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G.R. No. 170093 April 29, 2009
JOSE PEPITO M. AMORES, M.D., Petitioner,
vs.
CIVIL SERVICE COMMISSION, BOARD OF TRUSTEES OF THE LUNG CENTER OF THE
PHILIPPINES, as represented by Hon. MANUEL M. DAYRIT, and FERNANDO A.
MELENDRES, M.D., Respondents.
D E C I S I O N
PERALTA, J.:
In this petition for review under Rule 45 of the Rules of Court, petitioner Jose Pepito M. Amores
assails the Decision1
of the Court of Appeals in CA-G.R. SP No. 80971, dated September 23, 2004, as
well as its Resolution2
dated September 20, 2005 which denied reconsideration. The assailed Decision
affirmed the October 14, 2003 Resolution3
of the Civil Service Commission which, in turn, ordered
petitioner’s separation from service as Deputy Director for Hospital Support Services at the Lung
Center of the Philippines on account of his lack of the necessary civil service eligibility.
Well established are the facts of the case.
Petitioner Jose Pepito M. Amores was the Deputy Director for Hospital Support Services at the Lung
Center of the Philippines (LCP). His civil service career began in 1982 when he was initially engaged
at the LCP as a resident physician.4
In the course of his service, he had been promoted to the position of
Medical Specialist,5
then to Department Manager,6
and finally to Deputy Director. Dr. Calixto Zaldivar
was then the Executive Director of the LCP and when he retired from service in 1999, petitioner was
designated as officer-in-charge of the LCP by the Department of Health (DOH) Secretary Alberto
Romualdez, Jr.7
Petitioner had taken charge of the LCP in the interim that the DOH selection board was in the process
of selecting a new executive director. In the meantime, Dr. Fernando Melendres (Melendres), one of
the respondents in this case, was appointed by then President Joseph Estrada as Executive Director of
the LCP. Melendres was holding the office of the Deputy Director for Medical Support Services before
his appointment as Executive Director, and although petitioner claims that he was not challenging

2. Melendres’ right to the office, he nevertheless believed that he himself was the rightful person to be
appointed as executive director inasmuch as he had top-billed the evaluation results of the DOH
Selection Board, with Melendres tailing behind in second place.8
It seems that the controversy started when petitioner and the other doctors and rank-and-file employees
at the LCP drafted a manifesto9
which supposedly ventilated their collective dismay and demoralization
at Melendres’ appointment and leadership, and at some of his "unjustified and questionable acts" as
Executive Director of the LCP. In a nutshell, the said manifesto boldly exposed the alleged anomalous
circumstances surrounding Melendres’ appointment; the reassignment of some of the members of the
LCP personnel which amounted to demotion in their rank and status; the anomalies in the procurement
of property and supplies; his abusive conduct in publicly accusing some of the doctors of having
caused the fire that gutted the center in May 1998; in accusing Zaldivar of having entered into
anomalous contracts and negotiations with the DPWH relative to certain projects; and in practicing
favoritism and nepotism. The tenor of the manifesto even went as far as to be deeply personal as it
likewise questioned Melendres’ fitness to act as executive director on the ground of his previous brush
with substance abuse and the fact that he could no longer keep his marriage from failing.10
The seriousness of these allegations led the DOH to create a Fact-finding Committee to conduct an
investigation.11
But at the proceedings before the said Committee, Melendres filed charges of
dishonesty and double compensation against petitioner alleging that the latter had been engaging in the
private practice of medicine within the LCP’s premises during official hours.12
At the close of the
investigation, the Fact-finding Committee issued a report declaring Melendres guilty of the charges
against him.13
As for petitioner, the Committee absolved him of the charge of receiving double
compensation, but nevertheless found him guilty of having committed dishonesty by engaging in the
private practice of his profession during the hours that he should be engaging in public service in
violation of the Civil Service Law.14
1avvphil.net
Petitioner was caught by surprise when, on August 27, 2002, he received a letter from the LCP Board
of Trustees informing him of his separation from service as Deputy Director effective September 30,
2002.15
To the said letter was attached a copy of the Board’s Resolution16
dated August 23, 2002,
principally directing petitioner’s termination from service after consultation with the Career Executive
Service Board (CES Board).17
Petitioner brought an appeal from the resolution to the Civil Service
Commission (CSC).18
Resolving the appeal, the CSC declared that the LCP Board of Trustees had properly and validly
separated petitioner from his post as Deputy Director. In its Resolution No. 031050,19
the CSC declined
to pass upon the charge of dishonesty on the ground of pre-maturity as the issue had not yet been
finally determined in a proper proceeding and the Board had not yet in fact made a definite finding of
guilt from which petitioner might as a matter of course appeal.20
However, it pointed out that
petitioner’s separation from service was anchored on his lack of a CES eligibility which is required for
the position of deputy director and, as such, he enjoyed no security in his tenure.21
Petitioner lodged an Appeal22
with the Court of Appeals. However, it was dismissed and CSC
Resolution No. 031050 was affirmed.23
This present petition for review imputes error to the Court of Appeals. First, in missing the fact that
petitioner had been denied due process when his separation from office was ordered on a ground not
raised before the DOH Fact-finding Committee24
and, second, in failing to appreciate the fact that his
rights to equal protection had likewise been violated inasmuch as he was similarly situated with other
department managers in the LCP who had no CES eligibility but who, however, had not been separated
from service.25
He theorizes that his right to security of tenure had been breached and that he was
entitled to remain as deputy director because his promotion to the said position supposedly issued by
Zaldivar — which was a recognition of his competence — was permanent in character.26
The LCP, the CSC and the DOH, all represented by the Office of the Solicitor General, and Melendres,
are one in asserting that there can be no question as to the validity of petitioner’s removal from office
for the basic fact that he enjoyed no security of tenure on account of his lack of eligibility. In his
Comment27
on the petition, Melendres capitalizes on the fact that the LCP Board of Trustees arrived at

3. the resolution to separate petitioner from service upon consultation with the CES Board and the CSC;
thus, concludes Melendres, it can only be surmised that the cause for the removal of petitioner from
office is actually his lack of eligibility and not his commission of dishonesty. The LCP, for its part, is
more to the point. It posits that petitioner’s separation from office did not result from an administrative
disciplinary action, but rather from his failure to qualify for the office of Deputy Director on account of
lack of eligibility. For their part, the CSC and the DOH characterizes petitioner as a third-level
appointee who, again, must be in possession of the corresponding third-level eligibility; but since
petitioner has none, then he enjoys no security of tenure and may thus be removed at a moment’s notice
even without cause.
There is merit in the arguments of respondents.
What at the outset weighs heavily on petitioner’s case is the fact that the position of Deputy Director
for Hospital Support Services at the LCP belongs to the career executive service appointments to which
by law require that the appointees possess the corresponding CES eligibility. Petitioner, however, does
not profess that at any time he was holding the said position he was able to acquire the required
eligibility therefor by taking the CES examinations and, subsequently, conferred such eligibility upon
passing the said examinations. In fact, no slightest suggestion can be derived from the records of this
case which would tend to show that in his entire tenure at the LCP he, at any given point, had been
conferred a CES eligibility. It is thus as much surprising as it is absurd why petitioner, despite the
limitations in his qualifications known to him, would insist that he had served as Deputy Director at the
LCP in a permanent capacity.
We begin with the precept, firmly established by law and jurisprudence, that a permanent appointment
in the civil service is issued to a person who has met the requirements of the position to which the
appointment is made in accordance with law and the rules issued pursuant thereto.28
An appointment is
permanent where the appointee meets all the requirements for the position to which he is being
appointed, including the appropriate eligibility prescribed, and it is temporary where the appointee
meets all the requirements for the position except only the appropriate civil service eligibility.29
Under Section 730
of the Civil Service Law,31
positions in the civil service are classified into open
career positions, closed career positions and positions in the career service. In turn, positions in the
career service are tiered in three levels as follows:
SECTION 8. Classes of Positions in the Career Service. - (1) Classes of positions in the career service
appointment to which requires examinations which shall be grouped into three major levels as follows:
(a) The first level shall include the clerical, trades, crafts and custodial service positions which
involve non-professional or subprofessional work in a non-supervisory or supervisory
capacity requiring less than four years of collegiate studies;
(b) The second level shall include professional, technical and scientific positions which
involve professional, technical or scientific work in a non-supervisory or supervisory capacity
requiring at least four years of college work up to the Division Chief level; and
(c) The third level shall cover positions in the Career Executive Service.
With particular reference to positions in the career executive service (CES), the requisite civil service
eligibility is acquired upon passing the CES examinations administered by the CES Board and the
subsequent conferment of such eligibility upon passing the examinations.32
Once a person acquires
eligibility, he either earns the status of a permanent appointee to the CES position to which he has
previously been appointed, or he becomes qualified for a permanent appointment to that position
provided only that he also possesses all the other qualifications for the position.33
Verily, it is clear that
the possession of the required CES eligibility is that which will make an appointment in the career
executive service a permanent one. Petitioner does not possess such eligibility, however, it cannot be
said that his appointment to the position was permanent.

