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862 Phil. 533
EN BANC
[ G.R. No. 246679, September 10, 2019 ]
GOVERNOR EDGARDO A. TALLADO, PETITIONER, VS. COMMISSION ON ELECTIONS, NORBERTO B. VILLAMIN, AND SENANDRO M. JALGALADO, RESPONDENTS.
D E C I S I O N
BERSAMIN, C.J.:
Once the order of the Office of the Ombudsman to dismiss an elective local official is executed, the dismissed official thereby loses title to the office even if he or she has filed a timely appeal assailing the dismissal which would have prevented it from attaining finality. The loss of title to the office constitutes an involuntary interruption of the official's service of his or her full term.
Before the Court is the petition for certiorari initiated under Rule 64 of the Rules of Court by the petitioner assailing the resolution promulgated on March 29, 2019 by the Commission on Elections (COMELEC) First Division in SPA No. 18-041 (DC) and SPA No. 18-137 (DC) granting the private respondents' petitions to deny due course and/or to cancel the petitioner's Certificate of Candidacy (COC),[1] and the resolution promulgated on May 9, 2019 by the Commission on Elections En Banc denying the petitioner's verified motion for reconsideration.[2]
The petitioner was duly elected as Governor of the Province of Camarines Norte in the 2010, 2013 and 2016 elections. He fully served his 2010-2013 and 2013-2016 terms. It is the turn of events in respect of the petitioner's 2016-2019 term that has spawned the controversy under review.
Relevant are three administrative cases decided by the Office of the Ombudsman (OMB).
It appears that on January 28, 2013, one Edgardo Gonzales filed in the OMB an administrative complaint charging the petitioner with grave misconduct, oppression or grave abuse of authority.[3] While the case was pending, the petitioner won as Governor in the 2013 elections. On October 2, 2015, while he was serving his 2013-2016 term, the OMB found and declared him administratively liable and imposed upon him the penalty of suspension for one year,[4] which suspension was immediately implemented by the Department of Interior and Local Government (DILG).[5]
The petitioner timely appealed the suspension to the Court of Appeals (CA) by petition for review,[6] docketed as C.A.-G.R. SP No. 142737.
Acting on the petitioner's appeal, the CA promulgated its decision reducing the imposed penalty of suspension from one year to six months.[7] He immediately re-assumed his position after the lapse of six months, and his re-assumption later became the subject of the third OMB case.[8] Under the resolution issued on December 1, 2016 in C.A.-G.R. SP No. 142737, however, the CA restored the one-year suspension of the petitioner.[9]
On November 4, 2015, several persons (namely: Milline Marie B. Dela Cruz, Mark Anthony J. Mago, Maria Joanabelle L. Crisostomo, and Shanta V. Baraquiel) initiated the second OMB case against the petitioner.[10]
In the decision dated April 18, 2016 and approved by then Ombudsman Conchita Carpio Morales on September 13, 2016, the OMB held the petitioner guilty of grave misconduct and oppression/abuse of authority and ordered his dismissal from the service.[11]
Although the petitioner appealed to the CA,[12] the DILG implemented the OMB decision on November 8, 2016 by ordering the petitioner to vacate his position as Governor.[13]
On the same date, the DILG issued another memorandum addressed to then Vice Governor Jonah Pedro G. Pimentel (Pimentel) directing him to assume as Governor of Camarines Norte.[14] The memorandum stated that there was a permanent vacancy in the office of Governor as a consequence of the petitioner's dismissal from the service. In ordering Pimentel to assume as Governor, the DILG cited Section 44 of Republic Act No. 7160, or the Local Government Code (LGC).
On November 16, 2016, Pimentel took his oath of office as Governor of Camarines Norte,[15] and thereupon assumed office and exercised the functions of Governor.[16]
On December 12, 2016, the CA issued a temporary restraining order enjoining the DILG from implementing or continuously implementing the decision of the OMB.[17] Thus, the petitioner was able to re-assume his post as Governor.[18]
The third OMB case, as noted above, concerned the petitioner's re-assumption of the office of Governor after the CA had initially reduced the penalty imposed in the first OMB case to suspension for six months. The complainant thereat initiated another complaint on the basis that the petitioner had violated the first OMB decision by re-assuming office without having fully served his suspension.[19]
On January 11, 2018, the OMB rendered another decision finding the petitioner guilty of grave misconduct, and ordering his dismissal from the service.[20]
The petitioner appealed the decision to the CA.[21]
To implement the decision of the OMB, the DILG issued the Memorandum dated March 14, 2018 ordering Pimentel to assume as Governor,[22] this time citing Section 46 of LGC as legal basis therefor.
On March 15, 2018, Pimentel again took his oath of office as Governor, and assumed office and exercised the functions of Governor.[23]
On September 26, 2018, the CA ruled on the petitioner's appeal by modifying the penalty of dismissal to six months suspension.[24]
On October 29, 2018, the DILG issued its memorandum directing the implementation of the decision of the CA, and the reinstatement of the petitioner as Governor if he had already served the six-month suspension.[25]
On October 30, 2018, the petitioner took his oath of office as Governor of Camarines Norte.[26]
In the meanwhile, on October 15, 2018, the petitioner filed his Certificate of Candidacy (COC) for Governor of Camarines Norte for the May 2019 elections.[27] This prompted respondents Norberto B. Villamin and Senandro M. Jalgalado to file their separate petitions (respectively docketed as SPA No. 18-041 (DC) and SPA No. 18-137 (DC)) with the COMELEC praying for the denial of due course to and/or for the cancellation of the petitioner's COC,[28] which petitions were consolidated and predicated on the application of the three-term limit rule.
In its March 29, 2019 resolution, the COMELEC First Division granted the petitions and ordered the cancellation of the petitioner's COC.[29] The COMELEC First Division concluded that the petitioner had fully served three consecutive terms considering that his suspension and dismissals from the service were not interruptions of his term because he had not thereby lost title to the office; that the OMB's decisions ordering his dismissals were not yet final; and that there had been no permanent vacancy and no succession in accordance with Section 44 of the LGC.
The COMELEC First Division disposed as follows:
In the resolution promulgated on May 9, 2019,[31] the COMELEC En Banc, with Commissioner Parreño maintaining his dissent, denied the petitioner's verified motion for reconsideration and affirmed the ruling of the COMELEC First Division, to wit:
Undeterrred, the petitioner lodged the petition for certiorari with the Court
On May 10, 2019, the Court issued a status quo ante order requiring the parties to observe the status quo prevailing before the issuance of the COMELEC En Banc resolution.[32] In the resolution of June 4, 2019, the Court En Banc confirmed the status quo ante order.[33]
The petitioner eventually garnered the highest number of votes for the position of Governor of Camarines Norte in the May 13, 2019 elections. On May 16, 2019, the petitioner was proclaimed as the duly elected Governor of Camarines Norte.[34]
The petitioner contends that his third term as Governor of Camarines Norte was involuntarily interrupted when the Ombudsman's dismissal orders were implemented, thereby preventing the application of the three-term limit rule. According to him, it is immaterial that the CA subsequently modified the Ombudsman's decisions to reduce the penalty because the modification did not change the fact that he had involuntarily ceased to hold his title when the DILG ordered him to vacate his office on November 8, 2016 and again on March 14, 2018 pursuant to the decisions. He thereby lost his title to the office, and the continuity of his service as Governor was involuntarily interrupted.[35]
The petitioner argues that contrary to the findings of the COMELEC, his removal from office caused a permanent vacancy that necessitated the appointment of Pimentel as his successor, and that even the DILG itself had recognized the existence of the permanent vacancy and consequently ordered Pimentel to succeed him pursuant to Section 44 of the LGC.[36]
After directing the respondents to file their comment,[37] the Office of the Solicitor General (OSG) filed a Manifestation and Motion in Lieu of Comment,[38] averring therein that the COMELEC had acted with grave abuse of discretion amounting to lack or excess of jurisdiction in finding and holding that the petitioner was ineligible to run for Governor in the May 2019 elections under the three-term limit rule.[39]
The OSG, as tribune of the people, submits that the implementation of the Ombudsman's decisions on the petitioner's removal from office must be considered as term interruption because he thereby ceased to exercise the functions and prerogatives of the office; and that he must be deemed not to have fully served his third term as Governor considering that he involuntarily lost his title to the office.[40]
To support its submission, the OSG cites Lonzanida v. COMELEC (Lonzanida)[41] wherein this Court has held that an elective official could not be deemed to have served the full term if he was ordered to vacate his post before the expiration of the term; that the petitioner's third term as Governor was validly interrupted twice when he complied with the DILG's memoranda ordering him to vacate his post; and that the petitioner's loss of title to the office was manifested by the fact that Pimentel took his oath of office as Governor, and discharged all the functions and responsibilities thereof.[42]
On its part, the COMELEC contends that the three-term limit rule must be strictly construed in order to avoid attempts to circumvent and evade the application of the same;[43] that under Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman (OMB's Rules), the petitioner's exoneration from the charge of grave misconduct rendered the "dismissal" nothing more than a mere preventive suspension,[44] which was not the term interruption that effectively precluded the application of the three-term limit rule;[45] that the dismissal and its resultant legal effects must not be recognized in view of the reduction of the penalty from dismissal to suspension;[46] that because the petitioner's position as Governor was never permanently vacant, he was able to re-assume the office and functions of Governor, thus warranting the conclusion that the vacancy was only temporary.[47]
In his comment,[48] respondent Villamin claims that because the two OMB decisions suspending and/or removing the petitioner did not become final despite their immediate execution, the petitioner never lost his title even if he could no longer exercise the powers and authority attached to the position;[49] that while the petitioner's suspension resulted to a vacancy in the office of the Governor, the vacancy was only temporary; that Pimentel only held the office of Governor in an acting capacity, with the full title being still held by the petitioner.[50] On his part, respondent Jalgalado adopted Villamin's comment.[51]
The petitioner specifies the following issues for the Court's consideration and resolution, to wit:
The petition for certiorari is meritorious.
Section 8, Article X, of the Constitution embodies the three-term limit rule, viz.:
In Abundo v. COMELEC (Abundo),[53] the Court, upon reviewing the applicable jurisprudence on consecutiveness of terms, summarized the rules for the determination of involuntary interruptions to an elective local official's term thusly:
Nonetheless, there is no definitive ruling yet on whether or not an elective local official's dismissal from the service pursuant to the executory decision of the OMB may be considered as an effective interruption in the official's term.
The first requisite for the application of the three-term limit rule is present inasmuch as the petitioner was elected as Governor of Camarines Norte for three consecutive terms, specifically in the 2010, 2013 and 2016 elections. But the second requisite was not satisfied because his intervening dismissals from the service truly prevented him from fully serving the third consecutive term.
