Kare v. Comelec : 157526 : April 28, 2004 : J. Panganiban : En Banc :
[G.R. NO. 157526.
April 28, 2004]
EMILIANA TORAL KARE,
COMMISSION ON ELECTIONS,
[G.R. NO. 157527.
SALVADOR K. MOLL,
D E C I S I O N
When a mayoral candidate who gathered the highest number of votes
is disqualified after the election is held, a permanent vacancy is created, and
the vice mayor succeeds to the position.
Before us are two Petitions for Certiorari under Rules 64
and 65 of the Rules of Court, seeking the nullification of the March 19, 2003
En Banc Resolution issued by the Commission on Elections (Comelec) in SPA No.
The Comelec resolved therein to
disqualify Salvador K. Moll from the mayoralty of Malinao, Albay, and to
proclaim Avelino Ceriola as the mayor-elect of the said municipality.
The decretal portion of the Resolution
considered, the petition is hereby GRANTED.
It is affirmed that private respondent
Salvador K. Moll is DISQUALIFIED
from holding the office of the Mayor of Malinao, Albay.
His proclamation as the winning candidate
for such office is declared VOID AB
Provincial Election Supervisor of Albay is directed to immediately convene the
municipal board of canvassers of Malinao, Albay and PROCLAIM petitioner Avelino Ceriola as the Mayor-Elect of the
In GR No. 157526, Petitioner Emiliana Toral Kare seeks the
nullification of the March 19, 2003 Resolution insofar as it authorized the
proclamation of Ceriola as the mayor-elect of Malinao.
In GR No. 157527, Petitioner Moll prays for
the annulment of the entire Resolution.
Petitioner Moll and Private Respondent Ceriola were candidates
for mayor of the Municipality of Malinao, Albay, during the elections of May
Moll obtained the highest number of votes cast for the position
while Ceriola came in second, with a total of nine hundred eighty-seven (987)
votes separating the two.
elected vice mayor in the same election.
On May 18, 2001, Ceriola filed a Petition to Confirm the
Disqualification and/or Ineligibility of Dindo K. Moll to Run for Any Elective
The Petition alleged that
the latter had been sentenced by final judgment to suffer the penalty of six
(6) months of arresto mayor to one
(1) year and nine (9) months of prision
correccional, for the crime of usurpation of authority or official
functions under Article 177 of the Revised Penal Code.
In its May 28, 2001 Resolution,2 the Comelec First Division dismissed the Petition.Ceriola filed his Motion for Reconsideration with the Comelec en
banc which, on August 31, 2001, set aside the said Resolution.
It thereafter directed the clerk of the
Comelec to remand the Petition to the provincial election supervisor of Albay
for hearing and reception of evidence.
Ruling of the Comelec En Banc
On March 19, 2003, after the provincial election supervisor of
Albay submitted the report and recommendation, the Comelec en banc issued the
questioned Resolution affirming Molls disqualification and proclaiming Ceriola
as the mayor-elect of the municipality.
As earlier adverted to, the Comelec ruled that Moll had indeed
been disqualified from being a mayoral candidate in the May 14, 2001 local
election, and that his subsequent proclamation as mayor was void ab
Consequently, he was
disqualified from holding that office.
The Comelec further ruled that the trial courts final judgment
of conviction of Moll disqualified him from filing his certificate of candidacy
and continued to disqualify him from holding office.Accordingly, the votes cast in his favor were stray or invalid
votes, and Ceriola -- the candidate who had obtained the second highest number
of votes -- was adjudged the winner.
Thus, the Comelec ordered the Municipal Board of Canvassers to proclaim
him as the mayor-elect of the municipality.
Before Ceriolas actual proclamation, Kare filed a Petition
before this Court with a prayer for a Status Quo Order, which was granted on
April 1, 2003.3 In this
Order, the Comelec, the provincial election supervisor of Albay, and the
municipal canvassers of Malinao (Albay) were required to observe the status quo
prevailing before the filing of the Petition.
The other Petition was filed by Moll.4
After going through the Memoranda submitted by the parties, the
Court has determined that the following are the two issues that have to be
1.Should Moll be
disqualified from running and/or holding the position of mayor?chanroblesvirtualawlibrary
2.) If the first issue is answered
in the affirmative, who should become the mayor -- Ceriola, the second placer
in the mayoral election? Or Kare, the elected vice mayor?
The Courts Ruling
The Petition in GR No. 157526 is partly meritorious, but the Petition
in GR No. 157527 has no merit.