4. Indeed, the law permits, on many occasions, the appointment of non-CES eligibles to CES positions in
the government34
in the absence of appropriate eligibles and when there is necessity in the interest of
public service to fill vacancies in the government.35
But in all such cases, the appointment is at best
merely temporary36
as it is said to be conditioned on the subsequent obtention of the required CES
eligibility.37
This rule, according to De Leon v. Court of Appeals,38
Dimayuga v. Benedicto,39
Caringal
v. Philippine Charity Sweepstakes Office,40
and Achacoso v. Macaraig,41
is invariable even though the
given appointment may have been designated as permanent by the appointing authority.
We now come to address the issue of whether petitioner’s separation from service violated his right to
security of tenure.
Security of tenure in the career executive service, which presupposes a permanent appointment, takes
place upon passing the CES examinations administered by the CES Board. It is that which entitles the
examinee to conferment of CES eligibility and the inclusion of his name in the roster of CES
eligibles.42
Under the rules and regulations promulgated by the CES Board, conferment of the CES
eligibility is done by the CES Board through a formal board resolution after an evaluation has been
done of the examinee’s performance in the four stages of the CES eligibility examinations. Upon
conferment of CES eligibility and compliance with the other requirements prescribed by the Board, an
incumbent of a CES position may qualify for appointment to a CES rank. Appointment to a CES rank
is made by the President upon the Board’s recommendation. It is this process which completes the
official’s membership in the CES and confers on him security of tenure in the CES.43
Petitioner does
not seem to have gone through this definitive process.
At this juncture, what comes unmistakably clear is the fact that because petitioner lacked the proper
CES eligibility and therefore had not held the subject office in a permanent capacity, there could not
have been any violation of petitioner’s supposed right to security of tenure inasmuch as he had never
been in possession of the said right at least during his tenure as Deputy Director for Hospital Support
Services. Hence, no challenge may be offered against his separation from office even if it be for no
cause and at a moment’s notice.44
Not even his own self-serving claim that he was competent to
continue serving as Deputy Director may actually and legally give even the slightest semblance of
authority to his thesis that he should remain in office. Be that as it may, it bears emphasis that, in any
case, the mere fact that an employee is a CES eligible does not automatically operate to vest security of
tenure on the appointee inasmuch as the security of tenure of employees in the career executive service,
except first and second-level employees, pertains only to rank and not to the office or position to which
they may be appointed.45
Anent the other issues raised in this petition, we find the same to be merely petitioner’s last-ditch
attempts, futile as they are, to remain in office. Suffice it to say that no further good may be served in
needlessly expounding on them.
All told, we reiterate the long-standing rule that the mere fact that a particular position belongs to the
career service does not automatically confer security of tenure on its occupant. Such right will have to
depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person
who does not have the requisite qualifications for the position cannot be appointed to it in the first
place or, only as an exception to the rule, may be appointed to it in an acting capacity in the absence of
appropriate eligibles.46
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No.
80971, dated September 23, 2004, affirming Resolution No. 031050 of the Civil Service Commission,
dated October 14, 2003, is AFFIRMED.
G.R. No. 179452 June 11, 2009
CIVIL SERVICE COMMISSION, Petitioner,
vs.
LARRY M. ALFONSO, Respondent.
D E C I S I O N

5. NACHURA, J.:
This is a Rule 45 petition assailing the May 21, 2007 Decision1
and August 23, 2007 Resolution2
of the
Court of Appeals (CA) in CA-G.R. SP No. 97284, which reversed Civil Service Commission (CSC)
Resolution Nos. 0618213
and 0619084
dated October 16, 2006 and November 7, 2006, respectively, as
well as its Order5
dated December 11, 2006, formally charging respondent Larry Alfonso with Grave
Misconduct and Conduct Prejudicial to the Best Interest of the Service and preventively suspending
him from his position as Director of the Human Resources Management Department of the Polytechnic
University of the Philippines (PUP).
The facts, as summarized by the CA, are as follows:
Respondent Larry M. Alfonso is the Director of the Human Resources Management Department of
PUP. On July 6, 2006, Dr. Zenaida Pia, Professor IV in PUP-Sta. Mesa, and Dindo Emmanuel
Bautista, President of Unyon ng mga Kawani sa PUP, jointly filed an Affidavit-Complaint against
Alfonso for violation of Republic Act (RA) No. 6713, charging the latter with grave misconduct,
conduct prejudicial to the best interest of the Service, and violation of Civil Service Law, rules and
regulations. The affidavit-complaint was lodged before the Civil Service Commission (CSC). In their
affidavit, Dr. Pia and Bautista alleged, among others, that respondent repeatedly abused his authority as
head of PUP’s personnel department when the latter prepared and included his name in Special Order
Nos. 0960 and 1004 for overnight services, ostensibly authorizing him to work for 24 hours straight
from May 16 to 20, May 22 to 27 and May 29 to June 2, 2006. As a result thereof, Alfonso made
considerable earnings for allegedly working in humanly impossible conditions 24 hours straight daily,
for three consecutive weeks.6
In support of their complaint, Dr. Pia and Bautista submitted the following documentary evidence:
1. Special Order No. 1004, s. 2006;
2. Special Order No. 0960, s. 2006;
3. Daily time records of Saturday and Overnight Services of Alfonso;
4. PUP Perm-OT overnight May 2006 payroll register;
5. Xerox copy of check no. 162833 dated May 31, 2006;
6. Summary of Alfonso’s Saturday, overnight and overtime schedule;
7. Computation of the number of hours, days and weeks that Alfonso allegedly served; and
8. Explanation of official time, night service, Saturday overtime and overnight services
rendered by Alfonso for the month of May.7
On August 10, 2006, the Office of Legal Affairs (OLA) of the CSC issued an order directing Alfonso
to submit his counter-affidavit/comment within three (3) days from receipt thereof.
In his Counter-Affidavit8
dated August 30, 2006, respondent averred that he only rendered overnight
work on May 17, 19, 22, 24, 26, 29 and 31, 2006. He explained that his daily time record explicitly
indicates that it covers overnight services pursuant to S.O. No. 1004, series of 2006, and that an entry
such as "Day 17, arrival 8:00 PM; Day 18, departure 8:00 AM" connoted only a day of overnight work
and not continuous two (2) days of rendition of services.9
The CSC, however, found Alfonso’s explanation wanting. On October 25, 2006, it issued Resolution
No. 061821 formally charging Alfonso with grave misconduct and conduct prejudicial to the best
interest of the Service, and imposing a 90-day preventive suspension against him.10

6. Aggrieved, respondent filed an omnibus motion for reconsideration of the preventive suspension order
and requested a change of venue11
from the CSC-Central Office to the CSC-National Capital Region
(CSC-NCR). In the motion, he argued that it is the CSC-NCR regional office that has jurisdiction over
the matter pursuant to Section 6 of CSC Resolution No. 99-1936, and that to hold otherwise may
deprive him of his right to appeal.12
The motion was denied.13
Undaunted, Alfonso filed another motion for reconsideration on November 20, 2006, accompanied by
a motion to admit his supplemental answer.14
This time, however, respondent argued that the CSC had
no jurisdiction to hear and decide the administrative case filed against him. According to him, it is the
PUP Board of Regents that has the exclusive authority to appoint and remove PUP employees pursuant
to the provisions of R.A. No. 829215
in relation to R.A. No. 4670.16
Without ruling on the motion, Assistant Commissioner Atty. Anicia Marasigan-de Lima, head of CSC-
NCR, issued an Order17
dated December 11, 2006 directing the Office of the President of PUP to
implement the preventive suspension order against respondent.18
Dissatisfied, respondent sought relief before the CA via a petition for certiorari and prohibition.
On May 21, 2007, the CA rendered a Decision19
in favor of Alfonso. The pertinent portion of the
decision declares:
Applying the foregoing provisions, it appears that the CSC may take cognizance of an administrative
case in two ways: (1) through a complaint filed by a private citizen against a government official or
employee; and (2) appealed cases from the decisions rendered by Secretaries or heads of agencies,
instrumentalities, provinces, cities and municipalities in cases filed against officers and employees
under their jurisdiction.
Indisputably, the persons who filed the affidavit-complaint against petitioner held positions in and were
under the employ of PUP. Hence, they cannot be considered as private citizens in the contemplation of
the said provision. It is likewise undisputed that the subject CSC resolutions were not rendered in the
exercise of its power to review or its appellate jurisdiction but was an ordinary administrative case.
Hence, the present case falls short of the requirement that would otherwise have justified the CSC’s
immediate exercise of its jurisdiction over the administrative case against petitioner.
Even assuming that the CSC may directly entertain the complaints filed with it, the doctrine of
exhaustion [of] administrative remedies still prevents it from entertaining the present administrative
case. If a remedy within the administrative machinery can still be had by giving the administrative
officer concerned every opportunity to decide on the matter that comes within his jurisdiction, then
such remedy should be priorly exhausted.
The circumstances in this case do not justify the disregard of the doctrine. Hence, the administrative
complaint should have been lodged with the PUP board of regents.
x x x
The CA ratiocinated that since Presidential Decree (P.D.) No. 1341, the law creating PUP, is the
special law governing PUP, then it is the Board of Regents (BOR) that should carry out the duties of
the investigating committee and has the proper authority to discipline PUP personnel corollary to the
BOR’s general powers of administration.20
According to the CA, the power of the BOR to hire carries
with it the corresponding power to discipline PUP personnel pursuant to Section 7(c) of P.D.1341, to
wit:
Section 7. The Board of Regents shall have the following powers and duties in addition to his general
powers of administration and the exercise of all the powers of a corporation as provided in Section 13
of Act Numbered fourteen hundred fifty-nine as amended, otherwise known as the Philippine
Corporation Law:

7. x x x x
(c) To appoint, on the recommendation of the President of the University, professors, instructors,
lecturers and other members of the faculty, and other officials and employees of the University; to fix
their compensation, hours of service, and such, other duties and conditions as it may deem proper, any
other provisions of the law to the contrary notwithstanding; to grant to them in his discretion, leave of
absence under such regulations as it may promulgate, any other conditions of the law to the contrary
notwithstanding, and to remove them for cause after an investigation and hearing shall have been had;
x x x
This provision in the PUP Charter is substantially in accord with Section 4(h) of R.A. 8292,
Section 4. Powers and Duties of Governing Boards. – The governing board shall have the following
specific powers and duties in addition to its general powers of administration and the exercise of all the
powers granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68,
otherwise known as the Corporation Code of the Philippines:
x x x x
(h) to fix and adjust salaries of faculty members and administrative officials and employees subject to
the provisions of the revised compensation and classification system and other pertinent budget and
compensation laws governing hours of service, and such other duties and conditions as it may deem
proper; to grant them, at its discretion, leaves of absence under such regulations as it may promulgate,
any provisions of existing law to the contrary notwithstanding; and to remove them for cause in
accordance with the requirements of due process of law.
Given the foregoing antecedents, the pivotal issue we have to resolve is whether the CSC has
jurisdiction to hear and decide the complaint filed against Alfonso.
We find in favor of petitioner.
Section 2(1) and Section 3, Article IX-B of our Constitution, are clear, as they provide that:
Sec. 2. (1) The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled corporations with original charters.
Sec. 3. The Civil Service Commission, as the central personnel agency of the Government, shall
establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness,
progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system,
integrate all human resources development programs for all levels and ranks, and institutionalize a
management climate conducive to public accountability. It shall submit to the President and the
Congress an annual report on its personnel programs.
As the central personnel agency of the government,21
the CSC has jurisdiction to supervise the
performance of and discipline, if need be, all government employees, including those employed in
government-owned or controlled corporations with original charters such as PUP. Accordingly, all
PUP officers and employees, whether they be classified as teachers or professors pursuant to certain
provisions of law, are deemed, first and foremost, civil servants accountable to the people and
answerable to the CSC in cases of complaints lodged by a citizen against them as public servants.
Admittedly, the CSC has appellate jurisdiction over disciplinary cases decided by government
departments, agencies and instrumentalities. However, a complaint may be filed directly with the CSC,
and the Commission has the authority to hear and decide the case, although it may opt to deputize a
department or an agency to conduct the investigation. Specifically, Sections 9(j) and 37(a) of P.D. 807,
otherwise known as the Civil Service Law of 1975, provide:

8. SECTION 9. Powers and Functions of the Commission. – The Commission shall administer the Civil
Service and shall have the following powers and function:
x x x x
(j) Hear and decide administrative disciplinary cases instituted directly with it in accordance with
Section 37 or brought to it on appeal;
x x x x
Section 37. Disciplinary Jurisdiction. – (a) The Commission shall decide upon appeal all administrative
disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine
in an amount exceeding thirty days’ salary, demotion in rank or salary or transfer, removal or dismissal
from Office. A complaint may be filed directly with the Commission by a private citizen against a
government official or employee in which case it may hear and decide the case or it may deputize any
department or agency or official or group of officials to conduct the investigation. The results of the
investigation shall be submitted to the Commission with recommendation as to the penalty to be
imposed or other action to be taken.22
We are not unmindful of certain special laws that allow the creation of disciplinary committees and
governing bodies in different branches, subdivisions, agencies and instrumentalities of the government
to hear and decide administrative complaints against their respective officers and employees. Be that as
it may, we cannot interpret the creation of such bodies nor the passage of laws such as – R.A. Nos.
8292 and 4670 allowing for the creation of such disciplinary bodies – as having divested the CSC of its
inherent power to supervise and discipline government employees, including those in the academe. To
hold otherwise would not only negate the very purpose for which the CSC was established, i.e. to instill
professionalism, integrity, and accountability in our civil service, but would also impliedly amend the
Constitution itself.
In Office of the Ombudsman v. Masing,23
we explained that it is error to contend that R.A. No. 4670
conferred exclusive disciplinary authority on the Department of Education, Culture and Sports (DECS,
now Department of Education or DepEd) over public school teachers and to have prescribed exclusive
procedure in administrative investigations involving them.24
Hence, it is equally erroneous for
respondent to argue that the PUP Charter and R.A. No. 8292 in relation to R.A. 4670 confer upon the
BOR of PUP exclusive jurisdiction to hear disciplinary cases against university professors and
personnel.
In Civil Service Commission v. Sojor,25
an administrative case was filed against a state university
president. There, we struck down the argument that the BOR has exclusive jurisdiction to hear and
decide an administrative case filed against the respondent. We said:
In light of the other provisions of R.A. No. 9299, respondent’s argument that the BOR has exclusive
power to remove its university officials must fail. Section 7 of R.A. No. 9299 states that the power to
remove faculty members, employees, and officials of the university is granted to the BOR "in addition
to its general powers of administration." This provision is essentially a reproduction of Section 4 of its
predecessor, R.A. No. 8292, demonstrating that the intent of the lawmakers did not change even with
the enactment of the new law. x x x
x x x x
Verily, the BOR of NORSU has the sole power of administration over the university. But this power is
not exclusive in the matter of disciplining and removing its employee and officials.
Although the BOR of NORSU is given the specific power under R.A. No. 9299 to discipline its
employees and officials, there is no showing that such power is exclusive. When the law bestows upon
a government body the jurisdiction to hear and decide cases involving specific matters, it is to be
presumed that such jurisdiction is exclusive unless it be proved that another body is likewise vested

9. with the same jurisdiction, in which case, both bodies have concurrent jurisdiction over the matter.26
(Emphasis supplied)
But it is not only for this reason that Alfonso’s argument must fail. Equally significant is the fact that
he had already submitted himself to the jurisdiction of the CSC when he filed his counter-affidavit27
and his motion for reconsideration and requested for a change of venue, not from the CSC to the BOR
of PUP, but from the CSC-Central Office to the CSC-NCR.28
It was only when his motion was denied
that he suddenly had a change of heart and raised the question of proper jurisdiction.29
This cannot be
allowed because it would violate the doctrine of res judicata, a legal principle that is applicable to
administrative cases as well.30
At the very least, respondent’s active participation in the proceedings by
seeking affirmative relief before the CSC already bars him from impugning the Commission’s
authority under the principle of estoppel by laches.31
In this case, the complaint-affidavits were filed by two PUP employees. These complaints were not
lodged before the disciplinary tribunal of PUP, but were instead filed before the CSC, with averments
detailing respondent’s alleged violation of civil service laws, rules and regulations. After a fact-finding
investigation, the Commission found that a prima facie case existed against Alfonso, prompting the
Commission to file a formal charge against the latter.32
Verily, since the complaints were filed directly
with the CSC, and the CSC has opted to assume jurisdiction over the complaint, the CSC’s exercise of
jurisdiction shall be to the exclusion of other tribunals exercising concurrent jurisdiction. To repeat, it
may, however, choose to deputize any department or agency or official or group of officials such as the
BOR of PUP to conduct the investigation, or to delegate the investigation to the proper regional
office.33
But the same is merely permissive and not mandatory upon the Commission.
We likewise affirm the order of preventive suspension issued by the CSC-NCR against respondent.
There are two kinds of preventive suspension of government employees charged with offenses
punishable by removal or suspension, viz: (1) preventive suspension pending investigation; and (2)
preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension
or dismissal and, after review, the respondent is exonerated. Preventive suspension pending
investigation is not a penalty. It is a measure intended to enable the disciplining authority to investigate
charges against respondent by preventing the latter from intimidating or in any way influencing
witnesses against him. If the investigation is not finished and a decision is not rendered within that
period, the suspension will be lifted and the respondent will automatically be reinstated. If after
investigation, respondent is found innocent of the charges and is exonerated, he should be reinstated.34
The first kind, subject of the CSC Order against the respondent, is appropriately covered by Sections
51 and 52 of the Revised Administrative Code of 1987 (Executive Order No. 292) which provide:
SEC. 51. Preventive Suspension. - The proper disciplining authority may preventively suspend any
subordinate officer or employee under his authority pending an investigation, if the charge against such
officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the
performance of duty, or if there are reasons to believe that the respondent is guilty of charges which
would warrant his removal from the service.1avvphi1
SEC. 52. Lifting of Preventive Suspension. Pending Administrative Investigation. - When the
administrative case against the officer or employee under preventive suspension is not finally decided
by the disciplining authority within the period of ninety (90) days after the date of suspension of the
respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the
service: Provided, That when the delay in the disposition of the case is due to the fault, negligence or
petition of the respondent, the period of delay shall not be counted in computing the period of
suspension herein provided.1avvphi1
Respondent was charged with grave misconduct and conduct prejudicial to the best interest of the
service. A person charged with grave misconduct is put on notice that he stands accused of misconduct
coupled with any of the elements of corruption or willful intent to violate the law or established rules.35
Meanwhile, conduct prejudicial to the best interest of the service is classified as a grave offense with a

10. corresponding penalty of suspension for six (6) months and one (1) day to one (1) year for the first
offense, and the penalty of dismissal for the second offense.36
In addition to the gravity of the charges against Alfonso, and equally relevant, is the opportunity
available to him to use his position as Director of the Human Resources Management Department of
the university to exert undue influence or pressure on the potential witnesses that the complainants may
produce, or to tamper with the documentary evidence that may be used against him. Preventive
suspension is, therefore, necessary so that respondent’s delicate yet powerful position in the university
may not be used to compromise the integrity and impartiality of the entire proceedings.
WHEREFORE, premises considered, the May 21, 2007 Decision37
and August 23, 2007 Resolution38
of
the Court of Appeals in CA-G.R. SP No. 97284 are hereby REVERSED and SET ASIDE.
Accordingly, Civil Service Commission Resolution Nos. 06182139
and 06190840
dated October 16,
2006 and November 7, 2006, respectively, as well as its Order41
dated December 11, 2006 placing
respondent under preventive suspension are hereby REINSTATED. The CSC is ordered to proceed
hearing the administrative case against respondent with dispatch.
SO ORDERED.
Bito-Onon vs. Hon. Fernandez
GR No. 139813 Facts:
Bito-Onon is the duly elected Barangay Chairman of Tacras, Narra Palawan and is the
Municipal Liga Chapter President for the Municipality of Narra, Palawan. Respondent Quejano Jr., on
the other hand, is the duly elected Barangay Chairman of Rizal, Magsaysay, Palawan and is the
Municipal Liga Chapter President of Magsaysay, Palawan. Both Bito-Onon and Quejano were
candidates for the position of Executive Vice- President in the August 23, 1997 election for the Liga ng
Brgy Provincial Chapter in the province of Palawan. Bito-Onon was the proclaimed winner prompting
Quejano to file a a post proclamation protest with the Board of Election Supervisors (BES), which was
decided against him. Not satisfied with the decision of BES Quejano filed a petition for review of the
decision of BES. On 1999, Onon filed a petition to dismiss the review raising the issue of jurisdiction.
The latter claimed that RTC has no jurisdiction to review the BES’ decision in any post proclamation
electoral protest in connection with the 1997 Liga ng mga Brgy Election of Officers and Directors . In
his motion to dismiss, Bito-Onon claimed that the Supplemental Guidelines for the 1997 guidelines for
the Liga ng Brgy Election issued by the DILG in its Memorandum Circular No. 97-193, providing for
review of decisions or resolutions of the BES by the regular courts of law is an Ultra Vires act and is
void for being issued without or in excess of jurisdiction, as its issuance is not a mere act of supervision
but rather an exercise of control over the Liga’s Internal Org.
Issue:
1. Whether or not the President’s supervision extend to the Liga ng Baragay which is not an
LGU.
2. Whether or not the guidelines/provision in the Memorandum issued by the DILG within its
supervisory limit.
Ruling:
1. Yes, DOJ ruled that the Liga ng Brgy is a government org., being an association
federation/league/union by law or authority of law whose members are either appointed or elected
gov’t officials. The ligas are primarily governed by LGC. However, their respective constitution and
by-laws shall govern all matters affecting the internal org of the liga not otherwise provided for in the
LGC, provided that such consti and by laws shall be supplementary to Book II Title VI OF LGCode
and shall conform to Consti and existing laws.
2. No, In authorizing the filing of petition for review of BES decision with regular courts under
MC No. 97-193, the DILG Secretary in effect amended and modified the guidelines promulgated by

