ELECTION LAW parties may hold political conventions or meetings to nominate
their official candidates within thirty days before the
CHAPTER 6
CAMPAIGN
SECTION 79. Definitions. (BP 881)
-As used in this Code:
(a) The term "candidate" refers to any person aspiring for or
seeking an elective public office, who has filed a certificate of
candidacy by himself or through an accredited political party,
aggroupment, or coalition of parties;
(b) The term "election campaign" or "partisan political
activity" refers to an act designed to promote the election or
defeat of a particular candidate or candidates to a public office
which shall include:
(1) Forming organizations, associations, clubs, committees or
other groups of persons for the purpose of soliciting votes
and/or undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies,
parades, or other similar assemblies, for the purpose of
soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or
holding interviews for or against the election of any candidate
for public office;
(4) Publishing or distributing campaign literature or materials
designed to support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for
or against a candidate.
The foregoing enumerated acts if performed for the purpose of
enhancing the chances of aspirants for nomination for
candidacy to a public office by a political party, aggroupment,
or coalition of parties shall not be considered as election
campaign or partisan election activity.
Public expressions or opinions or discussions of probable
issues in a forthcoming election or on attributes of or criticisms
against probable candidates proposed to be nominated in a
forthcoming political party convention shall not be construed as
part of any election campaign or partisan political activity
contemplated under this Article.
INCLUDED
PROHIBITED
SECTION 80. Election campaign or partisan political
activity outside campaign period.
It shall be unlawful for any person, whether or not a voter or
candidate, or for any party, or association of persons, to
engage in an election campaign or partisan political activity
except during the campaign period: Provided, That political
commencement of the campaign period and forty-five days for
Presidential and Vice-Presidential election. (Sec. 35, 1978 EC)
EXCLUDED
CASE:
1. LANOT v. COMELEC
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 164858 November 16, 2006
HENRY P. LANOT, substituted by MARIO S.
RAYMUNDO, Petitioner,
CHARMIE Q. BENAVIDES, Petitioner-Intervenor,
vs.
COMMISSION ON ELECTIONS and VICENTE P.
EUSEBIO, Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari1 assailing the Resolution dated
20 August 2004,2 the Resolution dated 21 May 20043 of the
Commission on Elections (COMELEC) En Banc, and the
Advisory dated 10 May 20044 of COMELEC Chairman
Benjamin S. Abalos ("Chairman Abalos") in SPA No. 04-288.
The 10 May 2004 Advisory of Chairman Abalos enjoined
Acting National Capital Region (NCR) Regional Director
Esmeralda Amora-Ladra ("Director Ladra") from implementing
the COMELEC First Divisions 5 May 2004 Resolution. 5 The 5
May 2004 Resolution ordered (1) the disqualification of
respondent Vicente P. Eusebio ("Eusebio") as a candidate for
Pasig City Mayor in the 10 May 2004 elections, (2) the deletion
of Eusebios name from the certified list of candidates for Pasig
City Mayor, (3) the consideration of votes for Eusebio as stray,
(4) the non-inclusion of votes for Eusebio in the canvass, and
(5) the filing of the necessary information against Eusebio by
the COMELEC Law Department.
The 21 May 2004 Order of the COMELEC En Banc set aside
the 11 May 2004 Order of the COMELEC En Banc 6and
directed the Pasig City Board of Canvassers to proclaim the
winning candidate for Pasig City Mayor without prejudice to the
final outcome of Eusebios disqualification case. The 11 May
2004 Order suspended the proclamation of Eusebio in the
event that he would receive the winning number of votes.
Finally, the 20 August 2004 COMELEC En Banc resolution set
aside the 5 May 2004 Resolution of the COMELEC First
Division7 and nullified the corresponding order. The COMELEC
En Banc referred the case to the COMELEC Law Department
to determine whether Eusebio actually committed the acts
subject of the petition for disqualification.
The Facts
On 19 March 2004, Henry P. Lanot ("Lanot"), Vener Obispo
("Obispo"), Roberto Peralta ("Peralta"), Reynaldo dela Paz
("dela Paz"), Edilberto Yamat ("Yamat"), and Ram Alan Cruz
("Cruz") (collectively, "petitioners"), filed a petition for
disqualification8 under Sections 68 and 80 of the Omnibus
Election Code against Eusebio before the COMELEC. Lanot,
Obispo, and Eusebio were candidates for Pasig City Mayor,
while Peralta, dela Paz, Yamat, and Cruz were candidates for
Pasig City Councilor in the 10 May 2004 elections. The case
was docketed as SPA (NCR-RED) No. C04-008.
Petitioners alleged that Eusebio engaged in an election
campaign in various forms on various occasions outside of the
designated campaign period, such as (1) addressing a large
group of people during a medical mission sponsored by the
Pasig City government; (2) uttering defamatory statements
against Lanot; (3) causing the publication of a press release
predicting his victory; (4) installing billboards, streamers,
posters, and stickers printed with his surname across Pasig
City; and (5) distributing shoes to schoolchildren in Pasig
public schools to induce their parents to vote for him.
In his Answer filed on 29 March 2004,9 Eusebio denied
petitioners allegations and branded the petition as a
harassment case. Eusebio further stated that petitioners
evidence are merely fabricated.
Director Ladra conducted hearings on 2, 5 and 7 April 2004
where she received the parties documentary and testimonial
evidence. Petitioners submitted their memorandum 10 on 15
April 2004, while Eusebio submitted his memorandum 11 on 16
April 2004.
The Ruling of the Regional Director
On 4 May 2004, Director Ladra submitted her findings and
recommendations to the COMELEC. Director Ladra
recommended that:
WHEREFORE, in view of the foregoing, undersigned
respectfully recommends that the instant petition
beGRANTED. Consequently, pursuant to Section 68 (a) and
(e) of the Omnibus Election Code, respondentVICENTE P.
EUSEBIO shall be DISQUALIFIED to run for the position of
Mayor, Pasig City for violation of Section 80 of the Omnibus
Election Code.
Further, undersigned respectfully recommends that the instant
case be referred to the Law Department for it to conduct a
preliminary investigation on the possible violation by the
respondent of Sec. 261 (a) of the Omnibus Election Code. 12
The Ruling of the COMELEC
In a resolution dated 5 May 2004, or five days before the
elections, the COMELEC First Division adopted the findings
and recommendation of Director Ladra. The dispositive portion
of the resolution read:
WHEREFORE, in view of the foregoing, the Commission
(FIRST DIVISION) RESOLVED as it hereby RESOLVESto
ORDER:
1. the disqualification of respondent VICENTE P. EUSEBIO
from being a candidate for mayor of Pasig City in the May 10,
2004 elections;
2. the Election Officers of District I and District II of Pasig City
to DELETE and CANCEL the name of respondent VICENTE
P. EUSEBIO from the certified list of candidates for the City
Offices of Pasig City for the May 10, 2004 elections;
3. the Board of Election Inspectors of all the precincts
comprising the City of Pasig not to count the votes cast for
respondent VICENTE EUSEBIO, the same being cast for a
disqualified candidate and therefore must be considered stray;
4. the City Board of Canvassers of Pasig City not to canvass
the votes erroneously cast for the disqualified candidate
respondent VICENTE P. EUSEBIO, in the event that such
votes were recorded in the election returns[;]
5. the Regional Director of NCR, and the Election Officers of
Pasig City to immediately implement the foregoing directives[;]
6. the Law Department through its Director IV, Atty. ALIODEN
DALAIG to file the necessary information against Vicente P.
Eusebio before the appropriate court.
This Resolution is immediately executory unless restrained by
the Commission En Banc.13 (Emphasis in the original)
In a Very Urgent Advisory14 dated 8 May 2004, or two days
before the elections, Chairman Abalos informed the following
election officers of the resolution of the COMELEC First
Division: Director Ladra; Atty. Romeo Alcazar, Acting Election
Officer of the First District of Pasig City; Ms. Marina Gerona,
Acting Election Officer of the Second District of Pasig City; and
all Chairmen and Members of the Board of Election Inspectors
and City Board of Canvassers of Pasig City (collectively,
"pertinent election officers"). Director Ladra repeated the
dispositive portion of the 5 May 2004 resolution in a
Memorandum15 which she issued the next day. On 9 May
2004, Eusebio filed a motion for reconsideration 16 of the
resolution of the COMELEC First Division.
On election day itself, Chairman Abalos issued the first of the
three questioned COMELEC issuances. In a memorandum,
Chairman Abalos enjoined Director Ladra from implementing
the COMELEC First Divisions 5 May 2004 resolution due to
Eusebios motion for reconsideration. The 10 May 2004
memorandum stated:
Considering the pendency of a Motion for Reconsideration
timely filed by Respondent, Vicente P. Eusebio[,] with the
Commission En Banc, you are hereby ENJOINED from
implementing the Resolution promulgated on May 5, 2004, in
the x x x case until further orders from the Commission En
Banc.17 (Emphasis in the original)
On 11 May 2004, the day after the elections, petitioners Lanot,
Peralta, dela Paz, Yamat, and Cruz filed before the COMELEC
En Banc a motion to suspend the counting and canvassing of
votes and the proclamation of the winning mayoral candidate
for Pasig City.18 Without waiting for Eusebios opposition, the
COMELEC En Banc partially denied the motion on the same
day. The dispositive portion of the Order declared:
WHEREFORE, in view of the foregoing, the Commission En
Banc DENIES the motion for suspension of the counting of
votes and the canvassing of votes. However, in order not to
render moot and academic the issues for final disposition by
the En Banc and considering that on the basis of the
Resolution of the FIRST DIVISION, the evidence of
respondents guilt is strong, the Commission En Banc hereby
ORDERS to SUSPEND, UNTIL FURTHER ORDERS OF THE
COMMISSION, the proclamation of respondent in the event he
receives the winning number of votes.19 (Emphasis in the
original)
On 12 May 2004, Eusebio filed his opposition to petitioners
motion.