Moll argues that he cannot be disqualified from running for
mayor, since his judgement of conviction5 -- the basis of his disqualification -- has allegedly not yet attained
He contends that while the
said judgment promulgated on May 11, 1999 was not appealed by filing the
Notice of Appeal in the ordinary course of the proceedings, he still filed a
Motion for Reconsideration dated May 28, 1999 within the reglementary period.6 Thus, according to him, the filing of such Motion stayed the finality of his
Section 7 of
Rule 120 of the 2000 Rules of Criminal Procedure reads thus:chanroblesvirtua1awlibrary
Sec. 7. Modification of
judgment. -- A judgment of conviction may, upon motion of the accused, be
modified or set aside before it becomes final or before appeal is
Except where the death
penalty is imposed, a judgment in a
criminal case becomes final after the lapse of the period for perfecting an
appeal, or when the sentence has been partially or totally satisfied or
served, or when the accused has waived in writing his right to appeal, or has
applied for probation. (Italics supplied)cralawlibrary
In turn, Section 6 of Rule 122 provides:chanroblesvirtua1awlibrary
When appeal to be taken. - An appeal
must be taken within fifteen (15) days from promulgation of the judgment or
from notice of the final order appealed from.
This period for perfecting an
appeal shall be interrupted from the time a motion for new trial or
reconsideration is filed until notice of the order overruling the motion
shall have been served upon the accused or his counsel at which time the
balance of the period begins to run. (Italics supplied)cralawlibrary
It is clear that the period for appeal is interrupted by the
filing of either a motion for reconsideration or a motion for a new trial.
Moll makes it appear that his filing of a
motion for reconsideration should have stayed the running of the period for
filing an appeal.
What he did file,
however, was a Motion to Quash the Information; and when it was denied, he
filed a Motion for Reconsideration of the denial.
The Rules of Court mandates that an appeal should be filed within
fifteen (15) days from promulgation of the judgment or from notice of the final
order appealed from.
follows that this period is interrupted only by the filing of a motion for
reconsideration of the judgment or of the final order being appealed.
Neither Molls Motion to Quash Information nor his Motion for
Reconsideration was directed at the judgment of conviction.
Rather, they both attacked a matter
extraneous to the judgment.
cannot affect the period of appeal granted by the Rules of Court in relation to
Moll himself admitted that no regular appeal was filed because he
was still questioning the propriety of the denial of his Motion to Quash the
Information and the propriety of the conduct of the promulgation of his
sentence despite his absence x x x.7 Aside from not interrupting his judgment of conviction, the motion to quash was
even belatedly filed.
Such a motion may
be filed by the accused at any time before entering a plea8 and certainly not on the day of the promulgation, as Moll did.
As to his contention that the promulgation of judgment was not
valid because it was done in his absence, we agree with the Office of the
Solicitor General, which argues as follows:chanroblesvirtua1awlibrary
It was not contested that Moll received a notice of the
promulgation, in fact his counsel was present on the day of the promulgation -
to file a motion to quash.
because of Molls unexplained absence, the promulgation of the judgment could
be validly made by recording the judgment in the criminal docket and serving
him a copy thereof to his last known address or thru his counsel (Section 6,
Rule 120, Rules of Court). 9 cralawred
Indubitably, since no appeal of the conviction was seasonably
filed by Moll, the judgment against him has become final.10 Thus, the Comelec en banc correctly ruled that he was disqualified from running
for mayor, under Section 40(a) of the Local Government Code (RA No. 7160),
Section 40. Disqualifications.
The following persons are disqualified from running for any elective
Those sentenced by
final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after
x x xx
x xx x x.
Moll was sentenced to suffer the penalty of six (6) months of arresto mayor to one (1) year and nine
(9) months of prision correccional, a
penalty that clearly disqualified him from running for any elective local
In allowing Ceriola -- the second placer in the mayoralty race --
to be proclaimed mayor-elect after the disqualification of Moll, the Comelec
applied Section 211(24) of the Omnibus Election Code (OEC),
Sec. 211. Rules for the
appreciation of ballots. In the reading and appreciation of ballots, every
ballot shall be presumed to be valid unless there is clear and good reason to
justify its rejection.
The board of
election inspectors shall observe
following rules, bearing in mind that the object of the election is to obtain
the expression of the voters will:
x x xx
x xx x x
Any vote cast in favor
of a candidate who has been disqualified by final judgment shall be considered
as stray and shall not be counted but it shall not invalidate the ballot.
The poll body interpreted the phrase disqualified by final
judgment to mean disqualification by a final judgment of conviction, which
was the ground upon which Moll was disqualified.It ruled:chanroblesvirtua1awlibrary
In this case, the disqualification is based specifically on the final
judgment of conviction by a court against private respondent.
