EN BANC

[G.R. No. 154829. December 10, 2003.]

ARSENIO A. LATASA , petitioner, vs. COMMISSION ON

ELECTIONS, and ROMEO SUNGA, respondents.

Jose Ventura Aspiras and Antonio N. Navidad for petitioner.

Jerahmeel Libre and Clifford Equila for private respondent R. Sunga.
Romualdo C. Garcia for Internor Atty. J. Penas.

DECISION

AZCUNA, J : p

This is a petition for certiorari under Rule 65 of the Rules of Court

which seeks to challenge the resolution issued by the First Division of the
Commission on Elections (COMELEC) dated April 27, 2001 in SPA Case No.
01-059 entitled, Romeo M. Sunga, petitioner, versus Arsenio A. Latasa,
respondent, and the Resolution of the COMELEC en banc denying herein
petitioner's Motion for Reconsideration. The assailed Resolution denied due
course to the certificate of candidacy of petitioner Arsenio A. Latasa,
declaring him disqualified to run for mayor of Digos City, Davao del Sur
Province in the May 14, 2001 elections, ordering that all votes cast in his
favor shall not be counted, and if he has been proclaimed winner, declaring
said proclamation null and void.
The facts are fairly simple.
Petitioner Arsenio A. Latasa, was elected mayor of the Municipality of
Digos, Davao del Sur in the elections of 1992, 1995, and 1998. During
petitioner's third term, the Municipality of Digos was declared a component
city, to be known as the City of Digos. A plebiscite conducted on September
8, 2000 ratified Republic Act No. 8798 entitled, " An Act Converting the
Municipality of Digos, Davao del Sur Province into a Component City to be
known as the City of Digos" or the Charter of the City of Digos. This event
also marked the end of petitioner's tenure as mayor of the Municipality of
Digos. However, under Section 53, Article IX of the Charter, petitioner was
mandated to serve in a hold-over capacity as mayor of the new City of
Digos. Hence, he took his oath as the city mayor.
On February 28, 2001, petitioner filed his certificate of candidacy for
city mayor for the May 14, 2001 elections. He stated therein that he is
eligible therefor, and likewise disclosed that he had already served for three
consecutive terms as mayor of the Municipality of Digos and is now running
for the first time for the position of city mayor.
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 On March 1, 2001, private respondent Romeo M. Sunga, also a
candidate for city mayor in the said elections, filed before the COMELEC a
Petition to Deny Due Course, Cancel Certificate of Candidacy and/or For
Disqualification 1 against petitioner Latasa. Respondent Sunga alleged
therein that petitioner falsely represented in his certificate of candidacy that
he is eligible to run as mayor of Digos City since petitioner had already been
elected and served for three consecutive terms as mayor from 1992 to 2001.
On March 5, 2001, petitioner Latasa filed his Answer, 2 arguing that he
did not make any false representation in his certificate of candidacy since he
fully disclosed therein that he had served as mayor of the Municipality of
Digos for three consecutive terms. Moreover, he argued that this fact does
not bar him from filing a certificate of candidacy for the May 14, 2001
elections since this will be the first time that he will be running for the post
of city mayor.
Both parties submitted their position papers on March 19, 2001. 3
On April 27, 2001, respondent COMELEC's First Division issued a
Resolution, the dispositive portion of which reads, as follows:
Wherefore, premises considered, the respondent's certificate of
candidacy should be cancelled for being a violation of the three (3)-
term rule proscribed by the 1987 Constitution and the Local
Government Code of 1991. 4

Petitioner filed his Motion for Reconsideration dated May 4, 2001, 5

which remained unacted upon until the day of the elections, May 14, 2001.
On May 16, 2001, private respondent Sunga filed an Ex Parte Motion for
Issuance of Temporary Restraining Order Enjoining the City Board of
Canvassers From Canvassing or Tabulating Respondent's Votes, and From
Proclaiming Him as the Duly Elected Mayor if He Wins the Elections. 6
Despite this, however, petitioner Latasa was still proclaimed winner on May
17, 2001, having garnered the most number of votes. Consequently, private
respondent Sunga filed, on May 27, 2001, a Supplemental Motion 7 which
essentially sought the annulment of petitioner's proclamation and the
suspension of its effects.
On July 1, 2001, petitioner was sworn into and assumed his office as
the newly elected mayor of Digos City. It was only on August 27, 2002 that
the COMELEC en banc issued a Resolution denying petitioner's Motion for
Reconsideration.
Hence, this petition.
It cannot be denied that the Court has previously held in Mamba-Perez
v. COMELEC 8 that after an elective official has been proclaimed as winner of
the elections, the COMELEC has no jurisdiction to pass upon his
qualifications. An opposing party's remedies after proclamation would be to
file a petition for quo warranto within ten days after the proclamation. IDTSaC

