Philippine Supreme Court Jurisprudence > Year 2013 > June 2013 Decisions > G.R. No. 205033, June 18, 2013 - ROMEO G. JALOSJOS, Petitioner, v. THE COMMISSION ON ELECTIONS, MARIA ISABELLE G. CLIMACO-SALAZAR, ROEL B. NATIVIDAD, ARTURO N. ONRUBIA, AHMAD NARZAD K. SAMPANG, JOSE L. LOBREGAT, ADELANTE ZAMBOANGA PARTY, AND ELBERT C. ATILANO, Respondents.:

Assailed in this petition for certiorari¹ filed under Rule 64 in relation to Rule 65 of the Rules of Court is the Commission on Elections� (COMELEC) En Banc Resolution No. 9613² dated January 15, 2013, ordering the denial of due course to and/or cancellation of petitioner Romeo G. Jalosjos� certificate of candidacy (CoC) as a mayoralty candidate for Zamboanga City.

The Facts

On November 16, 2001, the Court promulgated its Decision in G.R. Nos. 132875-76, entitled �People of the Philippines v. Romeo G. Jalosjos,�³ convicting petitioner by final judgment of two (2) counts of statutory rape and six (6) counts of acts of lasciviousness.⁴ Consequently, he was sentenced to suffer the principal penalties of reclusion perpetua and reclusion temporal⁵ for each count, respectively, which carried the accessory penalty of perpetual absolute disqualification pursuant to Article 41 of the Revised Penal Code (RPC).⁶ On April 30, 2007, then President Gloria Macapagal Arroyo issued an order commuting his prison term to sixteen (16) years, three (3) months and three (3) days (Order of Commutation). After serving the same, he was issued a Certificate of Discharge From Prison on March 18, 2009.⁷

On April 26, 2012,⁸ petitioner applied to register as a voter in Zamboanga City. However, because of his previous conviction, his application was denied by the Acting City Election Officer of the Election Registration Board (ERB), prompting him to file a Petition for Inclusion in the Permanent List of Voters (Petition for Inclusion) before the Municipal Trial Court in Cities of Zamboanga City, Branch 1 (MTCC).⁹ Pending resolution of the same, he filed a CoC¹⁰ on October 5, 2012, seeking to run as mayor for Zamboanga City in the upcoming local elections scheduled on May 13, 2013 (May 2013 Elections). In his CoC, petitioner stated, inter alia, that he is eligible for the said office and that he is a registered voter of Barangay Tetuan, Zamboanga City.

On October 18, 2012,¹¹ the MTCC denied his Petition for Inclusion on account of his perpetual absolute disqualification which in effect, deprived him of the right to vote in any election. Such denial was affirmed by the Regional Trial Court of Zamboanga City, Branch 14 (RTC) in its October 31, 2012 Order¹² which, pursuant to Section 138¹³ of Batas Pambansa Bilang 881, as amended, otherwise known as the �Omnibus Election Code� (OEC), was immediately final and executory.

Meanwhile, five (5) petitions were lodged before the COMELEC�s First and Second Divisions (COMELEC Divisions), praying for the denial of due course to and/or cancellation of petitioner�s CoC. Pending resolution, the COMELEC En Banc issued motu proprio Resolution No. 9613¹⁴ on January 15, 2013, resolving �to CANCEL and DENY due course the Certificate of Candidacy filed by Romeo G. Jalosjos as Mayor of Zamboanga City in the May 13, 2013 National and Local Elections� due to his perpetual absolute disqualification as well as his failure to comply with the voter registration requirement. As basis, the COMELEC En Banc relied on the Court�s pronouncement in the consolidated cases of Dominador Jalosjos, Jr. v. COMELEC and Agapito Cardino v. COMELEC¹⁵ (Jalosjos, Jr. and Cardino).

Hence, the instant petition.

