SUPREME COURT DECISIONS

Search for www.chanrobles.com

PLEASE CLICK HERE FOR THE LATEST ➔ SUPREME COURT DECISIONS

VITUG, J., dissenting opinion:

Let me not, in writing this dissenting opinion, be so misunderstood as stating that I am opposed to the doctrine of stare decisis et non quieta movere or to the consequences of the rule on the "law of the case," let alone to create, to borrow the phrase used by the majority, "instability in our jurisprudence." But what I would really dread is when I might, wittingly or unwittingly, misconceive the pronouncements made by the Court or, worse, be completely out of context therefrom. I should also like to point out that the dissent in no way necessarily implies an acceptance on the sapience of the law here in question; I realize that the Court has no prerogative to either sustain or reject a law on that basis alone.

I find it helpful to first narrate the antecedents of the case now before us.

For some time now, Eduardo Rodriguez and Bienvenido Marquez, Jr., have been at loggerheads on the issue of whether or not Rodriguez is a "fugitive from justice" and thereby disqualified under the law to run for, or to hold on to, an elective local office. The contenders have for the fourth time ¹ pleaded for the intervention of this Court.

This time, in a special civil action for certiorari, with a prayer for the issuance of a writ of preliminary mandatory/prohibitory injunction, Rodriguez seeks the annulment of the 07th and 11th May 1995 resolutions (infra) of the Commission on Elections ("COMELEC"). There being other matters that have come up during the pendency of this petition, Rodriguez has now also moved for the admission of his supplemental petition and a second supplemental petition to call attention to certain developments, including a 23rd June 1995 resolution of the COMELEC which he now likewise assails.

The various settings that led to the promulgation by the COMELEC of its assailed resolutions might be condensed thusly:

Rodriguez, the proclaimed Governor of Quezon Province after the May 1992 elections, was named respondent by Marquez, a defeated candidate for the same post, in a quo warranto petition, docketed EPC No. 92-28 (hereinafter so referred to as the quo warranto case), instituted before the COMELEC. Rodriguez was said to be a fugitive from justice and thereby disqualified under Section 40(e) of the Local Government Code from holding on to the elective local office. The COMELEC dismissed the petition for quo warranto on the ground that petitioner had not been convicted by final judgment. Private respondent thereupon filed a petition for certiorari with this Court (docketed G.R. No. 112889). ²cräläwvirtualibräry

On 15 March 1995 (while G.R. No. 112889 was still then pending consideration by the Court), Marquez and Rodriguez filed their respective certificates of candidacy, this time for the May 1995 elections, for the governorship of Quezon. Upon learning of the re-election bid of Rodriguez, Marquez lost no time in filing (on 11 April 1995) with the COMELEC a petition to disqualify Rodriguez and for the cancellation of the latter's certificate of candidacy. Docketed SPA No. 95-089 (hereinafter so referred to as the disqualification case), the petition was assigned to the Second Division of the COMELEC. Marquez disclosed to the COMELEC the pendency of G.R. No. 112889 but explained that the two cases were different in that G.R. No. 112889 had sought to oust petitioner from office for the term 1992-1995 while SPA No. 95-089 was aimed at disqualifying petitioner from running for a new term (1995-1998). Rodriguez was summoned by the Second Division of the COMELEC and required to file his answer to the petition. The disqualification case was set for hearing on 25 April 1995.

Meanwhile, on 18 April 1995, this Court rendered a decision in G.R. No. 112889 reversing and setting aside the resolution of the COMELEC which dismissed the petition for quo warranto and directed the COMELEC "to proceed and resolve the case with dispatch." On even date, Rodriguez filed with this Court in G.R. No. 112889 an "Urgent Manifestation and Motion" for the dismissal G.R. No. 112889 asseverating that the filing of SPA No. 95-089 meant forum-shopping on the part of Marquez.

Unaware (presumably) of the 18th April 1995 decision of this Court, Rodriguez filed, on 21 April 1995, with the COMELEC (Second Division) in the disqualification case (SPA No. 95-089) a "Motion to Nullify Summons and to Reconsider Notice of Hearing" praying for the dismissal of the case in view of the pendency with this Court of G.R. No. 112889. He filed an "Answer Ex-Abundante Cautela" claiming, among other things, that he was already in the Philippines at the time the complaint was filed against him in Los Angeles, California. In three separate pleadings, Rodriguez insisted on the nullification of the summons, the reconsideration of the notice of hearing and the dismissal of SPA No. 95-089.

