and in fact will aid in the timely creation of the ARMM7) The power of the President to merge administrative regions is inherent in his power of general supervisionover local governments. Besides, administrative regions are not territorial or political regions. Examples of administrative regions are Regions I to XII and the NCR

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 89651 November 10, 1989

DATU FIRDAUSI I.Y. ABBAS, DATU BLO UMPAR ADIONG, DATU MACALIMPOWAC DELANGALEN, CELSO PALMA, ALI MONTANA BABAO, JULMUNIR JANNARAL, RASHID SABER, and DATU JAMAL ASHLEY ABBAS, representing the other taxpayers of Mindanao, petitioners, vs.COMMISSION ON ELECTIONS, and HONORABLE GUILLERMO C. CARAGUE, DEPARTMENT SECRETARY OF BUDGET AND MANAGEMENT, respondents.

G.R. No. 89965 November 10, 1989

ATTY. ABDULLAH D. MAMA-O, petitioner, vs.HON. GUILLERMO CARAGUE, in his capacity as the Secretary of the Budget, and the COMMISSION ON ELECTIONS, respondents.

Abbas, Abbas, Amora, Alejandro-Abbas & Associates for petitioners in G.R. Nos. 89651 and 89965.

Abdullah D. Mama-o for and in his own behalf in 89965.

CORTES, J.:

The present controversy relates to the plebiscite in thirteen (13) provinces and nine (9) cities in Mindanao and Palawan, 1 scheduled for November 19, 1989, in implementation of Republic Act No. 6734, entitled "An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao."

These consolidated petitions pray that the Court: (1) enjoin the Commission on Elections (COMELEC) from conducting the plebiscite and the Secretary of Budget and Management from releasing funds to the COMELEC for that purpose; and (2) declare R.A. No. 6734, or parts thereof, unconstitutional .

After a consolidated comment was filed by Solicitor General for the respondents, which the Court considered as the answer, the case was deemed submitted for decision, the issues having been joined. Subsequently, petitioner Mama-o filed a "Manifestation with Motion for Leave to File Reply on Respondents' Comment and to Open Oral Arguments," which the Court noted.

The arguments against R.A. 6734 raised by petitioners may generally be categorized into either of the following:

(a) that R.A. 6734, or parts thereof, violates the Constitution, and

(b) that certain provisions of R.A. No. 6734 conflict with the Tripoli Agreement.

The Tripoli Agreement, more specifically, the Agreement Between the government of the Republic of the Philippines of the Philippines and Moro National Liberation Front with the Participation of the Quadripartie Ministerial Commission Members of the Islamic Conference and the Secretary General of the Organization of Islamic Conference" took effect on December 23, 1976. It provided for "[t]he establishment of Autonomy in the southern Philippines within the realm of the sovereignty and territorial integrity of the Republic of the Philippines" and enumerated the thirteen (13) provinces comprising the "areas of autonomy." 2

In 1987, a new Constitution was ratified, which the for the first time provided for regional autonomy, Article X, section 15 of the charter provides that "[t]here shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines."

To effectuate this mandate, the Constitution further provides:

Sec. 16. The President shall exercise general supervision over autonomous regions to ensure that the laws are faithfully executed.

Sec. 17. All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government.

Sec. 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws.

The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only the provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.

Sec. 19 The first Congress elected under this Constitution shall, within eighteen months from the time of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras.

Sec. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over:

(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social and tourism development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.

Sec. 21. The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the region shall be the responsibility of the National Government.

Pursuant to the constitutional mandate, R.A. No. 6734 was enacted and signed into law on August 1, 1989.

1. The Court shall dispose first of the second category of arguments raised by petitioners, i.e. that certain provisions of R.A. No. 6734 conflict with the provisions of the Tripoli Agreement.

Petitioners premise their arguments on the assumption that the Tripoli Agreement is part of the law of the land, being a binding international agreement . The Solicitor General asserts that the Tripoli Agreement is neither a binding treaty, not having been entered into by the Republic of the Philippines with a sovereign state and ratified according to the provisions of the 1973 or 1987 Constitutions, nor a binding international agreement.

We find it neither necessary nor determinative of the case to rule on the nature of the Tripoli Agreement and its binding effect on the Philippine Government whether under public international or internal Philippine law. In the first place, it is now the Constitution itself that provides for the creation of an autonomous region in Muslim Mindanao. The standard for any inquiry into the validity of R.A. No. 6734 would therefore be what is so provided in the Constitution. Thus, any conflict between the provisions of R.A. No. 6734 and the provisions of the Tripoli Agreement will not have the effect of enjoining the implementation of the Organic Act. Assuming for the sake of argument that the Tripoli Agreement is a binding treaty or international agreement, it would then constitute part of the law of the land. But as internal law it would not be superior to R.A. No. 6734, an enactment of the Congress of the Philippines, rather it would be in the same class as the latter [SALONGA, PUBLIC INTERNATIONAL LAW 320 (4th ed., 1974), citing Head Money Cases, 112 U.S. 580 (1884) and Foster v. Nelson, 2 Pet. 253 (1829)]. Thus, if at all, R.A. No. 6734 would be amendatory of the Tripoli Agreement, being a subsequent law. Only a determination by this Court that R.A. No. 6734 contravened the Constitution would result in the granting of the reliefs sought. 3

2. The Court shall therefore only pass upon the constitutional questions which have been raised by petitioners.

Petitioner Abbas argues that R.A. No. 6734 unconditionally creates an autonomous region in Mindanao, contrary to the aforequoted provisions of the Constitution on the autonomous region which make the creation of such region dependent upon the outcome of the plebiscite.

In support of his argument, petitioner cites Article II, section 1(1) of R.A. No. 6734 which declares that "[t]here is hereby created the Autonomous Region in Muslim Mindanao, to be composed of provinces and cities voting favorably in the plebiscite called for the purpose, in accordance with Section 18, Article X of the Constitution." Petitioner contends that the tenor of the above provision makes the creation of an autonomous region absolute, such that even if only two provinces vote in favor of autonomy, an autonomous region would still be created composed of the two provinces where the favorable votes were obtained.

The matter of the creation of the autonomous region and its composition needs to be clarified.

Firs, the questioned provision itself in R.A. No. 6734 refers to Section 18, Article X of the Constitution which sets forth the conditions necessary for the creation of the autonomous region. The reference to the constitutional provision cannot be glossed over for it clearly indicates that the creation of the autonomous region shall take place only in accord with the constitutional requirements. Second, there is a specific provision in the Transitory Provisions (Article XIX) of the Organic Act, which incorporates substantially the same requirements embodied in the Constitution and fills in the details, thus:

SEC. 13. The creation of the Autonomous Region in Muslim Mindanao shall take effect when approved by a majority of the votes cast by the constituent units provided in paragraph (2) of Sec. 1 of Article II of this Act in a plebiscite which shall be held not earlier than ninety (90) days or later than one hundred twenty (120) days after the approval of this Act: Provided, That only the provinces and cities voting favorably in such plebiscite shall be included in the Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain the existing administrative determination, merge the existing regions.

Thus, under the Constitution and R.A. No 6734, the creation of the autonomous region shall take effect only when approved by a majority of the votes cast by the constituent units in a plebiscite, and only those provinces and cities where a majority vote in favor of the Organic Act shall be included in the autonomous region. The provinces and cities wherein such a majority is not attained shall not be included in the autonomous region. It may be that even if an autonomous region is created, not all of the thirteen (13) provinces and nine (9) cities mentioned in Article II, section 1 (2) of R.A. No. 6734 shall be included therein. The single plebiscite contemplated by the Constitution and R.A. No. 6734 will therefore be determinative of (1) whether there shall be an autonomous region in Muslim Mindanao and (2) which provinces and cities, among those enumerated in R.A. No. 6734, shall compromise it. [See III RECORD OF THE CONSTITUTIONAL COMMISSION 482-492 (1986)].

As provided in the Constitution, the creation of the Autonomous region in Muslim Mindanao is made effective upon the approval "by majority of the votes cast by the constituent units in a plebiscite called for the purpose" [Art. X, sec. 18]. The question has been raised as to what this majority means. Does it refer to a majority of the total votes cast in the plebiscite in all the constituent units, or a majority in each of the constituent units, or both?

We need not go beyond the Constitution to resolve this question.

If the framers of the Constitution intended to require approval by a majority of all the votes cast in the plebiscite they would have so indicated. Thus, in Article XVIII, section 27, it is provided that "[t]his Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose ... Comparing this with the provision on the creation of the autonomous region, which reads:

The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. [Art. X, sec, 18, para, 2].

it will readily be seen that the creation of the autonomous region is made to depend, not on the total majority vote in the plebiscite, but on the will of the majority in each of the constituent units and the proviso underscores this. for if the intention of the framers of the Constitution was to get the majority of the totality of the votes cast, they could have simply adopted the same phraseology as that used for the ratification of the Constitution, i.e. "the creation of the autonomous region shall be effective when approved by a majority of the votes cast in a plebiscite called for the purpose."