Issues Before the Court
Submitted for the Court�s determination are the following issues: (a) whether the COMELEC En Banc acted beyond its jurisdiction when it issued motu proprio Resolution No. 9613 and in so doing, violated petitioner�s right to due process; and (b) whether petitioner�s perpetual absolute disqualification to run for elective office had already been removed by Section 40(a) of Republic Act No. 7160, otherwise known as the �Local Government Code of 1991� (LGC).

The Court�s Ruling

The petition is bereft of merit.

At the outset, the Court observes that the controversy in this case had already been mooted by the exclusion of petitioner in the May 2013 Elections. Nevertheless, in view of the doctrinal value of the issues raised herein, which may serve to guide both the bench and the bar in the future, the Court takes this opportunity to discuss on the same.

A.� Nature and validity of motu proprio
issuance of Resolution No. 9613.

Petitioner claims that the COMELEC En Banc usurped the COMELEC Divisions� jurisdiction by cancelling motu proprio petitioner�s CoC through Resolution No. 9613, contrary to Section 3, Article IX-C of the 1987 Philippine Constitution (Constitution) which reads:cralavvonlinelawlibrary

SEC. 3.� The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies.� All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. (Emphasis and underscoring supplied)

Concomitantly, he also claims that his right to procedural due process had been violated by the aforementioned issuance.

The Court is not persuaded.

The above-cited constitutional provision requiring a motion for reconsideration before the COMELEC En Banc may take action is confined only to cases where the COMELEC exercises its quasi-judicial power. It finds no application, however, in matters concerning the COMELEC�s exercise of administrative functions. The distinction between the two is well-defined. As illumined in Villarosa v. COMELEC:¹⁶

[T]he term �administrative� connotes, or pertains, to �administration, especially management, as by managing or conducting, directing or superintending, the execution, application, or conduct of persons or things.� It does not entail an opportunity to be heard, the production and weighing of evidence, and a decision or resolution thereon.� While a �quasi-judicial function� is a term which applies to the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a judicial nature. (Emphasis and underscoring supplied)

Crucial therefore to the present disquisition is the determination of the nature of the power exercised by the COMELEC En Banc when it promulgated Resolution No. 9613.

The foregoing matter is not without established precedent. In Jalosjos, Jr. and Cardino, the Court held that the COMELEC�s denial of due course to and/or cancellation of a CoC in view of a candidate�s disqualification to run for elective office based on a final conviction is subsumed under its mandate to enforce and administer all laws relating to the conduct of elections. Accordingly, in such a situation, it is the COMELEC�s duty to cancel motu proprio the candidate�s CoC, notwithstanding the absence of any petition initiating a quasi-judicial proceeding for the resolution of the same. Thus, the Court stated:¹⁷

Even without a petition under either Section 12 or Section 78 of the Omnibus Election Code, or under Section 40 of the Local Government Code, the COMELEC is under a legal duty to cancel the certificate of candidacy of anyone suffering from the accessory penalty of perpetual special disqualification to run for public office by virtue of a final judgment of conviction.� The final judgment of conviction is notice to the COMELEC of the disqualification of the convict from running for public office.� The law itself bars the convict from running for public office, and the disqualification is part of the final judgment of conviction.� The final judgment of the court is addressed not only to the Executive branch, but also to other government agencies tasked to implement the final judgment under the law.

Whether or not the COMELEC is expressly mentioned in the judgment to implement the disqualification, it is assumed that the portion of the final judgment on disqualification to run for elective public office is addressed to the COMELEC because under the Constitution the COMELEC is duty bound to �[e]nforce and administer all laws and regulations relative to the conduct of an election.� The disqualification of a convict to run for public office under the Revised Penal Code, as affirmed by final judgment of a competent court, is part of the enforcement and administration of �all laws� relating to the conduct of elections.

