WILMER GREGO, Petitioner, v. COMMISSION ON ELECTIONS and HUMBERTO BASCO, Respondents.
D E C I S I O N
The instant special civil action for certiorari and prohibition impugns the resolution of the Commission on Elections (COMELEC) en banc in SPA No. 95-212 dated July 31, 1996, dismissing petitioners motion for reconsideration of an earlier resolution rendered by the COMELECs First Division on October 6, 1995, which also dismissed the petition for disqualification1 filed by petitioner Wilmer Grego against private respondent Humberto Basco.
The essential and undisputed factual antecedents of the case are as follows:
On October 31, 1981, Basco was removed from his position as Deputy Sheriff by no less than this Court upon a finding of serious misconduct in an administrative complaint lodged by a certain Nena Tordesillas. The Court held:
WHEREFORE, FINDING THE RESPONDENT DEPUTY SHERIFF HUMBERTO BASCO OF THE CITY COURT OF MANILA GUILTY OF SERIOUS MISCONDUCT IN OFFICE FOR THE SECOND TIME, HE IS HEREBY DISMISSED FROM THE SERVICE WITH FORFEITURE OF ALL RETIREMENT BENEFITS AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS.
x x x 2chanroblesvirtuallawlibrary
Subsequently, Basco ran as a candidate for Councilor in the Second District of the City of Manila during the January 18, 1988, local elections. He won and, accordingly, assumed office.
After his term, Basco sought re-election in the May 11, 1992 synchronized national elections. Again, he succeeded in his bid and he was elected as one of the six (6) City Councilors. However, his victory this time did not remain unchallenged. In the midst of his successful re-election, he found himself besieged by lawsuits of his opponents in the polls who wanted to dislodge him from his position.
One such case was a petition for quo warranto3 filed before the COMELEC by Cenon Ronquillo, another candidate for councilor in the same district, who alleged Bascos ineligibility to be elected councilor on the basis of the Tordesillas ruling. At about the same time, two more cases were also commenced by Honorio Lopez II in the Office of the Ombudsman and in the Department of Interior and Local Government.4 All these challenges were, however, dismissed, thus, paving the way for Bascos continued stay in office.
Despite the odds previously encountered, Basco remained undaunted and ran again for councilor in the May 8, 1995, local elections seeking a third and final term. Once again, he beat the odds by emerging sixth in a battle for six councilor seats. As in the past, however, his right to office was again contested. On May 13, 1995, petitioner Grego, claiming to be a registered voter of Precinct No. 966, District II, City of Manila, filed with the COMELEC a petition for disqualification, praying for Bascos disqualification, for the suspension of his proclamation, and for the declaration of Romualdo S. Maranan as the sixth duly elected Councilor of Manilas Second District.
On the same day, the Chairman of the Manila City Board of Canvassers (BOC) was duly furnished with a copy of the petition. The other members of the BOC learned about this petition only two days later.
The COMELEC conducted a hearing of the case on May 14, 1995, where it ordered the parties to submit simultaneously their respective memoranda.
Before the parties could comply with this directive, however, the Manila City BOC proclaimed Basco on May 17, 1995, as a duly elected councilor for the Second District of Manila, placing sixth among several candidates who vied for the seats.5 Basco immediately took his oath of office before the Honorable Ma. Ruby Bithao-Camarista, Presiding Judge, Metropolitan Trial Court, Branch I, Manila.
In view of such proclamation, petitioner lost no time in filing an Urgent Motion seeking to annul what he considered to be an illegal and hasty proclamation made on May 17, 1995, by the Manila City BOC. He reiterated Bascos disqualification and prayed anew that candidate Romualdo S. Maranan be declared the winner. As expected, Basco countered said motion by filing his Urgent Opposition to: Urgent Motion (with Reservation to Submit Answer and/or Motion to Dismiss Against Instant Petition for Disqualification with Temporary Restraining Order).
On June 5, 1995, Basco filed his Motion to Dismiss Serving As Answer pursuant to the reservation he made earlier, summarizing his contentions and praying as follows:
Respondent thus now submits that the petitioner is not entitled to relief for the following reasons:
1. The respondent cannot be disqualified on the ground of Section 40 paragraph b of the Local Government Code because the Tordesillas decision is barred by laches, prescription, res judicata, lis pendens, bar by prior judgment, law of the case and stare decisis;
2. Section 4 par. B of the Local Government Code may not be validly applied to persons who were dismissed prior to its effectivity. To do so would make it ex post facto, bill of attainder, and retroactive legislation which impairs vested rights. It is also a class legislation and unconstitutional on the account.