On 21 May 2004, the COMELEC En Banc issued the second
questioned issuance. The order quoted from the motion for
advisory opinion of the Pasig City Board of Canvassers which
reported that 98% of the total returns of Pasig City had been
canvassed and that there were only 32 uncanvassed returns
involving 6,225 registered voters. Eusebio had 119,693 votes
while Lanot had 108,941 votes. Thus, the remaining returns
would not affect Eusebios lead over Lanot. The COMELEC En
Banc stated its "established policy" to "expedite the canvass of
votes and proclamation of winning candidates to ease the post
election tension and without prejudice to [its] action in [the] x x
x case"20 and resolved to declare Eusebio as Pasig City Mayor.
The dispositive portion of the 21 May 2004 Order read:
WHEREFORE, this Commission RESOLVED, as it
hereby RESOLVES, to LIFT AND SET ASIDE the order
suspending the proclamation of the respondent.
FURTHER, the City Board of Canvassers is DIRECTED to
complete [the] canvass and immediately proceed with the
proclamation of the winning candidate for Mayor of Pasig
City without prejudice to the final outcome of the case
entitled, "Henry P. Lanot, et al., vs. Vicente Eusebio[,
"] docketed as SPA No. 04-288.21 (Emphasis in the original)
Eusebio was proclaimed as Pasig City Mayor on 23 May 2004
based on the 21 May 2004 Order.1wphi1 On 25 June and 6
July 2004, the COMELEC En Banc conducted hearings on
Eusebios motion for reconsideration of the 5 May 2004
COMELEC First Division resolution. On 6 August 2004, Lanot
filed a motion to annul Eusebios proclamation and to order his
proclamation instead.22
On 20 August 2004, the COMELEC En Banc promulgated the
third questioned issuance. The COMELEC En Banc invoked
Section 1 of COMELEC Resolution No. 2050 ("Resolution
2050") and this Courts rulings in Albaa v.
COMELEC,23 Lonzanida v. COMELEC,24 and Sunga v.
COMELEC25 in justifying the annulment of the order to
disqualify Eusebio and the referral of the case to the Law
Department for preliminary investigation. The dispositive
portion stated:
WHEREFORE, PREMISES CONSIDERED, the resolution
promulgated by the First Division dated 8 May 2004 on the
above-captioned case, affirming the recommendation of the
Regional Director (NCR) to disqualify herein respondent, is
hereby SET ASIDE, and the corresponding ORDER issued
thereunder, ANNULLED. Accordingly, this case is referred to
the Law Department for investigation to finally determine
[whether] the acts complained of were in fact committed by
respondent Eusebio.26 (Emphasis in the original)
Hence, this petition.
The Issues
Lanot alleged that as the COMELECs issuances are not
supported by substantial evidence and are contrary to law and
settled jurisprudence, the COMELEC committed grave abuse
of discretion amounting to lack of or excess of jurisdiction.
Lanot raised the following issues before this Court:
A. WHETHER PUBLIC RESPONDENT COMELEC, IN
ISSUING [ITS] RESOLUTION DATED AUGUST 20, 2004,
ACTED WITH GRAVE ABUSE OF DISCRETION OR LACK
OR IN EXCESS OF JURISDICTION
1. by setting aside the Resolution of Disqualification
promulgated by its First Division on May 5, 2004 affirming the
recommendation of the Regional Election Director (NCR) to
disqualify Respondent, and by annulling the order issued
thereunder,
a) erroneously, whimsically and maliciously ADOPTED and
APPLIED Sections 1 and 2 of Rule 2050 to this case,
b) capriciously VIOLATED COMELEC Resolution 6452 and
Sec. 6, R.A. 6646,
c) erroneously, whimsically and capriciously ARROGATED
unto themselves a quasi-judicial legislation, and
d) erroneously and maliciously MISAPPLIED the Albaa and
Sunga cases to the case at bar;
2. by referring the case to the Law Department for
investigation, it illegally, erroneously and maliciously
DISMISSED the electoral aspect of the case and whimsically
VIOLATED Resolution 6452 and Section 6 of RA 6646;
3. by disregarding the Order of disqualification, it erroneously
and whimsically IGNORED and DISREGARDED the inchoate
right of petitioner as the winning party.
B. WHETHER PUBLIC RESPONDENT ACTED WITH GRAVE
ABUSE OF DISCRETION OR IN EXCESS OR LACK OF
JURISDICTION IN ISSUING ITS RESOLUTION DATED MAY
21, 2004
1. by lifting and setting aside the Order of suspension of
proclamation by winning candidate issued on May 11, 2004, it
erroneously and intentionally and whimsically DISREGARDED
the strong evidence of guilt of Respondent to warrant the
suspension of his proclamation and erroneously and
capriciously VIOLATED Resolution of May 11, 2004.
C. WHETHER CHAIRMAN BENJAMIN ABALOS OF THE
COMELEC ACTED WITH GRAVE ABUSE OF POWER,
AUTHORITY OR DISCRETION OR LACK OR IN EXCESS OF
JURISDICTION
1. by unilaterally enjoining the implementation of the Order of
Respondents disqualification despite the condition therein that
it could only be restrained by the Commission En Banc, and
whether or not he illegally, erroneously and blatantly
whimsically grabbed the exclusive adjudicatory power of the
Commission En Banc.
D. WHETHER RESPONDENT COMELEC COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION IN CAPRICIOUSLY
DISREGARDING THE RESOLUTION OF MAY 5, 2004 AS
ALREADY FINAL AND EXECUTED AND IN FAILING TO
ORDER THE PROCLAMATION OF PETITIONER.
E. a) WHETHER THERE ARE PREPONDERANT EVIDENCE
TO WARRANT RESPONDENT EUSEBIOS
DISQUALIFICATION.
b) WHETHER RESPONDENT EUSEBIO SHOULD BE
DEEMED DISQUALIFIED WITH FOUR (4) AFFIRMATIVE
VOTES OF COMMISSIONERS, TWO (2) VOTES FROM
COMMISSIONERS BORRA AND GARCILLANO WHO
VOTED FOR THE DISQUALIFICATION IN THE MAY 5, 2004
RESOLUTION (ANNEX "B") AND TWO (2) VOTES FROM
COMMISSIONERS TUAZON, JR. AND SADAIN WHO VOTED
TO DISQUALIFY HIM IN THEIR DISSENTING OPINION
(ANNEX "A-1") SHOULD REFERRAL OF THE CASE TO THE
LAW DEPARTMENT BY RESPONDENT COMELEC BE
DECLARED A PATENT NULLITY.
F. IN CASE OF DISQUALIFICATION OF RESPONDENT
EUSEBIO, WHETHER PETITIONER LANOT CAN BE
PROCLAIMED AND ALLOWED TO SIT AS MAYOR-ELECT,
AND WHETHER THE DOCTRINES IN TOPACIO, CODILLA,
JR., LABO AND OTHERS APPLY IN THIS CASE.27
The Ruling of the Court
The petition has no merit.
Parties to the Present Petition
On 13 April 2005, during the pendency of this case, an
unidentified person shot and killed Lanot in Pasig City. It
seemed that, like an endangered specie, the disqualification
case would be extinguished by Lanots death. However, on 27
April 2005, Lanots counsel manifested, over Eusebios
objections, that Mario S. Raymundo ("Raymundo"), a
registered voter and former Mayor of Pasig City, is Lanots
substitute in this case. Also, on 25 August 2005, Charmie Q.
Benavides ("Benavides"), a Pasig City mayoral candidate and
the third placer in the 10 May 2004 elections, filed a petition-in-
intervention. Benavides asked whether she could be
proclaimed Pasig City Mayor because she is the surviving
qualified candidate with the highest number of votes among
the remaining candidates.
The law and the COMELEC rules have clear pronouncements
that the electoral aspect of a disqualification case is not
rendered inutile by the death of petitioner, provided that there
is a proper substitution or intervention of parties while there is
a pending case. On Raymundos substitution, any citizen of
voting age is competent to continue the action in Lanots
stead.28 On Benavides intervention, Section 6 of Republic Act
No. 6646, or the Electoral Reforms Law of 1987 ("Electoral
Reforms Law of 1987"), allows intervention in proceedings for
disqualification even after elections if no final judgment has
been rendered. Although Eusebio was already proclaimed as
Pasig City Mayor, Benavides could still intervene, as there was
still no final judgment in the proceedings for disqualification. 29
The case for disqualification exists, and survives, the election
and proclamation of the winning candidate because an outright
dismissal will unduly reward the challenged candidate and may
even encourage him to employ delaying tactics to impede the
resolution of the disqualification case until after he has been
proclaimed.30 The exception to the rule of retention of
jurisdiction after proclamation applies when the challenged
candidate becomes a member of the House of
Representatives or of the Senate, where the appropriate
electoral tribunal would have jurisdiction. There is no law or
jurisprudence which says that intervention or substitution may
only be done prior to the proclamation of the winning
candidate. A substitution is not barred by prescription because
the action was filed on time by the person who died and who is
being substituted. The same rationale applies to a petition-in-
intervention.