To allow the COMELEC to wait for a person to file a petition to cancel the certificate of candidacy of one suffering from perpetual special disqualification will result in the anomaly that these cases so grotesquely exemplify. Despite a prior perpetual special disqualification, Jalosjos was elected and served twice as mayor. The COMELEC will be grossly remiss in its constitutional duty to �enforce and administer all laws� relating to the conduct of elections if it does not motu proprio bar from running for public office those suffering from perpetual special disqualification by virtue of a final judgment. (Emphasis and underscoring supplied)

In Aratea v. COMELEC (Aratea),¹⁸ the Court similarly pronounced that the disqualification of a convict to run for public office, as affirmed by final judgment of a competent court, is part of the enforcement and administration of all laws relating to the conduct of elections.¹⁹

Applying these principles to the case at bar, it is clear that the COMELEC En Banc did not exercise its quasi-judicial functions when it issued Resolution No. 9613 as it did not assume jurisdiction over any pending petition or resolve any election case before it or any of its divisions. Rather, it merely performed its duty to enforce and administer election laws in cancelling petitioner�s CoC on the basis of his perpetual absolute disqualification, the fact of which had already been established by his final conviction. In this regard, the COMELEC En Banc was exercising its administrative functions, dispensing with the need for a motion for reconsideration of a division ruling under Section 3, Article IX-C of the Constitution, the same being required only in quasi-judicial proceedings.

Lest it be misunderstood, while the denial of due course to and/or cancellation of one�s CoC generally necessitates the exercise of the COMELEC�s quasi-judicial functions commenced through a petition based on either Sections 12²⁰ or 78²¹ of the OEC, or Section 40²² of the LGC, when the grounds therefor are rendered conclusive on account of final and executory judgments � as when a candidate�s disqualification to run for public office is based on a final conviction � such exercise falls within the COMELEC�s administrative functions, as in this case.

In this light, there is also no violation of procedural due process since the COMELEC En Banc would be acting in a purely administrative manner. Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs.²³ As petitioner�s disqualification to run for public office had already been settled in a previous case and now stands beyond dispute, it is incumbent upon the COMELEC En Banc to cancel his CoC as a matter of course, else it be remiss in fulfilling its duty to enforce and administer all laws and regulations relative to the conduct of an election.

Equally compelling is the fact that the denial of petitioner�s Petition for Inclusion as a registered voter in Zamboanga City had already attained finality by virtue of the RTC�s Order dated October 31, 2012. In this accord, petitioner�s non-compliance with the voter registration requirement under Section 39(a) of the LGC²⁴ is already beyond question and likewise provides a sufficient ground for the cancellation of his CoC altogether.

B.� Petitioner�s right to run
for elective office.

It is petitioner�s submission that Article 30 of the RPC was partially amended by Section 40(a) of the LGC and thus, claims that his perpetual absolute disqualification had already been removed.

The argument is untenable.

Well-established is the rule that every new statute should be construed in connection with those already existing in relation to the same subject matter and all should be made to harmonize and stand together, if they can be done by any fair and reasonable interpretation.²⁵

On the one hand, Section 40(a) of the LGC, applicable as it is to local elective candidates, provides:cralavvonlinelawlibrary

SEC. 40.� Disqualifications. � The following persons are disqualified from running for any elective local position:cralavvonlinelawlibrary

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;� (Emphasis and underscoring supplied)

And on the other hand, Article 30 of the RPC reads:cralavvonlinelawlibrary

ART. 30. Effects of the penalties of perpetual or temporary absolute disqualification. - The penalties of perpetual or temporary absolute disqualification for public office shall produce the following effects:cralavvonlinelawlibrary

1. The deprivation of the public offices and employments which the offender may have held, even if conferred by popular election.

2. The deprivation of the right to vote in any election for any popular office or to be elected to such office.

3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned.

In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this Article shall last during the term of the sentence.