3. Respondent had already been proclaimed. And the petition being a preproclamation contest under the Marquez v. Comelec Ruling, supra, it should be dismissed by virtue of said pronouncement.
4. Respondents three-time election as candidate for councilor constitutes implied pardon by the people of previous misconduct (Aguinaldo v. Comelec G.R. 105128; Rice v. State 161 SCRA 401; Montgomery v. Newell 40 SW 2d 4181; People v. Bashaw 130 P. 2nd 237, etc.).
5. As petition to nullify certificate of candidacy, the instant case has prescribed; it was premature as an election protest and it was not brought by a proper party in interest as such protest.:
WHEREFORE it is respectfully prayed that the instant case be dismissed on instant motion to dismiss the prayer for restraining order denied (sic). If this Honorable Office is not minded to dismiss, it is respectfully prayed that instant motion be considered as respondents answer. All other reliefs and remedies just and proper in the premises are likewise hereby prayed for.
After the parties respective memoranda had been filed, the
COMELECs First Division resolved to dismiss the petition for disqualification
on October 6, 1995, ruling that the administrative penalty imposed by the
Supreme Court on respondent Basco on October 31, 1981 was wiped away and
condoned by the electorate which elected him and that on account of Bascos
proclamation on May 17, 1965, as the sixth duly elected councilor of the Second
District of Manila, the petition would no longer be viable.6chanroblesvirtuallawlibrary
Petitioners motion for reconsideration of said resolution was later denied by the COMELEC en banc in its assailed resolution promulgated on July 31, 1996.7 Hence, this petition.
Petitioner argues that Basco should be disqualified from running
for any elective position since he had been removed from office as a result of
an administrative case pursuant to Section 40 (b) of Republic Act No. 7160,
otherwise known as the Local Government Code (the Code), which took effect on
January 1, 1992.8chanroblesvirtuallawlibrary
Petitioner wants the Court to likewise resolve the following issues, namely:
1. Whether or not Section 40 (b) of Republic Act No. 7160 applies retroactively to those removed from office before it took effect on January 1, 1992;
2. Whether or not private respondents election in 1988, 1992 and in 1995 as City Councilor of Manila wiped away and condoned the administrative penalty against him;
3. Whether or not private respondents proclamation as sixth winning candidate on May 17, 1995, while the disqualification case was still pending consideration by COMELEC, is void ab initio; and
4. Whether or not Romualdo S. Maranan, who placed seventh among the candidates for City Councilor of Manila, may be declared a winner pursuant to Section 6 of Republic Act No. 6646.
While we do not necessarily agree with the conclusions and reasons of the COMELEC in the assailed resolution, nonetheless, we find no grave abuse of discretion on its part in dismissing the petition for disqualification. The instant petition must, therefore, fail.
We shall discuss the issues raised by petitioner in seriatim.
I. Does Section 40 (b) of Republic Act No. 7160 apply retroactively to those removed from office before it took effect on January 1, 1992?
Section 40 (b) of the Local Government Code under which petitioner anchors Bascos alleged disqualification to run as City Councilor states:
SEC. 40. Disqualifications. - The following persons are disqualified from running for any elective local position:
x x x
(b) Those removed from office as a result of an administrative case;
x x x .
In this regard, petitioner submits that although the Code took
effect only on January 1, 1992, Section 40 (b) must nonetheless be given
retroactive effect and applied to Bascos dismissal from office which took
place in 1981.
It is stressed that the
provision of the law as worded does not mention or even qualify the date of removal
from office of the candidate in order for disqualification thereunder to
Hence, petitioner impresses
upon the Court that as long as a candidate was once removed from office due to
an administrative case, regardless of whether it took place during or prior to
the effectivity of the Code, the disqualification applies.9 To
him, this interpretation is made more evident by the manner in which the
provisions of Section 40 are couched.
Since the past tense is used in enumerating the grounds for disqualification,
petitioner strongly contends that the provision must have also referred to
removal from office occurring prior to the effectivity of the Code.10chanroblesvirtuallawlibrary
We do not, however, subscribe to petitioners view. Our refusal to give retroactive application to the provision of Section 40 (b) is already a settled issue and there exist no compelling reasons for us to depart therefrom. Thus, in Aguinaldo vs. COMELEC,11 reiterated in the more recent cases of Reyes vs. COMELEC12 and Salalima vs. Guingona, Jr.,13 we ruled, thus:
The COMELEC applied Section 40 (b) of the Local Government Code (Republic Act 7160) which provides:
Sec. 40. The following persons are disqualified from running for any elective local positions:
x x x
(b) Those removed from office as a result of an administrative case.
