EN
BANC
G.R. No. 184836 -- Simon
B. Aldovino, Jr., Danilo B. Faller and Ferdinand N. Talabong, Petitioners, versus Commission on Elections
and Wilfredo F. Asilo, Respondents.
Promulgated:
December 23, 2009
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SEPARATE
CONCURRING OPINION
ABAD, J.:
I join the
majority opinion and add a few thoughts of my own.
The Facts
Respondent
Wilfredo F. Asilo won three consecutive elections as councilor of
Believing
that his brief preventive suspension interrupted his full service in office and
allowed him to seek a fourth term as councilor because of it, Asilo filed a
certificate of candidacy for the same office in the 2007 elections. When this was questioned, both the Second Division
of the Commission on Elections and its En Banc ruled that the three-term
limit did not apply to Asilo’s case since the Sandiganbayan’s order of
preventive suspension did not allow him to complete the third term for which he
was elected in 2004.
The Issue
The
issue in this case is whether or not respondent Asilo’s preventive suspension
during his third term as councilor, which shortened the length of his normal
service by thirty-seven days, allowed him to run for a fourth consecutive term
for the same office.
Discussion
The
issue in this case revolves around Section 8 of Article X of the 1987
Constitution:
The term of office of elective local
officials, except barangay officials, which shall be determined by law, shall
be three years and no such official shall serve for more than three consecutive
terms. Voluntary renunciation of the
office for any length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected.
The first part states that no
local official shall serve for more than three consecutive terms.
The second, on the other hand,
states that voluntary renunciation of office shall not be considered an
interruption in the continuity of his service for the full term for which he
was elected.[1]
That the first part is a prohibitory
rule is not in question. This is quite
clear. It says that no local official
can serve for more than three terms.
Traditionally, politicians find ways of entrenching themselves in their
offices and the consensus is that this practice is not ideal for good
government. Indeed, the Constitution
expresses through the three-term limit rule a determination to open public
office to others and bring fresh ideas and energies into government as a matter
of policy. The mandate of this Court in
this case is to enforce such constitutionally established prohibition.
Actually, what creates the mischief is the
statement in the second part of Section 8 that “voluntary renunciation” of
office shall not be considered an interruption in the continuity of his service
for the full term for which the local official was elected. The dissenting
opinion infers from this that “any service short of full service of three
consecutive terms, save for voluntary renunciation of office, does not bar an
elective local official from running again for the same local government post.”
In other words, elected politicians whose services are cut in
the course of any term by “involuntary renunciation” are eligible for a fourth
term.
Relying on its above inference, the dissenting
opinion claims that preventive
suspension is, by default, an “involuntary renunciation” of an elective
official’s term of office since he does not choose to be preventively
suspended. Preventive suspension cuts
into the full term of the elected official and gives him justification for
seeking a fourth term.
But, there is in reality no such thing as
“involuntary” renunciation. Renunciation
is essentially “formal or voluntary.” It
is the act, says Webster, “of renouncing; a giving up formally or voluntarily,
often at a sacrifice, of a right, claim, title, etc.”[2] If the dissenting opinion insists on using the term “involuntary
renunciation,” it could only mean “coerced” renunciation, i.e., renunciation
forced on the elected official. With
this meaning, any politician can simply arrange for someone to make him sign a
resignation paper at gun point. This
will justify his running for a fourth term.
But, surely, the law cannot be mocked in this way.
Parenthetically, there can be other
causes for “involuntary renunciation,” interruption of service that is not of
the elected official’s making. For
instance, through the fault of a truck driver, the elected official’s car could
fall into a ditch and put the official in the hospital for a week, cutting his
service in office against his will.
Temporary illness can also interrupt service. Natural calamities like floods and
earthquakes could produce the same result.
Since these are “involuntary
renunciations” or interruptions in the elective official’s service, it seems
that he would, under the dissenting opinion’s theory, be exempt from the
three-year rule. But surely, Section 8
could not have intended this for it would overwhelm the constitutional ban
against election for more than three consecutive terms.
Actually, though, “voluntary renunciation,” the
term that the law uses simply means resignation from or abandonment of
office. The elected official who
voluntarily resigns or abandons his duties freely renounces the powers, rights,
and privileges of his position. The
opposite of “voluntary renunciation” in this context would be “removal from
office,” a sanction imposed by some duly authorized person or body, not an
initiative of or a choice freely made by the elected official. Should “removal from office” be the test,
therefore, for determining interruption of service that will warrant an
exception to the three-term limit rule?