4. The loss of all rights to retirement pay or other pension for any office formerly held. (Emphasis and underscoring supplied)

Keeping with the above-mentioned statutory construction principle, the Court observes that the conflict between these provisions of law may be properly reconciled. In particular, while Section 40(a) of the LGC allows a prior convict to run for local elective office after the lapse of two (2) years from the time he serves his sentence, the said provision should not be deemed to cover cases wherein the law²⁶imposes a penalty, either as principal or accessory,²⁷ which has the effect of disqualifying the convict to run for elective office. An example of this would be Article 41 of the RPC, which imposes the penalty of perpetual²⁸ absolute²⁹ disqualification as an accessory to the principal penalties of reclusion perpetua and reclusion temporal:

ART. 41.� Reclusion perpetua and reclusion temporal � Their accessory penalties. - The penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphasis and underscoring supplied)

In this relation, Article 30 of the RPC, as earlier cited, provides that the penalty of perpetual absolute disqualification has the effect of depriving the convicted felon of the privilege to run for elective office. To note, this penalty, as well as other penalties of similar import, is based on the presumptive rule that one who is rendered infamous by conviction of a felony, or other base offense indicative of moral turpitude, is unfit to hold public office,³⁰ as the same partakes of a privilege which the State grants only to such classes of persons which are most likely to exercise it for the common good.³¹

Pertinently, it is observed that the import of Article 41 in relation to Article 30 of the RPC is more direct and specific in nature � insofar as it deprives the candidate to run for elective office due to his conviction � as compared to Section 40(a) of the LGC which broadly speaks of offenses involving moral turpitude and those punishable by one (1) year or more of imprisonment without any consideration of certain disqualifying effects to one�s right to suffrage. Accordingly, Section 40(a) of the LGC should be considered as a law of general application and therefore, must yield to the more definitive RPC provisions in line with the principle of lex specialis derogat generali � general legislation must give way to special legislation on the same subject, and generally is so interpreted as to embrace only cases in which the special provisions are not applicable. In other words, where two statutes are of equal theoretical application to a particular case, the one specially designed therefor should prevail.³²

In the present case, petitioner was sentenced to suffer the principal penalties of reclusion perpetua and reclusion temporal which, pursuant to Article 41 of the RPC, carried with it the accessory penalty of perpetual absolute disqualification and in turn, pursuant to Article 30 of the RPC, disqualified him to run for elective office. As discussed, Section 40(a) of the LGC would not apply to cases wherein a penal provision � such as Article 41 in this case � directly and specifically prohibits the convict from running for elective office. Hence, despite the lapse of two (2) years from petitioner�s service of his commuted prison term, he remains bound to suffer the accessory penalty of perpetual absolute disqualification which consequently, disqualifies him to run as mayor for Zamboanga City.

Notably, Article 41 of the RPC expressly states that one who is previously convicted of a crime punishable by reclusion perpetua or reclusion temporal continues to suffer the accessory penalty of perpetual absolute disqualification even though pardoned as to the principal penalty, unless the said accessory penalty shall have been expressly remitted in the pardon.³³ In this case, the same accessory penalty had not been expressly remitted in the Order of Commutation or by any subsequent pardon and as such, petitioner�s disqualification to run for elective office is deemed to subsist.

Further, it is well to note that the use of the word �perpetual� in the aforementioned accessory penalty connotes a lifetime restriction and in this respect, does not depend on the length of the prison term which is imposed as its principal penalty. Instructive on this point is the Court�s ruling in Lacuna v. Abes,³⁴ where the Court explained the meaning of the term �perpetual� as applied to the penalty of disqualification to run for public office:cralavvonlinelawlibrary

The accessory penalty of temporary absolute disqualification disqualifies the convict for public office and for the right to vote, such disqualification to last only during the term of the sentence (Article 27, paragraph 3, & Article 30, Revised Penal Code) that, in the case of Abes, would have expired on 13 October 1961.

