G.R. No. 246679




G.R. No. 246679, March 2, 2021, ♦ Decision, Gesmundo, [CJ] ♦ Dissenting Opinion, Leonen, [J] [ G.R. No. 246679, March 02, 2021 ] GOVERNOR EDGARDO A. TALLADO, PETITIONER, VS. COMMISSION ON ELECTIONS, NORBERTO B. VILLAMIN AND SENANDRO M. JALGALADO, RESPONDENTS. DISSENTING OPINION LEONEN, J.: I maintain my dissent. The ponencia states that "It would be unwarranted to differentiate the dismissals en forced against him from the dismissal based on and pursuant to a decision that was already final. Both dismissals would produce the same effect—the ouster of the official from his title to the office."1 I beg to disagree. The second paragraph of Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman2 provides: An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal.3 The difference between a dismissal pending appeal and dismissal based on a final and executory decision is clearly provided: that the respondent is entitled to his or her salary and other emoluments in case respondent wins the appeal. As elucidated by Justice Jardeleza in his dissent in the September 10, 2019 Decision: To my mind, what is decisive is Tallado's reinstatement to office, which occurred not one, but twice. I am unable to subscribe to the majority opinion because it attributes permanent effect to the dismissals pending appeal, when such permanency is not contemplated by the very Rules that sanction such dismissal. The Ombudsman rules provide a remedy when the non-final but executory dismissal is overturned, i.e., the respondent is considered to have been under preventive suspension for which he shall be paid the salary and other emoluments that he did not receive by reason of his removal. This is a glaring indication that no permanent effect of the dismissal pending appeal is contemplated so that none should attach.4 (Emphasis supplied) The Commission on Elections' cancellation of petitioner's Certificate of Candidacy for the 2019 National and Local Elections was not a grave violation of discretion. Petitioner had served three (3) consecutive terms as Governor. Petitioner's various suspensions did not create any permanent vacancy that can be considered as an involuntary interruption of his term. In Section 44 of the Local Government Code:5 a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office.6 "Temporary vacancy" is defined in Section 46 of the Local Government Code. Section 46 also states that suspension from office is one of the instances when a temporary vacancy is created.7 Notably, Section 46 did not differentiate between preventive suspension and suspension as a penalty. The reason for the elective official's incapacity to hold office must be considered to determine whether the vacancy created is permanent or temporary. Justice Jardeleza raised that "the nature of the vacancy is merely a consequence of such incapacity."8 The definitions of "permanent vacancy" and "temporary vacancy" provided under Sections 44 and 46 of the Local Government Code are clear; thus, "the law does not contemplate a situation where a temporary incapacity would lead to a permanent vacancy, and vice versa."9 In petitioner's case, he was removed from office twice and in both instances, the removals were based on Office of the Ombudsman decisions that were immediately executory, but pending appeal. In both cases, petitioner was reinstated. These instances happened during his term as Governor from 2016 to 2019. To recall, he was removed on November 8, 2016, but was reinstated on April 12, 2016 when the Court of Appeals issued a temporary restraining order. He was once again removed on January 10, 2018, but was reinstated on October 29, 2018, when the Court of Appeals imposed a penalty of six (6) months suspension in lieu of dismissal.10 Had any of his removals been permanent, then there would be no legal basis to reinstate him as Governor.ℒαwρhi৷ A permanent vacancy presupposes that the decision removing the official has become final and executory. In this case, the Office of the Ombudsman's decision included the "accessory penalty of perpetual disqualification from holding any public office."11 However, petitioner was allowed to hold office after his removal. There can be no other conclusion then, but that petitioner was never permanently removed from office. As pointed out by Justice Jardeleza: First, there was no final judgment dismissing Tallado from the service. Anything less than a final judgment of dismissal cannot create a permanent void in the Governor's office. Second, by actions rendered by the CA, Tallado was reinstated as Governor. Not much legal calisthenics is required for one to recognize that the vacancy caused by Tallado's dismissals were only temporary. Verily, Tallado was not permanently incapacitated to discharge the functions of his office, and the vacancy created in his absence was not permanent.12 (Emphasis in the original) The ponente writes that the period of preventive suspension is an effective interruption of the term of an elective official, since no power can be exercised by the elective official while on preventive suspension. However, the exercise of power should not be the sole factor considered. An official placed under preventive suspension is entitled to be paid "the salary and such other emoluments that he did not receive by reason of the suspension of the removal."13 If there is an effective interruption in the term of an elective official that is equivalent to a permanent vacancy, then the elective official should not be entitled to salary and other emoluments for the period of interruption. I vote to grant the Motion for Reconsideration. Footnotes 1 Ponencia, pp. 5-6. 2 Administrative Order No. 07. Rules of Procedure of the Office of the Ombudsman (1990), as amended by Administrative Order No. 17, dated September 7, 2003. 3 Administrative Order No. 07. Rules of Procedure of the Office of the Ombudsman (1990), as amended by Administrative Order No. 17, dated September 7, 2003. 4 Tallado v. Commission on Elections, G.R. No. 246679, September 10, 2019, [Per CJ Bersamin, En Banc]. J. Jardeleza, dissenting. 5 Republic Act No. 7160 (1991). 6 Republic Act No. 7160 (1991). 7 Republic Act No. 7160 (1991) sec. 46 partly states: (a) When the governor, city or municipal mayor, or punong barangay is temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension from office, the vice-governor, city or municipal vice-mayor, or the highest ranking sangguniang barangay member shall automatically exercise the powers and perform the duties and functions of the local chief executive concerned, except the power to appoint, suspend, or dismiss employees which can only be exercised if the period of temporary incapacity exceeds thirty (30) working days. 8 Tallado v. Commission on Elections, G.R. No. 246679, September 10, 2019, [Per CJ Bersamin, En Banc]. J. Jardeleza, dissenting. 9 Id. 10 Id. 11 Id. 12 Id. 13 Sec. 7, Rule III, Administrative Order No. 07. Rules of Procedure of the Office of the Ombudsman (1990), as amended by Administrative Order No. 17, dated September 7, 2003. The Lawphil Project - Arellano Law Foundation