The scheduled 25th April 1995 hearing on the disqualification case was re-set to 26 April 1995. Still claiming to be in cognizant of this Court's decision in G.R. No. 112889, Rodriguez filed, on 25 April 1995, an urgent motion for the issuance of a writ of preliminary injunction to restrain the COMELEC from hearing SPA No. 95-089, arguing that, since SPA No. 95-089 was also based on the facts as those that related to G.R. No. 112889, its filing constituted forum-shopping and could pre-empt G.R. No. 112889. The hearing on the disqualification case (SPA No. 95-089), re-scheduled for 26 April 1995 by the Second Division of the COMELEC, ³ went through. Rodriguez moved to suspend the proceedings so citing, as the ground therefor, his urgent motion for preliminary injunction in G.R. No. 112889. The COMELEC (Second Division), however, denied his motion, as well as his subsequent motion for time to file a motion for reconsideration, because of the proximity of the elections. Failing to have the proceedings held in abeyance, Rodriguez walked out of the hearing. Marquez then submitted and offered in evidence the authenticated copies of the felony complaint and warrant of arrest against Rodriguez issued on 12 November 1985, by the Municipal Court of Los Angeles Judicial District, County of Los Angeles, State of California, U.S.A., and some other records of said court.

On 27 April 1995, it might be mentioned parenthetically, Rodriguez moved for the reconsideration of this Court's decision of 18 April 1995 in G.R. No. 112889.

It was now the turn of Rodriguez to file with this Court a petition for certiorari, prohibition, and mandamus. The petition, entitled "Eduardo T. Rodriguez v. Commission on Elections, et al.," and docketed G.R. No. 119807, asked the Court to enjoin the COMELEC from proceeding with SPA No. 95-089. The petition was dismissed by the Court, in its 04 May 1995 minute resolution, since it found no grave abuse of discretion on the part of the COMELEC.

Meanwhile, in G.R. No. 112889, Rodriguez filed an "Urgent Motion to Admit Additional Argument in Support of the Motion for Reconsideration" attaching thereto a certification from the Commission on Immigration purporting to show that he had left the United States on 25 June 1985 before the felony complaint against him was instituted before the Los Angeles court. The following day, or on 03 May 1995, he also filed with the COMELEC (Second Division), a "Motion to Admit Position Paper Ex Abundante Cautela Showing that Respondent is Not a Fugitive from justice As Defined in the Supreme Court Decision of April 18, 1995 in G.R. No. 112889," arguing that the decision in G.R. No. 112889 would not apply to him because he arrived in the Philippines five (5) months before the filing of the felony charges against him. The COMELEC (Second Division), in its 06 May 1995 resolution, denied the motion.

On 07 May 1995, or one day before the scheduled 1995 elections, the COMELEC promulgated its first assailed consolidated resolution in EPC No. 92-28 and SPA No. 95-089 which read:

"WHEREFORE, considering that respondent (Eduardo Rodriguez) has been proven to be fugitive from justice, he is hereby ordered disqualified or ineligible from assuming and performing the functions of Governor of Quezon Province. Respondent is ordered to immediately vacate said office. Further, he is hereby disqualified from running for Governor for Quezon Province in the May 8, 1995 elections. Lastly, his certificate of candidacy for the May 8, 1995 elections is hereby set aside." ⁴ (Italics supplied)

On 10 and 11 May 1995, Marquez filed urgent motions to suspend the proclamation of Rodriguez. The COMELEC favorably acted on the motions as it so issued, on 11 May 1995, a resolution where it ruled to suspend, among other candidates, the proclamation of Rodriguez who was ordered disqualified in SPA No. 95-089. Notwithstanding the 11th May 1995 resolution, however, Rodriguez, who would appear to have garnered 285,202 votes, was proclaimed winner on 12 May 1995 by the Provincial Board of Canvassers of Quezon. On 22 May 1995, Marquez went to the COMELEC and filed in SPA No. 95-089 and EPC No. 92-28 an "Omnibus Motion to Annul the Proclamation of Rodriguez, to Proclaim Marquez and to cite the Provincial Board of Canvassers in Contempt."

On 16 May 1995, Rodriguez filed the present petition for certiorari captioned: "For: REVIEW OF EPC No. 92-28 and SPA No. 95-089 of the Commission on Elections and for NULLIFICATION OF COMELEC Resolution dated 11 May 1995 with a prayer for the issuance of a WRIT OF PRELIMINARY MANDATORY/PROHIBITORY INJUNCTION." an urgent motion to admit a supplemental petition was filed on 18 May 1995 by petitioner stating that he had been furnished with a copy of a certificate of canvass of votes and of his proclamation by the Provincial Board of Canvassers. On 29 May 1995, Rodriguez thereupon renewed his prayer, through a motion, for the issuance of a temporary restraining order and to declare the COMELEC and Marquez in contempt of court.