COMELECs Grave Abuse of Discretion
Propriety of Including Eusebios Name in the Pasig City
Mayoral Candidates and of the Counting of Votes and
Canvassing of Election Returns
In its 5 May 2004 resolution, the COMELEC First Division
ordered the pertinent election officials to delete and cancel
Eusebios name from the certified list of Pasig City mayoral
candidates, not to count votes cast in Eusebios favor, and not
to include votes cast in Eusebios favor in the canvass of
election returns. Eusebio filed a motion for reconsideration of
the resolution on 9 May 2004. Hence, COMELEC Chairman
Abalos issued a memorandum on 10 May 2004 which enjoined
the pertinent election officials from implementing the 5 May
2004 resolution. In a Resolution dated 11 May 2004, the
COMELEC En Banc subsequently ratified and adopted
Chairman Abalos 10 May 2004 memorandum when it denied
Lanots motion to suspend the counting of votes and
canvassing of election returns.
Lanot claims that Chairman Abalos whimsically grabbed the
adjudicatory power of the COMELEC En Banc when he issued
the 10 May 2004 memorandum. Lanot asserts that the last
sentence in the dispositive portion of the COMELEC First
Divisions 5 May 2004 Resolution, "[t]his Resolution is
immediately executory unless restrained by the Commission
En Banc," should have prevented Chairman Abalos from acting
on his own.
Lanots claim has no basis, especially in light of the 11 May
2004 Resolution of the COMELEC En Banc. The COMELEC
En Bancs explanation is apt:
Suspension of these proceedings is tantamount to an
implementation of the Resolution of the FIRST DIVISION
which had not yet become final and executory by reason of the
timely filing of a Motion for Reconsideration thereof. A
disposition that has not yet attained finality cannot be
implemented even through indirect means.31
Moreover, Chairman Abalos 10 May 2004 memorandum is
merely an advisory required by the circumstances at the time.
Eusebio filed a motion for reconsideration on 9 May 2004, and
there was not enough time to resolve the motion for
reconsideration before the elections. Therefore, Eusebio was
not yet disqualified by final judgment at the time of the
elections. Section 6 of the Electoral Reforms Law of 1987
provides that "[a] candidate who has been declared by final
judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be counted." Under Section 13
of the COMELEC Rules of Procedure, a decision or resolution
of a Division in a special action becomes final and executory
after the lapse of fifteen days following its promulgation while a
decision or resolution of the COMELEC En Banc becomes final
and executory after five days from its promulgation unless
restrained by this Court.
Propriety of the Lifting of the Suspension of Eusebios
Proclamation
In the same 11 May 2004 Resolution, the COMELEC En Banc
ordered the suspension of Eusebios proclamation in the event
he would receive the winning number of votes. Ten days later,
the COMELEC En Banc set aside the 11 May 2004 order and
directed the Pasig City Board of Canvassers to proclaim
Eusebio as the winning candidate for Pasig City Mayor. The
COMELEC relied on Resolutions 7128 and 7129 32 to justify the
counting of Eusebios votes and quoted from the Resolutions
as follows:
Resolution No. 7128 -
xxxx
NOW THEREFORE, the Commission RESOLVED, as it
hereby RESOLVES, to adopt certain policies and to direct all
Board of Canvassers, as follows:
1. to speed up its canvass and proclamation of all winning
candidates except under the following circumstances:
a. issuance of an order or resolution suspending the
proclamation;
b. valid appeal[s] from the rulings of the board in cases where
appeal is allowed and the subject appeal will affect the results
of the elections;
x x x x.
Resolution No. 7129
xxxx
NOW THEREFORE, the Commission on Elections, by virtue of
the powers vested in it by the Constitution, the Omnibus
Election Code and other elections laws, has RESOLVED, as it
hereby RESOLVES, to refrain from granting motions and
petitions seeking to postpone proclamations by the Board of
Canvassers and other pleadings with similar purpose unless
they are grounded on compelling reasons, supported by
convincing evidence and/or violative of the canvassing
procedure outlined in Resolution No. 6669.
We agree with Eusebio that the COMELEC En Banc did not
commit grave abuse of discretion in issuing its 21 May 2004
order. The COMELEC has the discretion to suspend the
proclamation of the winning candidate during the pendency of
a disqualification case when evidence of his guilt is
strong.33 However, an order suspending the proclamation of a
winning candidate against whom a disqualification case is filed
is merely provisional in nature and can be lifted when
warranted by the evidence.34
Propriety of the Dismissal of the
Disqualification Case and of the
Referral to the COMELEC
Law Department
Lanot filed the petition for disqualification on 19 March 2004, a
little less than two months before the 10 May 2004 elections.
Director Ladra conducted hearings on the petition for
disqualification on 2, 5 and 7 April 2004. Director Ladra
submitted her findings and recommendations to the COMELEC
on 4 May 2004. The COMELEC First Division issued a
resolution adopting Director Ladras recommendations on 5
May 2004. Chairman Abalos informed the pertinent election
officers of the COMELEC First Divisions resolution through an
Advisory dated 8 May 2004. Eusebio filed a Motion for
Reconsideration on 9 May 2004. Chairman Abalos issued a
memorandum to Director Ladra on election day, 10 May 2004,
and enjoined her from implementing the 5 May 2004
COMELEC First Division resolution. The petition for
disqualification was not yet finally resolved at the time of the
elections. Eusebios votes were counted and canvassed, after
which Eusebio was proclaimed as the winning candidate for
Pasig City Mayor. On 20 August 2004, the COMELEC En Banc
set aside the COMELEC First Divisions order and referred the
case to the COMELEC Law Department.
In its 20 August 2004 resolution, the COMELEC En Banc relied
heavily on the timing of the filing of the petition. The
COMELEC En Banc invoked Section 1 of Resolution No. 2050,
which states:
1. Any complaint for the disqualification of a duly registered
candidate based upon any of the grounds specifically
enumerated under Section 68 of the Omnibus Election Code,
filed directly with the Commission before an election in which
the respondent is a candidate, shall be inquired into by the
Commission for the purpose of determining whether the acts
complained of have in fact been committed. Where the inquiry
by the Commission results in a finding before election, that the
respondent candidate did in fact commit the acts complained,
the Commission shall order the disqualification of the
respondent candidate from continuing as such candidate.
In case such complaint was not resolved before the
election, the Commission may motu proprio, or on motion
of any of the parties, refer the complaint to the Law
Department of the Commission as the instrument of the
latter in the exercise of its exclusive power to conduct a
preliminary investigation of all cases involving criminal
infractions of the election laws. Such recourse may be
availed of irrespective of whether the respondent has been
elected or has lost in the election. (Emphasis added)
The COMELEC also quoted from Sunga v. COMELEC to
justify its referral of the disqualification case to its Law
Department.
x x x We discern nothing in COMELEC Resolution No. 2050
declaring, ordering or directing the dismissal of a
disqualification case filed before the election but which
remained unresolved after the election. What the Resolution
mandates in such a case is for the Commission to refer the
complaint to its Law Department for investigation to determine
whether the acts complained of have in fact been committed by
the candidate sought to be disqualified. The findings of the Law
Department then become the basis for disqualifying the erring
candidate. This is totally different from the other two situations
contemplated by Resolution No. 2050, i.e., a disqualification
case filed after the election but before the proclamation of
winners and that filed after the election and the proclamation of
winners, wherein it was specifically directed by the same
Resolution to be dismissed as a disqualification case.35
For his part, Eusebio asserts that the COMELEC has the
prerogative to refer the disqualification case to its Law
Department. Thus, no grave abuse of discretion can be
imputed to the COMELEC. Moreover, the pendency of a case
before the Law Department for purposes of preliminary
investigation should be considered as continuation of the
COMELECs deliberations.
However, contrary to the COMELEC En Bancs reliance on
Resolution No. 2050 in its 20 August 2004 resolution, the
prevailing law on the matter is Section 6 of the Electoral
Reforms Law of 1987. Any rule or action by the COMELEC
should be in accordance with the prevailing law. Section 6 of
the Electoral Reforms Law of 1987 provides:
Section 6. Effect of Disqualification Case. Any candidate
who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by
final judgment before an election to be disqualified and he
is voted for and receives the winning number of votes in
such election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his
guilt is strong. (Emphasis added)
Moreover, this Courts ruling in Sunga was further explained
in Bagatsing v. COMELEC,36 thus:
The COMELEC in Sunga obviously misapplied Resolution No.
2050 in dismissing the disqualification case therein simply
because it remained unresolved before the election and, in lieu
thereof, referring it to its Law Department for possible criminal
prosecution of the respondent for violation of the election laws.
Notably, there is nothing in paragraph 1 of Resolution No. 2050
which directs the dismissal of the disqualification case not
resolved before the election. It says the COMELEC "may motu
prop[r]io or on motion of any of the parties, refer the complaint
to the Law Department of the Commission as an instrument of
the latter in the exercise of its exclusive power to conduct a
preliminary investigation of all cases involving criminal
infractions of the election laws." The referral to the Law
Department is discretionary on the part of the COMELEC and
in no way may it be interpreted that the COMELEC will dismiss
the disqualification case or will no longer continue with the
hearing of the same. The reason for this is that a
disqualification case may have two (2) aspects, the
administrative, which requires only a preponderance of
evidence to prove disqualification, and the criminal, which
necessitates proof beyond reasonable doubt to convict. Where
in the opinion of the COMELEC, the acts which are grounds for
disqualification also constitute a criminal offense or offenses,
referral of the case to the Law Department is proper.
xxxx
It bears stressing that the Court in Sunga recognized the
difference between a disqualification case filed before and after
an election when, as earlier mentioned, it stated that the
referral of the complaint for disqualification where the case is
filed before election "is totally different from the other two
situations contemplated by Resolution No. 2050, i.e., a
disqualification case filed after the election but before the
proclamation of winners and that filed after the election and the
proclamation of winners, wherein it was specifically directed by
the same Resolution to be dismissed as a disqualification
case."
