G.R. No.

167591

May 9, 2007

ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE

GUZMAN, Petitioners,
vs.
COMELEC and MARINO "BOKING" MORALES, Respondents.
x---------------------------------------------x
G.R. No. 170577

May 9, 2007

ANTHONY D. DEE, Petitioner,

vs.
COMELEC and MARINO "BOKING" MORALES, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution are two consolidated petitions for certiorari under Rule 65 of the
1997 Rules of Civil Procedure, as amended, assailing the Resolutions dated March 14,
2005 and November 8, 2005 of the COMELEC En Banc.
G.R. No. 167591
ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN v.
COMELEC and MARINO "BOKING" MORALES
In the May 2004 Synchronized National and Local Elections, respondent Marino
"Boking" Morales ran as candidate for mayor of Mabalacat, Pampanga for the term
commencing July 1, 2004 to June 30, 2007. Prior thereto or on January 5, 2004, he
filed his Certificate of Candidacy.
On January 10, 2004, Attys. Venancio Q. Rivera and Normandick De Guzman,
petitioners, filed with the Second Division of the Commission on Elections (COMELEC)
a petition to cancel respondent Morales Certificate of Candidacy on the ground that he
was elected and had served three previous consecutive terms as mayor of Mabalacat.
They alleged that his candidacy violated Section 8, Article X of the Constitution and
Section 43 (b) of Republic Act (R.A.) No. 7160, also known as the Local Government
Code.
In his answer to the petition, respondent Morales admitted that he was elected mayor
of Mabalacat for the term commencing July 1, 1995 to June 30, 1998 (first term) and
July 1, 2001 to June 30, 2004 (third term), but he served the second term from July 1,
1998 to June 30, 2001 only as a "caretaker of the office" or as a "de facto officer"
because of the following reasons:

a. He was not validly elected for the second term 1998 to 2001 since his
proclamation as mayor was declared void by the Regional Trial Court (RTC),
Branch 57, Angeles City in its Decision dated April 2, 2001 in Election Protest
Case (EPC) No. 98-131. The Decision became final and executory on August 6,
2001; and
b. He was preventively suspended by the Ombudsman in an anti-graft case from
January 16, 1999 to July 15, 1999.
On May 6, 2004, the COMELEC Second Division rendered its Resolution finding
respondent Morales disqualified to run for the position of municipal mayor on the
ground that he had already served three (3) consecutive terms. Accordingly, his
Certificate of Candidacy was cancelled. On May 7, 2004, he filed with the COMELEC
En Banc a motion for reconsideration.
On March 14, 2005, the COMELEC En Banc issued a Resolution granting respondent
Morales motion for reconsideration and setting aside that of the Second Division. The
COMELEC En Banc held that since the Decision in EPC No. 98-131 of the RTC,
Branch 57, Angeles City declared respondent Morales proclamation void, his
discharge of the duties in the Office of the Mayor in Mabalacat is that of a de facto
officer or a de facto mayor. Therefore, his continuous service for three consecutive
terms has been severed.
Hence, this petition for certiorari.
G.R. No. 170577
ANTHONY DEE v. COMMISSION ON ELECTIONS and MARIO "BOKING" MORALES
On May 24, 2004, after respondent Morales was proclaimed the duly elected mayor of
Mabalacat for the term commencing July 1, 2004 to June 30, 2007, petitioner Anthony
Dee, also a candidate for mayor, filed with the RTC, Branch 61, Angeles City a petition
for quo warranto against the said respondent. Petitioner alleged that respondent
Morales, having served as mayor for three consecutive terms, is ineligible to run for
another term or fourth term. The case was docketed as Civil Case No. 11503.
In his answer, respondent Morales raised the following defenses:
a. He was not validly elected for the term 1998 to 2001 since the RTC, Branch
57, Angeles City declared in its Decision that his proclamation as mayor of
Mabalacat was void. Petitioner Dee was then proclaimed the duly elected mayor;
and
b. He was preventively suspended for six months by the Ombudsman, during the
same term in an anti-graft case, an interruption in the continuity of his service as
municipal mayor of Mabalacat.1