Republic Act 7160 took effect only on January 1, 1992.
The rule is:
x x x
x x x Well-settled is the principle that while the Legislature has the power to pass retroactive laws which do not impair the obligation of contracts, or affect injuriously vested rights, it is equally true that statutes are not to be construed as intended to have a retroactive effect so as to affect pending proceedings, unless such intent is expressly declared or clearly and necessarily implied from the language of the enactment. x x x (Jones vs. Summers, 105 Cal. App. 51, 286 Pac. 1093; U.S. vs. Whyel 28 (2d) 30; Espiritu v. Cipriano, 55 SCRA 533 , cited in Nilo vs. Court of Appeals, 128 SCRA 519 . See also Puzon v. Abellera, 169 SCRA 789 ; Al-Amanah Islamic Investment Bank of the Philippines v. Civil Service Commission, et al., G.R. No. 100599, April 8, 1992).
There is no provision in the statute which would clearly indicate that the same operates retroactively.
It, therefore, follows that [Section] 40 (b) of the Local Government Code is not applicable to the present case. (Underscoring supplied).
That the provision of the Code in question does not qualify the
date of a candidates removal from office and that it is couched in the past
tense should not deter us from the applying the law prospectively.
The basic tenet in legal hermeneutics that
laws operate only prospectively and not retroactively provides the qualification
sought by petitioner.
A statute, despite
the generality in its language, must not be so construed as to overreach acts,
events or matters which transpired before its passage.
Lex prospicit, non respicit.
The law looks forward, not backward.14chanroblesvirtuallawlibrary
II. Did private respondents election to office as City Councilor of Manila in the 1988, 1992 and 1995 elections wipe away and condone the administrative penalty against him, thus restoring his eligibility for public office?
Petitioner maintains the negative. He quotes the earlier ruling of the Court in Frivaldo v. COMELEC15 to the effect that a candidates disqualification cannot be erased by the electorate alone through the instrumentality of the ballot. Thus:
x x x (T)he qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. x x x
At first glance, there seems to be a prima facie semblance of merit to petitioners argument. However, the issue of whether or not Bascos triple election to office cured his alleged ineligibility is actually beside the point because the argument proceeds on the assumption that he was in the first place disqualified when he ran in the three previous elections. This assumption, of course, is untenable considering that Basco was NOT subject to any disqualification at all under Section 40 (b) of the Local Government Code which, as we said earlier, applies only to those removed from office on or after January 1, 1992. In view of the irrelevance of the issue posed by petitioner, there is no more reason for the Court to still dwell on the matter at length.
Anent Bascos alleged circumvention of the prohibition in Tordesillas against reinstatement to any position in the national or local government, including its agencies and instrumentalities, as well as government-owned or controlled corporations, we are of the view that petitioners contention is baseless. Neither does petitioners argument that the term any position is broad enough to cover without distinction both appointive and local positions merit any consideration.
Contrary to petitioners assertion, the Tordesillas decision did not bar Basco from running for any elective position. As can be gleaned from the decretal portion of the said decision, the Court couched the prohibition in this wise:
x x x AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS.
In this regard, particular attention is directed to the use of the term reinstatement. Under the former Civil Service Decree,16 the law applicable at the time Basco, a public officer, was administratively dismissed from office, the term reinstatement had a technical meaning, referring only to an appointive position. Thus:
ARTICLE VIII. PERSONNEL POLICIES AND STANDARDS.
SEC. 24. Personnel Actions. -
x x x
(d) Reinstatement. - Any person who has been permanently APPOINTED to a position in the career service and who has, through no delinquency or misconduct, been separated therefrom, may be reinstated to a position in the same level for which he is qualified.
x x x .
(Emphasis and underscoring supplied).
The Rules on Personnel Actions and Policies issued by the Civil Service Commission on November 10, 1975,17 provides a clearer definition. It reads:
RULE VI. OTHER PERSONNEL ACTIONS.
SEC. 7. Reinstatement is the REAPPOINMENT of a person who was previously separated from the service through no delinquency or misconduct on his part from a position in the career service to which he was permanently appointed, to a position for which he is qualified. (Emphasis and underscoring supplied).
In light of these definitions, there is, therefore, no basis for holding that Basco is likewise barred from running for an elective position inasmuch as what is contemplated by the prohibition in Tordesillas is reinstatement to an appointive position.