Indeed, the 20 August 2004 resolution of the COMELEC En
Banc betrayed its misunderstanding of the two aspects of a
disqualification case. The electoral aspect of a disqualification
case determines whether the offender should be disqualified
from being a candidate or from holding office. Proceedings are
summary in character and require only clear preponderance of
evidence. An erring candidate may be disqualified even without
prior determination of probable cause in a preliminary
investigation. The electoral aspect may proceed independently
of the criminal aspect, and vice-versa.
The criminal aspect of a disqualification case determines
whether there is probable cause to charge a candidate for an
election offense. The prosecutor is the COMELEC, through its
Law Department, which determines whether probable cause
exists.37 If there is probable cause, the COMELEC, through its
Law Department, files the criminal information before the
proper court. Proceedings before the proper court demand a
full-blown hearing and require proof beyond reasonable doubt
to convict.38 A criminal conviction shall result in the
disqualification of the offender, which may even include
disqualification from holding a future public office.39
The two aspects account for the variance of the rules on
disposition and resolution of disqualification cases filed before
or after an election. When the disqualification case is filed
before the elections, the question of disqualification is raised
before the voting public. If the candidate is disqualified after the
election, those who voted for him assume the risk that their
votes may be declared stray or invalid. There is no such risk if
the petition is filed after the elections. 40 The COMELEC En
Banc erred when it ignored the electoral aspect of the
disqualification case by setting aside the COMELEC First
Divisions resolution and referring the entire case to the
COMELEC Law Department for the criminal aspect.
Moreover, the COMELEC En Bancs act and Eusebios
assertions lose sight of the provisions of Resolution No. 6452
("Resolution 6452"), "Rules Delegating to COMELEC Field
Officials the Hearing and Reception of Evidence of
Disqualification Cases Filed in Connection with the May 10,
2004 National and Local Elections; Motu ProprioActions and
Disposition of Disqualification Cases," promulgated on 10
December 2003. The pertinent portions of Resolution 6452
provide:
Section 1. Delegation of reception of evidence. The
Commission hereby designates its field officials who are
members of the Philippine Bar to hear and receive evidence in
the following petitions:
xxx
c. Petition to disqualify a candidate pursuant to Sec. 68 of the
Omnibus Election Code and disqualify a candidate for lack of
qualifications or possessing same grounds for disqualification;
xxx
Sec. 2. Suspension of the Comelec Rules of Procedure. In
the interest of justice and in order to attain speedy disposition
of cases, the Comelec Rules of Procedure or any portion
thereof inconsistent herewith is hereby suspended.
Sec. 3. Where to file petitions. The petitions shall be filed
with the following offices of the Commission:
xxx
b. For x x x local positions including highly-urbanized cities, in
the National Capital Region, with the Regional Election
Director of said region;
xxx
PROVIDED, in cases of highly-urbanized cities the filing of
petitions for disqualification shall be with the Office of the
Regional Election Directors. x x x
xxxx
The Regional Election Directors concerned shall hear and
receive evidence strictly in accordance with the procedure and
timeliness herein provided.
Sec. 5. Procedure in filing petitions. For purposes of the
preceding section, the following procedure shall be observed:
xxxx
C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT
TO SEC. 68 OF THE OMNIBUS ELECTION CODE AND
PETITION TO DISQUALIFY FOR LACK OF
QUALIFICATIONS OR POSSESSING SAME GROUNDS FOR
DISQUALIFICATION
1. The verified petition to disqualify a candidate pursuant to
Sec. 68 of the Omnibus Election Code x x x may be filed any
day after the last day [of] filing of certificates of candidacy but
not later than the date of proclamation.
2. The petition to disqualify a candidate pursuant to Sec. 68 of
the Omnibus Election Code shall be filed in ten (10) legible
copies with the concerned office mentioned in Sec. 3
personally or through a duly authorized representative by any
citizen of voting age, or duly registered political party,
organization or coalition of political parties against any
candidate who, in an action or protest in which he is a party, is
declared by final decision of a competent court guilty of, or
found by the Commission of:
2.a having given money or other material consideration to
influence, induce or corrupt the voters or public officials
performing electoral functions; or
xxx
2.d having solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104 of the
Omnibus Elections Code; or
2.e having violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v and cc sub-paragraph 6 of the Omnibus
Election Code, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office.
xxxx
Indeed, what the COMELEC did in its 20 August 2004
resolution was contrary to "the interest of justice and x x x
speedy disposition of cases." Resolution No. 2050 referring the
electoral aspect to the Law Department is procedurally
inconsistent with Resolution 6452 delegating reception of
evidence of the electoral aspect to the Regional Election
Director. The investigation by the Law Department under
Resolution No. 2050 produces the same result as the
investigation under Resolution 6452 by the Regional Election
Director. Commissioner Tuasons dissent underscored the
inconsistency between the avowed purpose of Resolution 6452
and the COMELEC En Bancs 20 August 2004 resolution:
x x x [T]he preliminary investigation for purposes of finding
sufficient ground for [Eusebios] disqualification, has already
been accomplished by the RED-NCR prior to the election.
There also appears no doubt in my mind, that such
recommendation of the investigating officer, RED-NCR, was
substantive and legally sound. The First Division agreed with
the result of the investigation/recommendation, with the facts of
the case clearly distilled in the assailed resolution. This, I
likewise found to be in accord with our very own rules and the
jurisprudential doctrines aforestated. There could be no rhyme
and reason then to dismiss the electoral aspect of the case
(i.e., disqualification) and refer the same to the Law
Department for preliminary investigation. As held in Sunga,
clearly, the legislative intent is that the COMELEC should
continue the trial and hearing of the disqualification case to its
conclusion, i.e., until judgment is rendered thereon. The
criminal aspect of the case is an altogether different issue.
Sunga said the reason is obvious: A candidate guilty of
election offenses would be undeservedly rewarded, instead of
punished, by the dismissal of the disqualification case against
him simply because the investigating body was unable, for any
reason caused upon it, to determine before the election if the
offenses were indeed committed by the candidate sought to be
disqualified. All that the erring aspirant would need to do is to
employ delaying tactics so that the disqualification case based
on the commission of election offenses would not be decided
before the election. This scenario is productive of more fraud
which certainly is not the main intent and purpose of the law. 41
We agree with Lanot that the COMELEC committed grave
abuse of discretion when it ordered the dismissal of the
disqualification case pending preliminary investigation of the
COMELEC Law Department. A review of the COMELEC First
Divisions 5 May 2004 resolution on Eusebios disqualification
is in order, in view of the grave abuse of discretion committed
by the COMELEC En Banc in its 20 August 2004 resolution.
Rightful Pasig City Mayor
Eusebios Questioned Acts
We quote the findings and recommendations of Director Ladra
as adopted by the COMELEC First Division:
The questioned acts of [Eusebio] are as follows:
1) The speech uttered on February 14, 2004 during the
meeting dubbed as "Lingap sa Barangay" in Barangay San
Miguel, Pasig City wherein [Eusebio] allegedly asked the
people to vote for him and solicited for their support x x x:
xxxx
2) Another speech given on March 17, 2004 in ROTC St.,
Rosario, Pasig City wherein [Eusebio] again allegedly
uttered defamatory statements against co-[candidate]
Lanot and campaigned for his (respondents) and his
groups candidacy.
xxxx
3) He caused to be published in leading newspapers about
a survey allegedly done by Survey Specialist, Inc. showing
him to be leading in the mayoralty race in Pasig City.
xxxx
4) He paid a political advertisement in the Philippine Free
Press in the amount of P193,660.00 as published in its
issue dated February 7, 2004.
xxxx
5) The display of billboards containing the words
"Serbisyo Eusebio" and "ST" which means "Serbisyong
Totoo" before the start of the campaign period.
xxxx
6) Posters showing the respondent and his running mate
Yoyong Martirez as well those showing the name "KA
ENTENG EUSEBIO" and "BOBBY EUSEBIO" in connection
with the dengue project were posted everywhere even
before the start of the campaign period.
xxxx
7) Streamers bearing the words "Pasig City is for PEACE"
were likewise displayed with the two letters "E"
prominently written.
xxxx
8) Stickers of [Eusebio] were likewise pasted all over the
city before the start of the campaign period.
xxxx
9) [Eusebio] engaged in vote-buying by distributing shoes
to the students while telling the parents that by way of
gratitude, they should vote for him.
x x x x (Emphasis in the original)42
Eusebio argues that: (1) Lanot is in estoppel for participating in
the proceedings before the COMELEC Law Department; (2)
Lanot abandoned the present petition also because of his
participation in the proceedings before the COMELEC Law
Department; and (3) Lanot is guilty of forum-shopping. These
arguments fail for lack of understanding of the two aspects of
disqualification cases. The proceedings before the COMELEC
Law Department concern the criminal aspect, while the
proceedings before this Court concern the electoral aspect, of
disqualification cases. The proceedings in one may proceed
independently of the other.