In its Decision dated November 22, 2004, the RTC dismissed petitioner Dees petition
for quo warranto on the ground that respondent Morales did not serve the three-term
limit since he was not the duly elected mayor of Mabalacat, but petitioner Dee in the
May 1998 elections for the term 1998 to 2001, thus:
Respondent, Marino Morales, was not the duly elected mayor of Mabalacat,
Pampanga in the May 1998 elections for the term 1998 to 2001 because although he
was proclaimed as the elected mayor of Mabalacat, Pampanga by the Municipal Board
of Canvassers, had assumed office and discharged the duties of mayor, his close rival,
the herein petitioner, Anthony D. Dee, was declared the duly elected Mayor of
Mabalacat, Pampanga in the Decision promulgated on April 2, 2001 in Election Protest
EPC No. 98-131 filed by Anthony Dee against herein respondent, Marino Morales, and
decided by RTC, Br. 57, Angeles City. x x x.
Petitioner Dee interposed an appeal to the COMELEC First Division, alleging that
respondent Morales violated the three-term limit rule when he ran for re-election (fourth
time) as mayor in the 2004 elections. Consequently, his proclamation as such should
be set aside. In a Resolution dated July 29, 2005 the COMELEC First Division issued a
Resolution dismissing the appeal. It held that respondent Morales cannot be deemed
to have served as mayor of Mabalacat during the term 1998 to 2001 because his
proclamation was declared void by the RTC, Branch 57 of Angeles City. He only
served as a caretaker, thus, his service during that term should not be counted.
On August 12, 2005, petitioner Dee filed with the COMELEC En Banc a motion for
reconsideration. In a Resolution dated November 8, 2005, the COMELEC En Banc
affirmed the questioned Resolution of the Second Division.
Hence, petitioner Dees instant petition for certiorari.
Both cases may be decided based on the same facts and issues.
It is undisputed that respondent Morales was elected to the position of mayor of
Mabalacat for the following consecutive terms:
a) July 1, 1995 to June 30, 1998
b) July 1, 1998 to June 30, 2001
c) July 1, 2001 to June 30, 2004
d) July 1, 2004 to June 30, 2007
THE PRINCIPAL ISSUE.
Respondent Morales argued and the Comelec held that the July 1, 2003 to June 30,
2007 term is not his fourth because his second term, July 1, 1998 to June 30, 2001 to

which he was elected and which he served, may not be counted since his proclamation
was declared void by the RTC, Branch 57 of Angeles City.
Respondent Morales is wrong. This Court, through Mr. Justice Cancio C. Garcia,
resolved the same issue in Ong v. Alegre2 with identical facts, thus:
To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each
other for the office of mayor of San Vicente, Camarines Norte, with the latter being
subsequently proclaimed by the COMELEC winner in the contest. Alegre subsequently
filed an election protest, docketed as Election Case No. 6850 before the Regional Trial
Court (RTC) at Daet, Camarines Norte. In it, the RTC declared Alegre as the duly
elected mayor in that 1998 mayoralty contest, albeit the decision came out only on July
4, 2001, when Francis had fully served the 1998-2001 mayoralty term and was in fact
already starting to serve the 2001-2004 term as mayor-elected for the municipality of
San Vicente.
xxx
A resolution of the issues thus formulated hinges on the question of whether or not
petitioner Francis assumption of office as mayor of San Vicente, Camarines Norte for
the mayoralty term 1998 to 2001 should be considered as full service for the purpose
of the three-term limit rule.
Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on
the other hand, disagrees. He argues that, while he indeed assumed office and
discharged the duties as Mayor of San Vicente for three consecutive terms, his
proclamation as mayor-elected in the May 1998 election was contested and eventually
nullified per the Decision of the RTC of Daet, Camarines Norte dated July 4, 2001.
Pressing the point, petitioner argues, citing Lonzanida v. Comelec, that a proclamation
subsequently declared void is no proclamation at all and one assuming office on the
strength of a protested proclamation does so as a presumptive winner and subject to
the final outcome of the election protest.
xxx
For the three-term limit for elective local government officials to apply, two conditions
or requisites must concur, to wit: (1) that the official concerned has been elected for
three (3) consecutive terms in the same local government post, and (2) that he has
fully served three (3) consecutive terms.
With the view we take of the case, the disqualifying requisites are present herein, thus
effectively barring petitioner Francis from running for mayor of San Vicente, Camarines
Norte in the May 10, 2004 elections. There can be no dispute about petitioner Francis
Ong having been duly elected mayor of that municipality in the May 1995 and again in
the May 2001 elections and serving the July 1, 1995-June 30, 1998 and the July 1,