In ruling that the petitioner had fully served three consecutive terms as Governor and was, therefore, disqualified from running for a fourth consecutive term, the COMELEC cited Aldovino v. COMELEC (Aldovino)[54] under which the three-term limit rule must be read in the context of interruption of term, not in the context of interrupting the full continuity of the exercise of the powers of the elective position.[55]
The COMELEC explained that despite clearly mandating the dismissal of the petitioner, the OMB's decisions of dismissal against him did not deprive him of his title to the office because the dismissals were not yet final by virtue of their being timely appealed; that, consequently, there was no vacancy in the office of Governor and the petitioner's service of the penalty could only be considered as preventive suspension; and that following Aldovino, the preventive suspension could not be considered as an interruption of the petitioner's term.
We cannot subscribe to the COMELEC's explanation.
Interruption of term entails the involuntary loss of title to office, while interruption of the full continuity of the exercise of the powers of the elective position equates to failure to render service. In this regard, Aldovino is instructive, as follows:
A review reveals that the OMB's Rules did not justify the COMELEC's reliance.
The OMB's Rules, promulgated in Administrative Order No. 07, Series of 1990, as amended by Administrative Order No. 17, Series of 2003, stated in Section 7 of its Rule III as follows:
That the second paragraph of Section 7 of Rule III of the OMB's Rules, supra, characterizes the penalty of suspension or dismissal meanwhile enforced as a preventive suspension should the public officer later win his or her appeal of the OMB's decision is absurd and illogical as to the penalty of dismissal. The characterization also lacks legal and factual support. In his case, the petitioner was twice fully divested of his powers and responsibilities as Governor by the DILG immediately transferring the discharge of the office of Governor and the exercise of the functions and powers thereof to another person, Vice Governor Pimentel. The latter forthwith took his oath of office as Governor and unconditionally assumed and discharged such office. Without doubt, the execution of the OMB's dismissals in that manner resulted in the petitioner's loss of title to the office of Governor.
Neither did the non-finality of the decisions render any less the petitioner's loss of his title to the office. It would be unwarranted to differentiate the dismissals enforced against him from the dismissal based on and pursuant to a decision that was already final. Both dismissals would produce the same effect – the ouster of the official from his title to the office.
Indeed, even the 2017 Rules on Administrative Cases in the Civil Service (2017 RACCS) imposes this effect of dismissal as the "permanent separation" of the guilty civil servant from his or her title to the office by explicitly providing in its Section 56(a), viz.:
The length of time of the involuntary interruption of the term of office was also immaterial. The Court adopts with approval the following excerpt from the dissent of COMELEC Commissioner Parreño, which dealt with such issue, viz.:
The COMELEC opined that the DILG's reliance on Section 44[59] of the LGC in respect of the second OMB case was erroneous because the order of succession therein applied pertained to a permanent vacancy despite the lack of such permanent vacancy in view of the OMB's dismissal of the petitioner being still not final; that Section 46[60] of the LGC, which provided for succession in cases of a temporary vacancy, was applicable to the petitioner's case; and that the DILG corrected itself by now citing Section 46 of the LGC when it implemented the second dismissal decision issued in relation to the third OMB case.
We find that contrary to the opinion of the COMELEC, the DILG did not err in citing Section 44 of the LGC as its legal basis when it implemented the dismissal of the petitioner under the second OMB case.
To start with, the DILG executed against the petitioner two decisions of dismissal handed down in two different and separate cases. As such, the COMELEC had neither factual nor legal basis to conflate the DILG's actions in the two OMB cases for the reason that its action on the second OMB case could not be prejudiced by its action on the third OMB case.
Secondly, the DILG's opinion on what provision of the LGC properly applied was far from binding or controlling. It was even irrelevant. We ought to observe that the DILG, as the mere implementor of the decisions, had no legal competence to interpret or to render its opinion on the succession ensuing from the dismissals. As the implementing body, the DILG was acting in a ministerial capacity, and, as such, was absolutely bereft of the discretion to determine what provision of the LGC specifically governed. Instead, the DILG was duty-bound to execute the directives of the OMB's decisions exactly as they were written in the decisions. Otherwise, the DILG could literally supplant the prerogative of the OMB itself to decide the administrative cases of the petitioner.
Thirdly, inasmuch as Section 46 of the LGC textually applied to succession where the local chief executive was "temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension from office," the provision was certainly not the proper basis for the COMELEC to characterize as temporary the vacancy in the office of Governor ensuing from the petitioner's dismissal. As earlier explained, the vacancy was not temporary because the petitioner was fully divested of his title to the office of Governor in both instances of his dismissal.
Under Section 44 of the LGC, a permanent vacancy arises whenever an elective local official fills a higher vacant office, or refuses to assume office, or fails to qualify, or dies, or is removed from office, or voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. In contrast, Section 46 of the LGC enumerates as resulting in a temporary vacancy in the office of the local chief executive leave of absence, travel abroad, and suspension from office. Although Section 46 of the LGC specifically states that the causes of a temporary vacancy are not limited to such circumstances, what is evident is that the enumeration therein share something in common, which is that there is a definite term to be re-assumed. However, the petitioner's dismissals, even if still not final, were not akin to the instances enumerated in Section 46 of the LGC because the loss of his title to the office denied to him the expectancy to re-assume his term.
Lastly, Section 44 of the LGC includes removal from office as one of the instances triggering a permanent vacancy. Such permanent vacancy was precisely the outcome that the OMB directed in its decisions. Consequently, when the petitioner was ousted in the period from November 8, 2016 to December 30, 2016, in the first instance of dismissal, and in the period from March 14, 2018 to September 26, 2018, in the second instance of dismissal, the permanent vacancy in the office of Governor ensued.
The COMELEC considered developments in the petitioner's appeals in holding that the DILG's execution of the decisions did not result into the loss of title to the office. This holding was grounded on two matters, namely: (1) the non-finality of the decisions under the OMB's Rules; and (2) the fact that the petitioner was able to re-assume his seat as Governor.
The holding of the COMELEC was unjustified because it thereby disregarded the fact that the DILG had fully implemented the decisions of dismissal. The full implementation immediately carried legal repercussions that no developments in relation to the petitioner's appeals could change or undo. Among others, the petitioner effectively lost his title to the office by the DILG's act of directing Pimentel to take his oath of office as Governor, and by the latter then assuming and discharging the office and functions of such office.
The provision of the OMB's Rules allowing the petitioner to re-assume on the basis of the interim being considered as a period of preventive suspension after his appeals resulted in the imposition of lesser penalties did not alter the reality that he had actually been ousted from office. In other words, there was still an interruption of the term of office. As aptly put in Latasa v. COMELEC,[61] the interruption, to be considered as interruption of the term, "contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit."[62] Conformably with said ruling, the period during which the petitioner was not serving as Governor should be considered as a rest period or break in his service because he had then ceased to exercise power or authority over the people of the province. Indeed, it was Pimentel who then held title to the office and exercised the functions thereof. As such, the petitioner did not fully serve his entire third term even if his re-assumption to office subsequently occurred.
The DILG's execution of the OMB decisions for the petitioner's dismissal clearly constituted loss of the petitioner's title to the office. The dismissals were involuntary interruptions in the petitioner's 2016-2019 term. As such, he cannot be considered to have fully served a third successive term of office.
In fine, the petitioner was not disqualified from seeking the same elective post during the 2019 elections. The COMELEC thus gravely abused its discretion in ordering the cancellation of the petitioner's Certificate of Candidacy for the 2019 elections.
WHEREFORE, the Court GRANTS the petition for certiorari; ANNULS and SETS ASIDE the resolution issued on March 29, 2019 by the Commission on Elections First Division and the resolution issued on May 9, 2019 by the Commission on Elections En Banc in SPA No. 18-041 (DC) and SPA No. 18-137 (DC); DISMISSES the consolidated petitions in SPA No. 18-041 (DC) and SPA No. 18-137 (DC) for the cancellation of petitioner Edgardo A. Tallado's Certificate of Candidacy for the position of Provincial Governor of Camarines Norte in the 2019 Local Elections; DECLARES this decision immediately executory; and ORDERS respondents Norberto B. Villamin and Senandro M. Jalgalado to pay the costs of suit.
SO ORDERED.
The Case
Before the Court is the petition for certiorari initiated under Rule 64 of the Rules of Court by the petitioner assailing the resolution promulgated on March 29, 2019 by the Commission on Elections (COMELEC) First Division in SPA No. 18-041 (DC) and SPA No. 18-137 (DC) granting the private respondents' petitions to deny due course and/or to cancel the petitioner's Certificate of Candidacy (COC),[1] and the resolution promulgated on May 9, 2019 by the Commission on Elections En Banc denying the petitioner's verified motion for reconsideration.[2]
Antecedents
The petitioner was duly elected as Governor of the Province of Camarines Norte in the 2010, 2013 and 2016 elections. He fully served his 2010-2013 and 2013-2016 terms. It is the turn of events in respect of the petitioner's 2016-2019 term that has spawned the controversy under review.
Relevant are three administrative cases decided by the Office of the Ombudsman (OMB).
It appears that on January 28, 2013, one Edgardo Gonzales filed in the OMB an administrative complaint charging the petitioner with grave misconduct, oppression or grave abuse of authority.[3] While the case was pending, the petitioner won as Governor in the 2013 elections. On October 2, 2015, while he was serving his 2013-2016 term, the OMB found and declared him administratively liable and imposed upon him the penalty of suspension for one year,[4] which suspension was immediately implemented by the Department of Interior and Local Government (DILG).[5]
The petitioner timely appealed the suspension to the Court of Appeals (CA) by petition for review,[6] docketed as C.A.-G.R. SP No. 142737.
Acting on the petitioner's appeal, the CA promulgated its decision reducing the imposed penalty of suspension from one year to six months.[7] He immediately re-assumed his position after the lapse of six months, and his re-assumption later became the subject of the third OMB case.[8] Under the resolution issued on December 1, 2016 in C.A.-G.R. SP No. 142737, however, the CA restored the one-year suspension of the petitioner.[9]
On November 4, 2015, several persons (namely: Milline Marie B. Dela Cruz, Mark Anthony J. Mago, Maria Joanabelle L. Crisostomo, and Shanta V. Baraquiel) initiated the second OMB case against the petitioner.[10]
In the decision dated April 18, 2016 and approved by then Ombudsman Conchita Carpio Morales on September 13, 2016, the OMB held the petitioner guilty of grave misconduct and oppression/abuse of authority and ordered his dismissal from the service.[11]
Although the petitioner appealed to the CA,[12] the DILG implemented the OMB decision on November 8, 2016 by ordering the petitioner to vacate his position as Governor.[13]
On the same date, the DILG issued another memorandum addressed to then Vice Governor Jonah Pedro G. Pimentel (Pimentel) directing him to assume as Governor of Camarines Norte.[14] The memorandum stated that there was a permanent vacancy in the office of Governor as a consequence of the petitioner's dismissal from the service. In ordering Pimentel to assume as Governor, the DILG cited Section 44 of Republic Act No. 7160, or the Local Government Code (LGC).