Eusebio is correct when he asserts that this Court is not a trier
of facts. What he overlooks, however, is that this Court may
review the factual findings of the COMELEC when there is
grave abuse of discretion and a showing of arbitrariness in the
COMELECs decision, order or resolution.43 We find that the
COMELEC committed grave abuse of discretion in issuing its
20 August 2004 resolution.
Our review of the factual findings of the COMELEC, as well as
the law applicable to this case, shows that there is no basis to
disqualify Eusebio. Director Ladra recommended the
disqualification of Eusebio "for violation of Section 80 of the
Omnibus Election Code." The COMELEC First Division
approved Director Ladras recommendation and disqualified
Eusebio. Section 80 of the Omnibus Election Code provides:
SECTION 80. Election campaign or partisan political activity
outside campaign period. It shall be unlawful for any person,
whether or not a voter or candidate, or for any party, or
association of persons, to engage in an election campaign or
partisan political activity except during the campaign
period: Provided, That political parties may hold political
conventions or meetings to nominate their official candidates
within thirty days before the commencement of the campaign
period and forty-five days for Presidential and Vice-Presidential
election. (Emphasis supplied)
What Section 80 of the Omnibus Election Code prohibits is "an
election campaign or partisan political activity" by a "candidate"
"outside" of the campaign period. Section 79 of the same Code
defines "candidate," "election campaign" and "partisan political
activity" as follows:
SECTION 79. Definitions. As used in this Code:
(a) The term "candidate" refers to any person aspiring for or
seeking an elective public office, who has filed a certificate of
candidacy by himself or through an accredited political party,
aggroupment, or coalition of parties;
(b) The term "election campaign" or "partisan political activity"
refers to an act designed to promote the election or defeat of a
particular candidate or candidates to a public office which shall
include:
(1) Forming organizations, associations, clubs, committees or
other groups of persons for the purpose of soliciting votes
and/or undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies,
parades, or other similar assemblies, for the purpose of
soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or
holding interviews for or against the election of any candidate
for public office;
(4) Publishing or distributing campaign literature or materials
designed to support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for
or against a candidate.
The foregoing enumerated acts if performed for the purpose of
enhancing the chances of aspirants for nomination for
candidacy to a public office by a political party, aggroupment,
or coalition of parties shall not be considered as election
campaign or partisan election activity.
Public expressions or opinions or discussions of probable
issues in a forthcoming election or on attributes of or criticisms
against probable candidates proposed to be nominated in a
forthcoming political party convention shall not be construed as
part of any election campaign or partisan political activity
contemplated under this Article.
Thus, the essential elements for violation of Section 80 of the
Omnibus Election Code are: (1) a person engages in an
election campaign or partisan political activity; (2) the act is
designed to promote the election or defeat of a particular
candidate or candidates; (3) the act is done outside the
campaign period.
The second element requires the existence of a "candidate."
Under Section 79(a), a candidate is one who "has filed a
certificate of candidacy" to an elective public office. Unless one
has filed his certificate of candidacy, he is not a "candidate."
The third element requires that the campaign period has not
started when the election campaign or partisan political activity
is committed.
Assuming that all candidates to a public office file their
certificates of candidacy on the last day, which under Section
75 of the Omnibus Election Code is the day before the start of
the campaign period, then no one can be prosecuted for
violation of Section 80 for acts done prior to such last day.
Before such last day, there is no "particular candidate or
candidates" to campaign for or against. On the day
immediately after the last day of filing, the campaign period
starts and Section 80 ceases to apply since Section 80 covers
only acts done "outside" the campaign period.
Thus, if all candidates file their certificates of candidacy on the
last day, Section 80 may only apply to acts done on such last
day, which is before the start of the campaign period and after
at least one candidate has filed his certificate of candidacy.
This is perhaps the reason why those running for elective
public office usually file their certificates of candidacy on the
last day or close to the last day.
There is no dispute that Eusebios acts of election campaigning
or partisan political activities were committed outside of the
campaign period. The only question is whether Eusebio, who
filed his certificate of candidacy on 29 December 2003, was a
"candidate" when he committed those acts before the start of
the campaign period on 24 March 2004.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the
deadline for the filing of certificates of candidacy to 120 days
before election day. Thus, the original deadline was moved
from 23 March 2004 to 2 January 2004, or 81 days earlier. The
crucial question is: did this change in the deadline for filing the
certificate of candidacy make one who filed his certificate of
candidacy before 2 January 2004 immediately liable for
violation of Section 80 if he engaged in election campaign or
partisan political activities prior to the start of the campaign
period on 24 March 2004?
Section 11 of RA 8436 provides:
SECTION 11. Official Ballot. The Commission shall prescribe
the size and form of the official ballot which shall contain the
titles of the positions to be filled and/or the propositions to be
voted upon in an initiative, referendum or plebiscite. Under
each position, the names of candidates shall be arranged
alphabetically by surname and uniformly printed using the
same type size. A fixed space where the chairman of the
Board of Election Inspectors shall affix his/her signature to
authenticate the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to
participate in the election shall not be later than one
hundred twenty (120) days before the elections: Provided,
That, any elective official, whether national or local, running for
any office other than the one which he/she is holding in a
permanent capacity, except for president and vice-president,
shall be deemed resigned only upon the start of the campaign
period corresponding to the position for which he/she is
running: Provided, further, That, unlawful acts or omissions
applicable to a candidate shall take effect upon the start of the
aforesaid campaign period: Provided, finally, That, for
purposes of the May 11, 1998 elections, the deadline for filing
of the certificate of candidacy for the positions of President,
Vice-President, Senators and candidates under the party-list
system as well as petitions for registration and/or manifestation
to participate in the party-list system shall be on February 9,
1998 while the deadline for the filing of certificate of candidacy
for other positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing
Office and/or the Bangko Sentral ng Pilipinas at the price
comparable with that of private printers under proper security
measures which the Commission shall adopt. The Commission
may contract the services of private printers upon certification
by the National Printing Office/Bangko Sentral ng Pilipinas that
it cannot meet the printing requirements. Accredited political
parties and deputized citizens arms of the Commission may
assign watchers in the printing, storage and distribution of
official ballots.
To prevent the use of fake ballots, the Commission through the
Committee shall ensure that the serial number on the ballot
stub shall be printed in magnetic ink that shall be easily
detectable by inexpensive hardware and shall be impossible to
reproduce on a photocopying machine, and that identification
marks, magnetic strips, bar codes and other technical and
security markings, are provided on the ballot.
The official ballots shall be printed and distributed to each
city/municipality at the rate of one (1) ballot for every registered
voter with a provision of additional four (4) ballots per
precinct.44 (Emphasis added)
Under Section 11 of RA 8436, the only purpose for the early
filing of certificates of candidacy is to give ample time for the
printing of official ballots. This is clear from the following
deliberations of the Bicameral Conference Committee:
SENATOR GONZALES. Okay. Then, how about the campaign
period, would it be the same[,] uniform for local and national
officials?
THE CHAIRMAN (REP. TANJUATCO). Personally, I would
agree to retaining it at the present periods.
SENATOR GONZALES. But the moment one files a certificate
of candidacy, hes already a candidate, and there are many
prohibited acts on the part of candidate.
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
SENATOR GONZALES. And you cannot say that the
campaign period has not yet began [sic].
THE CHAIRMAN (REP. TANJUATCO). If we dont provide that
the filing of the certificate will not bring about ones being a
candidate.
SENATOR GONZALES. If thats a fact, the law cannot change
a fact.
THE CHAIRMAN (REP. TANJUATCO). No, but if we can
provide that the filing of the certificate of candidacy will not
result in that official vacating his position, we can also provide
that insofar he is concerned, election period or his being a
candidate will not yet commence. Because here, the reason
why we are doing an early filing is to afford enough time to
prepare this machine readable ballots.
So, with the manifestations from the Commission on Elections,
Mr. Chairman, the House Panel will withdraw its proposal and
will agree to the 120-day period provided in the Senate
version.
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr.
Chairman.
xxxx
SENATOR GONZALES. How about prohibition against
campaigning or doing partisan acts which apply immediately
upon being a candidate?
THE CHAIRMAN (REP. TANJUATCO). Again, since the
intention of this provision is just to afford the Comelec enough
time to print the ballots, this provision does not intend to
change the campaign
periods as presently, or rather election periods as presently
fixed by existing law.
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be
subject to the other prohibition.
THE CHAIRMAN (REP. TANJUATCO). Thats right.
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
THE CHAIRMAN (REP. TANJUATCO). In other words,
actually, there would be no conflict anymore because we are
talking about the 120-day period before election as the last day
of filing a certificate of candidacy, election period starts 120
days also. So that is election period already. But he will still not
be considered as a candidate.45(Emphasis added)
Thus, because of the early deadline of 2 January 2004 for
purposes of printing of official ballots, Eusebio filed his
certificate of candidacy on 29 December 2003. Congress,
however, never intended the filing of a certificate of candidacy
before 2 January 2004 to make the person filing to become
immediately a "candidate" for purposes other than the printing
of ballots. This legislative intent prevents the immediate
application of Section 80 of the Omnibus Election Code to
those filing to meet the early deadline. The clear intention of
Congress was to preserve the "election periods as x x x fixed
by existing law" prior to RA 8436 and that one who files to
meet the early deadline "will still not be considered as a
candidate."
Under Section 3(b) of the Omnibus Election Code, the
applicable law prior to RA 8436, the campaign period for local
officials commences 45 days before election day. For the 2004
local elections, this puts the start of the campaign period on 24
March 2004. This also puts the last day for the filing of
certificate of candidacy, under the law prior to RA 8436, on 23
March 2004. Eusebio is deemed to have filed his certificate of
candidacy on
this date for purposes other than the printing of ballots because
this is the interpretation of Section 80 of the Omnibus Election
Code most favorable to one charged of its violation. Since
Section 80 defines a criminal offense, 46 its provisions must be
construed liberally in favor of one charged of its violation. Thus,
Eusebio became a "candidate" only on 23 March 2004 for
purposes other than the printing of ballots.