It is thus clear that what is required by the Constitution is a simple majority of votes approving the organic Act in individual constituent units and not a double majority of the votes in all constituent units put together, as well as in the individual constituent units.

More importantly, because of its categorical language, this is also the sense in which the vote requirement in the plebiscite provided under Article X, section 18 must have been understood by the people when they ratified the Constitution.

Invoking the earlier cited constitutional provisions, petitioner Mama-o, on the other hand, maintains that only those areas which, to his view, share common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics should be properly included within the coverage of the autonomous region. He insists that R.A. No. 6734 is unconstitutional because only the provinces of Basilan, Sulu, Tawi-Tawi, Lanao del Sur, Lanao del Norte and Maguindanao and the cities of Marawi and Cotabato, and not all of the thirteen (13) provinces and nine (9) cities included in the Organic Act, possess such concurrence in historical and cultural heritage and other relevant characteristics. By including areas which do not strictly share the same characteristics. By including areas which do not strictly share the same

characteristic as the others, petitioner claims that Congress has expanded the scope of the autonomous region which the constitution itself has prescribed to be limited.

Petitioner's argument is not tenable. The Constitution lays down the standards by which Congress shall determine which areas should constitute the autonomous region. Guided by these constitutional criteria, the ascertainment by Congress of the areas that share common attributes is within the exclusive realm of the legislature's discretion. Any review of this ascertainment would have to go into the wisdom of the law. This the Court cannot do without doing violence to the separation of governmental powers. [Angara v. Electoral Commission, 63 Phil 139 (1936); Morfe v. Mutuc, G.R. No. L-20387, January 31, 1968, 22 SCRA 424].

After assailing the inclusion of non-Muslim areas in the Organic Act for lack of basis, petitioner Mama-o would then adopt the extreme view that other non-Muslim areas in Mindanao should likewise be covered. He argues that since the Organic Act covers several non-Muslim areas, its scope should be further broadened to include the rest of the non-Muslim areas in Mindanao in order for the other non-Muslim areas denies said areas equal protection of the law, and therefore is violative of the Constitution.

Petitioner's contention runs counter to the very same constitutional provision he had earlier invoked. Any determination by Congress of what areas in Mindanao should compromise the autonomous region, taking into account shared historical and cultural heritage, economic and social structures, and other relevant characteristics, would necessarily carry with it the exclusion of other areas. As earlier stated, such determination by Congress of which areas should be covered by the organic act for the autonomous region constitutes a recognized legislative prerogative, whose wisdom may not be inquired into by this Court.

Moreover, equal protection permits of reasonable classification [People v. Vera, 65 Phil. 56 (1963); Laurel v. Misa, 76 Phil. 372 (1946); J.M. Tuason and Co. v. Land tenure Administration, G.R. No. L-21064, February 18, 1970, 31 SCRA 413]. In Dumlao v. Commission on Elections G.R. No. 52245, January 22, 1980, 95 SCRA 392], the Court ruled that once class may be treated differently from another where the groupings are based on reasonable and real distinctions. The guarantee of equal protection is thus not infringed in this case, the classification having been made by Congress on the basis of substantial distinctions as set forth by the Constitution itself.

Both petitions also question the validity of R.A. No. 6734 on the ground that it violates the constitutional guarantee on free exercise of religion [Art. III, sec. 5]. The objection centers on a provision in the Organic Act which mandates that should there be any conflict between the Muslim Code [P.D. No. 1083] and the Tribal Code (still be enacted) on the one had, and the national law on the other hand, the Shari'ah courts created under the same Act should apply national law. Petitioners maintain that the islamic law (Shari'ah) is derived from the Koran, which makes it part of divine law. Thus it may not be subjected to any "man-made" national law. Petitioner Abbas supports this objection by enumerating possible instances of conflict between provisions of the Muslim Code and national law, wherein an application of national law might be offensive to a Muslim's religious convictions.

As enshrined in the Constitution, judicial power includes the duty to settle actual controversies involving rights which are legally demandable and enforceable. [Art. VIII, Sec. 11. As a condition precedent for the power to be exercised, an actual controversy between litigants must first exist [Angara v. Electoral Commission, supra; Tan v. Macapagal, G.R. No. L-34161, February 29, 1972, 43 SCRA 677]. In the present case, no actual controversy between real litigants exists. There are no conflicting claims involving the application of national law resulting in an alleged violation of religious freedom. This being so, the Court in this case may not be called upon to resolve what is merely a perceived potential conflict between the provisions the Muslim Code and national law.

Petitioners also impugn the constitutionality of Article XIX, section 13 of R.A. No. 6734 which, among others, states:

. . . Provided, That only the provinces and cities voting favorably in such plebiscite shall be included in the Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain in the existing administrative regions: Provided, however, that the President may, by administrative determination, merge the existing regions.

According to petitioners, said provision grants the President the power to merge regions, a power which is not conferred by the Constitution upon the President. That the President may choose to merge existing regions pursuant to the Organic Act is challenged as being in conflict with Article X, Section 10 of the Constitution which provides:

No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

It must be pointed out that what is referred to in R.A. No. 6734 is the merger of administrative regions, i.e. Regions I to XII and the National Capital Region, which are mere groupings of contiguous provinces for administrative purposes [Integrated Reorganization Plan (1972), which was made as part of the law of the land by Pres. dec. No. 1, Pres. Dec. No. 742]. Administrative regions are not territorial and political subdivisions like provinces, cities, municipalities and barangays [see Art. X, sec. 1 of the Constitution]. While the power to merge administrative regions is not expressly provided for in the Constitution, it is a power which has traditionally been lodged with the President to facilitate the exercise of the power of general supervision over local governments [see Art. X, sec. 4 of the Constitution]. There is no conflict between the power of the President to merge administrative regions with the constitutional provision requiring a plebiscite in the merger of local government units because the requirement of a plebiscite in a merger expressly applies only to provinces, cities, municipalities or barangays, not to administrative regions.

Petitioners likewise question the validity of provisions in the Organic Act which create an Oversight Committee to supervise the transfer to the autonomous region of the powers, appropriations, and properties vested upon the regional government by the organic Act [Art. XIX, Secs. 3 and 4]. Said provisions mandate that the transfer of certain national government offices and their properties to the regional government shall be made pursuant to a schedule prescribed by the Oversight Committee, and that such transfer should be accomplished within six (6) years from the organization of the regional government.

It is asserted by petitioners that such provisions are unconstitutional because while the Constitution states that the creation of the autonomous region shall take effect upon approval in a plebiscite, the requirement of organizing an Oversight committee tasked with supervising the transfer of powers and properties to the regional government would in effect delay the creation of the autonomous region.

Under the Constitution, the creation of the autonomous region hinges only on the result of the plebiscite. if the Organic Act is approved by majority of the votes cast by constituent units in the scheduled plebiscite, the creation of the autonomous region immediately takes effect delay the creation of the autonomous region.

Under the constitution, the creation of the autonomous region hinges only on the result of the plebiscite. if the Organic Act is approved by majority of the votes cast by constituent units in the scheduled plebiscite, the creation of the autonomous region immediately takes effect. The questioned provisions in R.A. No. 6734 requiring an oversight Committee to supervise the transfer do not provide for a different date of effectivity. Much less would the organization of the Oversight Committee cause an impediment to the operation of the Organic Act, for such is evidently aimed at effecting a smooth transition period for the regional government. The constitutional objection on this point thus cannot be sustained as there is no bases therefor.

Every law has in its favor the presumption of constitutionality [Yu Cong Eng v. Trinidad, 47 Phil. 387 (1925); Salas v. Jarencio, G.R. No. L-29788, August 30, 1979, 46 SCRA 734; Morfe v. Mutuc, supra; Peralta v. COMELEC, G.R. No. L-47771, March 11, 1978, 82 SCRA 30]. Those who petition this Court to declare a law, or parts thereof, unconstitutional must clearly establish the basis for such a declaration. otherwise, their petition must fail. Based on the grounds raised by petitioners to challenge the constitutionality of R.A. No. 6734, the Court finds that petitioners have failed to overcome the presumption. The dismissal of these two petitions is, therefore, inevitable.

WHEREFORE, the petitions are DISMISSED for lack of merit.

SO ORDERED.

Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Melencio-Herrera, J., is on leave.

