6 WILMER GREGO Vs Comelec
6 WILMER GREGO Vs Comelec
6 WILMER GREGO Vs Comelec
FACTS:
In 1981, Basco was removed from his position as Deputy Sheriff for
serious misconduct. Subsequently, he ran as a candidate for councilor in
the Second District of the City of Manila during the 1988, local elections.
He won and assumed office. After his term, Basco sought re-election.
Again, he won. However, he found himself facing lawsuits filed by his
opponents who wanted to dislodge him from his position.
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.
For a third time, Basco was elected councilor in 1995. Expectedly, his
right to office was again contested. In 1995, petitioner Grego filed with
the COMELEC a petition for disqualification. The COMELEC conducted a
hearing and ordered the parties to submit their respective memoranda.
However, the Manila City BOC proclaimed Basco in May 1995, as a duly
elected councilor for the Second District of Manila, placing sixth among
several candidates who vied for the seats. Basco immediately took his
oath of office.
RULING:
No. The Supreme Court found no grave abuse of discretion on the part of
COMELEC in dismissing the petition for disqualification, however, the
Court noted that they do not agree with its conclusions and reasons in
the assailed resolution.
WILMER GREGO, petitioner,
vs.
COMMISSION ON ELECTIONS and HUMBERTO BASCO, respondents.
ROMERO, J.:
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
petitioner's motion for reconsideration of an earlier resolution rendered by the COMELEC's First
Division on October 6, 1995, which also dismissed the petition for disqualification filed by petitioner
1
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:
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 warranto filed before the COMELEC by Cenon Ronquillo,
3
another candidate for councilor in the same district, who alleged Basco's 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. All these challenges were, however, dismissed, thus, paving the way for
4
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. Basco immediately took his oath of office before the
5
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 Basco's 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:
2. Section 4[0] 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.
PRAYER
After the parties' respective memoranda had been filed, the COMELEC's 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 Basco's proclamation on May
17, 1995, as the sixth duly elected councilor of the Second District of Manila, "the petition would no
longer be viable."
6
Petitioner's motion for reconsideration of said resolution was later denied by the COMELEC en
banc in its assailed resolution promulgated on July 31, 1996. Hence, this petition.
7
Petitioner argues that Basco should be disqualified from running far 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. 8
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 respondent's election in 1988, 1992 and in 1995 as City
Councilor of Manila wiped away and condoned the administrative penalty against
him;
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.
Section 40 (b) of the Local Government Code under which petitioner anchors Basco's alleged
disqualification to run as City Councilor states:
Sec. 40. Disqualifications. — The following persons are disqualified from running for
any elective local position:
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 Basco's 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 attach. 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. To him, this interpretation is made more
9
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. 10
We do not, however, subscribe to petitioner's 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 v. COMELEC, reiterated in the more recent cases of Reyes
11
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:
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. (Emphasis supplied).
That the provision of the Code in question does not qualify the date of a candidate's removal from
office and that it is couched in the past tense should not deter us from 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. 14
II. Did private respondent's 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. COMELEC to the effect that a candidate's disqualification cannot be erased by the electorate
15
In this regard, particular attention is directed to the use of the term "reinstatement." Under
the former Civil Service Decree, the law applicable at the time Basco, a public officer, was
16
administratively dismissed from office, the term "reinstatement" had a technical meaning,
referring only to an appointive position. Thus:
(Emphasis supplied).
The Rules on Personnel Actions and Policies issued by the Civil Service Commission on
November 10, 1975, provides a clearer definition. It reads:
17
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 respondent's 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. COMELEC, Benito v. COMELEC and Aguam v. COMELEC.
18 19 20
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.
(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.
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.
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.
(Emphasis supplied).
This provision, however, does not support petitioner's 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. What is merely made mandatory, according to the
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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. The COMELEC, as an administrative agency and a
22
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, has
23
more than enough expertise in its field that its findings or conclusions are generally respected and
even given finality. The COMELEC has not found any ground to suspend the proclamation and the
24
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 Procedure states that:
25
Sec. 5. Effect of petition if unresolved before completion of canvass. — . . . (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. Thus,
26
in Miners Association of the Philippines, Inc. v. Factoran, Jr., the Court ruled that:
27
Recently, the case of People v. Maceren gave a brief delineation of the scope of said
power of administrative officials:
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).
. . . 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 Laguna where we clarified the nature of the functions of the Board of
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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)
. . . 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) [Emphasis 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.
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, petitioner's emphatic reference to Labo v. COMELEC, where
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we laid down a possible exception to the rule that a second placer may not 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 candidate's disqualification so as to bring such
awareness within the realm of notoriety but would nonetheless cast their votes in favor of the
ineligible candidate. Both assumptions, however, are absent in this case. Petitioner's 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.
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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 respondent's 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) in SPA 95-212
dated July 31, 1996 is hereby AFFIRMED. Costs against petitioner.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Melo, Puno, Vitug, Mendoza, Hermosisima, Jr., Panganiban
and Torres, Jr., JJ., concur.