Acts committed by Eusebio prior to his being a "candidate" on
23 March 2004, even if constituting election campaigning or
partisan political activities, are not punishable under Section 80
of the Omnibus Election Code. Such acts are protected as part
of freedom of expression of a citizen before he becomes a
candidate for elective public office. Acts committed by Eusebio
on or after 24 March 2004, or during the campaign period, are
not covered by Section 80 which punishes only acts outside
the campaign period.
We now examine the specific questioned acts of Eusebio
whether they violate Section 80 of the Omnibus Election Code.
We begin with the 14 February 2004 and the 17 March 2004
speeches of Eusebio:
1) The speech uttered on February 14, 2004 during the
meeting dubbed as "Lingap sa Barangay" in Barangay San
Miguel, Pasig City wherein [Eusebio] allegedly asked the
people to vote for him and solicited for their support x x x:
2) Another speech given on March 17, 2004 in ROTC St.,
Rosario, Pasig City wherein [Eusebio] again allegedly
uttered defamatory statements against co-[candidate]
Lanot and campaigned for his (respondents) and his
groups candidacy.47 (Emphasis in the original)
The 14 February 2004 and 17 March 2004 speeches
happened before the date Eusebio is deemed to have filed his
certificate of candidacy on 23 March 2004 for purposes other
than the printing of ballots. Eusebio, not being a candidate
then, is not liable for speeches on 14 February 2004 and 17
March 2004 asking the people to vote for him.
The survey showing Eusebio leading in the mayoralty race was
published before Eusebio was deemed to have filed his
certificate of candidacy on 23 March 2004. Thus:
3) He caused to be published in leading newspapers about
a survey allegedly done by Survey Specialist, Inc. showing
him to be leading in the mayoralty race in Pasig City.
xxxx
They also presented Certification issued by Mr. Diego
Cagahastian, News Editor of Manila Bulletin dated 10 March
2004 and Mr. Isaac G. Belmonte, Editor-in-Chief of Philippine
Star dated March 2, 2004 to the effect that the articles in
question came from the camp of [Eusebio].48 (Emphasis in the
original)
Eusebio is not liable for this publication which was made
before he became a candidate on 23 March 2004.
The political advertisement in the Philippine Free Press issue
of 7 February 2004 was also made before Eusebio became a
candidate on 23 March 2004. Thus:
4) He paid a political advertisement in the Philippine Free
Press in the amount of P193,660.00 as published in its
issue dated February 7, 2004.49 (Emphasis in the original)
The display of Eusebios billboards, posters, stickers, and
streamers, as well as his distribution of free shoes, all
happened also before Eusebio became a candidate on 23
March 2004. Thus:
5) The display of billboards containing the words
"Serbisyo Eusebio" and "ST" which means "Serbisyong
Totoo" before the start of the campaign period.
xxxx
6) Posters showing the respondent and his running mate
Yoyong Martinez as well those showing the name "KA
ENTENG EUSEBIO" and "BOBBY EUSEBIO" in connection
with the dengue project were posted everywhere even
before the start of the campaign period.
xxxx
Petitioners witnesses Alfonso Cordova and Alfredo
Lacsamana as well as Hermogenes Garcia stated in their
respective affidavits marked as Exhs. "L" and "L-1" that the
pictures were taken on March 3, 7 & 8, 2004.
xxxx
7) Streamers bearing the words "Pasig City is for PEACE"
were likewise displayed with the two letters "E"
prominently written.
xxxx
Said streamers were among those captured by the camera of
the petitioners witnesses Hermogenes Garcia and Nelia
Sarmiento before the start of the campaign period.
8) Stickers of [Eusebio] were likewise pasted all over the
city before the start of the campaign period.
xxxx
9) [Eusebio] engaged in vote-buying by distributing shoes
to the students while telling the parents that by way of
gratitude, they should vote for him.
The affidavits of Ceferino Tantay marked as Exh. "M" and Flor
Montefalcon, Norie Altiche and Myrna Verdillo marked as Exh.
"O" are uncontroverted. Their statement that free shoes were
given to the students of Rizal High School was corroborated by
the Manila Bulletin issue of February 6, 2004 which showed
the picture of the respondent delivering his speech before a
group of students.
x x x x50 (Emphasis in the original)
Based on the findings of Director Ladra, the questioned acts
attributed to Eusebio all occurred before the start of the
campaign period on 24 March 2004. Indeed, Director Ladra
applied Section 80 of the Omnibus Election Code against
Eusebio precisely because Eusebio committed these acts
"outside" of the campaign period. However, Director Ladra
erroneously assumed that Eusebio became a "candidate," for
purposes of Section 80, when Eusebio filed his certificate of
candidacy on 29 December 2003.
Under Section 11 of RA 8436, Eusebio became a "candidate,"
for purposes of Section 80 of the Omnibus Election Code, only
on 23 March 2004, the last day for filing certificates of
candidacy. Applying the facts - as found by Director Ladra and
affirmed by the COMELEC First Division - to Section 11 of RA
8436, Eusebio clearly did not violate Section 80 of the
Omnibus Election Code which requires the existence of a
"candidate," one who has filed his certificate of candidacy,
during the commission of the questioned acts.
Eusebio asserts that Section 11 of RA 8436 exculpates him
from any liability for the questioned acts.1wphi1 Eusebio
points out that Section 11 contains the following proviso:
Provided, further, That, unlawful acts or omissions applicable
to a candidate shall take effect upon the start of the aforesaid
campaign period: x x x
Eusebio theorizes that since the questioned acts admittedly
took place before the start of the campaign period, such acts
are not "unlawful acts or omissions applicable to a candidate."
We find no necessity to apply in the present case this proviso
in Section 11 of RA 8436. Eusebios theory legalizes election
campaigning or partisan political activities before the campaign
period even if a person has already filed his certificate of
candidacy based on the election periods under existing laws
prior to RA 8436. Under Eusebios theory, Section 11 of RA
8436 punishes unlawful acts applicable to a candidate only if
committed during the campaign period.
By definition, the election offense in Section 80 of the Omnibus
Election Code cannot be committed during the campaign
period. On the other hand, under Eusebios theory, unlawful
acts applicable to a candidate cannot be committed outside of
the campaign period. The net result is to make the election
offense in Section 80 physically impossible to commit at any
time. We shall leave this issue for some other case in the
future since the present case can be resolved without applying
the proviso in Section 11 of RA 8436.
Effect of Eusebios Possible
Disqualification
As second placer, Lanot prayed that he be proclaimed as the
rightful Pasig City Mayor in the event of Eusebios
disqualification. As third placer, Benavides, on the other hand,
prays that she be proclaimed as the rightful Pasig City Mayor
in the event of Eusebios disqualification and in view of Lanots
death. Even if we assume Eusebios disqualification as fact, we
cannot grant either prayer.
The disqualification of the elected candidate does not entitle
the candidate who obtained the second highest number of
votes to occupy the office vacated because of the
disqualification.51 Votes cast in favor of a candidate who
obtained the highest number of votes, against whom a petition
for disqualification was filed before the election, are presumed
to have been cast in the belief that he was qualified. For this
reason, the second placer cannot be declared elected.52
The exception to this rule rests on two assumptions. First, the
one who obtained the highest number of votes is disqualified.
Second, the voters are so fully aware in fact and in law of a
candidates disqualification to bring such awareness within the
realm of notoriety but nonetheless the voters still cast their
votes in favor of the ineligible candidate.53 Lanot and
Benavides failed to prove that the exception applies in the
present case. Thus, assuming for the sake of argument that
Eusebio is disqualified, the rule on succession provides that
the duly elected Vice-Mayor of Pasig City shall succeed in
Eusebios place.54
WHEREFORE, we DISMISS the petition. We find no grave
abuse of discretion in the 10 May 2004 Advisory of Chairman
Benjamin S. Abalos and in the 21 May 2004 Order of the
Commission on Elections En Banc. We SET ASIDE the 20
August 2004 Resolution of the Commission En Banc since
respondent Vicente P. Eusebio did not commit any act which
would disqualify him as a candidate in the 10 May 2004
elections.
SO ORDERED.
LAWFUL ELECTION PROPAGANDA
Section 3. Lawful Election Propaganda. (RA 9006)
Election propaganda, whether on television, cable television,
radio, newspapers or any other medium is hereby allowed for
all registered political parties, national, regional, sectoral
parties or organizations participating under the party list
elections and for all bona fide candidates seeking national and
local elective positions subject to the limitation on authorized
expenses of candidates and political parties, observance of
truth in advertising and to the supervision and regulation by the
Commission on Elections (COMELEC).
For the purpose of this Act, lawful election propaganda shall
include:
3.1. Pamphlets, leaflets, cards, decals, stickers or other written
or printed materials the size of which does not exceed eight
and one half inches in width and fourteen inches in length;
3.2. Handwritten or printed letters urging voters to vote for or
against any particular political party or candidate for public
office;
3.3. Cloth, paper or cardboard posters, whether framed or
posted, with an area not exceeding two (2) feet by three (3)
feet, except that, at the site and on the occasion of a public
meeting or rally, or in announcing the holding of said meeting
or rally, streamers not exceeding three (3) feet by eight (8) feet
in size, shall be allowed: Provided, That said streamers may be
displayed five (5) days before the date of the meeting or rally
and shall be removed within twenty-four (24) hours after said
meeting or rally;
3.4. Paid advertisements in print or broadcast media: Provided,
That the advertisements shall follow the requirements set forth
in Section 4 of this Act; and
3.5. All other forms of election propaganda not prohibited by
the Omnibus Election Code or this Act.