11. the Liga which provides that review of BES decision is with Nat’l Liga Board. The amendment of the
guidelines is more than the exercise of supervision but is an exercise of the power of control which the
President doesn’t have over the Liga
JOELBITO-ONON, petitioner, vs. HON. JUDGE NELIA YAP FERNANDEZ, R.T.C. Br. 50 – Puerto
Princesa City and Palawan, and ELEGIO QUEJANO, JR., respondents.
D E C I S I O N
GONZAGA-REYES, J.:
This Petition for Certiorari and Prohibition with prayer for the issuance of a temporary restraining
order and writ of injunction seeks the reversal of the Order of the Regional Trial Court of Palawan and
Puerto Princesa City,i
[1] Branch 50 in SPL. PROC. NO. 1056 entitled “Elegio F. Quejano, Jr.,
petitioner vs. Joel Bito-Onon, et. al., respondents” which denied herein petitioner’s motion to dismiss
the Petition for Review of the Resolution of the Board of Election Supervisors dated August 25, 1997
in case number L-10-97 filed by herein private respondent with said court.
It appears from the records that the petitioner, Joel Bito-Onon is the duly elected Barangay Chairman
of Barangay Tacras, Narra, Palawan and is the Municipal Liga Chapter President for the Municipality
of Narra, Palawan. The private respondent, Elegio Quejano, Jr. on the other hand, is the duly elected
Barangay Chairman of Barangay Rizal, Magsaysay, Palawan and is the Municipal Liga Chapter
President for the Municipality of Magsaysay, Palawan. Both Onon and Quejano were candidates for
the position of Executive Vice-President in the August 23, 1997 election for the Liga ng Barangay
Provincial Chapter of the province of Palawan. Onon was proclaimed the winning candidate in the said
election prompting Quejano to file a post proclamation protest with the Board of Election Supervisors
(BES), which was decided against him on August 25, 1997.
Not satisfied with the decision of the BES, Quejano filed a Petition for Review of the decision of the
BES with the Regional Trial Court of Palawan and Puerto Princesa City (RTC). On April 26, 1999,
Onon filed a motion to dismiss the Petition for Review raising the issue of jurisdiction. Onon claimed
that the RTC had no jurisdiction to review the decisions rendered by the BES in any post proclamation
electoral protest in connection with the 1997 Liga ng mga Barangay election of officers and directors.
In his motion to dismiss, Onon claimed that the Supplemental Guidelines for the 1997 Liga ng mga
Barangay election issued by the DILG on August 11, 1997 in its Memorandum Circular No. 97-193,
providing for review of decisions or resolutions of the BES by the regular courts of law is an ultra
vires act and is void for being issued without or in excess of jurisdiction, as its issuance is not a mere
act of supervision but rather an exercise of control over the Liga’s internal organization.
On June 22, 1999, the RTC denied Onon’s motion to dismiss. In its order, the RTC ratiocinated that
the Secretary of the Department of Interior and Local Governmentii
[2] is vested with the power “to
establish and prescribe rules, regulations and other issuances and implementing laws on the general
supervision of local government units and the promotion of local autonomy and monitor compliance
thereof by said units.”iii
[3] The RTC added that DILG Circular No. 97-193 was issued by the DILG
Secretary pursuant to his rule-making power as provided for under Section 7, Chapter II, Book IV of
the Administrative Code.iv
[4] Consequently, the RTC ruled that it had jurisdiction over the petition for
review filed by Quejada.v
[5]
Motion for reconsideration of the aforesaid Order was deniedvi
[6] prompting the petitioner to file the
present petition wherein the following issues are raised:
A. WHETHER OR NOT THE QUESTIONED PROVISION IN MEMORANDUM
CIRCULAR 97-193 WAS ISSUED BY THE DILG SECRETARY IN EXCESS OF HIS
AUTHORITY.
B. WHETHER OR NOT THE RESPONDENT JUDGE COMMITTED GRAVE ABUSE
OF DISCRETION IN ISSUING THE QUESTIONED ORDERS.vii
[7]

12. In support of his petition, Onon argues that the “Supplemental Guidelines for the 1997 Synchronized
Election of the Provincial and Metropolitan Chapters and for the Election of the National Chapter of
the Liga ng mga Barangay” contradicts the “Implementing Rules and Guidelines for the 1997 General
Elections of the Liga ng mga Barangay Officers and Directors” and is therefore invalid. Onon alleges
that the Liga ng mga Barangay (LIGA) is not a local government unit considering that a local
government unit must have its own source of income, a certain number of population, and a specific
land area in order to exist or be created as such. Consequently, the DILG only has a limited
supervisory authority over the LIGA. Moreover, Onon argues that even if the DILG has supervisory
authority over the LIGA, the act of the DILG in issuing Memorandum Circular No. 97-193 or the
supplemental rules and guidelines for the conduct of the 1997 LIGA elections had the effect of
modifying, altering and nullifying the rules prescribed by the National Liga Board. Onon posits that
the issuance of said guidelines allowing an appeal of the decision of the BES to the regular courts
rather than to the National Liga Board is no longer an exercise of supervision but an exercise of
control.viii
[8]
In his comment to the petition, private respondent Quejano argues that the Secretary of the DILG has
competent authority to issue rules and regulations like Memorandum Circular No. 97-893. The
Secretary of DILG’s rule-making power is conferred by the Administrative Code. Considering that the
Memorandum Circular was issued pursuant to his rule making power, Quejano insists that the lower
court did not commit any reversible error when it denied Onon’s motion to dismiss.ix
[9]
On the other hand, the public respondent represented herein by the Solicitor General, filed a separate
Manifestation and Motion in Lieu of Comment agreeing with the position of petitioner Onon. The
Solicitor General affirms Onon’s claim that in issuing the questioned Memorandum Circular, the
Secretary of the DILG effectively amended the rules and guidelines promulgated by National Liga
Board. This act was no longer a mere act of supervision but one of control. The Solicitor General
submits that the RTC committed grave abuse of discretion in not dismissing the petition for review of
the BES decision filed before it for failure of the petitioner to exhaust the rightful remedy which was to
appeal to the National Liga Board.x
[10]
On October 27, 1999, this Court denied petitioner Onon’s motion for the issuance of restraining order
for lack of merit.
After a careful review of the case, we sustain the position of the petitioner.
The resolution of the present controversy requires an examination of the questioned provision of
Memorandum Circular No. 97-193 and the Implementing Rules and Guidelines for the 1997 General
Elections of the Liga ng mga Barangay Officers and Directors (GUIDELINES). The memorandum
circular reads, insofar as pertinent, as follows:
“Any post-proclamation protest must be filed with the BES within twenty-four (24) hours from the
closing of the election. The BES shall decide the same within forty-eight (48) hours from receipt
thereof. The decision of the BES shall be final and immediately executory without prejudice to the
filing of a Petition for Review with the regular courts of law.”xi
[11] (emphasis supplied)
On the other hand, the GUIDELINES provides that the BES shall have the following among its duties:
“To resolve any post-proclamation electoral protest which must be submitted in writing to this Board
within twenty-four (24) hours from the close of election; provided said Board shall render its decision
within forty-eight (48) hours from receipt hereof; and provided further that the decision must be
submitted to the National Liga Headquarters within twenty-four (24) hours from the said decision. The
decision of the Board of Election Supervisors in this respect shall be subject to review by the National
Liga Board the decision of which shall be final and executory.”xii
[12] (emphasis supplied)
Memorandum Circular No. 97-193 was issued by the DILG Secretary pursuant to the power of general
supervision of the President over all local government units which was delegated to the DILG
Secretary by virtue of Administrative Order No. 267 dated February 18, 1992.xiii
[13] The President’s
power of general supervision over local government units is conferred upon him by the Constitution.xiv

13. [14] The power of supervision is defined as “the power of a superior officer to see to it that lower
officers perform their functions in accordance with law.”xv
[15] This is distinguished from the power of
control or “the power of an officer to alter or modify or set aside what a subordinate officer had done in
the performance of his duties and to substitute the judgment of the former for the latter.”xvi
[16]
On many occasions in the past, this court has had the opportunity to distinguish the power of
supervision from the power of control. In Taule vs. Santos,xvii
[17] we held that the Chief Executive
wielded no more authority than that of checking whether a local government or the officers thereof
perform their duties as provided by statutory enactments. He cannot interfere with local governments
provided that the same or its officers act within the scope of their authority. Supervisory power, when
contrasted with control, is the power of mere oversight over an inferior body; it does not include any
restraining authority over such body.xviii
[18] Officers in control lay down the rules in the doing of an
act. If they are not followed, it is discretionary on his part to order the act undone or re-done by his
subordinate or he may even decide to do it himself. Supervision does not cover such authority.
Supervising officers merely sees to it that the rules are followed, but he himself does not lay down such
rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may
order the work done or re-done to conform to the prescribed rules. He cannot prescribe his own
manner for the doing of the act.xix
[19]
Does the President’s power of general supervision extend to the liga ng mga barangay, which is not a
local government unit?xx
[20]
We rule in the affirmative. In Opinion No. 41, Series of 1995, the Department of Justice ruled that the
liga ng mga barangay is a government organization, being an association, federation, league or union
created by law or by authority of law, whose members are either appointed or elected government
officials. The Local Government Codexxi
[21] defines the liga ng mga barangay as an organization of all
barangays for the primary purpose of determining the representation of the liga in the sanggunians, and
for ventilating, articulating and crystallizing issues affecting barangay government administration and
securing, through proper and legal means, solutions thereto.xxii
[22] The liga shall have chapters at the
municipal, city, provincial and metropolitan political subdivision levels. The municipal and city
chapters of the liga shall be composed of the barangay representatives of the municipal and city
barangays respectively. The duly elected presidents of the component municipal and city chapters shall
constitute the provincial chapter or the metropolitan political subdivision chapter. The duly elected
presidents of highly urbanized cities, provincial chapters, the Metropolitan Manila chapter and
metropolitan political subdivision chapters shall constitute the National Liga ng mga Barangay.xxiii
[23]
The liga at the municipal, city, provincial, metropolitan political subdivision, and national levels
directly elect a president, a vice-president and five (5) members of the board of directors. The board
shall appoint its secretary and treasurer and create such other positions as it may deem necessary for the
management of the chapter.xxiv
[24]
The ligas are primarily governed by the provisions of the Local Government Code.xxv
[25] However,
their respective constitution and by-laws shall govern all other matters affecting the internal
organization of the liga not otherwise provided for in the Local Government Code provided that the
constitution and by-laws shall be suppletory to the provisions of Book III, Title VI of the Local
Government Code and shall always conform to the provisions of the Constitution and existing laws.xxvi
[26]
Having in mind the foregoing principles, we rule that Memorandum Circular No. 97-193 of the DILG
insofar as it authorizes the filing a Petition for Review of the decision of the BES with the regular
courts in a post proclamation electoral protest is of doubtful constitutionality. We agree with both the
petitioner and the Solicitor General that in authorizing the filing of the petition for review of the
decision of the BES with the regular courts, the DILG Secretary in effect amended and modified the
GUIDELINES promulgated by the National Liga Board and adopted by the LIGA which provides that
the decision of the BES shall be subject to review by the National Liga Board. The amendment of the
GUIDELINES is more than an exercise of the power of supervision but is an exercise of the power of
control, which the President does not have over the LIGA. Although the DILG is given the power to
prescribe rules, regulations and other issuances, the Administrative Code limits its authority to merely
“monitoring compliance” by local government units of such issuances.xxvii
[27] To monitor means “to