On November 16, 2016, Pimentel took his oath of office as Governor of Camarines Norte,[15] and thereupon assumed office and exercised the functions of Governor.[16]
On December 12, 2016, the CA issued a temporary restraining order enjoining the DILG from implementing or continuously implementing the decision of the OMB.[17] Thus, the petitioner was able to re-assume his post as Governor.[18]
The third OMB case, as noted above, concerned the petitioner's re-assumption of the office of Governor after the CA had initially reduced the penalty imposed in the first OMB case to suspension for six months. The complainant thereat initiated another complaint on the basis that the petitioner had violated the first OMB decision by re-assuming office without having fully served his suspension.[19]
On January 11, 2018, the OMB rendered another decision finding the petitioner guilty of grave misconduct, and ordering his dismissal from the service.[20]
The petitioner appealed the decision to the CA.[21]
To implement the decision of the OMB, the DILG issued the Memorandum dated March 14, 2018 ordering Pimentel to assume as Governor,[22] this time citing Section 46 of LGC as legal basis therefor.
On March 15, 2018, Pimentel again took his oath of office as Governor, and assumed office and exercised the functions of Governor.[23]
On September 26, 2018, the CA ruled on the petitioner's appeal by modifying the penalty of dismissal to six months suspension.[24]
On October 29, 2018, the DILG issued its memorandum directing the implementation of the decision of the CA, and the reinstatement of the petitioner as Governor if he had already served the six-month suspension.[25]
On October 30, 2018, the petitioner took his oath of office as Governor of Camarines Norte.[26]
In the meanwhile, on October 15, 2018, the petitioner filed his Certificate of Candidacy (COC) for Governor of Camarines Norte for the May 2019 elections.[27] This prompted respondents Norberto B. Villamin and Senandro M. Jalgalado to file their separate petitions (respectively docketed as SPA No. 18-041 (DC) and SPA No. 18-137 (DC)) with the COMELEC praying for the denial of due course to and/or for the cancellation of the petitioner's COC,[28] which petitions were consolidated and predicated on the application of the three-term limit rule.
In its March 29, 2019 resolution, the COMELEC First Division granted the petitions and ordered the cancellation of the petitioner's COC.[29] The COMELEC First Division concluded that the petitioner had fully served three consecutive terms considering that his suspension and dismissals from the service were not interruptions of his term because he had not thereby lost title to the office; that the OMB's decisions ordering his dismissals were not yet final; and that there had been no permanent vacancy and no succession in accordance with Section 44 of the LGC.
The COMELEC First Division disposed as follows:
WHEREFORE, premises considered, the Petitions are hereby GRANTED. The Certificate of Candidacy filed by Respondent EDGARDO A. TALLADO is CANCELLED.It is notable that the COMELEC First Division was not unanimous. Commissioner Al A. Parreño dissented and voted to deny the petitions, opining that the dismissals from the service had effectively interrupted the petitioner's 2016-2019 term, and that the petitioner had thereby involuntarily lost title to the office.[30]
SO ORDERED.
In the resolution promulgated on May 9, 2019,[31] the COMELEC En Banc, with Commissioner Parreño maintaining his dissent, denied the petitioner's verified motion for reconsideration and affirmed the ruling of the COMELEC First Division, to wit:
WHEREFORE, premises considered, the Commission (En Banc) AFFIRMS the Resolution dated 29 March 2019 of the Commission (First Division) and RESOLVES to DENY the Motion for Reconsideration of Respondent Edgardo A. Tallado.The COMELEC En Banc declared that the petitioner's dismissal from the service had been temporary inasmuch as he had appealed the OMB decisions; that the DILG's implementation of the dismissals, the petitioner's removal from office, and the Vice-Governor's assumption as Governor did not affect the temporariness of the vacancy in the office of the Governor; that the petitioner had later on re-assumed his post as Governor; and that the DILG's implementation of the ruling on the third OMB case, on the basis of Section 46 of the LGC, had corrected its earlier erroneous reliance on Section 44 of the LGC in implementing the ruling in the second OMB case. The COMELEC En Banc took the view that it was Section 46 of the LGC that was applicable inasmuch as there was only a temporary vacancy.
SO ORDERED.
Undeterrred, the petitioner lodged the petition for certiorari with the Court
On May 10, 2019, the Court issued a status quo ante order requiring the parties to observe the status quo prevailing before the issuance of the COMELEC En Banc resolution.[32] In the resolution of June 4, 2019, the Court En Banc confirmed the status quo ante order.[33]
The petitioner eventually garnered the highest number of votes for the position of Governor of Camarines Norte in the May 13, 2019 elections. On May 16, 2019, the petitioner was proclaimed as the duly elected Governor of Camarines Norte.[34]
Issues
The petitioner contends that his third term as Governor of Camarines Norte was involuntarily interrupted when the Ombudsman's dismissal orders were implemented, thereby preventing the application of the three-term limit rule. According to him, it is immaterial that the CA subsequently modified the Ombudsman's decisions to reduce the penalty because the modification did not change the fact that he had involuntarily ceased to hold his title when the DILG ordered him to vacate his office on November 8, 2016 and again on March 14, 2018 pursuant to the decisions. He thereby lost his title to the office, and the continuity of his service as Governor was involuntarily interrupted.[35]
The petitioner argues that contrary to the findings of the COMELEC, his removal from office caused a permanent vacancy that necessitated the appointment of Pimentel as his successor, and that even the DILG itself had recognized the existence of the permanent vacancy and consequently ordered Pimentel to succeed him pursuant to Section 44 of the LGC.[36]
After directing the respondents to file their comment,[37] the Office of the Solicitor General (OSG) filed a Manifestation and Motion in Lieu of Comment,[38] averring therein that the COMELEC had acted with grave abuse of discretion amounting to lack or excess of jurisdiction in finding and holding that the petitioner was ineligible to run for Governor in the May 2019 elections under the three-term limit rule.[39]
The OSG, as tribune of the people, submits that the implementation of the Ombudsman's decisions on the petitioner's removal from office must be considered as term interruption because he thereby ceased to exercise the functions and prerogatives of the office; and that he must be deemed not to have fully served his third term as Governor considering that he involuntarily lost his title to the office.[40]
To support its submission, the OSG cites Lonzanida v. COMELEC (Lonzanida)[41] wherein this Court has held that an elective official could not be deemed to have served the full term if he was ordered to vacate his post before the expiration of the term; that the petitioner's third term as Governor was validly interrupted twice when he complied with the DILG's memoranda ordering him to vacate his post; and that the petitioner's loss of title to the office was manifested by the fact that Pimentel took his oath of office as Governor, and discharged all the functions and responsibilities thereof.[42]
On its part, the COMELEC contends that the three-term limit rule must be strictly construed in order to avoid attempts to circumvent and evade the application of the same;[43] that under Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman (OMB's Rules), the petitioner's exoneration from the charge of grave misconduct rendered the "dismissal" nothing more than a mere preventive suspension,[44] which was not the term interruption that effectively precluded the application of the three-term limit rule;[45] that the dismissal and its resultant legal effects must not be recognized in view of the reduction of the penalty from dismissal to suspension;[46] that because the petitioner's position as Governor was never permanently vacant, he was able to re-assume the office and functions of Governor, thus warranting the conclusion that the vacancy was only temporary.[47]
In his comment,[48] respondent Villamin claims that because the two OMB decisions suspending and/or removing the petitioner did not become final despite their immediate execution, the petitioner never lost his title even if he could no longer exercise the powers and authority attached to the position;[49] that while the petitioner's suspension resulted to a vacancy in the office of the Governor, the vacancy was only temporary; that Pimentel only held the office of Governor in an acting capacity, with the full title being still held by the petitioner.[50] On his part, respondent Jalgalado adopted Villamin's comment.[51]
The petitioner specifies the following issues for the Court's consideration and resolution, to wit:
I.WHETHER THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT SUSTAINED THE FINDINGS OF THE COMELEC FIRST DIVISION[,] WHICH CANCELLED PETITIONER'S CERTIFICATE OF CANDIDACY[.]II.WHETHER THERE WAS LOSS OF TITLE TO PETITIONER'S OFFICE DURING HIS THIRD TERM WHICH CONSTITUTED AN INVOLUNTARY TERM INTERRUPTION[,] WHICH PREVENTS THE APPLICATION OF THE THREE-TERM LIMIT RULE, THEREBY MAKING HIM ELIGIBLE TO RUN FOR THE POSITION OF GOVERNOR OF CAMARINES NORTE IN THE FORTHCOMING MAY 13, 2019 NATIONAL AND LOCAL ELECTIONS[.]III.
WHETHER PETITIONER'S TWICE REMOVAL (sic) FROM OFFICE DURING HIS THIRD TERM CREATED A PERMANENT VACANCY IN THE GUBERNATORIAL POST[.]
Ruling of the Court
The petition for certiorari is meritorious.
I.
The three-term limit rule
The three-term limit rule
Section 8, Article X, of the Constitution embodies the three-term limit rule, viz.:
Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.To implement the Constitutional provision, Section 43(b) of the LGC states:
x x x xFor the application of the disqualification under the three-term limit rule, therefore, two conditions must concur, to wit: (1) that the official concerned has been elected for three consecutive terms to the same local government post; and (2) that he or she has fully served three consecutive terms.[52]
(b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected.
x x x x
In Abundo v. COMELEC (Abundo),[53] the Court, upon reviewing the applicable jurisprudence on consecutiveness of terms, summarized the rules for the determination of involuntary interruptions to an elective local official's term thusly:
To summarize, hereunder are the prevailing jurisprudence on issues affecting consecutiveness of terms and/or involuntary interruption, viz.:Based on the foregoing, there is an involuntary interruption in the term of an elective local official when there is a break in the term as a result of the official's loss of title to the office.
1. When a permanent vacancy occurs in an elective position and the official merely assumed the position pursuant to the rules on succession under the LGC, then his service for the unexpired portion of the term of the replaced official cannot be treated as one full term as contemplated under the subject constitutional and statutory provision that service cannot be counted in the application of any term limit (Borja, Jr.). If the official runs again for the same position he held prior to his assumption of the higher office, then his succession to said position is by operation of law and is considered an involuntary severance or interruption (Montebon).