III. Is private respondents proclamation as sixth winning candidate on May 17, 1995, while the disqualification case was still pending consideration by COMELEC, void ab initio?
To support its position, petitioner argues that Basco violated
the provisions of Section 20, paragraph (i) of Republic Act No. 7166, Section 6
of Republic Act No. 6646, as well as our ruling in the cases of Duremdes v.
Benito v. COMELEC19 and Aguam v. COMELEC.20chanroblesvirtuallawlibrary
We are not convinced. The provisions and cases cited are all misplaced and quoted out of context. For the sake of clarity, let us tackle each one by one.
Section 20, paragraph (i) of Rep. Act 7166 reads:
SEC. 20. Procedure in Disposition of Contested Election Returns.-
x x x
(i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election.
x x x .
The inapplicability of the abovementioned provision to the present case is very much patent on its face considering that the same refers only to a void proclamation in relation to contested returns and NOT to contested qualifications of a candidate.
Next, petitioner cites Section 6 of Rep. Act 6646 which states:
SEC. 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason, a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (Underscoring supplied).
This provision, however, does not support petitioners contention that the COMELEC, or more properly speaking, the Manila City BOC, should have suspended the proclamation. The use of the word may indicates that the suspension of a proclamation is merely directory and permissive in nature and operates to confer discretion.21 What is merely made mandatory, according to the provision itself, is the continuation of the trial and hearing of the action, inquiry or protest. Thus, in view of this discretion granted to the COMELEC, the question of whether or not evidence of guilt is so strong as to warrant suspension of proclamation must be left for its own determination and the Court cannot interfere therewith and substitute its own judgment unless such discretion has been exercised whimsically and capriciously.22 The COMELEC, as an administrative agency and a specialized constitutional body charged with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall,23 has more than enough expertise in its field that its findings or conclusions are generally respected and even given finality.24 The COMELEC has not found any ground to suspend the proclamation and the records likewise fail to show any so as to warrant a different conclusion from this Court. Hence, there is no ample justification to hold that the COMELEC gravely abused its discretion.
It is to be noted that Section 5, Rule 25 of the COMELEC Rules of Procedure25 states that:
SEC. 5. Effect of petition if unresolved before completion of canvass. - x x x (H)is proclamation shall be suspended notwithstanding the fact that he received the winning number of votes in such election.
However, being merely an implementing rule, the same must not override, but instead remain consistent with and in harmony with the law it seeks to apply and implement. Administrative rules and regulations are intended to carry out, neither to supplant nor to modify, the law.26 Thus, in Miners Association of the Philippines, Inc. v. Factoran, Jr.,27 the Court ruled that:
We reiterate the principle that the power of administrative officials to promulgate rules and regulations in the implementation of a statute is necessarily limited only to carrying into effect what is provided in the legislative enactment. The principle was enunciated as early as 1908 in the case of United States v. Barrias. The scope of the exercise of such rule-making power was clearly expressed in the case of United States v. Tupasi Molina, decided in 1914, thus: Of course, the regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself can not be extended. So long, however, as the regulations relate solely to carrying into effect the provision of the law, they are valid.
Recently, the case of People v. Maceren gave a brief delineation of the scope of said power of administrative officials:
Administrative regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and should be for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself cannot be extended (U.S. v. Tupasi Molina, supra). An administrative agency cannot amend an act of Congress (Santos v. Estenzo, 109 Phil. 419, 422; Teoxon vs. Members of the Board of Administrators, L-25619, June 30, 1970, 33 SCRA 585; Manuel vs. General Auditing Office, L-28952, December 29, 1971, 42 SCRA 660; Deluao vs. Casteel, L-21906, August 29, 1969, 29 SCRA 350).
The rule-making power must be confined to details for regulating the mode or proceeding to carry into effect the law as it has been enacted. The power cannot be extended to amending or expanding the statutory requirements or to embrace matters not covered by the statute. Rules that subvert the statute cannot be sanctioned (University of Santo Tomas v. Board of Tax Appeals, 93 Phil. 376, 382, citing 12 C.J. 845-46. As to invalid regulations, see Collector of Internal Revenue v. Villaflor, 69 Phil. 319; Wise & Co. v. Meer, 78 Phil. 655, 676; Del Mar v. Phil. Veterans Administration, L-27299, June 27, 1973, 51 SCRA 340, 349).
x x x
x x x The rule or regulations should be within the scope of the statutory authority granted by the legislature to the administrative agency (Davis, Administrative Law, p. 194, 197, cited in Victorias Milling Co., Inc. v. Social Security Commission, 114 Phil. 555, 558).