But this does not hold true with respect to the other accessory penalty of perpetual special disqualification for the exercise of the right of suffrage. This accessory penalty deprives the convict of the right to vote or to be elected to or hold public office perpetually, as distinguished from temporary special disqualification, which lasts during the term of the sentence. (Emphasis and underscoring supplied)

Likewise, adopting the Lacuna ruling, the Court, in the more recent cases of Aratea,³⁵Jalosjos, Jr. and Cardino,³⁶ held:cralavvonlinelawlibrary

Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives the convict of the right to vote or to be elected to or hold public office perpetually.�

The accessory penalty of perpetual special disqualification takes effect immediately once the judgment of conviction becomes final. The effectivity of this accessory penalty does not depend on the duration of the principal penalty, or on whether the convict serves his jail sentence or not. The last sentence of Article 32 states that "the offender shall not be permitted to hold any public office during the period of his [perpetual special] disqualification." Once the judgment of conviction becomes final, it is immediately executory. Any public office that the convict may be holding at the time of his conviction becomes vacant upon finality of the judgment, and the convict becomes ineligible to run for any elective public office perpetually. (Emphasis and underscoring supplied)

All told, applying the established principles of statutory construction, and more significantly, considering the higher interests of preserving the sanctity of our elections, the Court holds that Section 40(a) of the LGC has not removed the penalty of perpetual absolute disqualification which petitioner continues to suffer. Thereby, he remains disqualified to run for any elective office pursuant to Article 30 of the RPC.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr., Perez, Mendoza, Reyes, and Leonen, JJ., concur.
Brion, J., see: separate opinion.

Endnotes:

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¹Rollo, pp. 3-62.cralawlibrary

² Id. at 69-71.cralawlibrary

³ Id. at 69. See People v. Jalosjos, 421 Phil. 43 (2001).cralawlibrary

⁴ In relation to Section 5(b), Article III of Republic Act No. 7610.cralawlibrary

⁵ Specifically, the indeterminate penalty of twelve years (12) and one (1) day of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as maximum.cralawlibrary

⁶ ART. 41. Reclusion perpetua and reclusion temporal � Their accessory penalties. - The penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.cralawlibrary

⁷Rollo, p. 74.cralawlibrary

⁸ Id. at 398. See Comment of the Office of the Solicitor General.cralawlibrary

⁹ Id. Docketed as Case No. 7433.cralawlibrary

¹⁰ Id. at 154.cralawlibrary

¹¹ Id. at 81-96. Penned by Presiding Judge Nancy I. Bantayanon-Cuaresma.cralawlibrary

¹² Id. at 97-100. Docketed as Civil Case No. 6479.cralawlibrary

¹³ SEC. 138. Jurisdiction in inclusion and exclusion cases. - The municipal and metropolitan trial courts shall have original and exclusive jurisdiction over all matters of inclusion and exclusion of voters from the list in their respective municipalities or cities.� Decisions of the municipal or metropolitan trial courts may be appealed directly by the aggrieved party to the proper regional trial court within five days from receipt of notice thereof, otherwise said decision of the municipal or metropolitan trial court shall become final and executory after said period. The regional trial court shall decide the appeal within ten days from the time the appeal was received and its decision shall be immediately final and executory. No motion for reconsideration shall be entertained by the courts. (Emphasis and underscoring supplied)

¹⁴Rollo, pp. 69-71. Issued by COMELEC Chairman Sixto S. Brillantes, Jr. and Commissioners Rene V. Sarmiento, Lucento N. Tagle, Armando C. Velasco, Elias R. Yusoph, Christian Robert S. Lim, and Maria Gracia Cielo M. Padaca.cralawlibrary

¹⁵ G.R. Nos. 193237 & 193536, October 9, 2012, 683 SCRA 1.cralawlibrary

¹⁶ 377 Phil. 497, 506-507 (1999).cralawlibrary

¹⁷Jalosjos, Jr. v. COMELEC & Cardino v. COMELEC, supra note 15, at 32-33.cralawlibrary

¹⁸ G.R. No. 195229, October 12, 2012, 683 SCRA 105, 145.cralawlibrary

¹⁹ Id. at 149.cralawlibrary

²⁰ SEC. 12. Disqualifications. - Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. x x x

²¹ SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election.cralawlibrary

²² SEC. 40. Disqualifications. - The following persons are disqualified from running for any elective local position:cralavvonlinelawlibrary

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;chanroblesvirtualawlibrary

(b) Those removed from office as a result of an administrative case;chanroblesvirtualawlibrary

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;chanroblesvirtualawlibrary

(d) Those with dual citizenship;chanroblesvirtualawlibrary

(e) Fugitives from justice in criminal or non-political cases here or abroad;chanroblesvirtualawlibrary

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble-minded.

