[] The intent to beat the legal prohibition is similar to that of ex-councilor Jun Pe, who in 2013 ran for a fourth term but lost after by moving to Cebu City’s north district; ex-councilors Sisinio Andales and Alvin Arcilla, who in 2019 ran for Term 4 and won but were expelled by Comelec, their claim of term interruption rejected; and party-list Representative Raymond Mendoza, who justifies, although no one has sued, his sixth consecutive term, alleging delays of serving his first two terms.
[] Comelec will accept, as a ministerial duty, his COC or certificate of candidacy but will also act on any complaint or protest against the term extension.
LAST February 19, 2024, Cebu City Mayor Michael Rama said Councilor Joel Garganera of the north district will be completing his final term and won’t be on his list of candidates for 2025. A month later, on March 23, Rama said Garganera can run as he was excluded in the proclamation of the May 2019 election winners.
Apparently, Garganera has convinced the mayor the councilor is not barred by term limit even though he will have served three consecutive terms when he completes service by June 30 next year.
Garganera ran in the 2016, 2019, and 2022 elections and served the three terms. In two elections, he was proclaimed on time, along with the other winners. In 2019, however, he landed #10 and wasn’t included in the regular proclamation of winners. He moved to #8 only after Alvin Arcilla and Sisinio Andales, who were among the original Top Eight in the north, were disqualified for violating the three-term ban and thus left two vacated City Council seats.
INVOLUNTARY INTERRUPTION. Garganera told me Sunday, March 31, it was an involuntary interruption of office because the Comelec decision canceling Andales’s COC became final -- and he was proclaimed winner by a special board of canvassers -- only on July 16, 2019 and then mayor Edgardo Labella swore him into office the following day, July 17. Garganera said that according to jurisprudence that was “an interruption of office, a term not fully served.”
“Yes,” he said, “I am still eligible to run.”
IF GARGANERA WILL RUN in the next election, it will be to seek a literally fourth consecutive term. And he may get away with it or get around the ban, depending largely on:
[] Whether anybody will file a complaint or protest against him. Representative Raymond Mendoza, a party-list congressman based in Cebu, is now serving his sixth consecutive term because there was no complaint or protest against him, aside from his un-litigated claim he had not fully served two early terms because of delays in his assumption of office caused by litigation on party-list seats allocated under the Constitution. If nobody complains, Comelec generally doesn’t act unilaterally on disqualification arising from term limit.
[] Or whether his absence from his seat was voluntary and, if involuntary, whether the seat became vacant and was due for replacement.
How about preventive suspension, as what happened to Arcilla and Andales? The suspension cannot be considered a term interruption. As the Supreme Court said in Aldovino Jr. et al vs. Comelec (December 23, 2009, GR #184836), the suspended official “continues to stay in office although he is barred from exercising functions and enjoying prerogatives of the office within the suspension period.” He is not permanently replaced and there’s no authority to appoint or elect a replacement as no vacancy existed.
If Garganera files a COC for Cebu City councilor in October, the Comelec will accept it as a ministerial duty. However, a complaint or protest will set off a formal proceeding that may lead to disqualification and cancellation of COC, as it did in the cases of Arcilla and Andales.
HOW IT’S DIFFERENT FROM OTHER CASES, at least comparing Garganera’s case with other Cebu cases involving term limits. Strictly speaking:
(1) There was no break yet as Garganera was not resting after his second term expired; he ran but didn’t win and wasn’t included in the list of councilors proclaimed for his third term;
(2) But he filled a vacancy as Andales, the councilor Garganera had replaced, was disqualified and his COC and proclamation canceled.
The period of time for Andales losing his seat and Garganera gaining his was so short that one would ask if it mattered. Yes, Garganera said in Sunday’s interview, and in his favor. He didn’t say though if the SC cases he cited (Aldovino Jr. vs. Comelec; Tallado vs. Comelec,) matched in facts with his own situation.
BREAK DOESN’T NEED TO BE A FULL TERM. Garganera cited this from the rulings: “The break or interruption need not be for a full term of three years or for the major part of of the three-year term, an interruption for any length of time, provided the cause is involuntary, is sufficient to break the continuity of service.”
COMPARING TO MENDOZA’S BREAKS. While Garganera’s assumption for his second term was delayed only by two weeks or so, in Congressman Mendoza’s case, he couldn’t take his seat in 2017 until the SC decided that party-list members should fill the 20% allocated under the Constitution. Mendoza’s camp told me: “In the second and third terms (starting 2010 and 2013), proclamation was delayed by several months… in his first three Congresses, he didn’t serve complete terms. Of his first five terms, he served only two complete terms.” Nobody sued Mendoza on term limit; thus that claim from his camp didn’t undergo scrutiny of litigation.
ROW OVER JUN PE’S CROSSOVER had reached the Comelec -- where it turned out that changing districts (from south to north as councilor) was not the problem but residence was -- but the ruling became irrelevant when he lost the election, along with Tomas Osmeña to Mike Rama.
Which brings up this sobering fact: sometimes it’s not the legality that strikes one out but the people’s vote.
Yet Arcilla and Andales won the vote but the constitutional and statutory rule kicked them in the butt. The Supreme Court could’ve settled their complaint but their appeal from the Comelec disqualification must not have been filed or was rejected; news archives didn’t tell what happened after their public rant.
The people themselves, through the Constitution, tie voters’ hands: elected local officials can be elected and can serve only for three consecutive three-year terms. The vote extending that period wouldn’t matter.
USUAL MEANS TO BEAT TERM LIMIT: Rest for three years and field a son, daughter or wife or some relative or friend to run and warm the seat during the rest period. The risk is that the surrogate may not win or may win but won’t give up the slot in the next election.
Or find a loophole in the law. The risk is there’s none anymore, given the number of claims the Supreme Court has shot down over the years.