2001-June 30, 2004 terms in full. The herein controversy revolves around the 19982001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor of
the same municipality in the May 1998 elections and actually served the 1998-2001
mayoral term by virtue of a proclamation initially declaring him mayor-elect of the
municipality of San Vicente. The question that begs to be addressed, therefore, is
whether or not Francis assumption of office as Mayor of San Vicente, Camarines
Norte from July 1, 1998 to June 30, 2001, may be considered as one full term service
in the context of the consecutive three-term limit rule.
We hold that such assumption of office constitutes, for Francis, "service for the full
term," and should be counted as a full term served in contemplation of the three-term
limit prescribed by the constitutional and statutory provisions, supra, barring local
elective officials from being elected and serving for more than three consecutive terms
for the same position.
It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850,
that it was Francis opponent (Alegre) who "won" in the 1998 mayoralty race and,
therefore, was the legally elected mayor of San Vicente. However, that disposition, it
must be stressed, was without practical and legal use and value, having been
promulgated after the term of the contested office has expired. Petitioner Francis
contention that he was only a presumptive winner in the 1998 mayoralty derby as his
proclamation was under protest did not make him less than a duly elected mayor. His
proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected
mayor in the 1998 mayoralty election coupled by his assumption of office and his
continuous exercise of the functions thereof from start to finish of the term, should
legally be taken as service for a full term in contemplation of the three-term rule.
The absurdity and the deleterious effect of a contrary view is not hard to discern. Such
contrary view would mean that Alegre would-under the three-term rule-be considered
as having served a term by virtue of a veritably meaningless electoral protest ruling,
when another actually served such term pursuant to a proclamation made in due
course after an election.
Petitioner cites, but, to our mind, cannot seek refuge from the Courts ruling in
Lonzanida v. Comelec, citing Borja v. Comelec. In Lonzanida, petitioner Lonzanida
was elected and served for two consecutive terms as mayor of San Antonio, Zambales
prior to the May 8, 1995 elections. He then ran again for the same position in the May
1995 elections, won and discharged his duties as Mayor. However, his opponent
contested his proclamation and filed an election protest before the RTC of Zambales,
which, in a decision dated January 8, 1997, ruled that there was a failure of
elections and declared the position vacant. The COMELEC affirmed this ruling and
petitioner Lonzanida acceded to the order to vacate the post. Lonzanida assumed the
office and performed his duties up to March 1998 only. Now, during the May 1998
elections, Lonzanida again ran for mayor of the same town. A petition to disqualify,
under the three-term rule, was filed and was eventually granted. There, the Court held

that Lonzanida cannot be considered as having been duly elected to the post in the
May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term by
reason of involuntary relinquishment of office. As the Court pointedly observed,
Lonzanida "cannot be deemed to have served the May 1995 to 1998 term because he
was ordered to vacate [and in fact vacated] his post before the expiration of the term."
The difference between the case at bench and Lonzanida is at once apparent. For one,
in Lonzanida, the result of the mayoralty elections was declared a nullity for the stated
reason of "failure of election," and, as a consequence thereof, the proclamation of
Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the
office of the mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral
term, there being an involuntary severance from office as a result of legal processes. In
fine, there was an effective interruption of the continuity of service.
On the other hand, the failure-of-election factor does not obtain in the present case.
But more importantly, here, there was actually no interruption or break in the continuity
of Francis service respecting the 1998-2001 term. Unlike Lonzanida, Francis was
never unseated during the term in question; he never ceased discharging his duties
and responsibilities as mayor of San Vicente, Camarines Norte for the entire period
covering the 1998-2001 term.
It bears stressing that in Ong v. Alegre cited above, Francis Ong was elected and
assumed the duties of the mayor of San Vicente, Camarines Norte for three
consecutive terms. But his proclamation as mayor in the May 1998 election was
declared void by the RTC of Daet, Camarines Norte in its Decision dated July 4, 2001.
As ruled by this Court, his service for the term 1998 to 2001 is for the full term. Clearly,
the three-term limit rule applies to him. Indeed, there is no reason why this ruling
should not also apply to respondent Morales who is similarly situated.
Here, respondent Morales invoked not only Lonzanida v. COMELEC,3 but also Borja,
Jr. v. Commission on Elections4 which is likewise inapplicable. The facts in Borja are:
Private respondent Jose T. Capco was elected vice-mayor of Pateros on January 18,
1998 for a term ending June 30, 1992. On September 2, 1989, he became mayor, by
operation of law, upon the death of the incumbent, Cesar Borja. On May 11, 1992, he
ran and was elected mayor for a term of three years which ended on June 30, 1995.
On May 8, 1995, he was reelected mayor for another term of three years ending June
30, 1998.
On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor
of Pateros relative to the May 11, 1998 elections, Petitioner Benjamin U. Borja, Jr.,
who was also a candidate for mayor, sought Capcos disqualification on the theory that
the latter would have already served as mayor for three consecutive terms by June 30,
1998 and would therefore be ineligible to serve for another term after that.

