EN BANC

G.R. No. 184836 -- Simon B. Aldovino, Jr., Danilo B. Faller and

Ferdinand N.
Talabong, Petitioners, versus Commissi
on on Elections and Wilfredo F.
Asilo, Respondents.

Promulgated:
December 23, 2009
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SEPARATE CONCURRING OPINION

ABAD, J.:

I join the majority opinion and add a few thoughts of my own.

The Facts

Respondent Wilfredo F. Asilo won three consecutive elections as

councilor of Lucena City, specifically from 1998 to 2001, from 2001 to
2004, and from 2004 to 2007.During his last term or on October 3, 2005,
the Sandiganbayan ordered him placed under preventive suspension for
ninety days in connection with a crime of which he had been
charged. After about thirty-seven days, however, or on November 9,
2005, this Court lifted the order of suspension and allowed Asilo to
resume the duties of his office.

Believing that his brief preventive suspension interrupted his full service
in office and allowed him to seek a fourth term as councilor because of it,
Asilo filed a certificate of candidacy for the same office in the 2007
elections. When this was questioned, both the Second Division of the
Commission on Elections and its En Banc ruled that the three-term limit
did not apply to Asilos case since the Sandiganbayans order of preventive
suspension did not allow him to complete the third term for which he was
elected in 2004.
The Issue

The issue in this case is whether or not respondent Asilos preventive

suspension during his third term as councilor, which shortened the length
of his normal service by thirty-seven days, allowed him to run for a
fourth consecutive term for the same office.

Discussion

The issue in this case revolves around Section 8 of Article X of the 1987
Constitution:

The term of office of elective local officials, except barangay

officials, which shall be determined by law, shall be three years
and no such official shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected.

The first part states that no local official shall serve for more than three
consecutive terms.

The second, on the other hand, states that voluntary renunciation of office
shall not be considered an interruption in the continuity of his service for
the full term for which he was elected.[1]

That the first part is a prohibitory rule is not in question. This is quite
clear. It says that no local official can serve for more than three
terms. Traditionally, politicians find ways of entrenching themselves in
their offices and the consensus is that this practice is not ideal for good
government. Indeed, the Constitution expresses through the three-term
limit rule a determination to open public office to others and bring fresh
ideas and energies into government as a matter of policy. The mandate of
this Court in this case is to enforce such constitutionally established
prohibition.

Actually, what creates the mischief is the statement in the second

part of Section 8 that voluntary renunciation of office shall not be
considered an interruption in the continuity of his service for the full term
for which the local official was elected. The dissenting opinion infers
from this that any service short of full service of three consecutive terms,
save for voluntary renunciation of office, does not bar an elective local
official from running again for the same local government post. In other
words, elected politicians whose services are cut in the course of any term
by involuntary renunciation are eligible for a fourth term.

Relying on its above inference, the dissenting opinion claims that

preventive suspension is, by default, an involuntary renunciation of an
elective officials term of office since he does not choose to be
preventively suspended. Preventive suspension cuts into the full term of
the elected official and gives him justification for seeking a fourth term.

But, there is in reality no such thing as involuntary

renunciation. Renunciation is essentially formal or voluntary. It is the act,
says Webster, of renouncing; a giving up formally or voluntarily, often at
a sacrifice, of a right, claim, title, etc.[2] If the dissenting opinion insists
on using the term involuntary renunciation, it could only mean coerced
renunciation, i.e., renunciation forced on the elected official. With this
meaning, any politician can simply arrange for someone to make him
sign a resignation paper at gun point. This will justify his running for a
fourth term. But, surely, the law cannot be mocked in this way.