On the other hand, certain peculiarities in the present case reveal the
fact that its very heart is something which this Court considers of paramount
interest. This Court notes from the very beginning that petitioner himself
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 was already entertaining some doubt as to whether or not he is indeed
eligible to run for city mayor in the May 14, 2001 elections. In his certificate
of candidacy, after the phrase "I am eligible," petitioner inserted a footnote
and indicated:
*Having served three (3) term[s] as municipal mayor and now
running for the first time as city mayor. 9

Time and again, this Court has held that rules of procedure are only
tools designed to facilitate the attainment of justice, such that when rigid
application of the rules tend to frustrate rather than promote substantial
justice, this Court is empowered to suspend their operation. We will not
hesitate to set aside technicalities in favor of what is fair and just. 10
The spirit embodied in a Constitutional provision must not be
attenuated by a rigid application of procedural rules.
The present case raises a novel issue with respect to an explicit
Constitutional mandate: whether or not petitioner Latasa is eligible to run as
candidate for the position of mayor of the newly-created City of Digos
immediately after he served for three consecutive terms as mayor of the
Municipality of Digos.
As a rule, in a representative democracy, the people should be allowed
freely to choose those who will govern them. Article X, Section 8 of the
Constitution is an exception to this rule, in that it limits the range of choice
of the people.
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.

An examination of the historical background of the subject

Constitutional provision reveals that the members of the Constitutional
Commission were as much concerned with preserving the freedom of choice
of the people as they were with preventing the monopolization of political
power. In fact, they rejected a proposal set forth by Commissioner Edmundo
Garcia that after serving three consecutive terms or nine years, there should
be no further reelection for local and legislative officials. 11 The members,
instead, adopted the alternative proposal of Commissioner Christian Monsod
that such officials be simply barred from running for the same position in the
succeeding election following the expiration of the third consecutive term:
MR. MONSOD : Madam President, I was reflecting on this issue
earlier and I asked to speak because in this draft Constitution, we are
recognizing people's power. We have said that now there is a new
awareness, a new kind of voter, a new kind of Filipino. And yet at the
same time, we are prescreening candidates among whom they will
choose. We are saying that this 48-member Constitutional Commission
has decreed that those who have served for a period of nine years are
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 barred from running for the same position.
The argument is that there may be other positions. But there are
some people who are very skilled and good at legislation, and yet are
not of a national stature to be Senators. They may be perfectly honest,
perfectly competent and with integrity. They get voted into office at
the age of 25, which is the age we provide for Congressmen. And at 34
years old we put them into pasture.
Second, we say that we want to broaden the choices of the
people. We are talking here only of congressional or senatorial seats.
We want to broaden the people's choice but we are making
prejudgment today because we exclude a certain number of people.
We are, in effect, putting an additional qualification for office — that
the officials must have not have served a total of more than a number
of years in their lifetime.
Third, we are saying that by putting people to pasture, we are
creating a reserve of statesmen, but the future participation of these
statesmen is limited. Their skills may be only in some areas, but we are
saying that they are going to be barred from running for the same
position.
Madam President, the ability and capacity of a statesman depend
as well on the day-to-day honing of his skills and competence, in
intellectual combat, in concern and contact with the people, and here
we are saying that he is going to be barred from the same kind of
public service.
I do not think it is in our place today to make such a very
important and momentous decision with respect to many of our
countrymen in the future who may have a lot more years ahead of
them in the service of their country.
If we agree that we will make sure that these people do not set
up structures that will perpetuate them, then let us give them this rest
period of three years or whatever it is. Maybe during that time, we
would even agree that their fathers or mothers or relatives of the
second degree should not run. But let us not bar them for life after
serving the public for number of years. 12

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:
. . . 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
perquisites that permit them to stay on indefinitely or to transfer these
posts to members of their families in a subsequent election. . . . 13