This final judgment disqualified private
respondent from filing his certificate of candidacy in the first instance, and
continues to disqualify private respondent from holding office.
Accordingly, the votes cast in his favor
were stray or invalid votes and the general rule in the Sunga Case does not
obtained the highest number of valid votes, is entitled to be proclaimed the
winning mayoralty candidate.11 cralawred
Further, it said:chanroblesvirtua1awlibrary
x x x As such, this instance constitutes an exception to the
general rule enunciated in the Sunga Case.
In the language of the said case, the foregoing provision of law is a
statute which clearly asserts a legislative policy contrary to the rule that
the candidate with the second highest number of votes cannot be declared the
winner, given that the votes for the disqualified candidate, though of highest
number, are deemed stray and invalid.
Consequently, the so-called second placer shall be declared the winner
because he or she in fact obtained the highest number of valid votes.12 cralawred
Such arguments do not persuade.
In every election, the choice of the people is the paramount
consideration, and their expressed will must at all times be given effect.13 When the majority speaks by giving a candidate the highest number of votes in
the election for an office, no one else can be declared elected in place of the
former.14 In a long line of cases, this Court has definitively ruled that the Comelec
cannot proclaim as winner the candidate who obtained the second highest number
of votes, should the winning candidate be declared ineligible or disqualified.15 cralawred
The Comelec, however, asserts that this case falls under the
exception declared by the Court in Sunga v. Comelec,16 from which we quote:chanroblesvirtua1awlibrary
x x x The votes cast for a disqualified person may not be valid to
install the winner into office or maintain him there.But in the absence of a statute which clearly asserts a contrary
political and legislative policy on the matter, if the votes were cast in the
sincere belief that the candidate was qualified, they should not be treated as
stray, void or meaningless.17 cralawred
According to the Comelec, Section 211(24) of the OEC is a clear
legislative policy that is contrary to the rule that the second placer cannot
be declared winner.
The provision that served as the basis of Comelecs Decision to
declare the second placer as winner in the mayoral race should be read in
relation with other provisions of the OEC.
Section 72 thereof, as amended by RA 6646, provides as follows:chanroblesvirtua1awlibrary
Sec. 72.Effects of disqualification cases and
priority. The Commission and the courts shall give priority to cases of
disqualification by reason of violation of this Act to the end that a final
decision shall be rendered not later than seven days before the election in
which the disqualification is sought.
Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be counted. Nevertheless, if for any reason, a
candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in
such election, his violation of the provisions of the preceding sections shall
not prevent his proclamation and assumption to office."
When read together, these provisions are understood to mean that
any vote cast in favor of a candidate, whose disqualification has already been declared final regardless of the
ground therefor, shall be considered stray.
The Comelec misconstrued this provision by limiting it only to
disqualification by conviction in a final judgment.
Obviously, the disqualification of a candidate is not only by
conviction in a final judgment; the law lists other grounds for
disqualification.18 It escapes us why the Comelec insists that Section 211(24) of the OEC is
strictly for those convicted by a final judgment.Such an interpretation is clearly inconsistent with the other
provisions of the election code.
More important, it is clear that it was only on March 19, 2003,
that the Comelec en banc issued Resolution No. SPA No. 01-272. The Resolution
adopted the recommendation of the provincial election supervisor of Albay to disqualify
Moll from running as a mayoral candidate in Malinao, Albay.
Thus, on May 14, 2001, when the electorate
voted for him as mayor, they were under the belief that he was qualified. There
is no presumption that they agreed to the subsequent invalidation of their
votes as stray votes, in case of his disqualification.
A subsequent finding by the Comelec en banc that Moll was
ineligible cannot retroact to the
date of the election and thereby invalidate the votes cast for him.19 cralawred
Moreover, Moll was not notoriously known to the public as an
above, the Resolution declaring him as such was rendered long after the
Thus, on the part of those
who voted for him, their votes are presumed to have been cast with a sincere
belief that he was a qualified candidate, and without any intention to misapply
Thus, their votes
cannot be treated as stray, void, or meaningless.20 cralawred
The Comelecs interpretation of a section in the OEC cannot
supplant an accepted doctrine laid down by this Court.
In Aquino v. Comelec,21 we said:chanroblesvirtua1awlibrary
x x x To simplistically assume that the second placer would have
received the other votes would be to substitute our judgment for the mind of
the voter. The second placer is just that, a second placer. He lost the
elections. He was repudiated by either a majority or plurality of voters. He
could not be considered the first among qualified candidates because in a field
which excludes the disqualified candidate, the conditions would have substantially
changed. We are not prepared to extrapolate the results under such
To allow the defeated and repudiated candidate to take over the
mayoralty despite his rejection by the electorate is to disenfranchise them
through no fault on their part, and to undermine the importance and the meaning
of democracy and the right of the people to elect officials of their choice.23 cralawred
Theoretically, the second placer could receive just one
In such a case, it would be
absurd to proclaim the totally repudiated candidate as the voters choice.