Footnotes

1 Art. II, Sec 1(2) of R.A. No. 6734 provides that "[t]he plebiscite shall be conducted in the provinces of Basilan, Cotabato, Davao del Sur, Lanao del Norte, Lanao del Sur, Maguindanao, Palawan, South Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte, and Zamboanga del Sur, and the cities of Cotabato, Dapitan, Dipolog, General Santos, Iligan, Marawi, Pagadian, Puerto Princesa, and Zamboanga."

2 The provinces enumerated in the Tripoli Agreement are the same ones mentioned in R.A. No. 6734.

3 With regard to the controversy regarding the alleged inconsistencies between R.A. No. 6734 and the Tripoli Agreement, it may be enlightening to quote from the statement of Senator Aquilino Pimentel, Jr., the principal sponsor of R.A. No. 6734:

xxx xxx xxx

The assertion that the organic Act is a "betrayal" of the Tripoli Agreement is actually misplaced, to say the least. Misplaced because it overlooks the fact that the Organic Act incorporates, at least, 99 percent of the provisions of the Tripoli Agreement. Misplaced, again, because it gratuitously assumes that the Tripoli Agreement can bring more benefits to the people of Mulim Mindanao than the Organic Act.

The truth of the matter is that the Organic Act addresses the basis demands of the Muslim, tribal and Christian populations of the proposed area of autonomy in a far more reasonable, realistic and immediate manner than the Tripoli Agreement ever sought to do.

The Organic Act is, therefore, a boon to, not a betrayal, of the interest of the people of Muslim Mindanao.

xxx xxx xxx

[Consolidated Comment, p. 26].

The Lawphil Project - Arellano Law Foundation

ABELLA vs. COMELEC

Facts: Initially, Silvestre dela Cruz (Benjamin Abella was allowed to intervene) filed a petition with the COMELEC to disqualify petitioner Larrazabal from running as governor of Leyte on the ground that she misrepresented her residence in her certificate of candidacy as Kananga, Leyte. It was alleged that she was in fact a resident of Ormoc City like her husband who was earlier disqualified from running for the same office.The COMELEC granted the petition. However, when the Commission granted the decision, Larrazabal was already proclaimed the Governor, hence, when she was disqualified, Abella, who gathered the second highest votes in the said area, sought to take his oath as governor of Kananga, Leyte.The petitioner, however, avers that the COMELEC decision is erroneous when it relied on the provisions of the Family Code to rule that the petitioner lacks the required residence to qualify her to run for the position of governor of Leyte. She opines that under "the Election Law, the matter of determination of the RESIDENCE is more on the principle of INTENTION, the animus revertendi rather than anything else." In this regard she states that ... "her subsequent physical transfer of residence to Ormoc City thereafter, did not necessarily erased (sic) or removed her Kananga residence, for as long as she had the ANIMUS REVERTENDI evidenced by her continuous and regular acts of returning there in the course of the years, although she had physically resided at Ormoc City."

Issue: Whether or not the candidate who got the second highest vote may be proclaimed as governor when the candidate for such position was disqualified.

Held: The Supreme Court held that while it is true that SPC No. 88-546 was originally a petition to deny due course to the certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed, the fact remains that the local elections of February 1, 1988 in the province of Leyte proceeded with Larrazabal considered as a bona fide candidate. The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes were counted and she obtained the highest number of votes. The net effect is that the petitioner lost in the election. He was repudiated by the electorate.

As regards the principle of ANIMUS REVERTENDI [Faypon v. Quirino:[M]ere absence from one's residence or origin-domicile-to pursue studies, engage in business, or practice his avocation, is not sufficient to constitute abandonment or loss of such residence.' ... The determination of a persons legal residence or domicile largely depends upon intention which may be inferred from his acts, activities and utterances. The party who claims that a person has abandoned or left his residence or origin must show and prove pre-ponderantly such abandonment or loss.] In the instant case, there is no evidence to prove that the petitioner temporarily left her residence in Kananga, Leyte in 1975 to pursue any calling, profession or business. What is clear is that she established her residence in Ormoc City with her husband and considers herself a resident therein. The intention of animus revertendi not to abandon her residence in Kananga, Leyte therefor, is nor present. The fact that she occasionally visits Kananga, Leyte through the years does not signify an intention to continue her

residence therein. It is common among us Filipinos to often visit places where we formerly resided specially so when we have left friends and relatives although for intents and purposes we have already transferred our residence to other places.

Whether or not the petitioner is a registered voter of Kananga, Leyte [the petitioner insists that she is such a registered voter based on the following antecedents: 1 She cancelled her registration in Ormoc City on Nov 25, 1987, and 2 she then transferred her registration to Kananga, Leyte on November 25, 1987 by registering thereat and 3) she later voted on election day (Feb 1, 1988) in Kananga, Leyte. ]

We find the version pressed by respondent unworthy of belief. The story is marked by so many bizarre cirumtances not consistent with the ordinary course of events or the natural behavior of persons. Among these are: (1) The application for cancellation of registration by respondent Adelina Y. Larrazabal happened to be misplaced by a clerk in the Election Registrar's Office for Ormoc City so it was not sent to the Board of Election Inspectors in a sealed envelope; (2) The 'inadverterment' (sic) misplacement was discovered only on January 9,1988; (3) The voter's affidavit was delivered by itself without any endorsement or covering letter from the Election Registrar or anybody else; (4) The election clerk delivered the application for cancellation only towards the last hour of the revision day, allegedly at 4:30 P.M., January 9, 1988; (5) All the members of the BEI had already signed the Minutes indicating that no revision of the voter's list was made as of 5:00 PM (6) The poll clerk and the third member prepared another minutes stating that the election clerk had delivered the application for cancellation at 4:30 P.M. without any reference to the minutes they had previously signed; (7) Emeterio Larrazabal, who was supposed to have registered in Precinct 17, Mahawan, Kananga, was supposed to have filled up an application for cancellation of his registration in Precinct No. 15, Ormoc City at Precinct 17 concurrent with his registration. His application for cancellation was never submitted in evidence. (8) The serial number of the voter's affidavits of the spouses Larrazabal in Precinct No. 17 are far removed from the serial numbers of the other new registrants in November 28, 1987 in the same precinct.

The most telling evidence is the list of voters, that the Chairman and the poll clerk had written in Part II of the same, closed by the signatures of both officials showing that there were only 9 additional registered voters in Precinct 17, petitioner was not there. It was only on February 15, 1988, or two weeks after the election day that the same Registrar certified for the first time that there were two voters lists, the first without the names of the Larrazabals and the second, which appeared only after February 1, submitted by the Chairman of the Board for Precinct 17 which contained the spouses Larrazabals' names.

Failing in her contention that she is a resident and registered voter of Kananga, Leyte, the petitioner poses an alternative position that her being a registered voter in Ormoc City was no impediment to her candidacy for the position of governor of the province of Leyte. Section 12, Article X of the Constitution provides:

Relating therefore, section 89 of R.A. 179 to section 12, Article X of the Constitution one comes up with the following conclusion: that Ormoc City when organized was not yet a highly-urbanned city but is, nevertheless, considered independent of the province of Leyte to which it is geographically attached because its charter prohibits its voters from voting for the provincial elective officials. The question now is whether or not the prohibition against the 'city's registered voters' electing the provincial officials necessarily mean, a prohibition of the registered voters to be elected as provincial officials. The argument is untenable.

Section 12, Article X of the Constitution is explicit in that aside from highly-urbanized cities, component cities whose charters prohibit their voters from voting for provincial elective officials are independent of the province. In the same provision, it provides for other component cities within a province whose charters do not provide a similar prohibition. Necessarily, component cities like Ormoc City whose charters prohibit their voters from voting for provincial elective officials are treated like highly urbanized cities which are outside the supervisory power of the province to which they are geographically attached. This independence from the province carries with it the prohibition or mandate directed to their registered voters not to vote and be voted for the provincial elective offices. The resolution in G.R. No. 80716 entitled Peralta v. The Commission on Elections, et al. dated December 10, 1987 applies to this case. While the cited case involves Olongapo City which is classified as a highly urbanized city, the same principle is applicable. Moreover, Section 89 of Republic Act 179, independent of the constitutional provision, prohibits registered voters of Ormoc City from voting and being voted for elective offices in the province of Leyte. We agree with the COMELEC en banc that "the phrase 'shall not be qualified and entitled to vote in the election of the provincial governor and the members of the provincial board of the Province of Leyte' connotes two prohibitions one, from running for and the second, from voting for any provincial elective official."

The petitioner takes exception to this interpretation. She opines that such interpretation is "wrong English" since nowhere in the provision is there any reference to a prohibition against running for provincial elective office. She states that if the prohibition to run was indeed intended, the provision should have been phrased "Shall not be qualified TO RUN in the election FOR provincial governor." A comma should have been used after the word qualified and after the word "vote" to clearly indicate that the phrase "in the election of the provincial governor" is modified separately and distinctly by the words "not qualified" and the words "not entitled to vote."