On April 30, 1998, the Second Division of the Commission on Elections ruled in favor
of petitioner and declared private respondent Capco disqualified from running for
reelection as mayor of Pateros. However, on motion of private respondent, the
COMELEC en banc, voting 5-2, reversed the decision and declared Capco eligible to
run for mayor in the May 11, 1998 elections. x x x
This Court held that Capcos assumption of the office of mayor upon the death of the
incumbent may not be regarded as a "term" under Section 8, Article X of the
Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code). He
held the position from September 2, 1989 to June 30, 1992, a period of less than three
years. Moreover, he was not elected to that position.
Similarly, in Adormeo v. COMELEC,5 this Court ruled that assumption of the office of
mayor in a recall election for the remaining term is not the "term" contemplated under
Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local
Government Code). As the Court observed, there was a "break" in the service of
private respondent Ramon T. Talanga as mayor. He was a "private citizen" for a time
before running for mayor in the recall elections.
Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He
assumed the position. He served as mayor until June 30, 2001. He was mayor for
the entire period notwithstanding the Decision of the RTC in the electoral protest case
filed by petitioner Dee ousting him (respondent) as mayor. To reiterate, as held in Ong
v. Alegre,6 such circumstance does not constitute an interruption in serving the full
term.
Section 8, Article X of the Constitution can not be more clear and explicit
The term of the office of elected local officials x x x, shall be three years and no such
official shall serve for more than three consecutive terms. x x x
Upon the other hand, Section 43 (b) of R.A. No. 7160 (the Local Government Code)
clearly provides:
No local official shall serve for more than three consecutive terms in the same position.
xxx
Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat
continuously without any break since July 1, 1995. In just over a month, by June 30,
2007, he will have been mayor of Mabalacat for twelve (12) continuous years.
In Latasa v. Comelec,7 the Court explained the reason for the maximum term limit,
thus:

The framers of the Constitution, by including this exception, wanted to establish some
safeguards against the excessive accumulation of power as a result of consecutive
terms. As Commissioner Blas Ople stated during the deliberations:
x x x I think we want to prevent future situations where, as a result of continuous
service and frequent re-elections, officials from the President down to the municipal
mayor tend to develop a proprietary interest in their positions and to accumulate these
powers and prerequisites that permit them to stay on indefinitely or to transfer these
posts to members of their families in a subsequent election. x x x
xxx
It is evident that in the abovementioned cases, there exists a rest period or a break in
the service of local elective official. In Lonzanida, petitioner therein was a private
citizen a few months before the next mayoral elections. Similarly, in Adormeo and
Socrates, the private respondents therein lived as private citizens for two years and
fifteen months respectively. Indeed, the law contemplates a rest period during which
the local elective official steps down from office and ceases to exercise power or
authority over the inhabitants of the territorial jurisdiction of a particular local
government unit.
This Court reiterates that the framers of the Constitution specifically included an
exception to the peoples freedom to choose those who will govern them in order to
avoid the evil of a single person accumulating excessive power over a particular
territorial jurisdiction as a result of a prolonged stay in the same office. To allow
petitioner Latasa to vie for the position of city mayor after having served for three
consecutive terms as municipal mayor would obviously defeat the very intent of the
framers when they wrote this exception. Should he be allowed another three
consecutive term as mayor of the City of Digos, petitioner would then be possibly
holding office as chief executive over the same territorial jurisdiction and inhabitants for
a total of eighteen consecutive years. This is the very scenario sought to be avoided by
the Constitution, if not abhorred by it.
This is the very situation in the instant case. Respondent Morales maintains that he
served his second term (1998 to 2001) only as a "caretaker of the office" or as a "de
facto officer." Section 8, Article X of the Constitution is violated and its purpose
defeated when an official serves in the same position for three consecutive terms.
Whether as "caretaker" or "de facto" officer, he exercises the powers and enjoys the
prerequisites of the office which enables him "to stay on indefinitely".
Respondent Morales should be promptly ousted from the position of mayor of
Mabalacat.
G.R. No. 167591

