Section 40. Disqualifications.
- The following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by
one (1) year or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and
continue to avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
Case: Moreno vs COMELEC (disqualified from running on the ground that he was convicted of final
judgement of the crime arbitrary detention; however, he alleged that he was granted probation)
Issue: Does Moreno’s Probation grant him the right to run in public office?
Held: Yes. His probation grants him the right to run for public office.
COMELEC is not correct in assailing his disqualification through section 40(a).
Sec. 16 of the Probation Law provides, “the final discharge of a probationer shall operate to restore
him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for
any fine imposed as to the offense for which his probation is granted.”
Moreno applied for probation I 1998 During the period of probation, he was still disqualified because
the probation was not yet discharged.
His probation was discharged in 2000, therefore,
The Comelec could have correctly resolved this case by simply applying the law to the letter. Sec.
40(a) of the Local Government Code unequivocally disqualifies only those who have been sentenced
by final judgment for an offense punishable by imprisonment of one (1) year or more, within two (2)
years after serving sentence.
This is as good a time as any to clarify that those who have not served their sentence by reason of the
grant of probation which, we reiterate, should not be equated with service of sentence, should not
likewise be disqualified from running for a local elective office because the two (2)-year period of
ineligibility under Sec. 40(a) of the Local Government Code does not even begin to run.
Note:
(1) PEDNING administrative case does not bar from running for such position.
(2) CONVICTION BY FINAL JUDGEMENT becomes final where
(a) The period for perfecting an appeal has lapsed;
(b) The sentence is partially or totally satisfied or served;
(c) The accused expressly waives in writing his right to appeal; OR
(d) The accused applies probation
*where no appeal of the conviction was seasonably filed by the accused, the judgement against him
becomes final and he is disqualified from running for mayor under Section 40(a) of the LGC.
(3) Case: Fermo vs Comelec (Execution pending appeal)
Issue: WON execution pending appeal may be granted on the ground of “shortness of term”.
Held: NO. shortness of term alone and by itself cannot justify premature execution.
A valid exercise of the discretion to allow execution pending appeal requires
that it should be based "upon good reasons to be stated in a special order."
The following constitute "good reasons" and a combination of two or more
of them will suffice to grant execution pending appeal:
(1) public interest involved or will of the electorate;
(2) the shortness of the remaining portion of the term of the contested
office; and
(3) the length of time that the election contest has been pending (emphasis
supplied).7
In Lauban vs. COMELEC8, this Court ruled that "shortness of the remaining term of office and posting a
bond are not good reasons for execution of a judgment pending appeal . . ." . 9
(4) Condonation Doctrine