²³Cipriano v. COMELEC, 479 Phil. 677, 690 (2004).cralawlibrary

²⁴ SEC. 39. Qualifications. � (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. (Emphasis supplied)

²⁵ RUBEN E. AGPALO, Statutory Construction, p. 377, citing C & C Commercial Corp. v. National Waterworks & Sewerage Authority, 129 Phil. 227 (1967).cralawlibrary

²⁶ Either under the RPC or a special penal law.cralawlibrary

²⁷ Under the RPC, a principal penalty is that which is provided for by law for a felony and which is imposed by the court expressly upon conviction. On the other hand, an accessory penalty is one that is deemed included in the imposition of the principal penalty. (See antonio L. Gregorio, �Fundamentals of Criminal Law Review,� 10^th Ed., 2008, p. 240)

²⁸ Under the RPC, and in particular, regarding disqualifications to run for elective office, the difference between a perpetual and a temporary disqualification pertains to its duration. A perpetual penalty lasts for a lifetime (see Lacuna v. Abes, G.R. No. L-28613, August 27, 1968, 24 SCRA 78), while the duration of a temporary disqualification, if imposed as an accessory penalty, is coterminous with the term of the imprisonment sentence. This may be gleaned from Articles 30 and 32 of the RPC which respectively read:cralavvonlinelawlibrary

ART. 30. Effects of the penalties of perpetual or temporary absolute disqualification. - The penalties of perpetual or temporary absolute disqualification for public office shall produce the following effects:cralavvonlinelawlibrary

1. The deprivation of the public offices and employments which the offender may have held even if conferred by popular election.

2. The deprivation of the right to vote in any election for any popular office or to be elected to such office.

3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned.

In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall last during the term of the sentence.

x x x x

ART. 32. Effect of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. - The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the period of his disqualification.

Meanwhile, a temporary disqualification which is imposed as a principal penalty shall be from six (6) years and one day to twelve (12) years as stated in Article 27 of the RPC:cralavvonlinelawlibrary

ART. 27. x x x x

Prision mayor and temporary disqualification. - The duration of the penalties of prision mayor and temporary disqualification shall be from six years and one day to twelve years, except when the penalty of disqualification is imposed as an accessory penalty, in which case its duration shall be that of the principal penalty.

²⁹�� Under the RPC, the difference between an absolute and a special disqualification pertains to the kinds of effects attendant to the disqualification imposed.

Under Article 30, the penalty of perpetual or temporary absolute disqualification has the effect of depriving the convict the right to vote in any election for any popular office or to be elected to such office; this effect is cumulative with the other effects of the said penalty namely, (a) deprivation of the public offices and employments which the offender may have held even if conferred by popular election; (b) the disqualification for the offices or public employments and for the exercise of any of the rights mentioned; and (c) the loss of the rights to� retirement pay or other pension for any office formerly held.

Under Article 31, the penalty of perpetual or temporary special disqualification has the following effects: (a) deprivation of the office, employment, profession or calling affected; and (b) disqualification for holding similar offices and employments.

Under Article 32, the penalty of perpetual or temporary special disqualification for the exercise of the right of suffrage has the following effects: (a) depriving the offender the right to vote in any popular election for any public office or to be elected to such office; and (b) the offender shall not be permitted to hold any public office during the period of his disqualification.cralawlibrary

³⁰People v. Corral, 62 Phil. 945, 948 (1936).cralawlibrary

³¹ Id. at 948-949.cralawlibrary

³²Roque, Jr. v. COMELEC, G.R. No. 188456, September 10, 2009, 599 SCRA 69, 196.cralawlibrary

³³ See Article 41 of the RPC.cralawlibrary

³⁴ 133 Phil. 770 (1968).cralawlibrary

³⁵Aratea v. COMELEC, supra note 18, at 134.cralawlibrary

³⁶Jalosjos, Jr. v. COMELEC & Cardino v. COMELEC, supra note 15, at 27.