An elective local official, therefore, is not barred from running again in

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 for same local government post, unless two conditions concur: 1.) that the
official concerned has been elected for three consecutive terms to the same
local government post, and 2.) that he has fully served three consecutive
terms. 14
In the present case, petitioner states that a city and a municipality
have separate and distinct personalities. Thus they cannot be treated as a
single entity and must be accorded different treatment consistent with
specific provisions of the Local Government Code. He does not deny the fact
that he has already served for three consecutive terms as municipal mayor.
However, he asserts that when Digos was converted from a municipality to a
city, it attained a different juridical personality. Therefore, when he filed his
certificate of candidacy for city mayor, he cannot be construed as vying for
the same local government post.
For a municipality to be converted into a city, the Local Government
Code provides:
SECTION 450. Requisites for Creation . — (a) A municipality or a
cluster of barangays may be converted into a component city it has an
average annual income, as certified by the Department of Finance, of
at least Twenty million pesos (P20,000,000.00) for the last two (2)
consecutive years based on 1991 constant prizes, and if it has either of
the following requisites:
(i) a contiguous territory of at least one hundred (100)
square kilometers, as certified by the Land Management Bureau;
or,

(ii) a population of not less than one hundred fifty thousand

(150,000) inhabitants, as certified by the National Statistics
Office.

Provided, That, the creation thereof shall not reduce the land
area, population, and income of the original unit or units at the time of
said creation to less than the minimum requirements prescribed
herein. AECDHS

(b) The territorial jurisdiction of a newly-created city shall be

properly identified by metes and bounds. The requirement on land are
shall not apply where the city proposed to be created is composed of
one (1) or more island. The territory need not be contiguous if it
comprises two (2) or more islands.

(c) The average annual income shall include the income accruing
to the general fund, exclusive of special funds, transfers, and non-
recurring income. 15

Substantial differences do exist between a municipality and a city. For

one, there is a material change in the political and economic rights of the
local government unit when it is converted from a municipality to a city and
undoubtedly, these changes affect the people as well. 16 It is precisely for
this reason why Section 10, Article X of the Constitution mandates that no
province, city, municipality, or barangay may be created, divided, merged,
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 abolished, or its boundary substantially altered, without the approval by a
majority of the votes cast in a plebiscite in the political units directly
affected.
As may be gleaned from the Local Government Code, the creation or
conversion of a local government unit is done mainly to help assure its
economic viability. Such creation or conversion is based on verified
indicators:
Section 7. Creation and Conversion. — As a general rule, the
creation of a local government unit or its conversion from one level to
another shall be based on verifiable indicators or viability and
projected capacity to provide services, to wit:
(a) Income. — It must be sufficient, based on acceptable
standards, to provide for all essential government facilities and
services and special functions commensurate with the size of its
population, as expected of the local government unit concerned;

(b) Population. — It shall be determined as the total

number of inhabitants within the territorial jurisdiction of the local
government unit concerned; and
(c) Land Area. — It must be contiguous, unless it comprises
two (2) or more islands or is separated by a local government
unit independent of the others; properly identified by metes and
bounds with technical descriptions; and sufficient to provide for
such basic services and facilities to meet the requirements of its
populace.
Compliance with the foregoing indicators shall be attested to by
the Department of Finance (DOF), the National Statistics Office (NSO),
and the Lands Management Bureau (LMB) of the Department of
Environment and Natural Resources (DENR). 17

On the other hand, Section 2 of the Charter of the City of Digos

provides:
Section 2. The City of Digos. — The Municipality of Digos shall be
converted into a component city to be known as the City of Digos,
hereinafter referred to as the City, which shall comprise the present
territory of the Municipality of Digos, Davao del Sur Province. The
territorial jurisdiction of the City shall be within the present metes and
bounds of the Municipality of Digos. . . .

Moreover, Section 53 of the said Charter further states:

Section 53. Officials of the City of Digos. — The present elective
officials of the Municipality of Digos shall continue to exercise their
powers and functions until such a time that a new election is held and
the duly-elected officials shall have already qualified and assumed their
offices. . . . .