Back to the omnibus motion of Marquez in SPA No. 95-089 and EPC No. 92-28, the COMELEC, in its 23rd June 1995 resolution, annulled and set aside the proclamation of Rodriguez for being null and void ab initio. It also gave the Vice-Chairman and Member-Secretary of the Provincial Board of Canvassers of Quezon Province ten (10) days within which to explain why they should not be cited in contempt for disobedience or resistance to the lawful order of the COMELEC particularly its "order to suspend proclamation." On the motion seeking the proclamation of Marquez, the COMELEC chose to have the matter considered by it only "once the Supreme Court (would have) resolved the case of Eduardo T. Rodriguez v. COMELEC (in), G.R. No. 120099" (the instant petition). This action by the COMELEC prompted Rodriguez to file his motion to admit a second supplemental petition in order to include the 23rd June 1995 resolution, in addition to the 07th and 11th May resolutions, of the COMELEC, among the disputed issuances.

Petitioner submits several reasons for the allowance and grant of his petition.

Rodriguez contends that the COMELEC should not have entertained the disqualification case (SPA No. 95-089) for being an act of forum-shopping on the part of Marquez. Clearly, there is no merit in this submission. The general statement of the prohibition against forum-shopping is that a party should not be allowed to pursue on the same subject matter simultaneous remedies in two or more different fora ⁵ that can tend to degrade the administration of justice by thusly trifling with the courts and abusing their processes. ⁶ Forum-shopping exists where the actions are of the same nature and involve identical transactions, circumstances, and issues between the same parties. ⁷ While there is identity in many respects between SPA No. 95-089 and EPC No. 92-28, the two cases, however, greatly differ in their main aspects. EPC No. 92-28 (subject case of G.R. No. 112889) is a quo warranto case and involves petitioner's gubernatorial incumbency for the term 1992-1995 while SPA No. 95-089 is a disqualification case involving his candidacy for the 1995 local elections.

Rodriguez argues that should Section 40(e) of the Local Government Code of 1991 be applied to him, it would partake the nature of an ex post facto ⁸ law or a bill of attainder. ⁹ These terms have settled meanings in criminal law jurisprudence that clearly have no relevance to the case before us. Besides, the Local Government Code took effect on 01 January 1992, and thus its application to Rodriguez in his gubernatorial incumbency that started in mid-1992 and his candidacy for the 1995 elections cannot be deemed to be retrospective in character.

Petitioner claims that the COMELEC did not have jurisdiction to issue the questioned resolution on the eve of the election because the Omnibus Election Code requires that final decisions in disqualification cases should be rendered not later than seven (7) days before the election. Section 72 of the Omnibus Election Code, that petitioner refers to, provides:

"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." (Italics supplied).

The instant case calls for the governance not of the Omnibus Election Code but of the Local Government Code (specifically Section 40[e] thereof). In any case, the "seven days" stated in the law, being evidently intended for administrative feasibility, should be construed as a mere directory, rather than as a mandatory, provision of the Omnibus Election Code. A provision should be deemed to be directory only when to have it enforced strictly may cause more harm than by disregarding it. ¹⁰cräläwvirtualibräry

The next question posed was whether or not the COMELEC gravely abused its discretion when, in the scheduled hearing of 26 April 1995, it refused to grant the motion of Rodriguez for a suspension of hearing. Far from it, the denial by COMELEC would appear to have been both prudent and legally warranted. The motion was grounded on the pendency of G.R. No. 112889 (the quo warranto case), whereas, the 26th April 1995 hearing related to the disqualification case (SPA 95-089) for the 1995 election that undoubtedly had to be resolved quickly. The COMELEC hardly had any choice but to proceed with the hearing and, when Rodriguez thereupon walked out, Marquez was naturally allowed to present his evidence ex-parte. Perhaps realizing that the COMELEC had acted correctly, petitioner would question the holding of the 26th April 1995 hearing by only one member (Commissioner Teresita Flores) of the Second Division. ¹¹ Not only was this matter not timely brought up before the COMELEC, but that there would appear to be no problem in the delegation by the COMELEC of the mere reception of evidence to any one of its members. All the assailed resolutions of COMELEC would indicate that the required concurrence of the Commissioners was given.

The subsequent consolidation of the quo warranto case with that of the disqualification case (following our 18th April 1995 decision remanding the case to COMELEC), and the promulgation of the 07th May 1995 consolidated resolution, would also seem to be in conformity with Rule 3, Section 9, of the COMELEC Rules of Procedure, which reads:

"Sec. 9. Consolidation of cases. When an action or proceeding involves a question of law and fact which is similar to or common with that of another action or proceeding, the same may be consolidated with the action or proceeding bearing the lower docket number."