SECTION 82. Lawful election propaganda. (BP 881)
Lawful election propaganda shall include:
(a) Pamphlets, leaflets, cards, decals, stickers or other written
or printed materials of a size not more than eight and one-half
inches in width and fourteen inches in length;
(b) Handwritten or printed letters urging voters to vote for or
against any particular candidate;
(c) Cloth, paper or cardboard posters, whether framed or
posted, with an area exceeding two feet by three feet, except
that, at the site and on the occasion of a public meeting or
rally, or in announcing the holding of said meeting or rally,
streamers not exceeding three feet by eight feet in size, shall
be allowed: Provided, That said streamers may not be
displayed except one week before the date of the meeting or
rally and that it shall be removed within seventy-two hours after
said meeting or rally; or
(d) All other forms of election propaganda not prohibited by this
Code as the Commission may authorize after due notice to all
interested parties and hearing where all the interested parties
were given an equal opportunity to be heard: Provided, That
the Commission's authorization shall be published in two
newspapers of general circulation throughout the nation for at
least twice within one week after the authorization has been
granted. (Sec. 37, 1978 EC)
CASES:
2. ADIONG v. COMELEC
EN BANC
[G.R. No. 103956. March 31, 1992.]
BLO UMPAR ADIONG, petitioner, vs. COMMISSION ON
ELECTIONS, respondent.
Romulo R. Macalintal for petitioner.
SYLLABUS
1. POLITICAL LAW; ELECTIONS; PROHIBITION ON
POSTING OF DECALS AND STICKERS ON MOBILE
PLACES (SECTION 15 (a) AND SECTION 21 (f) OF
COMELEC RESOLUTION NO. 2347); NULL AND VOID.
The COMELEC's prohibition on posting of decals and stickers
on "mobile" places whether public or private except in
designated areas provided for by the COMELEC itself is null
and void on constitutional grounds.
2. ID.; ID.; ID.; INFRINGEMENT OF FREEDOM OF SPEECH
AND EXPRESSION. COMELEC Resolution No. 2347
unduly infringes on the citizen's fundamental right of free
speech enshrined in the Constitution (Sec. 4, Article III). There
is no public interest substantial enough to warrant the kind of
restriction involved in this case. There are various concepts
surrounding the freedom of speech clause which we have
adopted as part and parcel of our own Bill of Rights provision
on this basic freedom. All of the protections expressed in the
Bill of Rights are important but we have accorded to free
speech the status of a preferred freedom. (Thomas v. Collins,
323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on
Elections, 36 SCRA 228 [1980]). This qualitative significance of
freedom of expression arises from the fact that it is the matrix,
the indispensable condition of nearly every other freedom.
(Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Pao,
134 SCRA 438 [1985]). It is difficult to imagine how the other
provisions of the Bill of Rights and the right to free elections
may be guaranteed if the freedom to speak and to convince or
persuade is denied and taken away. We have also ruled that
the preferred freedom of expression calls all the more for the
utmost respect when what may be curtailed is the
dissemination of information to make more meaningful the
equally vital right of suffrage. (Mutuc v. Commission on
Elections, supra)
3. ID.; ID.; ID.; SUBSTANTIAL GOVERNMENT INTEREST
AND PUBLIC INTEREST, NOT THREATENED; CLEAR AND
PRESENT DANGER RULE, NOT PRESENT. The
regulation in the present case is of a different category. The
promotion of a substantial Government interest is not clearly
shown. "A government regulation is sufficiently justified if it is
within the constitutional power of the Government, if it furthers
an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First
Amendment freedom is no greater than is essential to the
furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S.
Ct 1673." (City council v. Taxpayers For Vincent, 466 US 789,
80 L Ed 2d 772, 104 S. Ct 2118 [1984]) The posting of decals
and stickers in mobile places like cars and other moving
vehicles does not endanger any substantial government
interest. There is no clear public interest threatened by such
activity so as to justify the curtailment of the cherished citizen's
right of free speech and expression. Under the clear and
present danger rule not only must the danger be patently clear
and pressingly present but the evil sought to be avoided must
be so substantive as to justify a clamp over one's mouth or a
writing instrument to be stilled: "The case confronts us again
with the duty our system places on the Court to say where the
individual's freedom ends and the State's power begins.
Choice on that border, now as always delicate, is perhaps
more so where the usual presumption supporting legislation is
balanced by the preferred place given in our scheme to the
great, the indispensable democratic freedoms secured by the
first Amendment ... That priority gives these liberties a sanctity
and a sanction not permitting dubious intrusions and it is the
character of the right, not of the limitation, which determines
what standard governs the choice .... For these reasons any
attempt to restrict those liberties must be justified by clear
public interest, threatened not doubtfully or remotely but by
clear and present danger. The rational connection between the
remedy provided and the evil to be curbed, which in other
context might support legislation against attack on due process
grounds, will not suffice. These rights rest on firmer foundation.
Accordingly, whatever occasion would restrain orderly
discussion and persuasion, at appropriate time and place,
must have clear support in public danger, actual or impending.
Only the greatest abuses, endangering permanent interests,
give occasion for permissible limitation. (Thomas V. Collins,
323 US 516 [1945]." Significantly, the freedom of expression
curtailed by the questioned prohibition is not so much that of
the candidate or the political party. The regulation strikes at the
freedom of an individual to express his preference and, by
displaying it on his car, to convince others to agree with him. A
sticker may be furnished by a candidate but once the car
owner agrees to have it placed on his private vehicle, the
expression becomes a statement by the owner, primarily his
own and not of anybody else. If, in the National Press
Club case, the Court was careful to rule out restrictions on
reporting by newspaper or radio and television stations and
commentators or columnists as long as these are not covertly
paid-for advertisements or purchased opinions with less
reason can we sanction the prohibition against a sincere
manifestation of support and a proclamation of belief by an
individual person who pastes a sticker or decal on his private
property.
4. ID.; ID.; DEBATE ON PUBLIC ISSUES SHOULD BE OPEN.
We have adopted the principle that debate on public issues
should be uninhibited, robust, and wide open and that it may
well include vehement, caustic and sometimes unpleasantly
sharp attacks on government and public officials. (New York
Times Co. v. Sullivan 376 U.S. 254, 11 L. Ed. 2d 686 [1964];
cited in the concurring opinion of then Chief Justice Enrique
Fernando in Babst v.National Intelligence Board, 132 SCRA
316 [1984]. Too many restrictions will deny to people the
robust, uninhibited, and wide open debate, the generating of
interest essential if our elections will truly be free, clean, and
honest.
5. ID.; ID.; FREEDOM OF SPEECH AND INFORMATION
PREVAILS. When faced with border line situations where
freedom to speak by a candidate or party and freedom to know
on the part of the electorate are invoked against actions
intended for maintaining clean and free elections, the police,
local officials and COMELEC should lean in favor of freedom.
For in the ultimate analysis, the freedom of the citizen and the
State's power to regulate are not antagonistic. There can be no
free and honest elections if in the efforts to maintain them, the
freedom to speak and the right to know are unduly curtailed.
6. ID.; ID.; REGULATION OF ELECTION ACTIVITY, LIMITED;
TEST OF VALIDITY. The regulation of election activity has
its limits. We examine the limits of regulation and not the limits
of free speech. The carefully worded opinion of the Court,
through Mr. Justice Feliciano, shows that regulation of election
campaign activity may not pass the test of validity if it is too
general in its terms or not limited in time and scope in its
application, if it restricts one's expression of belief in a
candidate or one's opinion of his or her qualifications, if it cuts
off the flow of media reporting, and if the regulatory measure
bears no clear and reasonable nexus with the constitutionally
sanctioned objective.
7. ID.; ID.; SECTION 15 (a) AND SECTION 21 (f) COMELEC
RESOLUTION NO. 2347 VOID FOR OVERBREADTH.
Second the questioned prohibition premised on the statute
and as couched in the resolution is void for overbreadth. A
statute is considered void for overbreadth when "it offends the
constitutional principle that a governmental purpose to control
or prevent activities constitutionally subject to state regulations
may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms."
(Zwickler v. Koota, 19 L ed 2d 444 [1967]). "In a series of
decisions this Court has held that, even though the
governmental purpose be legitimate and substantial, that
purpose cannot be pursued by means that broadly stifle
fundamental personal liberties when the end can be more
narrowly achieved. The breadth of legislative abridgment must
be viewed in the light of less drastic means for achieving the
same basic purpose.
8. ID.; ID.; ID.; RESTRICTION PROVIDED THEREIN
VIOLATES DUE PROCESS CLAUSE. The resolution
prohibits the posting of decals and stickers not more than eight
and one-half (8-) inches in width and fourteen (14) inches in
length in any place, including mobile places whether public or
private except in areas designated by the COMELEC. Verily,
the restriction as to where the decals and stickers should be
posted is so broad that it encompasses even the citizen's
private property, which in this case is a privately-owned
vehicle. In consequence of this prohibition, another cardinal
rule prescribed by the Constitution would be violated. Section
1, Article III of the Bill of Rights provides "that no person shall
be deprived of his property without due process of law."