The Court finds the petitioner's interpretation fallacious.

In the case of Mapa v. Arroyo, the conjunction and between the phrase shall not be qualified and entitled to vote refer to two prohibitions as ruled by the COMELEC in relation to the demonstrative phrase "in the election of the provincial governor and the members of the provincial board of the Province of Leyte."

Finally, the petitioner contends that the February 14, 1991 decision of the COMELEC's second division is null and void on the ground that on that date, the term of Commissioner Andres Flores, one of the signatories of the majority opinion (vote was 2-1) had already expired on February 2, 1991. Commissioner Flores was appointed for a three-year term from February 15, 1988 to February 15, 1991. In these three years he exercised his duties and functions as Commissioner. Granting in the absence of a statute expressly stating when the terms of the COMELEC Chairman and members commence and expire, that his term expired on February 2, 1991 to enable a faithful compliance with the constitutional provision that the terms of office in the COMELEC are on a staggered basis commencing and ending at fixed intervals, his continuance in office until February 15, 1991 has a color of validity. Therefore, all his official acts from February 3, 1991 to February 15, 1991, are considered valid.

Issue: WON Abella can assume position of governor by virtue of Section 6 RA 6646

Held:

Ratio: Abella claims that the Frivaldo and Labo cases were misapplied by the COMELEC. According to him these cases are fundamentally different from SPC No. 88-546 in that the Frivaldo and Labo cases were petitions for a quo warranto filed under section 253 of the Omnibus Code, contesting the eligibility of the respondents after they had been proclaimed duly elected to the Office from which they were sought to be unseated while SPC No. 88-546 which was filed before proclamation under section 78 of the Omnibus Election Code sought to deny due course to Larrazabal's certificate of candidacy for material misrepresentations and was seasonably filed on election day. He, therefore, avers that since under section 6 of Republic Act 6646 it is provided therein that: Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes case for him shall not be counted.

the votes cast in favor of Larrazabal who obtained the highest number of votes are not considered counted making her a non-candidate, he, who obtained the second highest number of votes should be installed as regular Governor of Leyte in accordance with the Court's ruling in G.R. No. 88004.

While it is true that SPC No. 88-546 was originally a petition to deny due course to the certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed the fact remains that the local elections of February 1, 1988 in the province of Leyte proceeded with Larrazabal considered as a bona-fide candidate. The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes were counted and she obtained the highest number of votes. The net effect is that the petitioner lost in the election. He was repudiated by the electorate. In the Frivaldo and Labo cases, this is precisely the reason why the candidates who obtained the second highest number of votes were not allowed to assume the positions vacated by Frivaldo the governorship of Sorsogon, and Labo, the position of mayor in Baguio City. The nature of the proceedings therefore, is not that compelling. What matters is that in the event a candidate for an elected position who is voted for and who obtains the highest number of votes is disqualified for not possessing the eligibility requirements at the time of the election as provided by law, the candidate who obtains the second highest number of votes for the same position can not assume the vacated position. It should be stressed that in G.R. No. 88004, the Court set aside the dismissal of SPC No. 88-546, and directed the COMELEC to conduct hearings to determine whether or not Larrazabal was qualified to be a candidate for the position of governor in the province of Leyte. This is the import of the decision in G.R. No. 88004. Thus, the Court ruled in the case of Labo, Jr. v. Commission on Elections: Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City. The latest ruling of the Court on this issue is Santos v. Commission on Elections, decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were all disregard as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then, with three dissenting and another two reserving their vote. One was on official leave.... it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. The fact that the candidate who obtained the highest number of votes 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. The votes cast for a dead, disqualified, or non-eligible person may not be valid the vote the winner into office or maintain him there. However the absence of a statute which clearly asserts a contrary politics and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless.

In sum, the Court does not find any reason to reverse and set aside the questioned decision and resolution of the COMELEC. The COMELEC has not acted without or in excess of jurisdiction or in grave abuse of discretion.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 100710 September 3, 1991

BENJAMIN P. ABELLA, petitioner, vs.COMMISSION ON ELECTIONS and ADELINA Y. LARRAZABAL, respondents.

G.R. No. 100739 September 3, 1991

ADELINA Y. LARRAZABAL, petitioner, vs.COMMSSION ON ELECTIONS and SILVESTRE DE LA CRUZ, respondents.

Sixto S. Brillantes, Jr. for petitioner in 100739.

Cesar A. Sevilla for petitioner in 100710.

Panganiban, Benitez, Baninaga & Bautista for private respondent S. de la Cruz.

GUTIERREZ, JR., J.:p

The main issue in these consolidated petitions centers on who is the rightful governor of the province of Leyte 1) petitioner Adelina Larrazabal (G.R. No. 100739) who obtained the highest number of votes in the local elections of February 1, 1988 and was proclaimed as the duly elected governor but who was later declared by the Commission on Elections (COMELEC) "... to lack both residence and registration qualifications for the position of Governor of Leyte as provided by Art. X, Section 12, Philippine Constitution in relation to Title II, Chapter I, Sec. 42, B.P. Blg. 137 and Sec. 89, R.A. No. 179 and is hereby disqualified as such Governor"; 2) petitioner Benjamin Abella (G.R. No. 100710), who obtained the second highest number of votes for the position of governor but was not allowed by the COMELEC to be proclaimed as governor after the disqualification of Larrazabal; or 3) Leopoldo E. Petilla, the vice-governor of the province of. Leyte.

This is the fourth time that the controversy relating to the local elections in February 1, 1988 for governor of the province of Leyte is elevated to this Court. The antecedent facts of these cases are stated in the earlier consolidated cases of BENJAMIN P. ABELLA and SILVESTRE T. DE LA CRUZ, petitioners, v. ADELINA INDAY LARRAZABAL, PROVINCIAL BOARD OF CANVASSERS OF LEYTE and COMMISSION ON ELECTIONS, respondents (G.R. Nos. 87721-30) and BENJAMN P. ABELLA and SILVESTRE T. DE LA CRUZ, petitioners v. ADELINA LARRAZABAL and COMMISSION ON ELECTIONS, respondents (G. R. No. 88004) 180 SCRA 509 [1989]), to wit:

The Court has ordered the consolidation of G.R. Nos 87721-30 and G.R. No. 88004 involving the same parties and the same election in 1988 for the office of provincial governor of Leyte. Challenged in the petitions for certiorari are the resolutions of the respondent Commission on Elections dismissing the pre-proclamation and disqualification cases filed by the herein petitioners against private respondent Adelina Larrazabal.

Petitioner Benjamin P. Abella was the official candidate of the Liberal Party for provincial governor of Leyte in the local election held on February 1, 1988. The private respondent is the wife of Emeterio V. Larrazabal, the original candidate of the Lakas ng Bansa-PDP-Laban who was disqualified by the Commission on Elections on January 18, 1988, for lack of residence. (G.R. No. 88004, Rollo, pp. 102-104) (He filed a petition for certiorari to challenge this resolution. He, however, filed an urgent ex-parte motion to withdraw petition which was granted in a resolution dated January 21, 1988 and the case was dismissed. [G.R. No. 81313]) On January 31, 1988, the day before the election, she filed her own

certificate of candidacy in substitution of her husband. (Ibid., p. 48) The following day, at about 9:30 o'clock in the morning, Silvestre de la Cruz, a registered voter of Tacloban City, filed a petition with the provincial election supervisor of Leyte to disqualify her for alleged false statements in her certificate of candidacy regarding her residence. (Id., pp. 113-118) This was immediately transmitted to the main office of the Commission on Elections, which could not function, however, because all but one of its members had not yet been confirmed by the Commission on Appointments. De la Cruz then came to this Court, which issued a temporary restraining order on February 4, 1988, enjoining the provincial board of canvassers of Leyte 'from proclaiming Adelina Larrazabal as the winning candidate for the Office of the Governor in the province of Leyte, in the event that she obtains the winning margin of votes in the canvass of election returns of said province.' (Id., p. 179) On March 1, 1988, the Commission on Elections having been fully constituted, we remanded the petition thereto for appropriate action, including maintenance or lifting of the Court's temporary restraining order of February 4, 1988. (Id. pp. 182-184)

In the meantime, petitioner Abella, after raising various verbal objections (later duly reduced to writing) during the canvass of the election returns, seasonably elevated them to the Commission on Elections in ten separate appeals docketed as SPC Nos. 88-627 to 88627-I. Pending resolution of these cases, Abella intervened on March 7, 1988 in the disqualification case, docketed as SPC No. 88-546, and the following day filed a complaint, with the Law Department of the COMELEC charging the private respondent with falsification and misrepresentation of her residence in her certificate of candidacy. On March 22, 1988, the public respondent consolidated the pre-proclamation and disqualification cases with the Second Division.