Moreover, a further hearing on the quo warranto case so involving, as it does, petitioner's now expired incumbency, would be unnecessary and a futile effort.

The pivotal issue then is whether or not petitioner falls under the term "fugitive from justice" but, unlike its precursor case in G.R. No. 112889 which has been confined to the question of whether or not a conviction by final judgment of a person at large is essential before he can be considered a "fugitive from justice," ¹² this time, however, the Court is asked to pass upon petitioner's assertion that he cannot be considered a "fugitive from justice" since he already has been in the Philippines months prior to the filing of the charges against him before the United States court in November 1985. He cites a certification from the Commission of Immigration of his arrival in the country on 25 June 1985.

The Solicitor-General, on his part, maintains that the evidence presented by Marquez is still wanting. He states that the evidence thus far submitted would only show

"(1) that ten (10) charges of presenting fraudulent insurance claims, grand theft of personal property, and attempted grand theft of personal property were filed against petitioner before the Municipal Court of the County of Los Angeles, State of California, U.S.A., in November, 1985;

"(2) that on November 12, 1985, a warrant of arrest was issued against petitioner; and

"(3) that petitioner's wife, Imelda Gener Rodriguez, was arrested for the same charges on November 6, 1985." ¹³cräläwvirtualibräry

which, collectively, would appear to be "too insubstantial" and inadequate to establish that Rodriguez has, in fact, fled to avoid prosecution. He opines that -

"x x x The COMELEC can not simply ignore the fact that the then Bureau of Immigration had issued a certification that on June 25, 1985, petitioner returned to the Philippines from the United States. This certification is already on record, having been submitted by petitioner ex abundante cautela following COMELEC's refusal to consider the same because of petitioner's walkout from the hearing on April 26, 1995. According to the election results, petitioner won over private respondent by a majority of 140,000 votes more or less. This manifestation of the People's will can not just be ignored without conducting a thorough hearing to determine whether the person they had overwhelmingly voted for is really disqualified from presenting himself to them for election." ¹⁴cräläwvirtualibräry

I thus perceive the Solicitor General as now also saying that an intention to evade punishment or prosecution is an element of the term "fugitive from justice."

Verily, there is a dearth of authorities on the proper and legal connotation of the phrase "fugitive from justice." Neither the law (Republic Act No. 7160, also known as the Local Government Code) ¹⁵ here in question nor the deliberations in Congress give much clue to the legislative intent. The phrase has been used in various contexts although it is in extradition cases where it appears to have acquired a prevalent usage. One leading situation was that of Roberts v. Reilly, ¹⁶ decided by the United States Supreme Court, which involved the application of Article 4, Section 2, of the United States Constitution ¹⁷ and Section 5278 ¹⁸ of the Revised Statutes of the United States implementing the Constitutional provision. William Roberts was indicted for grand larceny in the first degree in the State of New York. He was subsequently held in the State of Georgia by Philip Reilly, who claimed to be an agent of the State of New York and acting by virtue of an executive warrant issued by the Governor of Georgia on a requisition from the Governor of New York, reciting that Roberts had been indicted in the State of New York and was a fugitive from justice of the latter State. In considering the specific question on whether or not the person demanded was a fugitive from justice, the tribunal held:

"To be (regarded) a fugitive from justice, x x x, it is not necessary that the party charged should have left the State in which the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but simply that, having within a State committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offense, he has left its jurisdiction and is found within the territory of another."

The ruling was repeated in Appleyard v. Massachusetts, ¹⁹ itself to be later reiterated in a number of other cases, ²⁰ where Arthur Appleyard was indicted for the crime of grand larceny, first degree, alleged to have been committed in the county of Erie, New York. Although a warrant for his arrest was issued, Appleyard was not apprehended because he had moved out from that State. He was eventually arrested by virtue of a warrant issued by the Governor of Massachusetts. Appleyard then applied for a writ of habeas corpus to the supreme judicial council of Massachusetts which, after hearing, denied the application. He, again, applied to the Circuit Court of the United States for a writ of habeas corpus which effort likewise proved futile. Appleyard interposed an appeal to the U.S. Supreme Court. He restated his previous contention before the lower courts that he could not be deemed to be a fugitive from justice because he was unaware when leaving New York that he had at any time violated its criminal laws. That Court held:

"x x x This contention cannot be sustained; indeed, it could not be sustained without materially impairing the efficacy of the constitutional and statutory provisions relating to fugitives from justice. An alleged fugitive may believe that he has not committed any crime against the laws of the state in which he is indicted, and yet, according to the laws of such state, as administered by its judicial tribunals, he may have done so, and his belief or want of belief may be without foundation in law. It is the province of the courts of New York to declare what its laws are, and to determine whether particular acts on the part of an alleged offender constitute a crime under such laws. The constitutional provision that a person charged with crime against the laws of a state, and who flees from its justice, must be delivered up on proper demand, is sufficiently comprehensive to embrace any offense, whatever its nature, which the state, consistently with the Constitution and laws of the United States, may have made a crime against its laws. Kentucky v. Dennison, 24 How. 66, 69, 16 L. ed. 717; Ex parte Reggel, 114 U.S. 642, 650, 29 L. ed. 250, 252, 5 Sup. Ct. Rep. 1148. So that the simple inquiry must be whether the person whose surrender is demanded is in fact a fugitive from justice, not whether he consciously fled from justice in order to avoid prosecution for the crime with which he is charged by the demanding state. A person charged by indictment or by affidavit before a magistrate with the commission within a state of a crime covered by its laws, and who, after the date of the commission of such crime, leaves the state, no matter for what purpose or with what motive, nor under what belief, becomes, from the time of such leaving, and within the meaning of the Constitution and the laws of the United States, a fugitive from justice, x x x"

Most U.S. State courts would appear to be similarly minded. ²¹cräläwvirtualibräry

The rulings heretofore cited cannot be here controlling, of course, and divergent views can still be expressed on the precise import of the phrase "fugitive from justice." It is evident enough though, in my view, that Congress, not having provided otherwise, must have intended the ordinary connotation of the term to prevail. So taken, it might be understood as referring to one who, having committed or being accused of having committed a crime in one jurisdiction, cannot be found therein ²² or is absent for any reason from that jurisdiction ²³ that thereby forestalls criminal justice from taking its due course. The issue is largely a factual matter and in that determination, the motive or reason for his plight need not be inquired into. Animus fugere may be significant but it is not essential and what matters is not why he leaves but the fact that he leaves, for it should not be unreasonable to assume that he was not unaware of his own prior deeds or misdeeds. As so conceptualized, the import of the term is more congruent than variant with what has heretofore been essayed to be, in fact, its common usage. Indeed, unlike the U.S. courts which are yet detained by the conditions expressed in both their fundamental and statutory laws, the pertinent provision of our own Local Government Code contains no further circumscription other than by its bare and simple mandate that a "fugitive from justice in criminal or non-political cases here or abroad" shall be "disqualified from running for any elective local position." ²⁴ The law has provided no further provisos and no saving clauses. When there is no obscurity or ambiguity in an enabling law, it must, we have said in the related case of Marquez vs. Comelec, ²⁵ be merely made to apply as it is so written. This Court is not at liberty either to question the wisdom of the law, let alone to detract from it, or to itself legislate material parameters when there are none that statutorily exist.

I now come to the final question of whether or not substantial evidence has been adduced to support the factual findings of the COMELEC and, corollarily, whether or not petitioner has been duly accorded full opportunity to present before the COMELEC his own evidence to disprove the assertions of private respondent.

It may be recalled that, following the denial of the motion of Rodriguez to postpone the scheduled 26th April 1995 hearing, the COMELEC continued, because of the proximity of the May 1995 elections, with its reception of the evidence (despite the walk-out thereupon staged by Rodriguez and his counsel). Duly received in evidence included an authenticated copy of the warrant of arrest, dated 12 November 1985, on respondent (Exh. A-2) issued by the Municipal Court of the County of Los Angeles, State of California, U.S.A., in connection with a criminal complaint filed against him in Criminal Case No. A774567, entitled "People of the State vs. Imelda O. Rodriguez and Eduardo T. Rodriguez for the crimes of presenting Fraudulent Insurance Claims, Grand Theft of Personal Property and Attempted Grand Theft of Personal Property," and an authenticated copy of the felony complaint (Exh. A-10 to A-15 inclusive), showing that the respondent was charged criminally on ten (10) counts. Concluding on the documentary evidence adduced before it, the COMELEC said:

"The authenticated documents submitted by petitioner to show the pendency of a criminal complaint against the respondent in the Municipal Court of Los Angeles, California, U.S.A., and the fact that there is an outstanding warrant against him amply proves petitioner's contention that the respondent is a fugitive from justice." ²⁶cräläwvirtualibräry

The petitioner and his counsel walked out from the proceedings. Certainly, the thesis that petitioner was denied due process would be totally unacceptable; he himself brushed it aside. But while there might be no sympathy for his action that ordinarily should have prevented him from any further opportunity, the Court, nevertheless, aptly recognized that the controversy was solely not between the private parties herein, but one imbued with public interest, involving no less than the highest office in the province of Quezon and so, inevitably, a concern also of its people. Accordingly, the Court, besides having set the case for the reception of oral argument on 13 July 1995, likewise passed, on 24 October 1995, the following resolution; thus