As seen in the aforementioned provisions, this Court notes that the

delineation of the metes and bounds of the City of Digos did not change
even by an inch the land area previously covered by the Municipality of
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 Digos. This Court also notes that the elective officials of the Municipality of
Digos continued to exercise their powers and functions until elections were
held for the new city officials.
True, the new city acquired a new corporate existence separate and
distinct from that of the municipality. This does not mean, however, that for
the purpose of applying the subject Constitutional provision, the office of the
municipal mayor would now be construed as a different local government
post as that of the office of the city mayor. As stated earlier, the territorial
jurisdiction of the City of Digos is the same as that of the municipality.
Consequently, the inhabitants of the municipality are the same as those in
the city. These inhabitants are the same group of voters who elected
petitioner Latasa to be their municipal mayor for three consecutive terms.
These are also the same inhabitants over whom he held power and authority
as their chief executive for nine years.
This Court must distinguish the present case from previous cases ruled
upon this Court involving the same Constitutional provision.
In Borja, Jr. v. COMELEC, 18 the issue therein was whether a vice-mayor
who became the mayor by operation of law and who served the remainder of
the mayor's term should be considered to have served a term in that office
for the purpose of the three-term limit under the Constitution. Private
respondent in that case was first elected as vice-mayor, but upon the death
of the incumbent mayor, he occupied the latter's post for the unexpired
term. He was, thereafter, elected for two more terms. This Court therein held
that when private respondent occupied the post of the mayor upon the
incumbent's death and served for the remainder of the term, he cannot be
construed as having served a full term as contemplated under the subject
constitutional provision. The term served must be one "for which [the official
concerned] was elected."
It must also be noted that in Borja, the private respondent therein,
before he assumed the position of mayor, first served as the vice-mayor of
his local government unit. The nature of the responsibilities and duties of the
vice-mayor is wholly different from that of the mayor. The vice-mayor does
not hold office as chief executive over his local government unit. In the
present case, petitioner, upon ratification of the law converting the
municipality to a city, continued to hold office as chief executive of the same
territorial jurisdiction. There were changes in the political and economic
rights of Digos as local government unit, but no substantial change occurred
as to petitioner's authority as chief executive over the inhabitants of Digos.
I n Lonzanida v. COMELEC, 19 petitioner was elected and served two
consecutive terms as mayor from 1988 to 1995. 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 Regional Trial Court, which ruled that there was a
failure of elections and declared the position of mayor vacant. The COMELEC
affirmed this ruling and petitioner acceded to the order to vacate the post.
During the May 1998 elections, petitioner therein again filed his certificate of
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 candidacy for mayor. A petition to disqualify him was filed on the ground
that he had already served three consecutive terms. This Court ruled,
however, that petitioner therein cannot be considered as having been duly
elected to the post in the May 1995 elections, and that said petitioner did
not fully serve the 1995-1998 mayoral term by reason of involuntary
relinquishment of office.
In the present case, petitioner Latasa was, without a doubt, duly
elected as mayor in the May 1998 elections. Can he then be construed as
having involuntarily relinquished his office by reason of the conversion of
Digos from municipality to city? This Court believes that he did involuntarily
relinquish his office as municipal mayor since the said office has been
deemed abolished due to the conversion. However, the very instant he
vacated his office as municipal mayor, he also assumed office as city mayor.
Unlike in Lonzanida, where petitioner therein, for even just a short period of
time, stepped down from office, petitioner Latasa never ceased from acting
as chief executive of the local government unit. He never ceased from
discharging his duties and responsibilities as chief executive of Digos.

In Adormeo v. COMELEC, 20 this Court was confronted with the issue of

whether or not an assumption to office through a recall election should be
considered as one term in applying the three-term limit rule. Private
respondent, in that case, was elected and served for two consecutive terms
as mayor. He then ran for his third term in the May 1998 elections, but lost
to his opponent. In June 1998, his opponent faced recall proceedings and in
the recall elections of May 2000, private respondent won and served for the
unexpired term. For the May 2001 elections, private respondent filed his
certificate of candidacy for the office of mayor. This was questioned on the
ground that he had already served as mayor for three consecutive terms.
This Court held therein that private respondent cannot be construed as
having been elected and served for three consecutive terms. His loss in the
May 1998 elections was considered by this Court as an interruption in the
continuity of his service as mayor. For nearly two years, private respondent
therein lived as a private citizen. The same, however, cannot be said of
petitioner Latasa in the present case.IAETSC