On February 3, 1989, this Division unanimously upheld virtually all the challenged rulings of the provincial board of canvassers, mostly on the ground that the objection raised were merely formal and did not affect the validity of the returns or the ballots, and ordered the proclamation of the winner after completion of the canvass. (G.R. Nos. 87721-30, Rollo, pp. 18-50) On that same date, the disqualification case was also dismissed by a 2-1 decision, and the matter was referred to the Law Department for 'preliminary investigation for possible violation of Section 74 of the Omnibus Election Code. ' (G.R. Nos. 88004, Rollo, pp. 26-40)

The motion for reconsideration of the resolution on the pre-proclamation cases was denied by the COMELEC en banc on April 13, 1989, with no dissenting vote. (G.R. Nos. 87721-30, Rollo, pp. 51-56) These cases are the subject of G.R. Nos. 87721-30, where we issued on April 18, 1989, another temporary restraining order to the provincial board of canvassers of Leyte to CEASE and DESIST from resuming the canvass of the contested returns and/or from proclaiming private respondent Adelina Larrazabal Governor of Leyte.

The motion for reconsideration of the resolution on the qualification case was also denied by the COMELEC en banc on May 4, 1989, but with three commissioners dissenting. (G.R. No. 88004, Rollo, pp 47-61; penned by Commissioner Abueg, Jr., with Commissioners Africa Rama, and Yorac, dissenting) The dismissal of this case is the subject of G.R. No. 88004. (at pp. 511-513)

Disposing of the consolidated petitions, this Court rendered judgment as follows:

1. In G.R.Nos. 87721-30, the decision dated February 3, 1989, the resolution dated April 13, 1989, are affirmed and the petition is DISMISSED.

2. In G.R. No. 88004, the decision dated February 3,1989, and the resolution dated May 4, 1989, are REVERSED and SET ASIDE. Respondent Commission on Elections is ORDERED to directly hear and decide SPC Case No. 88-546 under Section 78 of the Omnibus Election Code, with authority to maintain or lift our temporary restraining order of April 18, 1989, according to its own assessment of the evidence against the private respondent.

The parties are enjoined to resolve this case with all possible speed, to the end that the Governor of Leyte may be ascertained and installed without further delay. (p. 520)

In view of these rulings, the COMELEC, upon motion of Larrazabal, lifted its temporary restraining order against her proclamation paving Larrazabal's proclamation and her assumption to the Office of Governor of Leyte while the hearings in the disqualification case (SPC No. 88-546) continued.

On February 14, 1991, the second division in a 2-1 vote rendered a decision disqualifying Larrazabal as governor.

On July 18, 1991, the Commission en banc issued a resolution which denied Larrazabal's motion to declare decision void and/or motion for reconsideration and affirmed the second division's decision. In the same resolution, the Commission disallowed Abella's proclamation as governor of Leyte.

Hence, these petitions.

We treat the various Comments as Answers and decide the petitions on their merits.

Acting on a most urgent petition (motion) for the issuance of a restraining order filed by petitioner Larrazabal, this Court issued a temporary restraining order on August 1, 1991.

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... [E]ffective immediately and continuing until further orders from this Court, ordering the respondent on on Elections to CEASE and DESIST from enforcing, implementing and executing the decision and resolution, respectively dated February 14, 1991 and July 18, 1991.

It appearing that despite the filing of this petition before this Court and during its pendency, the incumbent Vice-Governor of Leyte Hon. Leopoldo E. Petilla, took his oath as Provincial Governor of Leyte and assumed the governorship as contained in his telegraphic message, pursuant to COMELEC resolution SPC No. 88-546, promulgated on July 18, 1991, the Court further Resolved to ORDER Hon. Leopoldo E. Petilla to MAINTAIN the status quo ante then prevailing and/or existing before the filing of this petition and to DESIST from assuming the office of the Governor and from discharging the duties and functions thereof. (Rollo-100739, p. 204)

In G.R. No. 100739, petitioner Larrazabal professes that the COMELEC completely disregarded our pronouncement in G.R. No. 88004 in that instead of acting on SPC Case No. 88-546 under section 78 of the Election Code, the COMELEC proceeded with a disqualification case not contemplated in G.R. No. 88004.

The argument is not meritorious.

The questioned decision and resolution of the COMELEC conform with this Court's decision in G.R. No. 88004.

Initially, herein respondent Silvestre T. de la Cruz (Benjamin P. Abella, petitioner in G.R. No. 100710 was allowed to intervene in the case) filed a petition with the COMELEC to disqualify petitioner Larrazabal from running as governor of Leyte on the ground that she misrepresented her residence in her certificate of candidacy as Kananga, Leyte. It was alleged that she was in fact a resident of Ormoc City like her husband who was earlier disqualified from running for the same office. The COMELEC dismissed the petition and referred the case to its Law Department for proper action on the ground that the petition was a violation of Section 74 of the Election Code and, pursuant to it rules, should be prosecuted as an election offense under Section 262 of the Code.

This Court reversed and set aside the COMELEC's ruling, to wit:

The Court holds that the dismissal was improper. The issue of residence having been squarely raised before it, it should not have been shunted aside to the Law Department for a roundabout investigation of the private respondent's qualification through the filing of a criminal prosecution, if found to be warranted, with resultant disqualification of the accused in case of conviction. The COMELEC should have opted for a more direct and speedy process available under the law, considering the vital public interest involved and the necessity of resolving the question of the earliest possible time for the benefit of the inhabitants of Leyte.

In the view of the Court, the pertinent provision is Section 78 in relation to Section 6 of R.A. No. 6646.

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.

Section 6 of R.A. 6646 states as follows:

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 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. ...

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The above-stressed circumstances should explain the necessity for continuing the investigation of the private respondent's challenged disqualification even after the election notwithstanding that such matter is usually resolved before the election. Independently of these circumstances, such proceedings are allowed by Section 6 of RA. 6646 if for any reason a candidate is not declared by final judgment before an election to be disqualified ...

In fine, the Court directed the COMELEC to determine the residence qualification of petitioner Larrazabal in SPC Case No. 88-546. Concomitant with this directive would be the disqualification of petitioner Larrazabal in the event that substantial evidence is adduced that she really lacks the residence provided by law to qualify her to run for the position of governor in Leyte.

In line with the Court's directive, the COMELEC conducted hearings in SPC Case No. 88-546 to resolve the qualification of Larrazabal on the basis of two (2) legal issues raised by Silvestre T. de la Cruz namely, Larrazabal's lack of legal residence in the province of Leyte and her not being a registered voter in the province, as required by Title II, Chapter I, Section 42, B.P. Blg. 337, in relation to Article X, Section 12 of the Constitution, to wit:

Sec. 42. Qualification. — (1) An elective local official must be a citizen of the Philippines, at least twenty-three years of age on election day, a qualified voter registered as such in the barangay, municipality, city or province where he proposes to be elected, a resident therein for at least one year at the time of the filing of his certificate of candidacy, and able to read and write English, Pilipino, or any other local language or dialect.

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Sec. 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials.

The position of petitioners De la Cruz and Abena was that respondent Larrazabal is neither a resident nor a registered voter of Kananga, Leyte as she claimed but a resident and registered voter of Ormoc City, a component city of the province of Leyte but independent of the province pursuant to Section 12, Article X of the Constitution thereby disqualifying her for the position of governor of Leyte. They presented testimonial as well as documentary evidence to prove their stance.

On the other hand, respondent Larrazabal maintained that she was a resident and a registered voter of Kananga, Leyte. She, too presented testimonial as well as documentary evidence to prove her stand.

The COMELEC ruled against the respondent, now petitioner Larrazabal.

In its questioned decision and resolution, the COMELEC found that petitioner Larrazabal was neither a resident of Kananga, Leyte nor a registered voter thereat. With these findings, the COMELEC disqualified the petitioner as governor of the province of Leyte.

The petitioner, however, avers that the COMELEC decision is erroneous when it relied on the provisions of the Family Code to rule that the petitioner lacks the required residence to qualify her to run for the position of governor of Leyte. She opines that under "the Election Law, the matter of determination of the RESIDENCE is more on the principle of INTENTION, the animus revertendi rather than anything else."