Having found respondent Morales ineligible, his Certificate of Candidacy dated

December 30, 2003 should be cancelled. The effect of the cancellation of a Certificate
of Candidacy is provided under Sections 6 and 7 of R.A. No. 6646, thus:
SECTION 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 guilt is strong.
SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy.
The procedure hereinabove provided shall apply to petitions to deny due course to or
cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg.
881.
in relation to Section 211 of the Omnibus Election Code, which provides:
SEC. 211. Rules for the appreciation of ballots. In the reading and appreciation of
ballots, every ballot shall be presumed to be valid unless there is clear and good
reason to justify its rejection. The board of election inspectors shall observe the
following rules, bearing in mind that the object of the election is to obtain the
expression of the voters will:
xxx
19. Any vote in favor of a person who has not filed a certificate of candidacy or in favor
of a candidate for an office for which he did not present himself shall be considered as
a stray vote but it shall not invalidate the whole ballot.
xxx
In the light of the foregoing, respondent Morales can not be considered a candidate in
the May 2004 elections. Not being a candidate, the votes cast for him SHOULD NOT
BE COUNTED and must be considered stray votes.
G.R. No. 170577
Since respondent Morales is DISQUALIFIED from continuing to serve as mayor of
Mabalacat, the instant petition for quo warranto has become moot.
Going back to G.R. No. 167591, the question now is whether it is the vice-mayor or
petitioner Dee who shall serve for the remaining portion of the 2004 to 2007 term.

In Labo v. Comelec,8 this Court has ruled that a second place candidate cannot be
proclaimed as a substitute winner, thus:
The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not
entitle the eligible candidate receiving the next highest number of votes to be declared
elected. A minority or defeated candidate cannot be deemed elected to the office.
xxx
It is therefore incorrect to argue that since a candidate has been disqualified, the votes
intended for the disqualified candidate should, in effect, be considered null and void.
This would amount to disenfranchising the electorate in whom sovereignty resides. At
the risk of being repetitious, the people of Baguio City opted to elect petitioner
Labo bona fide, without any intention to misapply their franchise, and in the honest
belief that Labo was then qualified to be the person to whom they would entrust the
exercise of the powers of the government. Unfortunately, petitioner Labo turned out to
be disqualified and cannot assume the office.
Whether or not the candidate whom the majority voted for can or cannot be installed,
under no circumstances can minority or defeated candidate be deemed elected to the
office. Surely, the 12,602 votes cast for petitioner Ortega is not a larger number than
the 27,471 votes cast for petitioner Labo (as certified by the Election Registrar of
Baguio City; rollo, p. 109; GR No. 105111).
xxx
As a consequence of petitioners ineligibility, a permanent vacancy in the contested
office has occurred. This should now be filled by the vice-mayor in accordance with
Section 44 of the Local Government Code, to wit:
Sec. 44. Permanent vacancies in the Offices of the Governor, Vice-Governor, Mayor
and Vice-Mayor. (a) If a permanent vacancy occurs in the office of the governor or
mayor, the vice-governor or the vice-mayor concerned shall become the governor or
mayor. x x x
WHEREFORE, the petition in G.R. No. 167591 is GRANTED. Respondent Morales
Certificate of Candidacy dated December 30, 2003 is cancelled. In view of the vacancy
in the Office of the Mayor in Mabalacat, Pampanga, the vice-mayor elect of the said
municipality in the May 10, 2004 Synchronized National and Local Elections is hereby
declared mayor and shall serve as such for the remaining duration of the term July 1,
2004 to June 30, 2007. The petition in G.R. No. 170577 is DISMISSED for being moot.
This Decision is immediately executory.
SO ORDERED.