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SEPARATE OPINION

BRION, J.:cralavvonlinelawlibrary

I CONCUR with the ruling that the Certificate of Candidacy (CoC) of petitioner Romeo G. Jalosjos should be cancelled for his failure to comply with the voter registration requirement in light of the Regional Trial Court�s (RTC�s) final judgment denying Jalosjos� inclusion as a voter.� To the extent that the RTC�s basis for its denial was the perpetual absolute disqualification of Jalosjos arising from the reclusion perpetua imposed on him, I also agree that the Commission on Elections (Comelec) en banc�s ruling cannot legally be faulted.

I make a reservation, however, on the latter ground to the extent that the perpetual absolute disqualification is motu proprio cited by the Comelec en banc in the exercise of its administrative power and as an independent ground for the cancellation it ordered.� From this perspective, I take the position that the perpetual absolute disqualification is an improper ground whose proper place and role is the basis for disqualification, not for the cancellation of a CoC, and one that cannot be made motu propio.

A candidate who has filed an otherwise valid CoC may, for example, put up as a defense that he or she has been granted an absolute pardon that erased the accessory penalties attached to his offense and its penalty (as in the recent case of former President Joseph Ejercito Estrada).� This example glaringly shows that a perpetual absolute disqualification involves a question of fact that requires the full application of due process and cannot, motu proprio and in the exercise of administrative powers, be simply cited as a ground for the cancellation of a CoC.

The Court should also note that in a cancellation of a CoC situation, time is usually of the essence because a candidate cannot be assured of a timely remedy and would simply be out of the ballot if no opportune remedial measure is applied.� Thus, the Comelec cannot be overhasty in exercising its administrative powers and in motu proprio citing factual grounds.� (The RTC decision in the present case was a different matter since it directly involved the right to vote in the then immediately coming election and related as well to a cited CoC.)

Additionally, there are conceptual points of distinctions between the cancellation of a CoC and the disqualification of a candidate that I had occasion to discuss in my Dissent in another Jalosjos case � Dominador G. Jalosjos, Jr. v. Commission on Elections.¹� In that case, I held the view that conviction of a crime involving moral turpitude under Section 12 of the Omnibus Election Code and Section 40 of the Local Government Code is a distinct ground for disqualification that is not directly and per se a ground for the cancellation of a CoC.� (In this sense, the ground cited by the Comelec en banc, if cited independently of the RTC decision, would not be an appropriate basis for the cancellation of Jalosjos� CoC.)� As I explained it in this Dissent:cralavvonlinelawlibrary

To disqualify, in its simplest sense, is (1) to deprive a person of a power, right or privilege; or (2) to make him or her ineligible for further competition because of violation of the rules. It is in these senses that the term is understood in our election laws.

Thus, anyone who may qualify or may have qualified under the general rules of eligibility applicable to all citizens (Section 74 of the OEC) may be deprived of the right to be a candidate or may lose the right to be a candidate (if he has filed his CoC) because of a trait or characteristic that applies to him or an act that can be imputed to him as an individual, separately from the general qualifications that must exist for a citizen to run for a local public office.

In a disqualification situation, the grounds are the individual traits or conditions of, or the individual acts of disqualification committed by, a candidate as provided under Sections 68 and 12 of the OEC and Section 40 of LGC 1991, and which generally have nothing to do with the eligibility requirements for the filing of a CoC.