In this regard she states that ... "her subsequent physical transfer of residence to Ormoc City thereafter, did not necessarily erased (sic) or removed her Kananga residence, for as long as she had the ANIMUS REVERTENDI evidenced by her continuous and regular acts of returning there in the course of the years, although she had physically resided at Ormoc City." (Petition, Rollo, p. 40)

As can be gleaned from the questioned decision, the COMELEC based its finding that the petitioner lacks the required residence on the evidence of record to the effect that despite protestations to the contrary made by the petitioner, she has established her residence at Ormoc City from 1975 to the present and not at Kananga, Leyte. Her attempt to purportedly change her residence one year before the election by registering at Kananga, Leyte to qualify her to ran for the position of governor of the province of Leyte clearly shows that she considers herself already a resident of Ormoc City. In the absence of any evidence to prove otherwise, the reliance on the provisions of the Family Code was proper and in consonance with human experience. The petitioner did not present evidence to show that she and her husband maintain separate residences, she at Kananga, Leyte and her husband at Ormoc City. The second division of the COMELEC in its decision dated February 14, 1991 states:

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But there is the more fundamental issue of residence. The only indications of a change of residence so far as respondent is concerned are: the address indicated in the application for cancellation filed by respondent indicating her postal address as Kananga, Leyte, the annotation in her Voter's affidavit for Precinct No. 15 that her registration was cancelled due to lack of residence; the testimony of Anastacia Dasigan Mangbanag that she entered into a contract of lease with option to buy with the spouses Emeterio and Inday Larrazabal over two parcels of land the witness owned in Mahawan, Kananga, Leyte; that she sees the spouses in the leased house in Kananga, that she was informed by Inday Larrazabal that the spouses had decided to buy their property because she wanted to beautify the house for their residence. She attached as annex the written contract signed by her and the spouses; and the testimony of Adolfo Larrazabal Exh. "10" cousin of the spouses that 'at a family meeting ... the political plan of the Larrazabal clan was discussed, among which were (sic) the problem of Terry's residence in Ormoc City' and that it was decided in said meeting ... that Inday Larrazabal, wife of Terry, will transfer her Ormoc Registration as a voter to Kananga, Leyte (so) she will be able to vote for Terry and also help me in my candidacy; that they have been staying in Kananga, very often as they have properties in Lonoy and a house in Mahawan.

The references to residence in the documents of cancellation and registration are already assessed for their evidentiary value in relation to the documents themselves above. The question must therefore be addressed in relation to the testimony of Anastacia Dasigan Mangbanag and Adolfo V. Larrazabal. The gist of the testimonies is that they leased properties in Mahawan, Leyte and that they are seen in the house on the land leased. But the contract of lease with option to purchase itself indicates as to where the legal residence of the Jarrazabal is. The pertinent portion states:

SPS EMETERIO V. LARRAZABAL AND ADELINA Y. LARRAZABAL, both of legal age, Filipino, and residents of Ormoc City, Philippines, hereinafter referred to as the LESSEES.

The acknowledgment also indicates that Emeterio V. Larrazabal presented his Residence Certificate No. 155774914 issued in Ormoc City.

The testimony of Adolfo Larrazabal reenforces this conclusion. It admits, as of the second or third week of November, that the residence of Emeterio Larrazabal was Ormoc City and that Inday Larrazabal was going to transfer her registration so she may be able to vote for him.

For the purpose of running for public office, the residence requirement should be read as legal residence or domicile, not any place where a party may have properties and may visit from time to time.

The Civil Code is clear that '[F]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence.

Arts. 68 and 69 of the Family Code, E.O. No. 209 also provide as follows:

Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.

Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family.

Husband and wife as a matter of principle live together in one legal residence which is their usual place of abode. (COMELEC decision, pp. 21-23; Rollo – 100710, pp. 67-69; Emphsis supplied)

As regards the principle of ANIMUS REVERTENDI we ruled in the case of Faypon v. Quirino, 96 Phil. 294 [1954]):

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... [M]ere absence from one's residence or origin-domicile-to pursue studies, engage in business, or practice his avocation, is not sufficient to constitute abandonment or loss of such residence.' ... The determination of a persons legal residence or domicile largely depends upon intention which may be inferred from his acts, activities and utterances. The party who claims that a person has abandoned or left his residence or origin must show and prove pre-ponderantly such abandonment or loss.

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... A citizen may leave the place of his birth to look for 'greener pastures' as the saying goes, to improve his life, and that, of course, includes study in other places, practice of his avocation, or engaging in business. When an election is to be held, the citizen who left his birthplace to improve his lot may desire to return to his native town to cast his ballot but for professional or business reasons, or for any other reason, he may not absent himself from the place of his professional or business activities; so there he registers as voter as he has the qualifications to be one and is not willing to give up or lose the opportunity to choose the officials who are to run the government especially in national elections. Despite such registration, the animus revertendi to his home, to his domicile or residence of origin, has not forsaken him. ... (at pp. 297-300)

In the instant case, there is no evidence to prove that the petitioner temporarily left her residence in Kananga, Leyte in 1975 to pursue any calling, profession or business. What is clear is that she established her residence in Ormoc City with her husband and considers herself a resident therein. The intention of animus revertendi not to abandon her residence in Kananga, Leyte therefor, is nor present. The fact that she occasionally visits Kananga, Leyte through the years does not signify an intention to continue her residence therein. It is common among us Filipinos to often visit places where we formerly resided specially so when we have left friends and relatives therein although for intents and purposes we have already transferred our residence to other places.

Anent the issue of whether or not the petitioner is a registered voter of Kananga, Leyte, the petitioner insists that she is such a registered voter based on the following antecedents: 1) She cancelled her registration in Ormoc City on November 25, 1987, and 2) she then transferred her registration to Kananga, Leyte on November 25, 1987 by registering thereat and 3) she later voted on election day (February 1, 1988) in Kananga, Leyte.

Despite the insistence of the petitioner, the evidence shows that her supposed cancellation of registration in Ormoc City and transfer of registration in Kananga, Leyte, is not supported by the records. As the COMELEC stated:

The train of events, which led to respondent's g of her certificate of candidacy on the basis of her registration started on November 25, 1987, when she allegedly filed all application for cancellation of registration Exh. "2-B". Subsequent to this request, her voter's affidavit in Precinct 15, Ormoc City with Serial No. 0918394 J was annotated with the words 'cancelled upon application of the voter due to transfer of residence.' Thereafter, she registered in Precinct No. 17, Mahawan, Kananga, Leyte on November 28,1987 which registration was contained in Voter's Affidavit with Serial No. 0190840-J The cancellation of registration was submitted to the Board of Election Inspectors on January 9, 1988 (Revision Day) on the submission of the sworn application at 4:30 p.m. allegedly by a clerk from the Election Registrar's Office with only the poll clerk and the third member because the Chairman of the Board of Election Inspectors allegedly left earlier and did not come back. Exh. "3-B".

We find the version pressed by respondent unworthy of belief. The story is marked by so many bizarre cirumtances not consistent with the ordinary course of events or the natural behavior of persons. Among these are:

(1) The application for cancellation of registration by respondent Adelina Y. Larrazabal happened to be misplaced by a clerk in the Election Registrar's Office for Ormoc City so it was not sent to the Board of Election Inspectors in a sealed envelope;

(2) The 'inadverterment' (sic) misplacement was discovered only on January 9,1988;

(3) The voter's affidavit was delivered by itself without any endorsement or covering letter from the Election Registrar or anybody else;

(4) The election clerk delivered the application for cancellation only towards the last hour of the revision day, allegedly at 4:30 P.M., January 9, 1988;

(5) All the members of the Board of Election Inspectors had already signed the Minutes indicating that no revision of the voter's list was made as of 5:00 PM

(6) The poll clerk and the third member prepared another minutes stating that the election clerk had delivered the application for cancellation at 4:30 P.M. without any reference to the minutes they had previously signed;

(7) Emeterio Larrazabal, who was supposed to have registered in Precinct 17, Mahawan, Kananga, was supposed to have filled up an application for cancellation of his registration in Precinct No. 15, Ormoc City at Precinct 17 concurrent with his registration. His application for cancellation was never submitted in evidence.

(8) The serial number of the voter's affidavits of the spouses Larrazabal in Precinct No. 17 are far removed from the serial numbers of the other new registrants in November 28, 1987 in the same precinct.