2. An elective official, who has served for three consecutive terms and who did not seek the elective position for what could be his fourth term, but later won in a recall election, had an interruption in the continuity of the official's service. For, he had become in the interim, i.e., from the end of the 3rd term up to the recall election, a private citizen (Adormeo and Socrates).
3. The abolition of an elective local office due to the conversion of a municipality to a city does not, by itself, work to interrupt the incumbent official's continuity of service (Latasa).
4. Preventive suspension is not a term-interrupting event as the elective officer's continued stay and entitlement to the office remain unaffected during the period of suspension, although he is barred from exercising the functions of his office during this period (Aldovino, Jr.).
5. When a candidate is proclaimed as winner for an elective position and assumes office, his term is interrupted when he loses in an election protest and is ousted from office, thus disenabling him from serving what would otherwise be the unexpired portion of his term of office had the protest been dismissed (Lonzanida and Dizon). The break or interruption need not be for a full term of three years or for the major part of the 3-year term; an interruption for any length of time, provided the cause is involuntary, is sufficient to break the continuity of service (Socrates, citing Lonzanida).
6. When an official is defeated in an election protest and said decision becomes final after said official had served the full term for said office, then his loss in the election contest does not constitute an interruption since he has managed to serve the term from start to finish. His full service, despite the defeat, should be counted in the application of term limits because the nullification of his proclamation came after the expiration of the term (Ong and Rivera).
II.
The petitioner was dismissed
The petitioner was dismissed
from office, and lost his title thereto
Nonetheless, there is no definitive ruling yet on whether or not an elective local official's dismissal from the service pursuant to the executory decision of the OMB may be considered as an effective interruption in the official's term.
The first requisite for the application of the three-term limit rule is present inasmuch as the petitioner was elected as Governor of Camarines Norte for three consecutive terms, specifically in the 2010, 2013 and 2016 elections. But the second requisite was not satisfied because his intervening dismissals from the service truly prevented him from fully serving the third consecutive term.
In ruling that the petitioner had fully served three consecutive terms as Governor and was, therefore, disqualified from running for a fourth consecutive term, the COMELEC cited Aldovino v. COMELEC (Aldovino)[54] under which the three-term limit rule must be read in the context of interruption of term, not in the context of interrupting the full continuity of the exercise of the powers of the elective position.[55]
The COMELEC explained that despite clearly mandating the dismissal of the petitioner, the OMB's decisions of dismissal against him did not deprive him of his title to the office because the dismissals were not yet final by virtue of their being timely appealed; that, consequently, there was no vacancy in the office of Governor and the petitioner's service of the penalty could only be considered as preventive suspension; and that following Aldovino, the preventive suspension could not be considered as an interruption of the petitioner's term.
We cannot subscribe to the COMELEC's explanation.
Interruption of term entails the involuntary loss of title to office, while interruption of the full continuity of the exercise of the powers of the elective position equates to failure to render service. In this regard, Aldovino is instructive, as follows:
From all the above, we conclude that the "interruption" of a term exempting an elective official from the three-term limit rule is one that involves no less than the involuntary loss of title to office. The elective official must have involuntarily left his office for a length of time, however short, for an effective interruption to occur. This has to be the case if the thrust of Section 8, Article X and its strint intent are to be faithfully served, i.e., to limit an elective official's continuous stay in office to no more than three consecutive terms, using "voluntary renunciation" as an example and standard of what does not constitute an interruption.The COMELEC relies on the OMB's Rules to support its view that the execution of the orders of dismissal against the petitioner did not create a permanent, but only a temporary, vacancy.
Thus, based on this standard, loss of office by operation of law, being involuntary, is an effective interruption of service within a term, as we held in Montebon. On the other hand, temporary inability or disqualification to exercise the functions of an elective post, even if involuntary, should not be considered an effective interruption of a term because it does not involve the loss of title to office or at least an effective break from holding office; the office holder, while retaining title, is simply barred from exercising the function of his office for a reason provided by law.
An interruption occurs when the term is broken because the office holder lost the right to hold on to his office, and cannot be equated with the failure to render service. The latter occurs during an office holder's term when he retains title to the office but cannot exercise his functions for reasons established by law. Of course, the "failure to serve" cannot be used once the right to office is lost; without the right to hold office or to serve, then no service can be rendered so that none is really lost.[56]
A review reveals that the OMB's Rules did not justify the COMELEC's reliance.
The OMB's Rules, promulgated in Administrative Order No. 07, Series of 1990, as amended by Administrative Order No. 17, Series of 2003, stated in Section 7 of its Rule III as follows:
Section 7. Finality and execution of decision.- Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be final, executory and unappealable. In all other cases, the decision may be appealed to the Court of Appeals on a verified petition for review under the requirements and conditions set forth in Rule 43 of the Rules of Court, within fifteen (15) days from receipt of the written Notice of the Decision or Order denying the Motion for Reconsideration.Section 10 of Rule III of the OMB's Rules also stated:
An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal.
A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly enforced and properly implemented. The refusal or failure by any officer without just cause to comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or censure shall be a ground for disciplinary action against said officer.
Section 10. Penalties. — (a) For administrative charges under Executive Order No. 292 or such other executive orders, laws or rules under which the respondent is charged, the penalties provided thereat shall be imposed by the Office of the Ombudsman; (b) in administrative proceedings conducted under these Rules, the Office of the Ombudsman may impose the penalty of reprimand, suspension without pay for a minimum period of one (1) month up to a maximum period of one (1) year, demotion, dismissal from the service, or a fine equivalent to his salary for one (1) month up to one (1) year, or from Five Thousand Pesos (P5,000.00) to twice the amount malversed, illegally taken or lost, or both, at the discretion of the Ombudsman, taking into consideration circumstances that mitigate or aggravate the liability of the officer or employee found guilty of the complaint or charge.Based on the foregoing, the OMB's Rules mandated that decisions handed down in administrative cases should be immediately executory despite being timely appealed. Thus, it was clear that what were to be executed were the decisions of the Ombudsman without consideration as to their finality.
The penalty of dismissal from the service shall carry with it that of cancellation of eligibility, forfeiture of retirement benefits, and the perpetual disqualification for re-employment in the government service, unless otherwise provided in the decision.
That the second paragraph of Section 7 of Rule III of the OMB's Rules, supra, characterizes the penalty of suspension or dismissal meanwhile enforced as a preventive suspension should the public officer later win his or her appeal of the OMB's decision is absurd and illogical as to the penalty of dismissal. The characterization also lacks legal and factual support. In his case, the petitioner was twice fully divested of his powers and responsibilities as Governor by the DILG immediately transferring the discharge of the office of Governor and the exercise of the functions and powers thereof to another person, Vice Governor Pimentel. The latter forthwith took his oath of office as Governor and unconditionally assumed and discharged such office. Without doubt, the execution of the OMB's dismissals in that manner resulted in the petitioner's loss of title to the office of Governor.
Neither did the non-finality of the decisions render any less the petitioner's loss of his title to the office. It would be unwarranted to differentiate the dismissals enforced against him from the dismissal based on and pursuant to a decision that was already final. Both dismissals would produce the same effect – the ouster of the official from his title to the office.
Indeed, even the 2017 Rules on Administrative Cases in the Civil Service (2017 RACCS) imposes this effect of dismissal as the "permanent separation" of the guilty civil servant from his or her title to the office by explicitly providing in its Section 56(a), viz.:
Section 56. Duration and Effect of Administrative Penalties. — The following rules shall govern the imposition of administrative penalties:Moreover, it should be pointed out that the decisions directing the dismissal of the petitioner included no indication of the petitioner being thereby placed under any type of suspension. In fact, the decisions did not state any conditions whatsoever. As such, he was dismissed for all intents and purposes of the law in the periods that he was dismissed from office even if he had appealed. In that status, he ceased to hold the title to the office in the fullest sense.
a. The penalty of dismissal shall result in the permanent separation of the respondent from the service, without prejudice to criminal or civil liability.[57]
x x x x
The length of time of the involuntary interruption of the term of office was also immaterial. The Court adopts with approval the following excerpt from the dissent of COMELEC Commissioner Parreño, which dealt with such issue, viz.:
It matters not that the duration of such loss of title to office appears to be brief and short. In fact, in Aldovino, it was held that the elective official must have involuntarily left his office for a length of time, however short, for an effective interruption to occur, thus:Verily, the COMELEC failed to recognize the true effect of the executed decisions of dismissal because it strained its reading of the OMB's Rules, and ignored the relevant law and jurisprudence in so doing. Thus, it gravely erred.From all the above, we conclude that the interruption of a term exempting an elective official from the three-term limit rule is one that involves no less than the involuntary loss of title to office. The elective official must have involuntarily left his office for a length of time, however short, for an effective interruption to occur.[58] (Bold and underscoring emphases are part of the original text)
III.
Petitioner's dismissals resulted
in permanent vacancy
Petitioner's dismissals resulted
in permanent vacancy
The COMELEC opined that the DILG's reliance on Section 44[59] of the LGC in respect of the second OMB case was erroneous because the order of succession therein applied pertained to a permanent vacancy despite the lack of such permanent vacancy in view of the OMB's dismissal of the petitioner being still not final; that Section 46[60] of the LGC, which provided for succession in cases of a temporary vacancy, was applicable to the petitioner's case; and that the DILG corrected itself by now citing Section 46 of the LGC when it implemented the second dismissal decision issued in relation to the third OMB case.
We find that contrary to the opinion of the COMELEC, the DILG did not err in citing Section 44 of the LGC as its legal basis when it implemented the dismissal of the petitioner under the second OMB case.
To start with, the DILG executed against the petitioner two decisions of dismissal handed down in two different and separate cases. As such, the COMELEC had neither factual nor legal basis to conflate the DILG's actions in the two OMB cases for the reason that its action on the second OMB case could not be prejudiced by its action on the third OMB case.
Secondly, the DILG's opinion on what provision of the LGC properly applied was far from binding or controlling. It was even irrelevant. We ought to observe that the DILG, as the mere implementor of the decisions, had no legal competence to interpret or to render its opinion on the succession ensuing from the dismissals. As the implementing body, the DILG was acting in a ministerial capacity, and, as such, was absolutely bereft of the discretion to determine what provision of the LGC specifically governed. Instead, the DILG was duty-bound to execute the directives of the OMB's decisions exactly as they were written in the decisions. Otherwise, the DILG could literally supplant the prerogative of the OMB itself to decide the administrative cases of the petitioner.
Thirdly, inasmuch as Section 46 of the LGC textually applied to succession where the local chief executive was "temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension from office," the provision was certainly not the proper basis for the COMELEC to characterize as temporary the vacancy in the office of Governor ensuing from the petitioner's dismissal. As earlier explained, the vacancy was not temporary because the petitioner was fully divested of his title to the office of Governor in both instances of his dismissal.