In case of discrepancy between the basic law and a rule or regulation issued to implement said law, the basic law prevails because said rule or regulations cannot go beyond the terms and provisions of the basic law (People v. Lim, 108 Phil. 1091).
Since Section 6 of Rep. Act 6646, the law which Section 5 of Rule 25 of the COMELEC Rules of Procedure seeks to implement, employed the word may, it is, therefore, improper and highly irregular for the COMELEC to have used instead the word shall in its rules.
Moreover, there is no reason why the Manila City BOC should not have proclaimed Basco as the sixth winning City Councilor. Absent any determination of irregularity in the election returns, as well as an order enjoining the canvassing and proclamation of the winner, it is a mandatory and ministerial duty of the Board of Canvassers concerned to count the votes based on such returns and declare the result. This has been the rule as early as in the case of Dizon v. Provincial Board of Canvassers of Laguna28 where we clarified the nature of the functions of the Board of Canvassers, viz.:
The simple purpose and duty of the canvassing board is to ascertain and declare the apparent result of the voting. All other questions are to be tried before the court or other tribunal for contesting elections or in quo warranto proceedings. (9 R.C.L., p. 1110)
To the same effect is the following quotation:
x x x Where there is no question as to the genuineness of the returns or that all the returns are before them, the powers and duties of canvassers are limited to the mechanical or mathematical function of ascertaining and declaring the apparent result of the election by adding or compiling the votes cast for each candidate as shown on the face of the returns before them, and then declaring or certifying the result so ascertained. (20 C.J., 200-201) [Underscoring supplied]
Finally, the cases of Duremdes, Benito and Aguam, supra, cited by petitioner are all irrelevant and inapplicable to the factual circumstances at bar and serve no other purpose than to muddle the real issue. These three cases do not in any manner refer to void proclamations resulting from the mere pendency of a disqualification case.
In Duremdes, the proclamation was deemed void ab initio because the same was made contrary to the provisions of the Omnibus Election Code regarding the suspension of proclamation in cases of contested election returns.
In Benito, the proclamation of petitioner Benito was rendered ineffective due to the Board of Canvassers violation of its ministerial duty to proclaim the candidate receiving the highest number of votes and pave the way to succession in office. In said case, the candidate receiving the highest number of votes for the mayoralty position died but the Board of Canvassers, instead of proclaiming the deceased candidate winner, declared Benito, a mere second-placer, the mayor.
Lastly, in Aguam, the nullification of the proclamation proceeded from the fact that it was based only on advanced copies of election returns which, under the law then prevailing, could not have been a proper and legal basis for proclamation.
With no precedent clearly in point, petitioners arguments must, therefore, be rejected.
IV. May Romualdo S. Maranan, a seventh placer, be legally declared a winning candidate?
Obviously, he may not be declared a winner.
In the first place, Basco was a duly
qualified candidate pursuant to our disquisition above.
Furthermore, he clearly received the winning
number of votes which put him in sixth place.
Thus, petitioners emphatic reference to Labo v. COMELEC,29
where we laid down a possible exception to the rule that a second placer may be
declared the winning candidate, finds no application in this case.
The exception is predicated on the
concurrence of two assumptions, namely: (1) the one who obtained the highest
number of votes is disqualified; and (2) the electorate is fully aware in fact
and in law of a candidates disqualification so as to bring such awareness
within the realm of notoriety but would nonetheless cast their votes in favor
of the ineligible candidate.
assumptions, however, are absent in this case.
Petitioners allegation that Basco was well-known to have been disqualified
in the small community where he ran as a candidate is purely speculative and
conjectural, unsupported as it is by any convincing facts of record to show
notoriety of his alleged disqualification.30chanroblesvirtuallawlibrary
In sum, we see the dismissal of the petition for disqualification as not having been attended by grave abuse of discretion. There is then no more legal impediment for private respondents continuance in office as City Councilor for the Second District of Manila.
WHEREFORE, the instant petition for certiorari and prohibition is hereby DISMISSED for lack of merit. The assailed resolution of respondent Commission on Elections (COMELEC) is SPA 95-212 dated July 31, 1996 is hereby AFFIRMED. Costs against petitioner.
Narvasa, CJ., Regalado, Davide, Jr., Melo, Puno, Vitug, Mendoza, Hermosisima, Jr., Panganiban, and Torres, Jr., J., concur.
Padilla, Bellosillo, Kapunan, and Francisco, JJ., On Leave.
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