Parenthetically, there can be other causes for involuntary renunciation,

interruption of service that is not of the elected officials making. For
instance, through the fault of a truck driver, the elected officials car could
fall into a ditch and put the official in the hospital for a week, cutting his
service in office against his will. Temporary illness can also interrupt
service. Natural calamities like floods and earthquakes could produce the
same result. Since these are involuntary renunciations or interruptions in
the elective officials service, it seems that he would, under the dissenting
opinions theory, be exempt from the three-year rule. But surely, Section 8
could not have intended this for it would overwhelm the constitutional
ban against election for more than three consecutive terms.

Actually, though, voluntary renunciation, the term that the law uses
simply means resignation from or abandonment of office. The elected
official who voluntarily resigns or abandons his duties freely renounces
the powers, rights, and privileges of his position. The opposite of
voluntary renunciation in this context would be removal from office, a
sanction imposed by some duly authorized person or body, not an
initiative of or a choice freely made by the elected official. Should
removal from office be the test, therefore, for determining interruption of
service that will warrant an exception to the three-term limit rule?
 Apparently not, since an elected official could be removed from
office through recall (a judgment by the electorates that he is unfit to
continue serving in
[3] [4]
office), criminal conviction by final judgment, and administrative
[5]
dismissal. Surely, the Constitution could not have intended to reward
those removed in this way with the opportunity to skip the three-year bar.

The only interruption in the continuity of service of an elected

official that does not amount to removal is termination of his service by
operation of law. This is exemplified in the case of Montebon v.
COMELEC,[6] where this Court deemed the highest-ranking councilors
third term as such involuntarily interrupted when he succeeded as vice
mayor by operation of law upon the latters retirement. This Court
considered the ranking councilor eligible to run again as councilor for the
succeeding term.

But Montebon cannot be compared with Asilos case since

Montebons term as councilor ended by operation of law when the vice
mayor retired and Montebon had to step into his shoes.[7] Asilos term, on
the other hand, did not end when the Sandiganbayan placed him under
preventive suspension. He did not vacate his office. It merely enjoined
him in the meantime from performing his duties and exercising his
powers. His term ran the full course; it was not cut.

It might be correct to say that the will of the electorates is for Asilo
to serve the full term of his office. But, given the presumption that the
electorates knew of the law governing preventive suspension when they
elected him, it must be assumed that they elected him subject to the
condition that he can be preventively suspended if the occasion
warrants. Such suspension cannot, therefore, be regarded as a desecration
of the peoples will.

It does not matter that the preventive suspension imposed on the

elected official may later on prove unwarranted. The law provides the
proper remedy for such error. Here, the Supreme Court supplied that
remedy. It set aside the preventive suspension imposed on Asilo by the
Sandiganbayan. There is, on the other hand, no law that allows an elected
official to tack to his term of office the period of service he had lost by
reason of preventive suspension just so he can make up for the loss. The
dissenting opinions position would create a rule that will allow Asilo,
who lost thirty-seven days of service because of that suspension, a right
to be re-elected to a fourth consecutive term of one thousand ninety-five
days (365 days x 3).

In Borja, Jr. v. COMELEC,[8] this Court cited a hypothetical

situation where B is elected Mayor and, during his first term, he is twice
suspended for misconduct for a total of one year. If he is twice reelected
after that, can he run for one more term in the next election? This Court
answered in the affirmative, stating as reason that B successfully served
only two full terms.[9]

But such interpretation of the law wounds its very spirit for, in
effect, it would reward the elected official for his misconduct. Fr. Joaquin
G. Bernas, S.J., a recognized constitutionalist, is also not swayed by
it. He points out that when an elected official is suspended, he shortens
neither his term nor his tenure. He is still seen as the rightful holder of the
office and, therefore, must be considered as having served a full term
during the period of suspension.[10]

ACCORDINGLY, I submit that preventive suspension did not

interrupt Asilos term of office from 2004-2007 and it cannot be
considered an exception to the three-term limit rule. Thus, Asilo is
disqualified from running in the 2007 elections for violation of that rule
pursuant to Section 8, Article X of the Constitution. I vote toGRANT the
petition.

ROBERTO A. ABAD
Associate Justice