Under Section 44 of the LGC, a permanent vacancy arises whenever an elective local official fills a higher vacant office, or refuses to assume office, or fails to qualify, or dies, or is removed from office, or voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. In contrast, Section 46 of the LGC enumerates as resulting in a temporary vacancy in the office of the local chief executive leave of absence, travel abroad, and suspension from office. Although Section 46 of the LGC specifically states that the causes of a temporary vacancy are not limited to such circumstances, what is evident is that the enumeration therein share something in common, which is that there is a definite term to be re-assumed. However, the petitioner's dismissals, even if still not final, were not akin to the instances enumerated in Section 46 of the LGC because the loss of his title to the office denied to him the expectancy to re-assume his term.
Lastly, Section 44 of the LGC includes removal from office as one of the instances triggering a permanent vacancy. Such permanent vacancy was precisely the outcome that the OMB directed in its decisions. Consequently, when the petitioner was ousted in the period from November 8, 2016 to December 30, 2016, in the first instance of dismissal, and in the period from March 14, 2018 to September 26, 2018, in the second instance of dismissal, the permanent vacancy in the office of Governor ensued.
IV.
Developments in the appeals did not
Developments in the appeals did not
change the fact that the petitioner was dismissed
The COMELEC considered developments in the petitioner's appeals in holding that the DILG's execution of the decisions did not result into the loss of title to the office. This holding was grounded on two matters, namely: (1) the non-finality of the decisions under the OMB's Rules; and (2) the fact that the petitioner was able to re-assume his seat as Governor.
The holding of the COMELEC was unjustified because it thereby disregarded the fact that the DILG had fully implemented the decisions of dismissal. The full implementation immediately carried legal repercussions that no developments in relation to the petitioner's appeals could change or undo. Among others, the petitioner effectively lost his title to the office by the DILG's act of directing Pimentel to take his oath of office as Governor, and by the latter then assuming and discharging the office and functions of such office.
The provision of the OMB's Rules allowing the petitioner to re-assume on the basis of the interim being considered as a period of preventive suspension after his appeals resulted in the imposition of lesser penalties did not alter the reality that he had actually been ousted from office. In other words, there was still an interruption of the term of office. As aptly put in Latasa v. COMELEC,[61] the interruption, to be considered as interruption of the term, "contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit."[62] Conformably with said ruling, the period during which the petitioner was not serving as Governor should be considered as a rest period or break in his service because he had then ceased to exercise power or authority over the people of the province. Indeed, it was Pimentel who then held title to the office and exercised the functions thereof. As such, the petitioner did not fully serve his entire third term even if his re-assumption to office subsequently occurred.
V.
Conclusion
Conclusion
The DILG's execution of the OMB decisions for the petitioner's dismissal clearly constituted loss of the petitioner's title to the office. The dismissals were involuntary interruptions in the petitioner's 2016-2019 term. As such, he cannot be considered to have fully served a third successive term of office.
In fine, the petitioner was not disqualified from seeking the same elective post during the 2019 elections. The COMELEC thus gravely abused its discretion in ordering the cancellation of the petitioner's Certificate of Candidacy for the 2019 elections.
WHEREFORE, the Court GRANTS the petition for certiorari; ANNULS and SETS ASIDE the resolution issued on March 29, 2019 by the Commission on Elections First Division and the resolution issued on May 9, 2019 by the Commission on Elections En Banc in SPA No. 18-041 (DC) and SPA No. 18-137 (DC); DISMISSES the consolidated petitions in SPA No. 18-041 (DC) and SPA No. 18-137 (DC) for the cancellation of petitioner Edgardo A. Tallado's Certificate of Candidacy for the position of Provincial Governor of Camarines Norte in the 2019 Local Elections; DECLARES this decision immediately executory; and ORDERS respondents Norberto B. Villamin and Senandro M. Jalgalado to pay the costs of suit.
SO ORDERED.
Peralta, Perlas-Bernabe, A. Reyes, Jr., Gesmundo, J. Reyes, Jr., Lazaro-Javier, Inting, and Zalameda, JJ., concur.
Carpio, (Senior Associate Justice), I join the dissenting J. Jardeleza.
Leonen, J., I join dissent of J. Jardeleza.
Jardeleza, J., I dissent. See dissenting opinion.
Caguioa, J., I join dissent of J. Jardeleza.
Hernando, J., on official business.
Carandang, J., I join the dissent of J. Jardeleza.
[1] Rollo, pp. 56-63.
[2] Id. at 51-55.
[3] Id. at 10.
[4] Id. at 125.
[5] Id. at 57.
[6] Id. at 577-594.
[7] Id.
[8] Id. at 58.
[9] Id. at 58, 145.
[10] Id. at 131-141.
[11] Id.
[12] Id. at 232-237.
[13] Id. at 215.
[14] Id. at 216.
[15] Id. at 382.
[16] Id. at 384-397.
[17] Id. at 398-403.
[18] Id. at 58.
[19] Id. at 58, 238-245.
[20] Id. at 243-244.
[21] Id. at 142-160.
[22] Id. at 413.
[23] Id. at 414-452.
[24] Id. at 483-501.
[25] Id. at 505.
[26] Id. at 507.
[27] Id. at 19, 112.
[28] Id. at 56-63.
[29] Id. at 56-63.
[30] Id. at 69-73.
[31] Id. at 51-55.
[32] Id. at 940-942.
[33] Id. at 985-A.
[34] Id. at 992-1000.
[35] Id. at 27.
[36] Id. at 32.
[37] Id. at 940-942.
[38] Id. at 1059-1080.
[39] Id. at 1076.
[40] Id. at 1076.
[41] G.R. No. 135150, July 28, 1999, 311 SCRA 602.
[42] Rollo, p. 1074.
[43] Id. at 1139.
[44] Id. at 1143.
[45] Id. at 1145.
[46] Id. at 1148.
[47] Id. at 1152.
[48] Id. at 952-966.
[49] Id. at 955.
[50] Id. at 956.
[51] Id. at 1001-1004.
[52] Lonzanida v. COMELEC, G.R. No. 135150, July 28, 1999, 311 SCRA 602, 611.
[53] G.R. No. 201716, January 8, 2013 688 SCRA 149.
[54] G.R. No. 184836, December 23, 2009, 609 SCRA 234.
[55] Id.
[56] Id. at 259-260.
[57] Section 51 (a) of the Revised Rules on Administrative Cases in the Civil Service, the predecessor of the 2017 RRACCS, similarly provided:
Section 51. Duration and effect of administrative penalties. — The following rules shall govern the imposition of administrative penalties:
a. The penalty of dismissal shall result in the permanent separation of the respondent from the service, without prejudice to criminal or civil liability.
x x x x
[58] Supra note 30, at 73.
[59] Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice Mayor. — (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice-governor, mayor, or vice-mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice-governor, mayor or vice-mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein.
[58] Supra note 30, at 73.
[59] Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice Mayor. — (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice-governor, mayor, or vice-mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice-governor, mayor or vice-mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein.
x x x x
[60] Section 46. Temporary Vacancy in the Office of the Local Chief Executive. — (a) When the governor, city or municipal mayor, or punong barangay is temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension from office, the vice-governor, city or municipal vice-mayor, or the highest ranking sangguniang barangay member shall automatically exercise the powers and perform the duties and functions of the local chief executive concerned, except the power to appoint, suspend, or dismiss employees which can only be exercised if the period of temporary incapacity exceeds thirty (30) working days.
[60] Section 46. Temporary Vacancy in the Office of the Local Chief Executive. — (a) When the governor, city or municipal mayor, or punong barangay is temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension from office, the vice-governor, city or municipal vice-mayor, or the highest ranking sangguniang barangay member shall automatically exercise the powers and perform the duties and functions of the local chief executive concerned, except the power to appoint, suspend, or dismiss employees which can only be exercised if the period of temporary incapacity exceeds thirty (30) working days.
x x x x
[61] G.R. No. 154829, December 10, 2003, 417 SCRA 601.
[62] Id. at p. 614.
[61] G.R. No. 154829, December 10, 2003, 417 SCRA 601.
[62] Id. at p. 614.
DISSENTING OPINION
JARDELEZA, J.:
The Constitution provides that the term of elective local officials, except barangay officials, shall be three years, and no such official shall serve for more than three consecutive terms.[1] Subsequently, We held in a number of cases that the following requisites must concur for an elective official to be disqualified to run for an elective local office: (1) the official concerned has been elected for three consecutive terms in the same local government post; and (2) he has fully served three consecutive terms.[2]
This controversy centers on the second requisite. Edgardo A. Tallado (Tallado) was elected to the post of Governor of Camarines Norte for three consecutive national and local elections. On his third term, the Office of the Ombudsman (Ombudsman), in two successive adverse Decisions, dismissed him from the service. These Decisions, being executory even pending appeal pursuant to the Ombudsman's rules of procedure,[3] Tallado was removed from office. He was first removed on November 8, 2016 by virtue of the DILG Order[4] of even date implementing the Ombudsman's April 18, 2016 Decision finding him guilty of grave misconduct and oppression/abuse of authority, and imposing upon him the penalty of dismissal from the service.[5] On December 12, 2016, however, the Court of Appeals (CA) issued a temporary restraining order[6] (TRO) enjoining the implementation of the Ombudsman Decision. Consequently, Tallado reassumed his post.[7] On January 10, 2018, the Ombudsman issued another Decision[8] finding Tallado administratively liable for grave misconduct and dismissing him from the service. Tallado was removed from his post by virtue of the DILG's March 14, 2018 memorandum,[9] but reinstated on October 29, 2018 pursuant to a DILG Order[10] confirming Tallado's service of six months' suspension imposed by the CA in lieu of dismissal.
Ultimately, the issue brought for the Court's consideration is whether the implementation of the Ombudsman's Decisions dismissing Tallado from the service caused an involuntary interruption in his term that prevented the application of the three-term limit rule. The ponencia ruled in the affirmative. However, I disagree. While the Court has not heretofore made a ruling on similar facts, this does not place the case in a gray area. Law and jurisprudence dictate that the case be dismissed.
The Court has adopted the yardstick of strict interpretation in favor of term limitation. Section 8, Article X of the 1987 Constitution provides that the term of office of elective local officials, except barangay officials, shall be three years and no such official shall serve for more than three consecutive terms. The framers of the Constitution deemed it best to define the term of office of elective officials to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office.[11] We have held that the wording and circumstances surrounding the provision's formulation impresses upon the Court "the clear intent to make term limitation a high priority constitutional objective whose terms must be strictly construed and which cannot be defeated by, nor sacrificed for, values of less than equal constitutional worth."[12] Thus, in a number of cases, We interpreted the term limit rule in favor of limitation rather than its exception.[13] Consistency, prudence, and a due regard to the Constitutional value espoused by the above provision demand that We view this case through the same measure. This necessitates a ruling that Tallado was merely interrupted in the exercise of his functions but did not lose title to his office involuntarily. His third term was not interrupted, so that he should have been held ineligible to run in the 2019 national and local elections.