"Deliberating on the special civil action for certiorari with prayer for preliminary injunction and restraining order, along with the comment thereon filed by the Solicitor General, as well as the other subsequent pleadings submitted by the parties in support of their respective submissions, and considering, further, the oral arguments of the parties during the 13th July 1995 hearing of this case, the Court RESOLVED to DIRECT the Chairman of the Commission on Elections ('COMELEC') to designate a Commissioner or a ranking official of the COMELEC to RECEIVE AND EVALUATE such legally admissible evidence as herein petitioner Eduardo Rodriguez may be minded to present by way of refuting the evidence heretofore submitted by private respondent Bienvenido Marquez, Sr., or that which can tend to establish petitioner's contention that he does not fall within the legal concept of a 'fugitive from justice.' Private respondent Marquez may likewise, if he so desires, introduce additional and admissible evidence in support of his own position. The provisions of Sections 3 to 10, Rule 33, of the Rules of Court may be applied in the reception of the evidence. The Chairman of the COMELEC shall have the proceedings completed and the corresponding report submitted to this Court within thirty (30) days from notice hereof." ²⁷cräläwvirtualibräry

While it may generally be said that the possible outcome or truth of an indictment need not necessarily be an issue in ascertaining whether or not one is a fugitive from justice, when, however, the accusation is lodged with and an arrest is ordered by a foreign court or agency we might also assure ourselves as a matter of principle that, in the process of sanctioning in effect an act of a foreign government, we do not thereby abandon our own basic sense of equity and fair play. There cannot thus be any serious doubt that, when assailed or in doubt, the courts are free to look into, and receive evidence on, the legitimacy and regularity of the proceedings in that foreign jurisdiction.

In the report submitted by the Commission on Elections, ²⁸ entitled "Evidence of the Parties and Commission's Evaluation," received by the Court on 26 December 1995, the matters adduced by petitioner focused on what had already been asseverated in his petition, i.e., that he was already in the Philippines prior to the filing of the charges against him before the United States court in November of 1985 and that his return to the country was not intended to avoid prosecution. Neither party brought up any question on the legitimacy and regularity of the proceedings before the foreign court that led to the issuance of the warrants of arrest. I quote the pertinent portions of the report:

"EVIDENCE

"Petitioner Rodriguez presented the following witnesses:

"1. Atty. Cipriano Farrales

Legal Officer of the Bureau of Immigration and Deportation

"2. Menardo Manglo

"3. Former Supreme Court Justice Abraham Sarmiento

"4. Ex-Senator Aquilino Pimentel, Jr.

"5. Ex-Senator Agapito Aquino

"6. Atty. Geronimo Reyes, Jr.

"7. Atty. Roberto Avio

"8. Mr. Heberto Buenafe

"9. Former Senate President Jovito Salonga

"10. Former Secretary of the Department of Labor and Employment Augusto Sanchez

"11. Mr. Euclides Abcede

and

"12. Eduardo Rodriguez.

"The testimonies of Former Supreme Court Justice Abraham Sarmiento, former Senator Aquilino Pimentel, Jr., former Senator Agapito Aquino, Former Labor Secretary Augusto Sanchez and former Senator Jovito Salonga collectively emphasized that petitioner Eduardo Rodriguez was one of the active participants in the political movement against the late President Ferdinand E. Marcos. They went to Hongkong on August 9, 1985 as a group, together with petitioner Eduardo Rodriguez, in order to meet a political exile, Raul Daza, who had then a pending warrant of arrest issued by a Regional Trial Court of Quezon City. The purpose of the trip was to provide Mr. Raul Daza, another prominent opposition figure during the Marcos regime, some form of protective company during his return to the country on August 12, 1985. To the political opposition then, it was a big event that enjoyed media bash particularly in the August 12, 1985 issue of the Bulletin Today and in the August 19, 1985 issue of the Mr. and Ms. Magazine.

"Mr. Geronimo Reyes testified that he knows petitioner Rodriguez as a co-exile from the Marcos regime in Los Angeles, USA. Reyes was the organizer and president of Wilshire Walking Corp. composed of Filipino residents in Los Angeles. Petitioner Rodriguez became a member thereof. Rodriguez returned to the Philippines about July 1985 and returned to Los Angeles in August of the same year. That was the last time they saw each other in the US. Either on November 11 or 12, 1985, a certain Johnny Reveche, brother-in-law of petitioner Rodriguez, called him to the former's home at Beard Ave., Northridge, California to discuss the matter of the arrest and detention of Mrs. Imelda Rodriguez, wife of petitioner Rodriguez, who had just been bailed out. His assistance was requested because he had been practicing law in California. While Mr. Reyes, Imelda Rodriguez and Mr. Reveche were discussing the case, Mr. Reveche called Mr. Reyes to the phone where the latter found out that Rodriguez was on the other end calling him from the Philippines. The caller requested Mr. Reyes to render all the necessary assistance to Mrs. Rodriguez because petitioner was unable to be with her as he was then in the Philippines and deep in the political campaign.