The most telling evidence is the list of voters (Form 2-A), Exh. "G", that the Chairman and the poll clerk had written in Part II of the same, closed by the signatures of both officials showing that there were only nine (9) additional registered voters in Precinct 17, Mahawan, Kananga, Leyte, namely, Bantasan, Merly; Conie; Limosnero Anita; Limosnero W; Pame Virginia; Savenario, Analiza; Verallo, Ofelia; Basan, Juanita; and Acgang Bonifacio. This is consistent with the list of new voters after the November 28, 1987 for Precinct No. 17, Mahawan, Kananga, Leyte submitted by the Election of Kananga to the National Central File of the Commission per certification of the Chief, National Central File Division on January 25, 1988 dated January 25, 1988, Exh. 'C'. The affidavits submitted by the Election Registrar to the Commission could only have come from the Board of Election Inspectors of Precinct No. 17, after the November 28, 1987 registration, for the Election Registrar could not have had the affidavits of these new registrants apart from those supplied by the Precinct itself. Why were not the affidavits of the Larrazabals included? Was this part of the incredibly bizarre series of inadvertence and neglect that spanned Ormoc City and Kananga? This also explains the certification dated January 29, 1988, of the Election Registrar of Kananga that as of that date Mrs. Adelina Larrazabal was not a registered voter in any of the' precincts in Kananga. Exh. "L". It was only on February 15, 1988, or two weeks after the election day that the same Registrar certified for the first time that there were two voters lists, the first without the names of the Larrazabals and the second, which appeared only after February 1, submitted by the Chairman of the Board for Precinct 17 which contained the spouses Larrazabals' names.

It might also be stressed that one set of voter's list Exh. "G" had the signature of both the Chairman, poll clerk and third member of the board, while the one which appeared later which included the names of the Larrazabal had the signature only of the Chairman. Exh. "I".

From the certification of the National Central Files, it appears that the Serial Nos. of the newly registered voters were as follows: 0189821-J 018922-J 0189823-J 0189824-J 0189825-J 0189826-J 0189827-J 0189828-J 0189839-J The alleged registration of Emeterio V. Larrazabal and Adelina Y. Larrazabal are inexplicably effected through voter's affidavits with Serial Nos. 0190893J and 01 90840-J. These serial numbers are traced per record of the Commission to Precinct No. 6, municipality of Kananga, Leyte. Per official Project of precincts on file with the Commission, Precinct No. 6 is a poblacion precinct located in Kananga, Municipal High School Building. How these documents came to be used in Precinct No. 17 in Barangay Mahawan and only by the Larrazabals has never been explained.

It also takes a lot of straining to believe the story about the effort to cancel registration on November 25, 1987, which application surfaced before the Board of Election inspectors for Precinct No. 15, Ormoc City only on January 9, 1988, Revision Day. As pointed out by Petitioner, it is absurd that it would only be on Revision Day, normally set aside for the purpose of receiving inclusion and exclusion orders from the courts, that the application for cancellation would be coincidentally found and delivered to the Board of Election Inspectors for Precinct 15. Furthermore, the entire membership of the Board of Inspectors for said precinct, signed a Minutes, Exh. "3-A" which indicates that no order of inclusion or exclusion was received from any court and that the board proceeded with the numbering of a total 229 voters for the precinct. The Minutes also indicates that the Board adjourned at 5:00 p.m. Exh. "3-B" which was supposedly prepared after Exh. "3-A" signed only by the poll clerk and third member indicates that at 4:30

P.M. an unidentified clerk from the Election Registrar's Office arrived with the application for cancellation of Vilma Manzano and Adelina Larrazabal.

It also appears that on November 28, 1987, the Board of Election Inspectors for Precinct 15, Ormoc City prepared the list of voters for said precinct, Exh. 'N' where the name of Adelina Y. Larrazabal appears as voter No. 96 and Emeterio V. Larrazabal is listed as Voter No. 98. At the back of the list there is a certification that there was no voter which was included by court order and that to voters, one Montero and one Salvame were excluded by virtue of such order. As of January 29, 1988, when the certified true copy of the Voter's List for Precinct 15 was furnished the petitioner, no additional entry was reflected on the list which would show what transpired on January 9, 1988, as alleged by the Election Registrar for Ormoc City and the poll clerk and third member of the board of inspectors that a cancellation was effected. It taxes credulity therefore, to lend belief to Exh. "2-C", when was issued by the City Registrar for Ormoc only on February 1, 1990, which for the first time showed handwritten annotations of cancellation of the registration of Adelina Larrazabal and Vilma Manzano by witnesses Gratol and Patonog. If this evidence did not exist at the time of the entry which purports to have been on January 9, 1988, this evidence could have been used to confront within Carolina Quezon when she testified and identified Exh. "N" on April 14, 1988. In fact if these entries indicating (sic) were made, they would have been evident in Exh. 'W. The failure to confront Quezon with the entries and the late submission of Exh. "2-C" can only lead to two conclusions: these entries did not exist as of January 29, 1988 when the certification of the list of voters was made and that they were annotated in the voter's list after that date. This is consistent with Exh. "P" which was issued on February 11, 1988.

The relative weight of the parties' evidence supports petitioner's thesis that respondent was not a registered voter in Precinct No. 17, Brgy. Mahawan, Kananga, Leyte, and, that she and her husband Emeterio Larrazabal continued to be registered voters in Precinct No. 15, Ormoc City. (Rollo, pp. 62-67; COMELEC decision, pp. 22-27)

The Court is bound by these factual findings as they are supported by substantial evidence:

In Aratuc v. Commission on Elections (88 SCRA 251), speaking of the need to preserve the 'independence and all the needed concomitant powers' of the Commission on Elections, Justice Antonio P. Barredo declared that it is but proper that the Court should accord the greatest measures of presumption of regularity to its course of action ... to the end it may achieve its designed place in the democratic fabric of our government ... (Abella v. Larrazabal, supra)

Failing in her contention that she is a resident and registered voter of Kananga, Leyte, the petitioner poses an alternative position that her being a registered voter in Ormoc City was no impediment to her candidacy for the position of governor of the province of Leyte.

Section 12, Article X of the Constitution provides:

Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials.

Section 89 of Republic Act No. 179 creating the City of Ormoc provides:

Election of provincial governor and members of the Provincial Board of the members of the Provincial Board of the Province of Leyte — The qualified voters of Ormoc City shall not be qualified and entitled to vote in the election of the provincial governor and the members of the provincial board of the Province of Leyte.

Relating therefore, section 89 of R.A. 179 to section 12, Article X of the Constitution one comes up with the following conclusion: that Ormoc City when organized was not yet a highly-urbanned city but is, nevertheless, considered independent of the province of Leyte to which it is geographically attached because its charter prohibits its voters from voting for the provincial elective officials. The question now is whether or not the prohibition against the 'city's registered voters' electing the provincial officials necessarily mean, a prohibition of the registered voters to be elected as provincial officials.

The petitioner citing section 4, Article X of the Constitution, to wit:

Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.

submits that "while a Component City whose charter prohibits its voters from participating in the elections for provincial office, is indeed independent of the province, such independence cannot be equated with a highly urbanized city; rather it is limited to the administrative supervision aspect, and nowhere should it lead to the conclusion that said voters are likewise prohibited from running for the provincial offices." (Petition, p. 29)

The argument is untenable.

Section 12, Article X of the Constitution is explicit in that aside from highly-urbanized cities, component cities whose charters prohibit their voters from voting for provincial elective officials are independent of the province. In the same provision, it provides for other component cities within a province whose charters do not provide a similar prohibition. Necessarily, component cities like Ormoc City whose charters prohibit their voters from voting for provincial elective officials are treated like highly urbanized cities which are outside the supervisory power of the province to which they are geographically attached. This independence from the province carries with it the prohibition or mandate directed to their registered voters not to vote and be voted for the provincial elective offices. The resolution in G.R. No. 80716 entitled Peralta v. The Commission on Elections, et al. dated December 10, 1987 applies to this case. While the cited case involves Olongapo City which is classified as a highly urbanized city, the same principle is applicable.

Moreover, Section 89 of Republic Act 179, independent of the constitutional provision, prohibits registered voters of Ormoc City from voting and being voted for elective offices in the province of Leyte. We agree with the COMELEC en banc that "the phrase 'shall not be qualified and entitled to vote in the election of the provincial governor and the members of the provincial board of the Province of Leyte' connotes two prohibitions — one, from running for and the second, from voting for any provincial elective official." (Resolution En Banc, p. 6)

The petitioner takes exception to this interpretation. She opines that such interpretation is "wrong English" since nowhere in the provision is there any reference to a prohibition against running for provincial elective office. She states that if the prohibition to run was indeed intended, the provision should have been phrased "Shall not be qualified TO RUN in the election FOR provincial governor." A comma should have been used after the word qualified and after the word "vote" to clearly indicate that the phrase "in the election of the provincial governor" is modified separately and distinctly by the words "not qualified" and the words "not entitled to vote." (Petition, p. 19)

The Court finds the petitioner's interpretation fallacious.

In the case of Mapa v. Arroyo (175 SCRA 76 [1989]) this Court interpreted Section 20 of Presidential Decree No. 957 in relation to the conjunction and, to wit:

Time of Completion. — Every owner or developer shall construct and provide the facilities, improvements, infrastructures and other forms of development, including water supply and lighting facilities, which are offered and indicated in the approved subdivision or condominium plans. ...