Sections 68 and 12 of the OEC (together with Section 40 of LGC 1991, outlined below) cover the following as traits, characteristics or acts of disqualification: (i) corrupting voters or election officials; (ii) committing acts of terrorism to enhance candidacy; (iii) overspending; (iv) soliciting, receiving or making prohibited contributions; (v) campaigning outside the campaign period; (vi) removal, destruction or defacement of lawful election propaganda; (vii) committing prohibited forms of election propaganda; (viii) violating rules and regulations on election propaganda through mass media; (ix) coercion of subordinates; (x) threats, intimidation, terrorism, use of fraudulent device or other forms of coercion; (xi) unlawful electioneering; (xii) release, disbursement or expenditure of public funds; (xiii) solicitation of votes or undertaking any propaganda on the day of the election; (xiv) declaration as an insane; and (xv) committing subversion, insurrection, rebellion or any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude.

Section 40 of LGC 1991, on the other hand, essentially repeats those already in the OEC under the following disqualifications:cralavvonlinelawlibrary

a. Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;chanroblesvirtualawlibrary

b. Those removed from office as a result of an administrative case;chanroblesvirtualawlibrary

c. Those convicted by final judgment for violating the oath of allegiance to the Republic;chanroblesvirtualawlibrary

d. Those with dual citizenship;chanroblesvirtualawlibrary

e. Fugitives from justice in criminal or non-political cases here or abroad;chanroblesvirtualawlibrary

f. Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and

g. The insane or feeble-minded.

Together, these provisions embody the disqualifications that, by statute, can be imputed against a candidate or a local elected official to deny him of the chance to run for office or of the chance to serve if he has been elected.

A unique feature of "disqualification" is that under Section 68 of the OEC, it refers only to a "candidate," not to one who is not yet a candidate. Thus, the grounds for disqualification do not apply to a would-be candidate who is still at the point of filing his CoC. This is the reason why no representation is required in the CoC that the would-be candidate does not possess any ground for disqualification. The time to hold a person accountable for the grounds for disqualification is after attaining the status of a candidate, with the filing of the CoC.

To sum up and reiterate the essential differences between the eligibility requirements and disqualifications, the former are the requirements that apply to, and must be complied by, all citizens who wish to run for local elective office; these must be positively asserted in the CoC.� The latter refer to individual traits, conditions or acts applicable to specific individuals that serve as grounds against one who has qualified as a candidate to lose this status or privilege; essentially, they have nothing to do with a candidate�s CoC.

When the law allows the cancellation of a candidate�s CoC, the law considers the cancellation from the point of view of those positive requirements that every citizen who wishes to run for office must commonly satisfy.� Since the elements of "eligibility" are common, the vice of ineligibility attaches to and affects both the candidate and his CoC. In contrast, when the law allows the disqualification of a candidate, the law looks only at the disqualifying trait or condition specific to the individual; if the "eligibility" requirements have been satisfied, the disqualification applies only to the person of the candidate, leaving the CoC valid. A previous conviction of subversion is the best example as it applies not to the citizenry at large, but only to the convicted individuals; a convict may have a valid CoC upon satisfying the eligibility requirements under Section 74 of the OEC, but shall nevertheless be disqualified.²� (emphases ours; citations omitted)

These distinctions, to be sure, are not idle ones in light of the above-mentioned time limitations involved in an election situation.� There, too, is the reality, as pointed out above, that a party whose CoC is denied or is cancelled would not be considered a candidate; on the other hand, one who filed a valid CoC but who is subsequently disqualified (e.g., for unlawful electioneering under Sections 68 and 12 of the Omnibus Election Code) was a candidate but was not allowed to be voted for or, after elections, would not be allowed to serve if he would win.� Directly relevant to this distinction is Section 77 of the Omnibus Election Code which allows the substitution of disqualified candidates as has been extensively discussed by Mr. Justice Lucas P. Bersamin in the recent case of Talaga v. Commission on Elections.³

Subject to the above reservation, I fully concur with the majority.

Endnotes:

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¹ G.R. Nos. 193237 and 193536, October 9, 2012, 683 SCRA 1.cralawlibrary

² Id. at 41.cralawlibrary

³ G.R. Nos. 196804 and 197015, October 9, 2012, 683 SCRA 197.