Moreover, there are instances in which the
votes received by the second placer may not be considered numerically
In such situations, if
the equation changes because of the disqualification of an ineligible
candidate, voters preferences would nonetheless be so volatile and
unpredictable that the results for qualified candidates would not be
self-evident.24 The absence
of the apparent though ineligible winner among the choices could lead to a
shifting of votes to candidates other than the second placer.25 Where an ineligible candidate has garnered either a majority or a plurality
of the votes, by no mathematical formulation can the runnerup in the election
be construed to have obtained the majority or the plurality of votes cast.26 cralawred
We reiterate that this Court has no authority under any law to
impose upon and compel the people of Malinao, Albay, to accept Ceriola as their
mayor.27 The law on succession under Section 44 of Republic Act 7160, otherwise known as
the Local Government Code, would then apply.
This provision relevantly states:chanroblesvirtua1awlibrary
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
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 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 xx
x xx x x.
For purposes of this Chapter, a permanent vacancy arises when an
elective local official fills a higher vacant office, refuses to assume office,
fails to qualify, dies, is removed from office, voluntarily resigns, or is
otherwise permanently incapacitated to discharge the functions of his office.
The language of the law is clear, explicit and unequivocal.
Thus, it admits no room for interpretation,
but merely for application.28 Accordingly, when Moll was adjudged to be disqualified, a permanent vacancy was
created for failure of the elected mayor to qualify for the office.29 In such eventuality, the duly elected vice mayor shall succeed as provided by
For violating the law and the clear jurisprudence on this matter,
the Comelec committed grave abuse of discretion.31 cralawred
WHEREFORE, the Petition in GR No 157526 is PARTLY
the assailed Resolution MODIFIED.Petitioner Salvador K.
Moll is DECLAREDineligible
for the position of municipal mayor of Malinao, Albay.
In view of the vacancy created in that
office, Petitioner Emiliana Toral Kare, the duly elected vice mayor, shall
succeed as mayor, following the rule on succession.The status quo order of this Court dated April 1, 2003, is made
Petitioner Kare shall
continue discharging the duties and powers of the mayor of Malinao, Albay.
The Petition in GR 157527 is DISMISSEDfor lack of merit.
No pronouncement as to costs.
Davide, Jr., C.J., Puno, Vitug, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio Morales, Callejo Sr.,
Azcuna, and TINGA, JJ., concur.
Corona, J., on leave.
Comelec Resolution, pp. 10-11; Annex A, of Salvador K. Molls Petition, GR
No. 157527, rollo
, pp. 52-53.
of Salvador K. Molls Petition, GR No. 157527, rollo
, pp. 57-60.
GR No. 157526, rollo
, pp. 52-53.
The two Petitions were consolidated and
deemed submitted for decision on March 23, 2004, upon the Courts receipt of
Respondent Comelecs Memorandum, signed by Assistant Solicitor General Reynaldo
L. Saludares and Associate Solicitor Jose Antonio H. Blanco.
Petitioner Kares Memorandum, signed by Attys.
Sixto S. Brillantes Jr. and Charles B. Escolin of the Brillantes Navarro
Jumamil Arcilla Escolin Martinez & Vivero Law Offices, was received by the
Court on January 5, 2004.
On the other
hand, Private Respondent Ceriolas Memorandum, signed by Atty. Domingo C.
Rodriguez of the Atienza Madrid & Rodriguez Law Offices, was received on
January 12, 2004.
The filing of
Petitioner Molls Memorandum was deemed waived, as none had been filed within
the reglementary period.
Salvador K. Molls
Petition, p. 17; GR No. 157527, rollo
, p. 19.
1, Rule 117
of the 2000 Rules of Criminal Procedure.
of the Comelec, p. 15.
Regalado, Remedial Law Compendium
, Vol. II, 9th
revised ed. (2001),
pp. 9-10; GR No. 157527, rollo
, pp. 51-52.
310, March 25, 1998.
p. 325, per Bellosillo, J
Section 40 of RA 7610 of the Local
. Comelec, supra
. Comelec, 369
Phil. 798, July 19, 1999.
400, September 18, 1995.
p. 424, per Kapunan, J
. Brion, 370 Phil.
727, July 29, 1999.
. Abaya, 370 Phil.
642, July 28, 1999.
. Comelec, supra
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