Tallado submits that when the Ombudsman's Decisions dismissing him from the service were implemented, he was divested of his title to the office of the Governor. He had to vacate his office twice and was relegated to the status of a private citizen. He was unable to discharge the functions of his office and collect the salaries and benefits that came with the post. He asserts that his eventual reinstatement did not change the fact that he had lost his title to office so that the continuity of his service was involuntarily interrupted.[14]
The ponencia agrees, ruling that "[w]ithout doubt, the execution of the OMB's dismissals x x x resulted in the petitioner's loss of title to the office of Governor."[15] Even as it acknowledges the non-finality of the Ombudsman's Decisions dismissing Tallado from office, it held, that "he was dismissed for all intents and purposes of the law x x x even if he had appealed. In that status, he ceased to hold the title to the office in the fullest sense."[16] The ponencia goes further to state that when Tallado was dismissed, "the vacancy [created] was not temporary because the petitioner was fully divested of his title to the office of Governor in both instances of dismissal." Instead, "permanent vacancy in the office of Governor ensued."[17] In effect, the ponencia compels Us to consider Tallado's dismissals as having existed in a vacuum and discount the law, jurisprudence, and the realities of the situation.
I am unable to subscribe to the majority ruling for the following reasons:
First, Tallado's removal from office was by virtue of non-final but immediately executory Decisions of the Ombudsman. The Ombudsman Rules do not attach permanent effect to dismissals pending appeal.
Section 7, Rule III of Administrative Order No. 07 (A.O. No. 7), as amended, otherwise known as the Rules of Procedure of the Office of the Ombudsman, states that a Decision rendered by the Ombudsman dismissing an elective official from the service in an administrative case is immediately executory but not yet final pending a timely appeal with the Court of Appeals (CA). If respondent wins such appeal, he shall be considered as having been under preventive suspension.[18] In this connection, We have held that in all cases of preventive suspension, the suspended official is barred from performing the functions of his office and does not receive salary in the meanwhile. However, he does not vacate and lose title to his office. Loss of office is a consequence that only results upon an eventual finding of guilt or liability.[19]
Here, Tallado timely filed respective petitions for review with the CA to question the Ombudsman's Decisions dismissing him from the service. Hence, he stepped down from his post on two occasions with the consciousness that he can obtain a favorable outcome from his appeals and that his predicament may only be temporary. And temporary it had been indeed, as the CA restrained the implementation of the Ombudsman Decision in the Dela Cruz case and reduced to six months suspension the penalty of dismissal imposed in the second Gonzales case. These rulings enabled Tallado to be reinstated to his gubernatorial post.
To my mind, what is decisive is Tallado's reinstatement to office, which occurred not once, but twice. I am unable to subscribe to the majority opinion because it attributes permanent effect to the dismissals pending appeal, when such permanency is not contemplated by the very Rules that sanction such dismissal. The Ombudsman rules provide a remedy when the non-final but executory dismissal is overturned, i.e., the respondent is considered to have been under preventive suspension for which he shall be paid the salary and other emoluments that he did not receive by reason of his removal. This is a glaring indication that no permanent effect of the dismissal pending appeal is contemplated so that none should attach.
While the Ombudsman's Rules admittedly do not contemplate every situation, the effects of the dismissals in this case should not be construed outside the intention of such Rules. Any interpretation of its provisions should not depart from its spirit. Accordingly, if there is any provision in the Rules by which guidance may be obtained to resolve a situation that was not directly provided for, then the Court must apply the Rules by analogy and not venture into its own interpretation. This is a becoming deference to the Ombudsman who was authorized by the Constitution to promulgate its own rules of procedure,[20] and thus remains the authority in their interpretation. Hence, Tallado should have been considered as preventively suspended under the Ombudsman Rules and not permanently dismissed, since he was eventually restored to his post.
In this regard, I fully agree with the Commission on Elections (COMELEC) En Banc's finding, to wit:
Section 44 of the Local Government Code (LGC) states that "a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to quality, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office." On the other hand, Section 46 of the LGC states that there is temporary vacancy when the local elective official is temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension from office.
It is clear from these definitions that the nature of the vacancy, whether permanent or temporary, depends on the cause of the elective official's incapacity to hold office. In other words, the nature of the vacancy is merely a consequence of such incapacity. Being merely a consequence, it may not be construed independently of the cause of incapacity. Thus, if an elective official is temporarily unable to hold office for the enumerated or analogous reasons, the vacancy created is merely temporary. On the other hand, permanent incapacity to hold office would lead to a permanent vacancy in that office. The law does not contemplate a situation where a temporary incapacity would lead to a permanent vacancy, and vice versa.
Going back to Section 44 of the LGC, its enumeration of what creates a permanent vacancy in a local elective office is not exhaustive and is qualified by the phrase "or is otherwise permanently incapacitated to discharge the functions of his office." This is the guiding parameter in determining whether a permanent vacancy exists.
In light of the ponencia's ruling that Tallado's dismissal resulted in the permanent vacancy in the Governor's office,[22] the fundamental point of inquiry becomes: Did Tallado become permanently incapacitated to discharge the functions of his office when non-final but immediately executory dismissal orders of the Ombudsman were implemented? Again, this proceeds from the premise that a permanent vacancy can only result from a permanent incapacity of the local elective official to hold office.
The question should be answered in the negative, and this is for obvious reasons. First, there was no final judgment dismissing Tallado from the service. Anything less than a final judgment of dismissal cannot create a permanent void in the Governor's office. Second, by actions rendered by the CA, Tallado was reinstated as Governor. Not much legal calisthenics is required for one to recognize that the vacancy caused by Tallado's dismissals were only temporary. Verily, Tallado was not permanently incapacitated to discharge the functions of his office, and the vacancy created in his absence was not permanent.
To my mind, the first dismissal that was enjoined by the CA should be understood as akin to a preventive suspension under the second paragraph of Section 7, Rule III of A.O. No. 7.[23] While Tallado did not yet win in his appeal, the provision should be applied by analogy since the TRO issued by the CA is obviously a provisional win for Tallado. In Aldovino v. Comelec,[24] We held that in all cases of preventive suspension, the suspended official is barred from performing the functions of his office but does not vacate and lose title thereto. By nature, it is a temporary incapacity to render service during an unbroken term and does not result to an involuntary interruption of a term.
The second dismissal that was reduced by the CA to suspension, on the other hand, should all the more be treated as a temporary vacancy since Section 44 of the LGC specified "suspension from office" as a cause for temporary vacancy. Likewise, the enforcement of a suspension as a penalty[25] may prevent an office holder from exercising the functions of his office for a time but does not forfeit his title to office. It is not an effective interruption of a term.
In reality, by treating the suspension imposed by the CA as cause of permanent vacancy in Tallado's office that interrupted his term, the ponencia sets a dangerous precedent by placing the suspended official in a better situation than the preventively suspended one. In holding that a suspended official's term had been involuntarily interrupted, the majority decision in effect rewards administratively sanctioned officials by allowing them to perpetuate themselves in office; while preventively suspended officials, especially those that have not been subsequently found administratively liable, would have suffered a term interruption.
In light of the foregoing, to state that a permanent vacancy in the Governor's office was created when Tallado was dismissed by non-final Ombudsman Decisions is a strained interpretation of the law. His incapacity was only temporary since he was able to reassume the gubernatorial post. Any interpretation of the law that will lead to unjust or absurd results must be rejected.
Third, We cannot ignore the legal presumptions and legal consequences that arise from a declaration of a permanent vacancy in the Governor's office. As mentioned, loss of office is a consequence that only results upon an eventual finding of guilt or liability.[26] For this matter, I am unable to agree with the majority position that the finality or non-finality of the Ombudsman's Decisions would not have made any difference since they would produce the same effect of removal of the incumbent official from office.[27]
It is a final judgment affirming the Ombudsman's dismissal orders that would lead to Tallado's permanent incapacity to wield the functions of his office and create a permanent vacancy in his post. But, as we have seen in this case, the non-final Decisions of the Ombudsman produced a different effect. Tallado momentarily lost his title to office, but was subsequently able to reassume when the CA acted favorably on his appeals. If there had been a final judgment affirming Tallado's dismissal, there would not have been a legal foothold for his re-assumption to office in the same term. Contrary to the ponencia's finding that Tallado's loss of title to office denied him the expectancy to re-assume his term,[28] the fact is that his term remained and he reassumed.
Moreover, a final judgment of dismissal would require Tallado to suffer the accessory penalties attached to the penalty of dismissal. The January 11, 2018 Decision of the Ombudsman, for example, imposed the accessory penalty of perpetual disqualification from holding any public office. Under Article 30 of the Revised Penal Code, this has the effect of depriving the offender of the public office he has held even if conferred by popular election. Thus, as a permanently-discharged official, Tallado should have lost any right to the position and his return to office would have become a legal anomaly. Again, since the Ombudsman's Decisions were not yet final, their implementation produced a different effect.
Additionally, a final judgment removing Tallado from his post would have called for a permanent replacement of the Governor under the rules of succession in the LGC. If a permanent vacancy occurs in the Office of the Governor, the Vice Governor shall become the governor. The assumption of the successor is permanent. Since the vacancy is permanent, the appointment of the successor authorized by law to fill the vacancy has to be permanent.[29] Consequently, the Vice Governor should serve as Governor until the end of the term that the Governor should have served. In this case, however, when the Ombudsman's Decisions dismissing Tallado from office were implemented, Vice Governor Pimentel assumed as Governor; but when Tallado was reinstated Pimentel also returned to his old post. This situation betrays the existence of a temporary, not permanent, vacancy in the Governor's office and arose only because there was no final judgment on Tallado's dismissal.
As seen from the foregoing circumstances, the finality or non-finality of the Ombudsman's Decisions is not inconsequential, but rather crucial. From it springs all legal consequences. In declaring that "[t]he full implementation [of the decisions of dismissal] immediately carried legal repercussions that no developments in relation to the petitioner's appeals could change or undo,"[30] the ponencia focused on Tallado's momentary loss of title to office, without more. This is akin to taking a snapshot-which does not reflect the entire reality. To be sure, by any angle, the non-finality of the Ombudsman's Decisions brought about temporary results in terms of Tallado's inability to function as Governor. Intuitively, there could not have been two permanent vacancies in the Governor's Office in a single term as a result of the supposed permanent incapacity of the same Governor to exercise his duties. If the initial vacancy had been permanent, then the succeeding one should not have arisen. It is the ponencia's own perspective that appears to produce dire legal repercussions.