"Atty. Roberto Avio, resident of Macalelon, Quezon and former chairman of the United Nationalists Democratic Organization (UNIDO), Macalelon Chapter, testified that sometime in May 1985, former Mayor Eduardo T. Rodriguez returned from the United States and sent his personal driver to witness' residence to inform the latter that Rodriguez would be meeting him in the first week of June 1985 at Macalelon, Quezon. In the meeting held as scheduled, Rodriguez intimated that he (Rodriguez) was tasked by Ex-Senator Salonga to reactivate and reorganize the Liberal Party in the Bondoc Peninsula area. However, Atty. Avio declined Rodriguez's invitation to join the reorganization as he was then already committed to the UNIDO as the local chairman. Rodriguez requested another meeting after consulting with other former Liberal Party stalwarts. Said meeting transpired on the last week of July 1985 where Rodriguez, made aware of the improbability of reactivating the Liberal Party due to the affiliation of most of the party's former members with the UNIDO, expressed willingness to join the UNIDO. Rodriguez took his oath of allegiance on October 1985. Thereafter, he actively participated in the political campaigns of the UNIDO candidates in the presidential snap elections and congressional elections resulting in his appointment as OIC-Board Member of the Sangguniang Panlalawigan ng Quezon in 1986 and his election as Provincial Governor of Quezon in 1988.

"Heberto Buenafe's testimony corroborated these allegations, specifically stating that sometime in July and August of 1985, Buenafe had occasion to meet Rodriguez and that in matters of party dispute regarding the leadership of the UNIDO in Lucena City, the latter was often consulted as he (Rodriguez) was then designated as party representative of the Liberal Party by Senator Salonga immediately after his arrival in the Philippines in May 1985. Likewise, Mr. Euclides Abcede's testimony attested to the fact that in line with his activities as an active opposition campaigner, Abcede met Rodriguez in Macalelon, Quezon sometime in June 1985.

"Mr. Menardo Manglo is the arrival and departure verifier of the Bureau of Immigration. He certified the authenticity of the Bureau of Immigration Arrival and Departure Reports of June 1985, August 1985, August 1986, September 1986, July 1987, June 1988, July 1989 and August 1990 (Exhibits 5 to 5-G, inclusive) wherein the name Eduardo T. Rodriguez appears. On cross-examination, witness testified that said exhibits were computer print-outs supplied to the Bureau of Immigration by the PAL Computer Center.

"Atty. Cipriano Farrales, legal officer of the Bureau of Immigration, testified that the certification issued by the Bureau relative to the departure and arrival of Rodriguez in the Philippines issued by Commissioner Lopez was genuine and authentic (Exhibits 1 and 2).

"Herein petitioner Rodriguez' testimony denied the allegation that he falls within the Supreme Court's definition of a 'fugitive from justice' which includes 'those who, after being charged, flee to avoid prosecution.' Specifically, Rodriguez averred:

"b) I arrived in the Philippines from the United States of America on June 25, 1985, 5 months prior the filing of the alleged charges against me on November 12, 1985. Obviously, I did not flee from the United States of America to avoid prosecution. At the time that I left the United States, there were no charges against me. No warrant of arrest has been issued against my person. Under the facts, it could not be said that I fled from the United States to avoid prosecution x x x .

"On the query as to whether or not he returned to the United States between June 25, 1985 and November 12, 1985, petitioner Rodriguez responded that he went back twice, viz, on August 14, 1985 and October 7, 1985 (see also passport, Exhibit 14). He testified that he left Los Angeles on October 26, 1985 and, as per certification issued by the Bureau of Immigration (Exhibit 2), arrived in the Philippines on the same date. From that time, Rodriguez never returned to Los Angeles. After the conclusion of the oral testimonies, the following documentary evidence were offered by petitioner Rodriguez and were admitted.