Apparently not, since an elected official could be
removed from office through recall (a judgment by the electorates that he is
unfit to continue serving in office),[3] criminal conviction by final
judgment,[4] and administrative dismissal.[5] Surely, the Constitution could not have
intended to reward those removed in this way with the opportunity to skip the
three-year bar.
The only interruption in the continuity of service
of an elected official that does not amount to removal is termination of his
service by operation of law. This is
exemplified in the case of Montebon v.
COMELEC,[6]
where this Court deemed the highest-ranking councilor’s third term as such
“involuntarily” interrupted when he succeeded as vice mayor by operation of law
upon the latter’s retirement. This Court considered the ranking councilor
eligible to run again as councilor for the succeeding term.
But Montebon cannot be compared with Asilo’s case since Montebon’s term
as councilor ended by operation of law when the vice mayor retired and Montebon
had to step
into his shoes.[7] Asilo’s term, on the other hand, did not end
when the Sandiganbayan placed him under preventive suspension. He did not vacate his office. It merely enjoined him in the meantime from
performing his duties and exercising his powers. His term ran the full course; it was not
cut.
It might be correct to say that the will of the
electorates is for Asilo to serve the full term of his office. But, given the presumption that the
electorates knew of the law governing preventive suspension when they elected
him, it must be assumed that they elected him subject to the condition that he
can be preventively suspended if the occasion warrants. Such suspension cannot, therefore, be
regarded as a desecration of the people’s will.
It does not matter that the preventive suspension
imposed on the elected official may later on prove unwarranted. The law provides the proper remedy for such
error. Here, the Supreme Court supplied
that remedy. It set aside the preventive
suspension imposed on Asilo by the Sandiganbayan. There is, on the other hand, no law that
allows an elected official to tack to his term of office the period of service
he had lost by reason of preventive suspension just so he can make up for the
loss. The dissenting opinion’s position
would create a rule that will allow Asilo, who lost thirty-seven days of service
because of that suspension, a right to be re-elected to a fourth consecutive
term of one thousand ninety-five days (365 days x 3).
In Borja, Jr. v. COMELEC,[8] this Court cited a
hypothetical situation where B is
elected Mayor and, during his first term, he is twice suspended for misconduct
for a total of one year. If he is twice
reelected after that, can he run for one more term in the next election? This Court answered in the affirmative,
stating as reason that B successfully
served only two full terms.[9]
But such interpretation of the law wounds its very
spirit for, in effect, it would reward the elected official for his
misconduct. Fr. Joaquin G. Bernas, S.J.,
a recognized constitutionalist, is also not swayed by it. He points out that when an elected official
is suspended, he shortens neither his term nor his tenure. He is still seen as the rightful holder of
the office and, therefore, must be considered as having served a full term
during the period of suspension.[10]
ACCORDINGLY,
I submit that preventive suspension did not interrupt Asilo’s term of office
from 2004-2007 and it cannot be considered an exception to the three-term limit
rule. Thus, Asilo is disqualified from
running in the 2007 elections for violation of that rule pursuant to Section 8,
Article X of the Constitution. I vote to
GRANT the petition.
ROBERTO A. ABAD
Associate Justice
[1] Socrates v. Commission on Elections,
G.R. No. 154512,
[2] Webster’s New World College Dictionary, Third Edition, p. 1137.
[3] R.A. No. 7160,
Section 69. By Whom Exercised. - The power of recall for loss of confidence
shall be exercised by the registered voters of a local government unit to which
the local elective official subject to such recall belongs.
[4] There are
cases where an official is punished with the penalty of perpetual
disqualification from public office and, thus, the three-term rule ceases to be
an issue. See R.A. No. 3019,
Section 9 (a).
[5] Under Section 40 (b) of R.A. No. 7160, those
removed from office as a result of an administrative case are disqualified from
running for any elective local position.
In this case, the three-term rule also ceases to be an issue.
[6] G.R. No. 180444,
[7] R.A. No. 7160, Section 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 vice mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor or vice mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein. x x x.
[8] G.R. No. 133495,
[9]
[10] Bernas S.J., Joaquin. The 1987 Constitution
of the Republic of the