14. watch, observe or check” and is compatible with the power of supervision of the DILG Secretary over
local governments, which is limited to checking whether the local government unit concerned or the
officers thereof perform their duties as per statutory enactments.xxviii
[28] Besides, any doubt as to the
power of the DILG Secretary to interfere with local affairs should be resolved in favor of the greater
autonomy of the local government.xxix
[29]
The public respondent judge therefore committed grave abuse of discretion amounting to lack or excess
of jurisdiction in not dismissing the respondent’s Petition for Review for failure to exhaust all
administrative remedies and for lack of jurisdiction.
WHEREFORE, the instant petition is hereby GRANTED. The Order of the Regional Trial Court
dated June 22, 1999 is REVERSED and SET ASIDE. The Petition for Review filed by the private
respondent docketed as SPL. PROC. NO. 1056 is DISMISSED.

15. i
ii
iii
iv
v
viDE GUZMAN VS COMELEC
On March 31, 2004, the Sangguniang Panlungsod of Tuguegarao City passed Resolution No. 048-2004 to authorize
City Mayor Ting to acquire two parcels of land for use as a public cemetery of the City. Pursuant to the resolution, City
Mayor Ting purchased the two parcels of land, identified as Lot Nos. 5860 and 5861 and located at Atulayan Sur,
Tuguegarao City, with an aggregate area of 24,816 square meters (covered by Transfer Certificates of Title [TCT] No.
T-36942 and TCT No. T-36943 of the Register of Deeds in Tuguegarao City), from Anselmo Almazan, Angelo
Almazan and Anselmo Almazan III. As payment, City Treasurer Garcia issued and released Treasury Warrant No.
0001534514 dated April 20, 2004 in the sum of P8,486,027.00. On May 5, 2004, the City Government of Tuguegarao
caused the registration of the sale and the issuance of new certificates in its name (i.e., TCT No. T-144428 and TCT No.
T-144429).
Based on the transaction, the petitioner filed a complaint in the Office of the Provincial Election Supervisor of Cagayan
Province against City Mayor Ting and City Treasurer Garcia, charging them with a violation of Section 261, paragraphs
(v) and (w), of the Omnibus Election Code, for having undertaken to construct a public cemetery and for having
released, disbursed and expended public funds within 45 days prior to the May 9, 2004 election, in disregard of the
prohibitions under said provisions due to the election ban period having commenced on March 26, 2004 and ended on
May 9, 2004.
Issues
The issues to be resolved are:
(2) Whether or not the acquisition of Lots 5860 and 5881 during the period of the election ban was covered by
the term public works as to be in violation of Section 261 (v) of the Omnibus Election Code; and
(3) Whether or not the issuance of Treasury Warrant No. 0001534514 during the period of the election ban was
in violation of Section 261 (w) of the Omnibus Election Code.
The COMELEC held in its resolution dated February 18, 2008 that:
To be liable for violation of Section 261 (v), supra, four (4) essential elements must concur and they are:
1. A public official or employee releases, disburses, or expends any public funds;
2. The release, disbursement or expenditure of such funds must be within forty-five days before regular
election;
3. The release, disbursement or expenditure of said public funds is for any and all kinds of public works; and
4. The release, disbursement or expenditure of the public funds should not cover any exceptions of Section 261
(v). (Underscoring supplied).
Applying the foregoing as guideline, it is clear that what is prohibited by law is the release, disbursement or expenditure
of public funds for any and all kinds of public works. Public works is defined as fixed works (as schools, highways,
docks) constructed for public use or enjoyment esp. when financed and owned by the government. From this definition,
the purchase of the lots purportedly to be utilized as cemetery by the City Government of Tuguegarao cannot by any
stretch of imagination be considered as public works, hence it could not fall within the proscription as mandated under
the aforementioned section of the Omnibus Election Code. And since the purchase of the lots is not within the
contemplation of the word public works, the third of the elements stated in the foregoing guideline is not present in this
case. Hence since not all the elements concurred, the respondents are not liable for violation of Section 261 (v) of the
Omnibus Election Code.
Accordingly, absent an indication of any contrary legislative intention, the term public works as used in Section 261 (v)
of the Omnibus Election Code is properly construed to refer to any building or structure on land or to structures (such as

16. roads or dams) built by the Government for public use and paid for by public funds. Public works are clearly works,
whether of construction or adaptation undertaken and carried out by the national, state, or municipal authorities,
designed to subserve some purpose of public necessity, use or convenience, such as public buildings, roads, aqueducts,
parks, etc.; or, in other words, all fixed works constructed for public use.12
It becomes inevitable to conclude, therefore, that the petitioner's insistence − that the acquisition of Lots 5860 and 5881
for use as a public cemetery be considered a disbursement of the public funds for public works in violation of Section
261(v) of the Omnibus Election Code − was unfounded and unwarranted.
Issuance of the Treasury Warrant
During the Period of the Election Ban
Violated Section 261 (w), Omnibus Election Code
Section 261(w) of the Omnibus Election Code reads thus:
(w) Prohibition against construction of public works, delivery of materials for public works and issuance of treasury
warrants and similar devices.- During the period of forty five days preceding a regular election and thirty days before a
special election, any person who: (a) undertakes the construction of any public works, except for projects or works
exempted in the preceding paragraph; or (b) issues, uses or avails of treasury warrants or any device undertaking future
delivery of money, goods or other things of value chargeable against public funds.
The OSG posits that the foregoing provision is violated in either of two ways: (a) by any person who, within 45 days
preceding a regular election and 30 days before a special election, undertakes the construction of any public works
except those enumerated in the preceding paragraph; or (b) by any person who issues, uses or avails of treasury
warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public
funds within 45 days preceding a regular election and 30 days before a special election.
We concur with the OSG’s position.
Section 261 (w) covers not only one act but two, i.e., the act under subparagraph (a) above and that under subparagraph
(b) above. For purposes of the prohibition, the acts are separate and distinct, considering that Section 261(w) uses the
disjunctive or to separate subparagraphs (a) and (b). In legal hermeneutics, or is a disjunctive that expresses an
alternative or gives a choice of one among two or more things.13
The word signifies disassociation and independence of
one thing from another thing in an enumeration. It should be construed, as a rule, in the sense that it ordinarily implies
as a disjunctive word.14
According to Black,15
too, the word and can never be read as or, or vice versa, in criminal and
penal statutes, where the rule of strict construction prevails. Consequently, whether or not the treasury warrant in
question was intended for public works was even of no moment in determining if the legal provision was violated.
There was a probable cause to believe that Section 261(w), subparagraph (b), of the Omnibus Election Code was
violated when City Mayor Ting and City Treasurer Garcia issued Treasury Warrant No. 0001534514 during the election
ban period. For this reason, our conclusion that the COMELEC en banc gravely abused its discretion in dismissing E.O.
Case No. 06-14 for lack of merit is inevitable and irrefragable.
True, the COMELEC, as the body tasked by no less than the 1987 Constitution to investigate and prosecute violations
of election laws,16
has the full discretion to determine whether or not an election case is to be filed against a person and,
consequently, its findings as to the existence of probable cause are not subject to review by courts. Yet, this policy of
non-interference does not apply where the COMELEC, as the prosecuting or investigating body, was acting arbitrarily
and capriciously, like herein, in reaching a different but patently erroneous result.17
The COMELEC was plainly guilty
of grave abuse of discretion.
Grave abuse of discretion is present "when there is a capricious and whimsical exercise of judgment as is equivalent to
lack of jurisdiction, such as where the power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in contemplation of law."18
WHEREFORE, WE grant the petition for certiorari and set aside the resolution dated February 18, 2008 issued in E.O.
Case No. 06-14 by the Commission of Elections en banc.

17. The Commission on Elections is ordered to file the appropriate criminal information against respondents City Mayor
Randolph S. Ting and City Treasurer Salvacion Garcia of Tuguegarao City for violation of Section 261 (w),
subparagraph (b), of the Omnibus Election Code.
Costs of suit to be paid by the private respondents.
SO ORDERED.
x-----------------------------------------------------------------------------------------x
PANLAQUI VS COMELEC
Petitioner Mozart Panlaqui (Panlaqui) assails the Commission on Elections (Comelec) En Banc Resolution of June 17,
2009 denying his motion for proclamation, which he filed after this Court affirmed in G.R. No. 180051[1] the
nullification of the proclamation of private respondent Nardo Velasco (Velasco) as mayor of Sasmuan, Pampanga.
Velasco was born in Sasmuan on June 22, 1952 to Filipino parents. He married Evelyn Castillo on June 29,
1975. In 1983, he moved to the United States where he subsequently became a citizen.
Upon Velasco’s application for dual citizenship under Republic Act No. 9225[2] was approved on July 31,
2006, he took on even date his oath of allegiance to the Republic of the Philippines and returned to the Philippines on
September 14, 2006.