Overall, the majority decision rewards recidivists and wrongdoers in public service. The facts have amply demonstrated Tallado's propensity to commit infractions during his incumbency as Governor. Yet, by the majority decision which declared an involuntarily interruption in his supposed third and last term as Governor, he now enjoys the present fresh three-year term that paves the way to two more terms and a possible 18 years in public office. Accordingly, even on equitable grounds, the petition should have been dismissed. Equity does not favor, nor may it be used to reward a wrongdoer.[31] The Court should not have allowed Tallado to benefit from his own fault.
In sum, the facts of the case sufficiently establish that the second requisite for disqualification to run for an elective local office—that Tallado fully served three consecutive terms as Governor of Camarines Norte—was satisfied. What transpired in this case was not an involuntary interruption of Tallado's term, but merely an interruption of the continuity of the exercise of his powers as Governor. A contrary ruling would run roughshod Section 8, Article X of the Constitution and its strict intent to limit an elective official's continuous stay in office to no more than three consecutive terms. Considering that Tallado is disqualified from running for a fourth term in the 2019 elections, the COMELEC committed no grave abuse of discretion in cancelling his Certificate of Candidacy.
I vote to DENY the petition.
[1] CONSTITUTION, Article X, Sec. 8.
[2] Abundo, Sr. v. Commission on Elections, G.R. No. 201716, January 8, 2013, 688 SCRA 149, 167; Bolos, Jr. v. Commission on Elections, G.R. No. 184082, March 17, 2009, 581 SCRA 786, 793; and Latasa v. Commission on Elections, G.R. No. 154829, December 10, 2003, 417 SCRA 601, 609.
[3] See Sec. 7, Rule III of Administrative Order No.7, the Rules of Procedure of the Office of the Ombudsman, as amended.
[4] Rollo, p. 215.
[5] Id. at 232-237.
[6] Id.
[7] Rollo, p. 58.
[8] Id. at 238-245.
[9] Id. at 246.
[10] Id. at 502.
[11] Latasa v. Commission on Elections, G.R. No. 154829, December 10, 2003, 417 SCRA 601, 614.
[12] Aldovino, Jr. v. Commission on Elections, G.R. No. 184836, December 23, 2009, 609 SCRA 234, 253.
[13] In Aldovino, Jr. v. Commission on Elections, supra at 255-256, We held that Ong v. Alegre (G.R. No. 163295, January 23, 2006, 479 SCRA 473) and Rivera v. COMELEC (G.R. No. 167591, May 9, 2007, 523 SCRA 41) "are important rulings for purposes of the three-term limitation because of what they directly imply. Although the election requisite was not actually present, the Court still gave full effect to the three-term limitation because of the constitutional intent to strictly limit elective officials to service for three terms. By so ruling, the Court signaled how zealously it guards the three-term limit rule. Effectively, these cases teach us to strictly interpret the term limitation rule in favor of limitation rather than its exception."
[14] Rollo, p. 27.
[15] Ponencia, p. 13.
[16] Id. at 14. Italics in the original.
[17] Id. at 16.
[18] Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman) as amended, Rule III, Section 7 pertinently provides:
Sec. 7. Finality and execution of decision. x x x
The Constitution provides that the term of elective local officials, except barangay officials, shall be three years, and no such official shall serve for more than three consecutive terms.[1] Subsequently, We held in a number of cases that the following requisites must concur for an elective official to be disqualified to run for an elective local office: (1) the official concerned has been elected for three consecutive terms in the same local government post; and (2) he has fully served three consecutive terms.[2]
This controversy centers on the second requisite. Edgardo A. Tallado (Tallado) was elected to the post of Governor of Camarines Norte for three consecutive national and local elections. On his third term, the Office of the Ombudsman (Ombudsman), in two successive adverse Decisions, dismissed him from the service. These Decisions, being executory even pending appeal pursuant to the Ombudsman's rules of procedure,[3] Tallado was removed from office. He was first removed on November 8, 2016 by virtue of the DILG Order[4] of even date implementing the Ombudsman's April 18, 2016 Decision finding him guilty of grave misconduct and oppression/abuse of authority, and imposing upon him the penalty of dismissal from the service.[5] On December 12, 2016, however, the Court of Appeals (CA) issued a temporary restraining order[6] (TRO) enjoining the implementation of the Ombudsman Decision. Consequently, Tallado reassumed his post.[7] On January 10, 2018, the Ombudsman issued another Decision[8] finding Tallado administratively liable for grave misconduct and dismissing him from the service. Tallado was removed from his post by virtue of the DILG's March 14, 2018 memorandum,[9] but reinstated on October 29, 2018 pursuant to a DILG Order[10] confirming Tallado's service of six months' suspension imposed by the CA in lieu of dismissal.
Ultimately, the issue brought for the Court's consideration is whether the implementation of the Ombudsman's Decisions dismissing Tallado from the service caused an involuntary interruption in his term that prevented the application of the three-term limit rule. The ponencia ruled in the affirmative. However, I disagree. While the Court has not heretofore made a ruling on similar facts, this does not place the case in a gray area. Law and jurisprudence dictate that the case be dismissed.
The Court has adopted the yardstick of strict interpretation in favor of term limitation. Section 8, Article X of the 1987 Constitution provides that the term of office of elective local officials, except barangay officials, shall be three years and no such official shall serve for more than three consecutive terms. The framers of the Constitution deemed it best to define the term of office of elective officials to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office.[11] We have held that the wording and circumstances surrounding the provision's formulation impresses upon the Court "the clear intent to make term limitation a high priority constitutional objective whose terms must be strictly construed and which cannot be defeated by, nor sacrificed for, values of less than equal constitutional worth."[12] Thus, in a number of cases, We interpreted the term limit rule in favor of limitation rather than its exception.[13] Consistency, prudence, and a due regard to the Constitutional value espoused by the above provision demand that We view this case through the same measure. This necessitates a ruling that Tallado was merely interrupted in the exercise of his functions but did not lose title to his office involuntarily. His third term was not interrupted, so that he should have been held ineligible to run in the 2019 national and local elections.
Tallado submits that when the Ombudsman's Decisions dismissing him from the service were implemented, he was divested of his title to the office of the Governor. He had to vacate his office twice and was relegated to the status of a private citizen. He was unable to discharge the functions of his office and collect the salaries and benefits that came with the post. He asserts that his eventual reinstatement did not change the fact that he had lost his title to office so that the continuity of his service was involuntarily interrupted.[14]
The ponencia agrees, ruling that "[w]ithout doubt, the execution of the OMB's dismissals x x x resulted in the petitioner's loss of title to the office of Governor."[15] Even as it acknowledges the non-finality of the Ombudsman's Decisions dismissing Tallado from office, it held, that "he was dismissed for all intents and purposes of the law x x x even if he had appealed. In that status, he ceased to hold the title to the office in the fullest sense."[16] The ponencia goes further to state that when Tallado was dismissed, "the vacancy [created] was not temporary because the petitioner was fully divested of his title to the office of Governor in both instances of dismissal." Instead, "permanent vacancy in the office of Governor ensued."[17] In effect, the ponencia compels Us to consider Tallado's dismissals as having existed in a vacuum and discount the law, jurisprudence, and the realities of the situation.
I am unable to subscribe to the majority ruling for the following reasons:
First, Tallado's removal from office was by virtue of non-final but immediately executory Decisions of the Ombudsman. The Ombudsman Rules do not attach permanent effect to dismissals pending appeal.
Section 7, Rule III of Administrative Order No. 07 (A.O. No. 7), as amended, otherwise known as the Rules of Procedure of the Office of the Ombudsman, states that a Decision rendered by the Ombudsman dismissing an elective official from the service in an administrative case is immediately executory but not yet final pending a timely appeal with the Court of Appeals (CA). If respondent wins such appeal, he shall be considered as having been under preventive suspension.[18] In this connection, We have held that in all cases of preventive suspension, the suspended official is barred from performing the functions of his office and does not receive salary in the meanwhile. However, he does not vacate and lose title to his office. Loss of office is a consequence that only results upon an eventual finding of guilt or liability.[19]
Here, Tallado timely filed respective petitions for review with the CA to question the Ombudsman's Decisions dismissing him from the service. Hence, he stepped down from his post on two occasions with the consciousness that he can obtain a favorable outcome from his appeals and that his predicament may only be temporary. And temporary it had been indeed, as the CA restrained the implementation of the Ombudsman Decision in the Dela Cruz case and reduced to six months suspension the penalty of dismissal imposed in the second Gonzales case. These rulings enabled Tallado to be reinstated to his gubernatorial post.
To my mind, what is decisive is Tallado's reinstatement to office, which occurred not once, but twice. I am unable to subscribe to the majority opinion because it attributes permanent effect to the dismissals pending appeal, when such permanency is not contemplated by the very Rules that sanction such dismissal. The Ombudsman rules provide a remedy when the non-final but executory dismissal is overturned, i.e., the respondent is considered to have been under preventive suspension for which he shall be paid the salary and other emoluments that he did not receive by reason of his removal. This is a glaring indication that no permanent effect of the dismissal pending appeal is contemplated so that none should attach.
While the Ombudsman's Rules admittedly do not contemplate every situation, the effects of the dismissals in this case should not be construed outside the intention of such Rules. Any interpretation of its provisions should not depart from its spirit. Accordingly, if there is any provision in the Rules by which guidance may be obtained to resolve a situation that was not directly provided for, then the Court must apply the Rules by analogy and not venture into its own interpretation. This is a becoming deference to the Ombudsman who was authorized by the Constitution to promulgate its own rules of procedure,[20] and thus remains the authority in their interpretation. Hence, Tallado should have been considered as preventively suspended under the Ombudsman Rules and not permanently dismissed, since he was eventually restored to his post.
In this regard, I fully agree with the Commission on Elections (COMELEC) En Banc's finding, to wit:
The undeniable fact that [Tallado] was able to reassume his post as Governor when the Court of Appeals, in OMB-L-A-15-0480, issued the Temporary Restraining Order staying the dismissal order and, in OMB-L-A-16-0360, modified the dismissal order to a penalty of suspension for 6 months, only proves that the vacancies created by the implementation of the dismissal orders were temporary and did not result in the loss of title of [Tallado] to the Office of the Governor. Therefore, there is no valid interruption that would cause a break in the continuity of the service on the part of [Tallado] as would entitle him to be qualified to run again for a fourth (4th) term as Governor of Camarines Norte.[21] (Emphasis omitted.)Second, there is an inherent incongruity between the ponencia's characterization of the vacancy created in the Governor's office as "permanent" and the absence of permanent incapacity on the part of Tallado to reassume as Governor.