The Court ruled:

We further reject petitioner's strained and tenuous application of the called doctrine of last antecedent in the interpretation of Section 20 and, correlatively, of Section 21. He would thereby have the enumeration of 'facilities, improvements, infrastructures and other forms of development' interpreted to mean that the demonstrative Phrase 'which are offered and indicated in the approved subdivision plans, etc,' refer only to 'other forms of development' and not to 'facilities, improvements and infrastructures.' While this subserves his purpose, such bifurcation whereby the supposed adjectives phrase is set apart from the antecedent words, is illogical and erroneous. The complete and applicable rule is ad proximum antedecens flat relationisi impediatursentencia (See Black's Law Dictionary, 4th Ed., 57 citing Brown v. Brown, Delta 3 Terry 157, 29 A. 2d 149, 153) Relative words refer to the nearest antecedent, unless it be prevented by the context. In the present case, the employment of the word 'and' between 'facilities, improvements, infrastructures' and 'other forms of development,' far from supporting petitioner's theory, enervates it instead since it is basic in legal hermeneutics that and is not meant to separate words but is a conjunction used to denote a joinder or union. (at pp. 81-83)

Applying these principles to the instant case, the conjunction and between the phrase shall not be qualified and entitled to vote refer to two prohibitions as ruled by the COMELEC in relation to the demonstrative phrase "in the election of the provincial governor and the members of the provincial board of the Province of Leyte."

Finally, the petitioner contends that the February 14, 1991 decision of the COMELEC's second division is null and void on the ground that on that date, the term of Commissioner Andres Flores, one of the signatories of the majority opinion (vote was 2-1) had already expired on February 2, 1991. (Commissioner Flores was nominated by the President on January 30, 1988 and was confirmed by the Commission on Appointments on February 15, 1988. His term of office was fixed by the President for three years from February 15, 1988 to February 15, 1991.)

The petitioner postulates that the President has no power to fix the terms of office of the Commissioners of the COMELEC because the Constitution impliedly fixes such terms of office. With regards to Commissioner Flores, the petitioner professes that Flores' term of three (3) years expired on February 2, 1991 based in section 1(2), Article IX, C, of the Constitution, to wit:

xxx xxx xxx

(2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Any appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. In relation to the Transitory Provision of the 1987 Constitution (Article XVIII) particularly Section 15 thereof, to wit:

xxx xxx xxx

The incumbent Members of the Civil Service Commission, the Commission on Elections, and the Commission on Audit shall continue in office for one year after the ratification of this Constitution, unless they are sooner removed for cause or become incapacitated to discharge The duties of their office or appointed to a new term thereunder. In no case shall any Member serve longer than seven years including service before the ratification of this Constitution.

There is no need to pass upon this constitutional issue raised by the petitioner. The Court ruled in the case of Alger Electric, Inc. v. Court of Appeals (135 SCRA 37 [1985]):

xxx xxx xxx

... This Court does not decide questions of a constitutional nature unless absolutely necessary to a decision of the case. If there exists some other ground based on statute or general law or other grounds of construction, we decide the case on a non-constitutional determination. (See Burton v. United States, 196 U.S. 283; Siler v. Louisville & Nashville R. Co. 213 U.S. 175; Berea College v. Kentucky 211 U.S. 45.) (at p. 45)

Even if we concede that Commissioner Flores' term expired on February 2, 1991, we fail to see how this could validate the holding of an elective office by one who is clearly disqualified from running for that position and the continued exercise of government powers by one without legal authority to do so. The powers of this Court are broad enough to enjoin the violation of constitutional and statutory provisions by public officers especially where, as in this case, we merely affirm the decision of the COMELEC en banc promulgated at a time when Commissioner Flores was no longer a member.

Moreover, under the peculiar circumstances of this case, the decision of the second division of COMELEC would still be valid under the de facto doctrine.

Commissioner Flores was appointed for a three-year term from February 15, 1988 to February 15, 1991. In these three years he exercised his duties and functions as Commissioner. Granting in the absence of a statute expressly stating when the terms of the COMELEC Chairman and members commence and expire, that his term expired on February 2, 1991 to enable a faithful compliance with the constitutional provision that the terms of office in the COMELEC are on a staggered basis commencing and ending at fixed intervals, his continuance in office until February 15, 1991 has a color of validity. Therefore, all his official acts from February 3, 1991 to February 15, 1991, are considered valid. The Court ruled in the case of Leyte Acting Vice-Governor Aurelio D. Menzon v. Leyte Acting Governor Leopoldo E. Perilla, et al. G.R. No. 90762, May 20, 1991:

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 Res Salvatierra. Concededly, the appointment has the color of validity.

Petitioner Benjamin P. Abella in G.R. No. 100710 obtained the second highest number of votes, next to Larrazabal in the local elections of February 1, 1988 in the province of Leyte. The COMELEC en banc, after affirming the February 14, 1991 decision of its second division disqualifying arrazabal as governor disallowed Abella from assuming position of governor in accordance with section 6, Republic Act No. 6646 and the rulings in the cases of Frivaldo v. Commission on Elections (174 SCRA 245 [1989]) and Labo, Jr. v. Commission on Elections (176 SCRA 1 [1989]).

Abella claims that the Frivaldo and Labo cases were misapplied by the COMELEC. According to him these cases are fundamentally different from SPC No. 88-546 in that the Frivaldo and Labo cases were petitions for a quo warranto filed under section 253 of the Omnibus Code, contesting the eligibility of the respondents after they had been proclaimed duly elected to the Office from which they were sought to be unseated while SPC No. 88-546 which was filed before proclamation under section 78 of the Omnibus Election Code sought to deny due course to Larrazabal's certificate of candidacy for material misrepresentations and was seasonably filed on election day. He, therefore, avers that since under section 6 of Republic Act 6646 it is provided therein that:

Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes case for him shall not be counted.

the votes cast in favor of Larrazabal who obtained the highest number of votes are not considered counted making her a non-candidate, he, who obtained the second highest number of votes should be installed as regular Governor of Leyte in accordance with the Court's ruling in G.R. No. 88004.

The petitioner's arguments are not persuasive.

While it is true that SPC No. 88-546 was originally a petition to deny due course to the certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed the fact remains that the local elections of February 1, 1988 in the province of Leyte proceeded with Larrazabal considered as a bona-fide candidate. The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes were counted and she obtained the highest number of votes. The net effect is that the petitioner lost in the election. He was repudiated by the electorate. In the Frivaldo and Labo cases, this is precisely the reason why the candidates who obtained the second highest number of votes were not allowed to assume the positions vacated by Frivaldo the governorship of Sorsogon, and Labo, the position of mayor in Baguio City. The nature of the proceedings therefore, is not that compelling. What matters is that in the event a candidate for an elected position who is voted for and who obtains the highest number of votes is disqualified for not possessing the eligibility requirements at the time of the election as provided by law, the candidate who obtains the second highest number of votes for the same position can not assume the vacated position. It should be stressed that in G.R. No. 88004, the Court set aside the dismissal of SPC No. 88-546, and directed the COMELEC to conduct hearings to determine whether or not Larrazabal was qualified to be a candidate for the position of governor in the province of Leyte. This is the import of the decision in G.R. No. 88004. Thus, the Court ruled in the case of Labo, Jr. v. Commission on Elections:

Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City.

The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA 740) decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were all disregard as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting (Teehankee, Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and another two reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on official leave. (Fernando, C.J.)

Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio v. Paredes, (23 Phil. 238) was supported by ten members of the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without any dissent,

although one reserved his vote, (Makasiar, J.) another took no part, (Aquino, J.) and two others were on leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court held:

... it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him.

Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.)

The fact that the candidate who obtained the highest number of votes 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. The votes cast for a dead, disqualified, or non-eligible person may not be valid the vote the winner into office or maintain him there. However the absence of a statute which clearly asserts a contrary politics and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. (at pp. 20-21)

In sum, the Court does not find any reason to reverse and set aside the questioned decision and resolution of the COMELEC. The COMELEC has not acted without or in excess of jurisdiction or in grave abuse of discretion.

WHEREFORE, the instant petitions are DISMISSED. The questioned decision of the second division of the Commission on Elections dated February 14, 1991 and the questioned Resolution en banc of the Commission dated July 18, 1991 are hereby AFFIRMED. The temporary restraining order issued on August 1, 1991 is LIFTED. Costs against the petitioners.

SO ORDERED.

Narvasa, Melencio-Herrera, Cruz, Paras, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

Fernan , C.J., took no part.

Feliciano and Sarmiento, JJ., is on leave.

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