18. On October 13, 2006, Velasco applied for registration as a voter of Sasmuan, which application was denied by
the Election Registration Board (ERB). He thus filed a petition for the inclusion of his name in the list of voters before
the Municipal Trial Court (MTC) of Sasmuan which, by Decision of February 9, 2007, reversed the ERB’s decision and
ordered his inclusion in the list of voters of Sasmuan.
On appeal, the Regional Trial Court (RTC) of Guagua, Pampanga, by Decision of March 1, 2007, reversed[3]
the MTC Decision, drawing Velasco to elevate the matter via Rule 42 to the Court of Appeals which, by Amended
Decision[4] of August 19, 2008, dismissed the appeal for lack of jurisdiction. In the meantime, Velasco filed on
March 28, 2007 his Certificate of Candidacy (COC) for mayor of Sasmuan, therein claiming his status as a registered
voter. Panlaqui, who vied for the same position, thereupon filed before the Comelec a Petition to Deny Due Course To
and/or To Cancel Velasco’s COC based on gross material misrepresentation as to his residency and, consequently, his
qualification to vote.
In the electoral bout of May 2007, Velasco won over Panlaqui as mayor of Sasmuan. As the
Comelec failed to resolve Panlaqui’s petition prior to the elections, Velasco took his oath of office
and assumed the duties of the office. Finding material misrepresentation on the part of Velasco, the
Comelec cancelled his COC and nullified his proclamation, by Resolutions of July 6, 2007 and
October 15, 2007, which this Court affirmed in G.R. No. 180051.
Panlaqui thereafter filed a motion for proclamation which the Comelec denied by the assailed Resolution,
pointing out that the rule on succession does not operate in favor of Panlaqui as the second placer because Velasco was
not disqualified by final judgment before election day.
Hence, the present petition which imputes grave abuse of discretion on the part of the Comelec for not
regarding the RTC March 1, 2007 Decision as the final judgment of disqualification against Velasco prior to the
elections, so as to fall within the ambit of Cayat v. Commission on Elections[5] on the exception to the doctrine on the
rejection of the second placer.
Velasco filed his Comment of September 18, 2009 with motion to consolidate the present case with G.R. No.
189336, his petition challenging the Comelec’s September 8, 2009 Order which directed him to vacate his mayoralty
post for the incumbent vice-mayor to assume office as mayor. A perusal of the records of the petition shows, however,
that it had already been dismissed by the Court by Resolution of October 6, 2009.[6]
In his present petition, Panlaqui implores this Court to apply in his favor the case of Cayat where the Court
affirmed, inter alia, the Comelec Order directing the proclamation of the second placer as Mayor of Buguias, Benguet
in this wise:
There is no doubt as to the propriety of Palileng’s proclamation for two basic reasons.
First, the COMELEC First Division’s Resolution of 12 April 2004 cancelling Cayat’s
certificate of candidacy due to disqualification became final and executory on 17 April 2004 when
Cayat failed to pay the prescribed filing fee. Thus, Palileng was the only candidate for Mayor of
Buguias, Benguet in the 10 May 2004 elections. Twenty–three days before election day, Cayat was

19. already disqualified by final judgment to run for Mayor in the 10 May 2004 elections. As the only
candidate, Palileng was not a second placer. On the contrary, Palileng was the sole and only placer,
second to none. The doctrine on the rejection of the second placer, which triggers the rule on
succession, does not apply in the present case because Palileng is not a second-placer but the only
placer. Consequently, Palileng’s proclamation as Mayor of Buguias, Benguet is beyond question.
Second, there are specific requirements for the application of the doctrine on the rejection
of the second placer. The doctrine will apply in Bayacsan’s favor, regardless of his intervention in
the present case, if two conditions concur: (1) the decision on Cayat’s disqualification remained
pending on election day, 10 May 2004, resulting in the presence of two mayoralty candidates for
Buguias, Benguet in the elections; and (2) the decision on Cayat’s disqualification became final only
after the elections.[7] (emphasis and italics in the original; underscoring supplied)
Repackaging the present petition in Cayat’s fashion, Panlaqui asserts that the RTC March 1, 2007 Decision in the
voter’s inclusion proceedings must be considered as the final judgment of disqualification against Velasco, which
decision was issued more than two months prior to the elections. Panlaqui posits that when Velasco’s petition for
inclusion was denied, he was also declared as disqualified to run for public office.
Unwrapping the present petition, the Court finds that the true color of the issue of distinction between a
petition for inclusion of voters in the list and a petition to deny due course to or cancel a certificate of candidacy has
already been defined in Velasco v. Commission on Elections[8] where the Court held that the two proceedings may
ultimately have common factual bases but they are poles apart in terms of the issues, reliefs and remedies involved,
thus:
In terms of purpose, voters’ inclusion/exclusion and COC denial/cancellation are different
proceedings; one refers to the application to be registered as a voter to be eligible to vote, while the
other refers to the application to be a candidate. Because of their differing purposes, they also involve
different issues and entail different reliefs, although the facts on which they rest may have
commonalities where they may be said to converge or interface. x x x[9] (underscoring supplied)
Voters’ inclusion/exclusion proceedings, on the one hand, essentially involve the issue of whether a petitioner
shall be included in or excluded from the list of voters based on the qualifications required by law and the facts
presented to show possession of these qualifications.[10]
On the other hand, COC denial/cancellation proceedings involve the issue of whether there is a false representation of a
material fact. The false representation must necessarily pertain not to a mere innocuous mistake but to a material fact or
those that refer to a candidate’s qualifications for elective office. Apart from the requirement of materiality, the false
representation must consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a
candidate ineligible or, otherwise stated, with the intention to deceive the electorate as to the would-be candidate’s
qualifications for public office.[11]
In Velasco, the Court rejected Velasco’s contention that the Comelec improperly ruled on the right to vote when it
cancelled his COC. The Court stated that the Comelec merely relied on or recognized the RTC’s final and executory
decision on the matter of the right to vote in the precinct within its territorial jurisdiction. In the present petition, it is
Panlaqui’s turn to proffer the novel interpretation that the RTC properly cancelled Velasco’s COC when it ruled on his
right to vote. The Court rejects the same.
It is not within the province of the RTC in a voter’s inclusion/exclusion proceedings to take cognizance of and
determine the presence of a false representation of a material fact. It has no jurisdiction to try the issues of whether the
misrepresentation relates to material fact and whether there was an intention to deceive the electorate in terms of one’s

20. qualifications for public office. The finding that Velasco was not qualified to vote due to lack of residency requirement
does not translate into a finding of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise
render him ineligible. Assuming arguendo the plausibility of Panlaqui’s theory, the Comelec correctly observed that
when the RTC issued its March 1, 2007 Decision, there was yet no COC to cancel because Velasco’s COC was filed
only on March 28, 2007. Indeed, not only would it be in excess of jurisdiction but also beyond the realm of possibility
for the RTC to rule that there was deliberate concealment on the part of Velasco when he stated under oath in his COC
that he is a registered voter of Sasmuan despite his knowledge of the RTC decision which was yet forthcoming.
IN FINE, the Comelec did not gravely abuse its discretion when it denied Panlaqui’s motion for proclamation. Since
Velasco’s disqualification
as a candidate had not become final before the elections, the Comelec properly applied the rule on succession.
x x x To simplistically assume that the second placer would have received the
other votes would be to substitute our judgment for the mind of the voter. The second
placer is just that, a second placer. He lost the elections. He was repudiated by either a
majority or plurality of voters. He could not be considered the first among qualified
candidates because in a field which excludes the disqualified candidate, the conditions
would have substantially changed. We are not prepared to extrapolate the results under
such circumstances.
To allow the defeated and repudiated candidate to take over the mayoralty despite his
rejection by the electorate is to disenfranchise them through no fault on their part, and to undermine
the importance and the meaning of democracy and the right of the people to elect officials of their
choice.
Theoretically, the second placer could receive just one vote. In such a case, it would be
absurd to proclaim the totally repudiated candidate as the voters’ choice. x x x[12]
WHEREFORE, the petition is DISMISSED. The assailed June 17, 2009 Resolution of the Commission on Elections
is AFFIRMED.
vii
viii
ix
x

21. ROQUE VS COMELEC
Facts:
This case is a motion for reconsideration filed by the petitioners of the September 10, 2009
ruling of the Supreme Court, which denied the petition of H. Harry L. Roque, Jr., et al. for
certiorari, prohibition, and mandamus to nullify the contract-award of the 2010 Election
Automation Project to the joint venture of Total Information Management Corporation (TIM) and
Smartmatic International Corporation (Smartmatic).
In this MR, petitioners Roque, et al. are again before the Supreme Court asking that the contract
award be declared null and void on the stated ground that it was made in violation of the
Constitution, statutes, and jurisprudence. Intervening petitioner also interposed a similar motion, but
only to pray that the Board of Election Inspectors be ordered to manually count the ballots after the
printing and electronic transmission of the election returns.
Petitioners Roque, et al., as movants herein, seek a reconsideration of the September 10, 2009
Decision on the following issues or grounds:
1. The Comelec’s public pronouncements show that there is a "high probability" that there will be
failure of automated elections;
2. Comelec abdicated its constitutional functions in favor of Smartmatic;
3. There is no legal framework to guide the Comelec in appreciating automated ballots in case the
PCOS machines fail;
4. Respondents cannot comply with the requirements of RA 8436 for a source code review;
5. Certifications submitted by private respondents as to the successful use of the machines in
elections abroad do not fulfill the requirement of Sec. 12 of RA 8436;
6. Private respondents will not be able to provide telecommunications facilities that will assure
100% communications coverage at all times during the conduct of the 2010 elections; and
7. Subcontracting the manufacture of PCOS machines to Quisdi violates the Comelec’s bidding
rules.
Issue: Is the motion for reconsideration meritorious?
Ruling:

22. No.
Upon taking a second hard look into the issues in the case at bar and the arguments earnestly
pressed in the instant motions, the Court cannot grant the desired reconsideration.
Petitioners’ threshold argument delves on possibilities, on matters that may or may not occur. The
conjectural and speculative nature of the first issue raised is reflected in the very manner of its
formulation and by statements, such as "the public pronouncements of public respondent
COMELEC x x x clearly show that there is a high probability that there will be automated failure of
elections"; "there is a high probability that the use of PCOS machines in the May 2010 elections
will result in failure of elections"; "the unaddressed logistical nightmares—and the lack of
contingency plans that should have been crafted as a result of a pilot test—make an automated
failure of elections very probable"; and "COMELEC committed grave abuse of discretion when it
signed x x x the contract for full automation x x x despite the likelihood of a failure of elections."
Speculations and conjectures are not equivalent to proof; they have little, if any, probative value
and, surely, cannot be the basis of a sound judgment.
Petitioners, to support their speculative venture vis-à-vis the possibility of Comelec going manual,
have attributed certain statements to respondent Comelec Chairman Melo, citing for the purpose a
news item on Inquirer.net, posted September 16, 2009.
Reacting to the attribution, however, respondents TIM and Smartmatic, in their comment, described
the Melo pronouncements as made in the context of Comelec’s contingency plan. Petitioners,
however, the same respondents added, put a misleading spin to the Melo pronouncements by
reproducing part of the news item, but omitting to make reference to his succeeding statements to
arrive at a clearer and true picture.
Private respondents’ observation is well-taken. Indeed, it is easy to selectively cite portions of what
has been said, sometimes out of their proper context, in order to assert a misleading conclusion. The
effect can be dangerous. Improper meaning may be deliberately attached to innocent views or even
occasional crude comments by the simple expediency of lifting them out of context from any
publication.
Petitioners’ posture anent the third issue, i.e, there no is legal framework to guide Comelec in the
appreciation of automated ballots or to govern manual count should PCOS machines fail, cannot be
accorded cogency. First, it glosses over the continuity and back-up plans that would be
implemented in case the PCOS machines falter during the 2010 elections. The overall fallback
strategy and options to address even the worst-case scenario—the wholesale breakdown of the
80,000 needed machines nationwide and of the 2,000 reserved units—have been discussed in some
detail in the Decision subject of this recourse. The Court need not belabor them again.
While a motion for reconsideration may tend to dwell on issues already resolved in the decision
sought to be reconsidered—and this should not be an obstacle for a reconsideration—the hard
reality is that petitioners have failed to raise matters substantially plausible or compellingly
persuasive to warrant the desired course of action.
Significantly, petitioners, in support of their position on the lack-of-legal-framework issue, invoke
the opinion of Associate, later Chief, Justice Artemio Panganiban in Loong v. Comelec, where he
made the following observations: "Resort to manual appreciation of the ballots is precluded by the
basic features of the automated election system," and "the rules laid down in the Omnibus Election
Code (OEC) for the appreciation and counting of ballots cast in a manual election x x x are

23. inappropriate, if not downright useless, to the proper appreciation and reading of the ballots used in
the automated system." Without delving on its wisdom and validity, the view of Justice Panganiban
thus cited came by way of a dissenting opinion. As such, it is without binding effect, a dissenting
opinion being a mere expression of the individual view of a member of the Court or other collegial
adjudicating body, while disagreeing with the conclusion held by the majority.
And going to another but recycled issue, petitioners would have the Court invalidate the automation
contract on the ground that the certifications submitted by Smartmatic during the bidding, showing
that the PCOS technology has been used in elections abroad, do not comply with Sec. 1222 of RA
8436. Presently, petitioners assert that the system certified as having been used in New York was
the Dominion Image Cast, a ballot marking device.
Petitioners have obviously inserted, at this stage of the case, an entirely new factual dimension to
their cause. This we cannot allow for compelling reasons. For starters, the Court cannot plausibly
validate this factual assertion of petitioners. As it is, private respondents have even questioned the
reliability of the website24 whence petitioners base their assertion, albeit the former, citing the same
website, state that the Image Cast Precinct tabulation device refers to the Dominion’s PCOS
machines.
Moreover, as a matter of sound established practice, points of law, theories, issues, and arguments
not raised in the original proceedings cannot be brought out on review. Basic considerations of fair
play impel this rule. The imperatives of orderly, if not speedy, justice frown on a piecemeal
presentation of evidence and on the practice of parties of going to trial haphazardly.
Moving still to another issue, petitioners claim that "there are very strong indications that Private
Respondents will not be able to provide for telecommunication facilities for areas without these
facilities." This argument, being again highly speculative, is without evidentiary value and hardly
provides a ground for the Court to nullify the automation contract. Surely, a possible breach of a
contractual stipulation is not a legal reason to prematurely rescind, much less annul, the contract.
Finally, petitioners argue that, based on news reports,28 the TIM-Smartmatic joint venture has
entered into a new contract with Quisdi, a Shanghai-based company, to manufacture on its behalf
the needed PCOS machines to fully automate the 2010 elections.29 This arrangement, petitioners
aver, violates the bid rules proscribing sub-contracting of significant components of the automation
project.
The argument is untenable, based as it is again on news reports. Surely, petitioners cannot expect
the Court to act on unverified reports foisted on it.
G.R. No. 204828 December 3, 2013
JAIME C. REGIO, Petitioner,
vs.
COMMISSION ON ELECTIONS and RONNIE C. CO, Respondents.
D E C I S I O N
VELASCO, JR., J.:
The Case

24. This petition for certiorari filed under Rule 64, in relation to Rule 65, seeks to nullify and set aside
the Resolution dated December 7, 2012 of the Commission on Elections (COMELEC_ EN Banc in
EAC (BRGY-SK) No. 161-2011. The assailed Resolution reversed and set aside the Resolution of
the COMELEC First Division dated August 23, 2011, which, in turn, affirmed the May 4, 2011
Decision in Election Case No. 02480-EC of the Metropolitan Trial Court (MeTC), Branch 4 in
Manila.
The Facts
Petitioner Jaime C. Regio (Regio) and private respondent Ronnie C. Co (Co), among other
candidates, ran in the October 25, 2010 barangay elections in Barangay 296, Zone 28, District III of
the City of Manila for the position of punong barangay. Immediately following the counting and
canvassing of the votes from seven clustered precincts in the adverted barangay, Regio, who
garnered four hundred seventy-eight (478) votes, as against the three hundred thirty-six (336) votes
obtained by Co, was proclaimed winner for the contested post of punong barangay. The detailed
tally of the votes per precinct, as reflected in the Statement of Votes, is as follows:1
CandidateClustered Precinct NumberTotal1302A 1303A1304A 1305A1306A1307A 1307BCo,
Ronnie C.761134899336Regio, Jaime C.1711517383478On November 4, 2010, Co filed an
election protest before the MeTC. He claimed, among other things, that the Board of Election
Tellers (BET) did not follow COMELEC Resolution No. 9030, as it: (1) did not permit his
supporters to vote; (2) allowed "flying voters" to cast votes; and (3) ignored the rules on
appreciation of ballots, resulting in misreading, miscounting, and misappreciation of ballots.
Additionally, he alleged that Regio committed vote-buying, and engaged in distribution of sample
ballots inside the polling centers during the day of the elections.2
Of the seven clustered precincts (CPs) initially protested, Co would later exclude CP Nos. 1304A
and 1305A from the protest. During the preliminary conference, the trial court allowed the revision
of ballots. The revision of ballots occurred on January 13-14, 2011.3 Per the report of the revision
committee, the number of votes obtained by both candidates in the contested precincts, as shown
below, indicated a substantial recovery on the part of Co:
CandidateClustered Precinct NumberTotal1302A 1303A1304A 1305A1306A1307A 1307BCo,
Ronnie C.160--6398321Regio, Jaime C.86--6284232During his turn to present evidence, Co limited
his offer to the revision committee report, showing that he garnered the highest number of votes.
Regio, on the other hand, denied that the elections were tainted with irregularities. He claimed that
the results of the revision are products of post-elections operations, as the ballots were tampered
with, switched, and altered drastically to change the results of the elections. He presented as
witnesses the following: poll watchers Evangeline Garcia, Cezar Regio, and Ruben Merilles, who
all testified that there were no instances of electoral fraud, irregularities, and anomalies during the
day of the elections. Presented too were volunteers Love Agpaoa and Romy Que, who belied
allegations of miscounting, misreading, and misappreciation of the ballots during the counting, and
Dominador Dela Cruz, Chairperson of the BET for CP Nos. 1302A/1303A, as well as Erlina
Hernandez, Chairperson of the BET for CP No. 1306A, who both testified that they followed the
rules and regulations in conducting the elections in Barangay 296, and that each ballot was correctly
tabulated.4
The results of the revision notwithstanding, the trial court, in its Decision of May 4, 2011, dismissed
Co’s protest and declared Regio as the duly-elected punong barangay of Barangay 296. It disposed
of the case, as follows:

25. WHEREFORE, the proclamation of protestee Jaime C. Regio as the duly elected "Punong
Barangay" or "Barangay Chairman" of Barangay 296, District III, Manila by the Barangay Board of
Canvassers is affirmed by this court. The election protest filed by the protestant Ronnie C. Co is
dismissed for lack of merit.5
According to the trial court, before it can accord credence to the results of the revision, it should
first be ascertained that the ballots found in the box during the revision are the same ballots
deposited by the voters. In fine, the court "should first be convinced that the ballots counted during
the revision have not been tampered with before it can declare the ballots a) as superior evidence of
how the electorate voted, and b) as sufficient evidence to set aside the election returns. For the
ballots to be considered the best evidence of how the voters voted, their integrity should be
satisfactorily established."6 Invoking Rosal v. COMELEC,7 the trial court ruled that Co failed to
sufficiently show that the integrity of the contested ballots had been preserved. It then cited the
presumption that election returns are genuine, and that the data and information supplied by the
board of election inspectors are true and correct.8
The trial court said:
A closer scrutiny of the premise made by the protestant will reveal that he is trying to prove the
misreading, miscounting, and misappreciation of ballots by introducing as evidence the marked
difference of the results of the revision and of the results in the election returns. This premise is too
presumptuous. The marked difference cannot be used to prove the misreading, miscounting, and
misappreciation of ballots because the misreading, miscounting, and misappreciation of ballots is
precisely what the protestant needs to prove to justify the marked difference in the results. Prudence
dictates that the protestant should first explain where this huge discrepancy is coming from before
using it as evidence. In other words, the misreading, miscounting, and misappreciation of ballots
should be proven by other independent evidence. Without any evidence, the allegation of
misreading, miscounting, and misappreciation of ballots remains a mere allegation without any
probative value.9
Traversing the allegations of post-elections tampering, the trial court rejected Co’s allegation that
the ballot boxes were properly locked and sealed. In fact, the trial court said, the envelope
containing the ballots for CP Nos. 1302A/1303A was glued on both sides, prompting protestee’s
revisor to comment that the envelope appears to be re-pasted and tampered. In CP No. 1306A, the
report stated that the ballots were not placed in a sealed envelope.10 Corollarily, the trial court
stated the observation that Regio has presented credible witnesses to prove that there were no
irregularities or anomalies during the casting and counting of votes. Aggrieved, Co filed an appeal
before the COMELEC, arguing that the trial court erred:
1.) In disregarding the result of the physical count of the revised ballots found in Precinct Nos.
1302A/1303A and 1306A;
2.) In declaring that the protestant appellant was not able to sufficiently show that the integrity of
the contested ballots in Precinct Nos. 1302A/1303A and 1306A was preserved;
3.) In declaring that protestant-appellant was not able to overcome the presumption of regularity of
the election, counting, and canvassing proceedings in the protested precincts of Barangay 296,
Manila;
4.) In declaring that the votes obtained by the parties in Precinct Nos. 1302A/1303A and 1306A as
reflected in their respective Election Returns are [the] true and actual results of the elections;

26. 5.) In giving weight to the incredulous and conflicting testimonies of the obviously biased witnesses
of the protestee-appellee;
6.) In refusing to lend credence to the testimony of the expert witness from the Commission on
Elections that the ballots obtained from Precinct Nos. 1302A/1303A and 1306A are genuine ballots;
and
7.) In refusing to appreciate the contested and revised ballots for Precinct Nos. 1302A/1303A and
1306A and the appreciation of the contested ballots found in Precinct No. 1307A/1307B.11
In a Resolution dated August 23, 2011, the COMELEC First Division12 dismissed the appeal,
noting, as the MeTC did, that Co failed to show that the integrity of the ballots in question was in
fact preserved. Echoing the trial court, the COMELEC First Division ruled that the absence of any
report or record of tampering of the ballot boxes does not preclude the possibility of ballot
tampering.13
It also affirmed the rejection of Co’s reliance on the revision committee report as proof that no post-
election tampering occurred. The COMELEC First Division observed:
We note that protestant-appellant did not offer any evidence to prove his claims of misreading,
miscounting, and misappreciation of the ballots; he posits that the variance between the election
results according to the election documents and the revision of the ballots is in itself enough to
prove his allegations of misreading, miscounting, and misappreciation of the ballots by the Board of
Election Tellers. Protestant-appellant begs the question instead of laying support to his claims. x x x
x Since it could not divine the will of the electorate from the ballots, the trial court had no other
recourse other than to rely on the available election documents. And, We cannot fault the trial court
for doing so when there was no question as to the election documents’ authenticity and validity.
Protestant-appellant harps that the election documents are "mere by-products of the electoral fraud
committed to benefit (protestee-appellee) including but not limited to misreading, miscounting, and
misappreciation of ballots by the Chairpersons of the Board of Election Tellers in order to increase
the votes of the Protestee-Appellee and decrease the votes that should have been properly credited
to Protestant-Appellant Co."
(emphasis in the original)
As previously mentioned, protestant-appellant’s assertion is specious x x x. The records of the case
is bereft of any evidence supporting protestant-appellant’s claims of electoral fraud and, thus, We
concur with the trial court stating, "(w)ithout any evidence, the allegation of misreading,
miscounting, and misappreciation of ballots remains a mere allegation without probative value."14
The COMELEC First Division noted that Co could have, but did not, presented testimonies of
witnesses to substantiate his claims of electoral fraud, albeit he attached affidavits of various
witnesses in his protest. The affidavits, the COMELEC First Division said, asserted, in one form or
another, the electoral malfeasance or misfeasance allegedly committed by the BET. In dismissing
the arguments of Co for his failure to present evidence, the COMELEC commented, "[I]t appears
that protestant-appellant [Co] rested on laurels after seeing the result of the physical count of the
revised ballots and the conclusion of the Technical Examination. In fine, protestant-appellant
proverbially lost the war for want of a nail."15
The fallo of the COMELEC First Division Resolution reads:

27. WHEREFORE, premises considered, the Commission (First Division) RESOLVED, as it hereby
RESOLVES, to DENY the protestant’s Appeal for LACK OF MERIT. The Decision dated 04 May
2011 by Metropolitan Trial Court – Branch 04 City of Manila is hereby AFFIRMED.16
Co then filed a Motion for Reconsideration. In its assailed December 7, 2012 Resolution, the
COMELEC En Banc17 reconsidered the August 23, 2011 Resolution of the First Division, and
accordingly declared Co as the duly elected punong barangay. Vital to the En Banc’s disposition is
its finding that the ballots subjected to revision were genuine. The En Banc found:
x x x [W]e find merit in appellant’s motion for reconsideration. For, protestant [Co] has sufficiently
established that no untoward incident had attended the preservation of the ballots after the
termination of the proceedings of the Board of Election Tellers or from the time the custody of the
ballot boxes is transferred from the BET to the City Treasurer and finally to the trial court. Protestee
who cried post-election fraud is duty- bound to establish that the genuine ballots found inside the
boxes were compromised and tampered at any time during that period and before the revision.
However, no such proof has been adduced by protestee except the discrepancy between the figures
in the ERs and the physical count on revision. But then, said discrepancy could have been caused by
errors in the transposition of the numbers from the ballots to the ERs during the canvassing and not
due to tampering. As earlier intimated, the discrepancy could be attributed to ER manipulation
during the canvassing and not because of the tampering of the ballots which were already found by
an expert and independent body to be genuine and authentic.18
The fallo of the COMELEC En Banc’s Resolution reads:
WHEREFORE, premises considered, the Commission RESOLVED as it hereby RESOLVES to
reconsider its Resolution dated August 23, 2011 and proclaim protestant-appellant as the duly
elected Punong Barangay of Barangay 296, District III, Manila.19
Thus, the present recourse, on the argument that the COMELEC En Banc committed grave abuse of
discretion amounting to lack or excess of jurisdiction when it arbitrarily set aside the Decision of
the MeTC and the Resolution of the COMELEC First Division, in the choice between the revision
results in the protested precincts and the official vote count recorded in the election returns.
Petitioner further argues that the COMELEC gravely abused its discretion when it demanded from
protestee direct proof of actual tampering of ballots to justify consideration of the use of the election
returns in determining the winning candidate in the elections. In fine, petitioner questions the ruling
of the COMELEC giving precedence to the results of the revision over the official canvassing
results.
The Issues
I. WHETHER THE RESPONDENT COMMISSION COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN RULING THAT
PRIVATE RESPONDENT CO HAD SUCCESSFULLY DISCHARGED THE BURDEN OF
PROVING THE INTEGRITY OF THE BALLOTS SUBJECTED TO REVISION. II. WHETHER
THE RESPONDENT COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN REVERSING THE RULING OF
THE COMELEC FIRST DIVISION, TO THE EFFECT THAT PETITIONER REGIO IS THE
DULY-ELECTED PUNONG BARANGAY.
The Court’s Ruling

28. At the outset, it must be noted that the protest case is dismissible for being moot and academic. A
case becomes moot when there is no more actual controversy between the parties or no useful
purpose can be served in passing upon the merits. Generally, courts will not determine a moot
question in a case in which no practical relief can be granted.20
In Malaluan v. COMELEC,21 this Court settled the matter on when an election protest case
becomes moot and academic:
When the appeal from a decision in an election case has already become moot, the case being an
election protest involving the office of mayor the term of which had expired, the appeal is
dismissible on that ground, unless the rendering of a decision on the merits would be of practical
value. (emphasis added)
In the case now before the Court, the position involved is that of a punong barangay. The governing
law, therefore, is Republic Act No. (RA) 9164, as amended by RA 9340. Sec. 4 of the law states:
Sec. 4. Assumption of Office. - The term of office of the barangay and sangguniang kabataan
officials elected under this Act shall commence on August 15, 2002, next following their elections.
The term of office of the barangay and sangguniang kabataan officials elected in the October 2007
election and subsequent elections shall commence at noon of November 30 next following their
election. (emphasis added)
The court takes judicial notice of the holding of barangay elections last October 28, 2013.
Following the elections, the new set of barangay officials already assumed office as of noon of
November 30, 2013. It goes without saying, then, that the term of office of those who were elected
during the October 2010 barangay elections also expired by noon on November 30, 2013. In fine,
with the election of a new punong barangay during the October 28, 2013 elections, the issue of who
the rightful winner of the 2010 barangay elections has already been rendered moot and academic.
Notwithstanding the mootness of the case, We find the need to decide the petition on its merits, in
view of the finding of the COMELEC En Banc that protestant Co should have been declared the
winner for the post of punong barangay for the term 2010-2013. We find that the grave abuse of
discretion committed by the COMELEC En Banc, specifically in ignoring the rules on evidence,
merits consideration. Still in line with the Court’s decision in Malaluan22 to the effect that the
Court can decide on the merits a moot protest if there is practical value in so doing, We find that the
nullification of the COMELEC En Banc’s Resolution is in order, due to its gross contravention of
established rules on evidence in election protest cases. We shall discuss the issues jointly, related as
they are to the finding of the COMELEC En Banc giving primacy to the results of the revision
proceedings over the results of the canvassing as reflected in the election returns.
The doctrine in Rosal v. COMELEC23 and considering the results of the revision vis-à-vis the
results reflected in the official canvassing In Rosal, this Court summarized the standards to be
observed in an election contest predicated on the theory that the election returns do not accurately
reflect the will of the voters due to alleged irregularities in the appreciation and counting of ballots.
These guiding standards are:
(1) The ballots cannot be used to overturn the official count as reflected in the election returns
unless it is first shown affirmatively that the ballots have been preserved with a care which
precludes the opportunity of tampering and suspicion of change, abstraction or substitution;
(2) The burden of proving that the integrity of the ballots has been preserved in such a manner is on
the protestant;