Section 44 of the Local Government Code (LGC) states that "a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to quality, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office." On the other hand, Section 46 of the LGC states that there is temporary vacancy when the local elective official is temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension from office.
It is clear from these definitions that the nature of the vacancy, whether permanent or temporary, depends on the cause of the elective official's incapacity to hold office. In other words, the nature of the vacancy is merely a consequence of such incapacity. Being merely a consequence, it may not be construed independently of the cause of incapacity. Thus, if an elective official is temporarily unable to hold office for the enumerated or analogous reasons, the vacancy created is merely temporary. On the other hand, permanent incapacity to hold office would lead to a permanent vacancy in that office. The law does not contemplate a situation where a temporary incapacity would lead to a permanent vacancy, and vice versa.
Going back to Section 44 of the LGC, its enumeration of what creates a permanent vacancy in a local elective office is not exhaustive and is qualified by the phrase "or is otherwise permanently incapacitated to discharge the functions of his office." This is the guiding parameter in determining whether a permanent vacancy exists.
In light of the ponencia's ruling that Tallado's dismissal resulted in the permanent vacancy in the Governor's office,[22] the fundamental point of inquiry becomes: Did Tallado become permanently incapacitated to discharge the functions of his office when non-final but immediately executory dismissal orders of the Ombudsman were implemented? Again, this proceeds from the premise that a permanent vacancy can only result from a permanent incapacity of the local elective official to hold office.
The question should be answered in the negative, and this is for obvious reasons. First, there was no final judgment dismissing Tallado from the service. Anything less than a final judgment of dismissal cannot create a permanent void in the Governor's office. Second, by actions rendered by the CA, Tallado was reinstated as Governor. Not much legal calisthenics is required for one to recognize that the vacancy caused by Tallado's dismissals were only temporary. Verily, Tallado was not permanently incapacitated to discharge the functions of his office, and the vacancy created in his absence was not permanent.
To my mind, the first dismissal that was enjoined by the CA should be understood as akin to a preventive suspension under the second paragraph of Section 7, Rule III of A.O. No. 7.[23] While Tallado did not yet win in his appeal, the provision should be applied by analogy since the TRO issued by the CA is obviously a provisional win for Tallado. In Aldovino v. Comelec,[24] We held that in all cases of preventive suspension, the suspended official is barred from performing the functions of his office but does not vacate and lose title thereto. By nature, it is a temporary incapacity to render service during an unbroken term and does not result to an involuntary interruption of a term.
The second dismissal that was reduced by the CA to suspension, on the other hand, should all the more be treated as a temporary vacancy since Section 44 of the LGC specified "suspension from office" as a cause for temporary vacancy. Likewise, the enforcement of a suspension as a penalty[25] may prevent an office holder from exercising the functions of his office for a time but does not forfeit his title to office. It is not an effective interruption of a term.
In reality, by treating the suspension imposed by the CA as cause of permanent vacancy in Tallado's office that interrupted his term, the ponencia sets a dangerous precedent by placing the suspended official in a better situation than the preventively suspended one. In holding that a suspended official's term had been involuntarily interrupted, the majority decision in effect rewards administratively sanctioned officials by allowing them to perpetuate themselves in office; while preventively suspended officials, especially those that have not been subsequently found administratively liable, would have suffered a term interruption.
In light of the foregoing, to state that a permanent vacancy in the Governor's office was created when Tallado was dismissed by non-final Ombudsman Decisions is a strained interpretation of the law. His incapacity was only temporary since he was able to reassume the gubernatorial post. Any interpretation of the law that will lead to unjust or absurd results must be rejected.
Third, We cannot ignore the legal presumptions and legal consequences that arise from a declaration of a permanent vacancy in the Governor's office. As mentioned, loss of office is a consequence that only results upon an eventual finding of guilt or liability.[26] For this matter, I am unable to agree with the majority position that the finality or non-finality of the Ombudsman's Decisions would not have made any difference since they would produce the same effect of removal of the incumbent official from office.[27]
It is a final judgment affirming the Ombudsman's dismissal orders that would lead to Tallado's permanent incapacity to wield the functions of his office and create a permanent vacancy in his post. But, as we have seen in this case, the non-final Decisions of the Ombudsman produced a different effect. Tallado momentarily lost his title to office, but was subsequently able to reassume when the CA acted favorably on his appeals. If there had been a final judgment affirming Tallado's dismissal, there would not have been a legal foothold for his re-assumption to office in the same term. Contrary to the ponencia's finding that Tallado's loss of title to office denied him the expectancy to re-assume his term,[28] the fact is that his term remained and he reassumed.
Moreover, a final judgment of dismissal would require Tallado to suffer the accessory penalties attached to the penalty of dismissal. The January 11, 2018 Decision of the Ombudsman, for example, imposed the accessory penalty of perpetual disqualification from holding any public office. Under Article 30 of the Revised Penal Code, this has the effect of depriving the offender of the public office he has held even if conferred by popular election. Thus, as a permanently-discharged official, Tallado should have lost any right to the position and his return to office would have become a legal anomaly. Again, since the Ombudsman's Decisions were not yet final, their implementation produced a different effect.
Additionally, a final judgment removing Tallado from his post would have called for a permanent replacement of the Governor under the rules of succession in the LGC. If a permanent vacancy occurs in the Office of the Governor, the Vice Governor shall become the governor. The assumption of the successor is permanent. Since the vacancy is permanent, the appointment of the successor authorized by law to fill the vacancy has to be permanent.[29] Consequently, the Vice Governor should serve as Governor until the end of the term that the Governor should have served. In this case, however, when the Ombudsman's Decisions dismissing Tallado from office were implemented, Vice Governor Pimentel assumed as Governor; but when Tallado was reinstated Pimentel also returned to his old post. This situation betrays the existence of a temporary, not permanent, vacancy in the Governor's office and arose only because there was no final judgment on Tallado's dismissal.
As seen from the foregoing circumstances, the finality or non-finality of the Ombudsman's Decisions is not inconsequential, but rather crucial. From it springs all legal consequences. In declaring that "[t]he full implementation [of the decisions of dismissal] immediately carried legal repercussions that no developments in relation to the petitioner's appeals could change or undo,"[30] the ponencia focused on Tallado's momentary loss of title to office, without more. This is akin to taking a snapshot-which does not reflect the entire reality. To be sure, by any angle, the non-finality of the Ombudsman's Decisions brought about temporary results in terms of Tallado's inability to function as Governor. Intuitively, there could not have been two permanent vacancies in the Governor's Office in a single term as a result of the supposed permanent incapacity of the same Governor to exercise his duties. If the initial vacancy had been permanent, then the succeeding one should not have arisen. It is the ponencia's own perspective that appears to produce dire legal repercussions.
Overall, the majority decision rewards recidivists and wrongdoers in public service. The facts have amply demonstrated Tallado's propensity to commit infractions during his incumbency as Governor. Yet, by the majority decision which declared an involuntarily interruption in his supposed third and last term as Governor, he now enjoys the present fresh three-year term that paves the way to two more terms and a possible 18 years in public office. Accordingly, even on equitable grounds, the petition should have been dismissed. Equity does not favor, nor may it be used to reward a wrongdoer.[31] The Court should not have allowed Tallado to benefit from his own fault.
In sum, the facts of the case sufficiently establish that the second requisite for disqualification to run for an elective local office—that Tallado fully served three consecutive terms as Governor of Camarines Norte—was satisfied. What transpired in this case was not an involuntary interruption of Tallado's term, but merely an interruption of the continuity of the exercise of his powers as Governor. A contrary ruling would run roughshod Section 8, Article X of the Constitution and its strict intent to limit an elective official's continuous stay in office to no more than three consecutive terms. Considering that Tallado is disqualified from running for a fourth term in the 2019 elections, the COMELEC committed no grave abuse of discretion in cancelling his Certificate of Candidacy.
I vote to DENY the petition.
[1] CONSTITUTION, Article X, Sec. 8.
[2] Abundo, Sr. v. Commission on Elections, G.R. No. 201716, January 8, 2013, 688 SCRA 149, 167; Bolos, Jr. v. Commission on Elections, G.R. No. 184082, March 17, 2009, 581 SCRA 786, 793; and Latasa v. Commission on Elections, G.R. No. 154829, December 10, 2003, 417 SCRA 601, 609.
[3] See Sec. 7, Rule III of Administrative Order No.7, the Rules of Procedure of the Office of the Ombudsman, as amended.
[4] Rollo, p. 215.
[5] Id. at 232-237.
[6] Id.
[7] Rollo, p. 58.
[8] Id. at 238-245.
[9] Id. at 246.
[10] Id. at 502.
[11] Latasa v. Commission on Elections, G.R. No. 154829, December 10, 2003, 417 SCRA 601, 614.
[12] Aldovino, Jr. v. Commission on Elections, G.R. No. 184836, December 23, 2009, 609 SCRA 234, 253.
[13] In Aldovino, Jr. v. Commission on Elections, supra at 255-256, We held that Ong v. Alegre (G.R. No. 163295, January 23, 2006, 479 SCRA 473) and Rivera v. COMELEC (G.R. No. 167591, May 9, 2007, 523 SCRA 41) "are important rulings for purposes of the three-term limitation because of what they directly imply. Although the election requisite was not actually present, the Court still gave full effect to the three-term limitation because of the constitutional intent to strictly limit elective officials to service for three terms. By so ruling, the Court signaled how zealously it guards the three-term limit rule. Effectively, these cases teach us to strictly interpret the term limitation rule in favor of limitation rather than its exception."
[14] Rollo, p. 27.
[15] Ponencia, p. 13.
[16] Id. at 14. Italics in the original.
[17] Id. at 16.
[18] Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman) as amended, Rule III, Section 7 pertinently provides:
Sec. 7. Finality and execution of decision. x x x
x x x x
An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal.x x x x
[19] Aldovino, Jr. v. Commission on Elections, supra note 12 at 262.
[20] See CONSTITUTION, Article XI, Section 13(8).
[21] Rollo, pp. 53-54.
[22] Ponencia, p. 15.
[23] The second paragraph of this section reads: "An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal."
[24] Supra note 12.
[25] The suspension imposed by the CA in lieu of dismissal in the second Gonzales case was of course not a final verdict, but We consider its effects in the term under consideration.
[26] See Aldovino v. Comelec, supra note 12 at 262.
[27] Ponencia, p. 13.
[28] Id. at 16.
[29] Guekeko v. Santos, G.R. No. L-128, March 2, 1946.
[30] Ponencia, p. 17.
[31] Tirazona v. Philippine EDS Techno-Service Inc., (PET Inc.), G.R. No. 169712, January 20, 2009, 576 SCRA 625, 633.