"1. Civil Service Commission Form No. 1, Job Description of Cipriano Farrales (Exhibit 1)

"2. Certification from the Bureau of Immigration (Exhibit 2)

"3. Affidavit of Abraham Sarmiento (Exhibit 3 with Annexes A and B, Bulletin Today and Mr. and Ms. Magazine news reports)

"4. Affidavit of Aquilino Pimentel, Jr. (Exhibit 4 with Annexes A and B, Bulletin Today and Mr. and Ms. Magazine news reports)

"5. Arrival and Departure Report of the Bureau of Immigration (Exhibit 5 to 5-D, inclusive)

"6. Affidavit of Agapito Aquino (Exhibit 6 with Annexes A and B, Bulletin Today and Mr. and Ms. Magazine news reports)

"7. Affidavit of Geronimo Reyes, Jr. (Exhibit 7)

"8. Affidavit of Roberto Avio (Exhibit 8)

"9. Affidavit of Heberto Buenafe (Exhibit 9)

"10. Affidavit of Jovito Salonga (Exhibit 10)

"11. Affidavit of Augusto Sanchez (Exhibit 11)

"12. Affidavit of Euclides Abcede (Exhibit 12)

"13. Affidavit of Eduardo T. Rodriguez (Exhibit 13)

"14. Xerox copy of Rodriguez's passport (Exhibit 14 with submarkings, 14-A to 14-D, inclusive)

"Respondent Marquez submitted the following documentary evidence:

"1. Affidavit of Bienvenido Marquez (Exhibit E)

"2. Affidavit of Mr. Casiano Pasumbal (Exhibit F)

"3. Certificate of Death of Gloria Magayanes Gener, mother-in-law of petitioner (Exhibit G) with the alleged signature of Rodriguez as informant (Exhibit G-1)

"4. Certificate of Death of Imelda Gener Rodriguez, spouse of petitioner (Exhibit H) with the alleged signature of Rodriguez as informant (Exhibit H-1)

"As regards other documentary evidence offered, the investigation report consisting of Exhibits I to I-17 and J to J-87 which was sought admission by respondent Marquez, was excluded by the presiding Commissioner because of irrelevancy to the purpose for which it was offered. The undersigned so ruled due to respondent's failure to identify the nexus between the documents sought to be admitted and the inference that in view of the same, petitioner would have known of the imminent filing of charges against him." ²⁹cräläwvirtualibräry

From the "Discussion" portion of its report, it would appear to me that the COMELEC, like the majority of my colleagues, proceeded under the impression that the Court in G.R. No. 112889 had considered intent to evade the law to be a material element in the definition of "fugitive from justice." The COMELEC understandably thereby felt compelled to conclude that petitioner, there being no clear evidence of any intention on his part to evade the law at the time he left the United States, was not a fugitive from justice. However, as heretofore so pointed out, the sole and basic issue in G.R. No. 112889 was whether or not a conviction by final judgment of the person at large was essential before he could be considered a fugitive from justice. That question clearly arose when the Oversight Committee which was convened by the President, conformably with Section 533 of Republic Act 7160, to formulate the appropriate rules and regulations necessary for the efficient and effective implementation of the provisions of the Local Government Code, came out with its Article 73 that provided:

"Art. 73. Disqualifications. The following persons shall be disqualified from running for any elective local position;

"(a) x x x

"(e) Fugitives from justice in criminal or non-political cases here or abroad. Fugitive from justice refers to a person who has been convicted by final judgment." (Italics supplied.)

The court in G.R. No. 112889 naturally opined that the above provision "to the extent that it confine(d) the term fugitive from justice to refer only to a person (the fugitive) x x x convicted by final judgment (was) an inordinate and undue circumscription of the law." The Court had to likewise concede to the Solicitor General when he then said that the term "includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution" for, certainly, the statement was not incorrect. But what indeed, could be perplexing was how it could be possible for the Court's ruling in G.R. No. 112889 to be so misconstrued as to supposedly convey any idea of exclusivity or preclusivity that, to begin with, was not even considered at the time.

There should be nothing erroneous, in my view, when COMELEC did ultimately come up with its own concluding observation that "the mere fact that there are pending charges in the United States and that petitioner Rodriguez is in the Philippines make petitioner a fugitive from justice."

And so I hold, in resume, as follows: That

1. The filing with the COMELEC of the disqualification case in SPA No. 95-089 was not an act of forum shopping on the part of herein private respondent Marquez.

2. Section 40(e) of the Local Government Code of 1991 did not partake of an ex post facto law or a bill of attainder.

3. Section 40(e) of the Local Government Code, not Section 72 of the Omnibus Election Code, should govern.

4. The COMELEC did not abuse its discretion in denying herein petitioner's motion for a suspension of hearing in SPA Case No. 95-089 and in allowing herein private respondent to present his evidence ex-parte, considering its close proximity to the 1995 elections.

5. In consolidating EPC No. 92-28 (the quo warranto case) and SPA No. 95-089 (the disqualification case), the COMELEC acted in conformity with its Rules of Procedure.

6. Given the factual settings and the circumstances, I must conclude that petitioner is a "fugitive from justice" within the intent and meaning of Section 40(e) of the Local Government Code of 1991.

WHEREFORE, I vote for the DISMISSAL of the petition.