Finally, in Socrates v. COMELEC, 21 the principal issue was whether or

not private respondent Edward M. Hagedorn was qualified to run during the
recall elections. Therein respondent Hagedorn had already served for three
consecutive terms as mayor from 1992 until 2001 and did not run in the
immediately following regular elections. On July 2, 2002, the barangay
officials of Puerto Princesa convened themselves into a Preparatory Recall
Assembly to initiate the recall of the incumbent mayor, Victorino Dennis M.
Socrates. On August 23, 2002, respondent Hagedorn filed his certificate of
candidacy for mayor in the recall election. A petition for his disqualification
was filed on the ground that he cannot run for the said post during the recall
elections for he was disqualified from running for a fourth consecutive term.
This Court, however, ruled in favor of respondent Hagedorn, holding that the
principle behind the three-term limit rule is to prevent consecutiveness of
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 the service of terms, and that there was in his case a break in such
consecutiveness after the end of his third term and before the recall election.
It is evident that in the abovementioned cases, there exists a rest
period or a break in the service of the 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 people's 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 a
municipal mayor would obviously defeat the very intent of the framers when
they wrote this exception. Should he be allowed another three consecutive
terms 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.
Finally, respondent Sunga claims that applying the principle in Labo v.
COMELEC, 22 he should be deemed the mayoralty candidate with the highest
number of votes. On the contrary, this Court held in Labo that the
disqualification of a winning candidate does not necessarily entitle the
candidate with the highest number of votes to proclamation as the winner of
the elections. As an obiter, the Court merely mentioned that the rule would
have been different if the electorate, fully aware in fact and in law of a
candidate's disqualification so as to bring such awareness within the realm
of notoriety, would nonetheless cast their votes in favor of the ineligible
candidate. In such case, the electorate may be said to have waived the
validity and efficacy of their votes by notoriously misapplying their franchise
or throwing away their votes, in which case, the eligible candidate obtaining
the next higher number of votes may be deemed elected. The same,
however, cannot be said of the present case.
This Court has consistently ruled that the fact that a plurality or a
majority of the votes are cast for an ineligible candidate at a popular
election, or that a candidate is later declared to be disqualified to hold office,
does not entitle the candidate who garnered the second highest number of
votes to be declared elected. The same merely results in making the winning
candidate's election a nullity. 23 In the present case, moreover, 13,650 votes
were cast for private respondent Sunga as against the 25,335 votes cast for
petitioner Latasa. 24 The second placer is obviously not the choice of the
people in that particular election. In any event, a permanent vacancy in the
contested office is thereby created which should be filled by succession. 25
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 WHEREFORE, the petition is DISMISSED. No pronouncement as to
costs.
SO ORDERED.
Davide, Jr., C .J ., Puno, Vitug, Panganiban, Quisumbing, Ynares-
Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio
Morales, Callejo, Sr., and Tinga, JJ ., concur.

Footnotes
1. Annex D of Petition; Rollo , pp. 45-50.
2. Annex E of Petition; Rollo , pp. 56-68.
3. Annexes F and G of Petition; Rollo , pp. 69-97.

4. Annex A of the Petition; Rollo , pp. 22-25.

5. Annex C of the Petition; Rollo , pp. 34-40.
6. Annex H of the Petition; Rollo , pp. 98-100.
7. Annex J of the Petition; Rollo , pp. 105-110.
8. 317 SCRA 641, 647-648 (1999).

9. Annex A of the Petition; Rollo , p. 51.

10. Valenzuela v. Court of Appeals, G.R. No. 131175, August 28, 2001.
11. Borja, Jr. v. Commission on Elections, 295 SCRA 157, 163 (1998) citing 2
RECORD OF THE CONSTITUTIONAL COMMISSION 236-237 (Session of July 25,
1986) (Statement of Commissioner Garcia).
12. 2 RECORD OF THE CONSTITUTIONAL RECORD 238 (Session of July 25, 1986)
(Statement of Commissioner Monsod).

13. Id., at 239.

14. Lonzanida v. Commission on Elections, 311 SCRA 602, 611 (1999).
15. Section 450, Chapter 1, Title Three, Book III, Local Government Code.
16. Miranda v. Aguirre, 314 SCRA 603, 610 (1999).

17. Section 7, Chapter 2, Book I, Local Government Code.

18. Supra note 11.
19. Supra note 14.
20. 376 SCRA 90 (2002).
21. G.R. Nos. 154512, 154683, 155083-84, November 12, 2002.

22. 211 SCRA 297, 309 (1992).

23. Republic v. De la Rosa, 237 SCRA 785 (1994).

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 24. As certified by the City Election Officer, Annex K of the Petition; Rollo , p. 112.
25. Reyes v. COMELEC, 254 SCRA 514 (1996).

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