EN BANC Agenda of December 15,
2009 Item No. 120
G.R. No.
184836 – Simon B. Aldovino, Jr., Danilo B. Faller and Ferdinand N. Talabong v.
Commission on Elections and Wilfredo F. Asilo
CONCURRING OPINION
LEONARDO-DE CASTRO, J.:
I concur with the well-written
ponencia of Honorable Justice Arturo D. Brion which holds that “preventive
suspension” is not equivalent to an “involuntary renunciation” of a public
office for the purpose of applying Section 8, Article X of the Constitution. However, I wish to further elucidate my
concurrence to the views of Justice Brion and give my reflections on the
implications of the outcome of the case for which an elective public official
is suspended pendente lite, which I
believe is relevant to the issue on hand.
The
aforementioned provision of Article X reads as follows:
Section 8. 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
minority view considers “preventive suspension” as an “involuntary
renunciation” of an elective public official’s term of office, such that even
if he was elected thrice to serve for three (3) consecutive terms, he may still
run for a fourth term because his service was interrupted by his preventive
suspension. However, according to this
view, his continuation in office for such fourth term will depend on his
exoneration in the case where he was preventively suspended. In other words, the suspended public official
will be deemed disqualified to run for a fourth term only upon his conviction
which will retroact to the date when he filed his certificate of candidacy for
his fourth term. This means that even if
he runs and wins a fourth term and thereafter is convicted in the case in which
he was previously preventively suspended, he will be deemed to have renounced
voluntarily his fourth term.
I concur with Justice Brion’s view
that Borja v. Commission on Elections
is not the controlling precedent on preventive suspension because this matter
was not squarely raised in the said case and that the consideration of
preventive suspension from the perspective of voluntary or involuntary
renunciation is inappropriate.
Nonetheless,
I would like to venture into the effect of the acquittal or conviction of the
preventively suspended public officer to further support my position that “preventive
suspension” does not partake of the nature of “involuntary renunciation” of an
office.
The language of Section 8, Article X
of the Constitution implies that an interruption in the continuity of the
service of elective officials is a valid ground for him to run for a fourth
consecutive term. The same provision of
the Constitution is explicit and categorical in its declaration that “voluntary
renunciation” of elective position for any length of time is not to be
considered as an interruption in the continuity of service of an elective
official. Conversely, “involuntary
renunciation of office” can be deemed an interruption in the continuity of the
service of the elective official which would render him eligible to run for a
fourth term.
In my opinion, preventive suspension
cannot be considered as an “involuntary renunciation” of an elective
position. One who has been elected to a
public office for three (3) consecutive terms is prohibited to run for the same
position for a fourth term, notwithstanding his preventive suspension during
any of his first three (3) consecutive terms.
Since preventive suspension is not akin to involuntary renunciation, the
rule should hold true irrespective of his acquittal or conviction in the case
in which an elective official was preventively suspended.
There
is an inherent difference between “renunciation” and “preventive suspension”
even if the former is involuntary. The
former connotes an act of abandonment or giving up of a position by a public
officer which would result in the termination of his service, whereas the
latter means that a public officer is prevented by legal compulsion, not by his
own volition, from discharging the functions and duties of his office, but
without being removed or separated from his office. The term of office of a preventively
suspended public officer subsists because preventive suspension does not create
a vacancy in his office. As Justice
Brion puts it, he does not become a private citizen while he is under
preventive suspension. The continuity of
the term of the suspended official during the period of his preventive suspension,
whether rendered administrative or court proceedings, is recognized by law and
jurisprudence, such that a public officer who is acquitted of the charges
against him, is entitled to receive the salaries and benefits which he failed
to receive during the period of his preventive suspension (Section 64, Local
Government Code of 1991, Republic Act (R.A.) No. 7160; Section 13, R.A. 3019,
as amended; Tan v. Department of Public
Works and Highways, G.R. No. 143289, Nov. 11, 2004, 442 SCRA 192, 202).
If
the suspended public officer is convicted of the charges, still there is no
interruption of service within the three (3) consecutive terms, within the
meaning of the Constitution which will warrant his running for a fourth
term. Here, it is not the preventive
suspension but his having committed a wrongdoing, which gave ground for his
removal from office or for forfeiture of the remainder of his term which can be
considered as voluntary renunciation of his office. The commission of a crime or an administrative
infraction which is a ground for the removal from office of a public officer is
akin to his “voluntary renunciation” of his office. He may be deemed, by his willful wrongdoing,
which betrayed public trust, to have thereby voluntarily renounced his office
under the provision of Section 8, Article X of the Constitution.
I
beg to disagree with the proposition that the suspended public official should
be allowed to run for a fourth time and if convicted, he should be considered to
have voluntarily renounced his fourth term.
My reason is that the crime was committed not during his fourth term but
during his previous term. The renunciation
should refer to the term during which the crime was committed. The commission of the crime is tantamount to
his voluntary renunciation of the term he was then serving, and not any future
term. Besides, the electorate should not
be placed in an uncertain situation wherein they will be allowed to vote for a
fourth term a candidate who may later on be convicted and removed from office
by a judgment in a case where he was previously preventively suspended.
In
view of the foregoing, I reiterate my concurrence with the majority opinion
that preventive suspension, regardless of the outcome of the case in which an
elective public officer has been preventively suspended, should not be
considered as an interruption of the service of the said public officer that
would qualify him to run for a fourth term.
TERESITA J.
LEONARDO-DE CASTRO
Associate Justice