Property is more than the mere thing which a person owns, it
includes the right to acquire, use, and dispose of it; and the
Constitution, in the 14th Amendment, protects these essential
attributes. Property is more than the mere thing which a person
owns. It is elementary that it includes the right to acquire, use,
and dispose of it. The Constitution protects these essential
attributes of property. Holde v. Hardy, 169 U.S. 366, 391, 41 L.
ed. 780. 790, 18 Sup. CXt. Rep. 383. Property consists of the
free use, enjoyment, and disposal of a person's acquisitions
without control or diminution save by the law of the land. 1
Cooley's Bl. Com. 127." (Buchanan v. Warley 245 US 60
[1917])
9. ID.; ID.; ID.; PROHIBITION DEPRIVES CITIZEN OF RIGHT
TO FREE SPEECH AND INFORMATION. "We have to
consider the fact that in the posting of decals and stickers on
cars and other moving vehicles, the candidate needs the
consent of the owner of the vehicle. In such a case, the
prohibition would not only deprive the owner who consents to
such posting of the decals and stickers the use of his property
but more important, in the process, it would deprive the citizen
of his right to free speech and information. Freedom to
distribute information to every citizen wherever he desires to
receive it is so clearly vital to the preservation of a free society
that, putting aside reasonable police and health regulations of
time and manner of distribution, it must be fully preserved. The
danger of distribution can so easily be controlled by traditional
legal methods leaving to each householder the full right to
decide whether he will receive strangers as visitors, that
stringent prohibition can serve no purpose but that forbidden
by the constitution, the naked restriction of the dissemination of
ideas." (Martin v. City of strutters, Ohio, 319 U.S. 141; 87 L. ed.
1313 [1943]) The preference of the citizen becomes crucial in
this kind of election propaganda not the financial resources of
the candidate. Whether the candidate is rich and, therefore,
can afford to dole-out more decals and stickers or poor and
without the means to spread out the same number of decals
and stickers is not as important as the right of the owner to
freely express his choice and exercise his right of free speech.
The owner can even prepare his own decals or stickers for
posting on his personal property. To strike down this right and
enjoin it is impermissible encroachment of his liberties.
10. ID.; ID.; RA 6646, SECTION 11; RIGHT TO PROPERTY
JOINED BY LIBERTY INTEREST; REGULATION, NOT
JUSTIFIED. The right to property may be subject to a
greater degree of regulation but when this right is joined by a
"liberty" interest, the burden of justification on the part of the
Government must be exceptionally convincing and irrefutable.
The burden is not met in this case. Section 11 of Rep. Act
6646 is so encompassing and invasive that it prohibits the
posting or display of election propaganda in any place, whether
public or private except in the common poster areas
sanctioned by COMELEC. This means that a private person
cannot post his own crudely prepared personal poster on his
own front door or on a post in his yard. While the COMELEC
will certainly never require the absurd, there are no limits to
what overzealous and partisan police officers, armed with a
copy of the statute or regulation, may do. The provisions
allowing regulation are so loosely worded that they inclose the
posting of decals or stickers in the privacy of one's living room
or bedroom. This is delegation running riot. As stated by
Justice Cardozo in his concurrence in Panama Refining Co. v.
Ryan (293 U.S. 388; 79 L. Ed. 46 [1935], "The delegated
power is unconfined and vagrant . . . This is delegation running
riot. No such plenitude of power is susceptible of transfer."
11. ID.; ID.; ARTICLE 11 SECTION 26 AND ARTICLE XII
SECTION 1 IN RELATION TO ARTICLE IX (c) SECTION 4 OF
THE CONSTITUTION; NOT IMPAIRED BY POSTING OF
DECALS AND STICKERS ON PRIVATE VEHICLES. The
constitutional objective to give a rich candidate and a poor
candidate equal opportunity to inform the electorate as regards
their candidacies, mandated by Article II Section 26 and Article
XIII Section 1 in relation to Article IX (c) Section 4 of the
Constitution, is not impaired by posting decals and stickers on
cars and other private vehicles. Compared to the paramount
interest of the State in guaranteeing freedom of expression,
any financial considerations behind the regulation are of
marginal significance. Under Section 26 Article II of the
Constitution, "The State shall guarantee equal access to
opportunities for public service, . . . while under Section 1,
Article XIII thereof "The Congress shall give highest priority to
the enactment of measures that protect and enhance the right
of all the people to human dignity, reduce social, economic,
and political inequalities, and remove cultural inequities by
equitably diffusing wealth and political power nor the common
good."
12. ID.; ID.; SECTION 15 (a) AND SECTION 21 (f) OF
COMELEC RESOLUTION NO. 2347; PROHIBITION
BECOMES CENSORSHIP, NOT JUSTIFIED BY
CONSTITUTION. In sum, the prohibition on posting of
decals and stickers on "mobile" places whether public or
private except in the authorized areas designated by the
COMELEC becomes censorship which cannot be justified by
the Constitution: ". . . The concept of the Constitution as the
fundamental law, setting forth the criterion for the validity of
any public act whether proceeding from the highest official or
the lowest functionary, is a postulate of our system of
government. That is to manifest fealty to the rule of law, with
priority accorded to that which occupies the topmost rung in
the legal hierarchy. The three departments of government in
the discharge of the functions with which it is entrusted have
no choice but to yield obedience to its commands. Whatever
limits it imposes must be observed. Congress in the enactment
of statutes must ever be on guard lest the restrictions on its
authority, either substantive or formal, be transcended. The
Presidency in the execution of the laws cannot ignore or
disregard what it ordains. In its task of applying the law to the
facts as found in deciding cases, the judiciary is decreed by the
fundamental law. Even its power of judicial review to pass
upon the validity of the acts of the coordinate branches in the
course of adjudication is a logical corollary of this basic
principle that the Constitution is paramount. It overrides any
governmental measure that fails to live up to its mandates.
Thereby there is a recognition of its being the supreme law."
(Mutuc v. Commission on Elections, supra)
13. ID.; ID.; FREEDOM OF SPEECH AND INFORMATION,
CALLS FOR MORE LIBERAL INTERPRETATION. The
unusual circumstances of this year's national and local
elections call for a more liberal interpretation of the freedom to
speak and the right to know. It is not alone the widest possible
dissemination of information on platforms and programs which
concern us. Nor are we limiting ourselves to protecting the
unfettered interchange of ideas to bring about political change.
(Cf. New York Times v. Sullivan, supra) The big number of
candidates and elective positions involved has resulted in the
peculiar situation where almost all voters cannot name half or
even two-thirds of the candidates running for Senator. The
public does not know whoare aspiring to be elected to public
office. There are many candidates whose names alone evoke
qualifications, platforms, programs and ideologies which the
voter may accept or reject. When a person attaches a sticker
with such candidate's name on his car bumper, he is
expressing more than the name; he is espousing ideas.
DECISION
GUTIERREZ, JR., J p:
The specific issue in this petition is whether or not the
Commission on Elections (COMELEC) may prohibit the
posting of decals and stickers on "mobile" places, public or
private, and limit their location or publication to the authorized
posting areas that it fixes. LLphil
On January 13, 1992, the COMELEC promulgated Resolution
No. 2347 pursuant to its powers granted by the Constitution,
the Omnibus Election Code, Republic Acts Nos. 6646 and
7166 and other election laws.
Section 15(a) of the resolution provides:
"SEC. 15. Lawful Election Propaganda. The following are
lawful election propaganda:
(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or
printed letters, or other written or printed materials not more
than eight and one-half (8-1/2) inches in width and fourteen
(14) inches in length Provided, That decals and stickers may
be posted only in any of the authorized posting areas provided
in paragraph (f) of Section 21 hereof."
Section 21 (f) of the same resolution provides:
"SEC. 21(f) Prohibited forms of election propaganda.
It is unlawful:
xxx xxx xxx
(f) To draw, paint, inscribe, post, display or publicly exhibit any
election propaganda in any place, whether public or private,
mobile or stationary, except in the COMELEC common posted
areas and/or billboards, at the campaign headquarters of the
candidate or political party, organization or coalition, or at the
candidate's own residential house or one of his residential
houses, if he has more than one: Provided, that such posters
or election propaganda shall not exceed two (2) feet by three
(3) feet in size." (Emphasis supplied)
xxx xxx xxx
The statutory provisions sought to be enforced by COMELEC
are Section 82 of the Omnibus Election Code on lawful election
propaganda which provides:
"Lawful election propaganda. Lawful election propaganda
shall include:
(a) Pamphlets, leaflets, cards, decals, stickers or other written
or printed materials of a size not more than eight and one-half
inches in width and fourteen inches in length;
(b) Handwritten or printed letters urging voters to vote for or
against any particular candidate;
(c) Cloth, paper or cardboard posters, whether framed or
posted, with an area not exceeding two feet by three feet,
except that, at the site and on the occasion of a public meeting
or rally, or in announcing the holding of said meeting or rally,
streamers not exceeding three feet by eight feet in size, shall
be allowed: Provided, That said streamers may not be
displayed except one week before the date of the meeting or
rally and that it shall be removed within seventy-two hours after
said meeting or rally; or
(d) All other forms of election propaganda not prohibited by this
Code as the Commission may authorize after due notice to all
interested parties and hearing where all the interested parties
were given an equal opportunity to be heard: Provided, That
the Commission's authorization shall be published in two
newspapers of general circulation throughout the nation for at
least twice within one week after the authorization has been
granted. (Section 37, 1978 EC).
and Section 11(a) of Republic Act No. 6646 which provides:
"Prohibited Forms of Election Propaganda. In addition to the
forms of election propaganda prohibited under Section 85
of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw,
paint, inscribe, write, post, display or publicly exhibit any
election propaganda in any place, whether private, or public,
except in the common poster areas and/or billboards provided
in the immediately preceding section, at the candidate's own
residence, or at the campaign headquarters of the candidate or
political party: Provided, That such posters or election
propaganda shall in no case exceed two (2) feet by three (3)
feet in area: Provided Further, That at the site of and on the
occasion of a public meeting or rally, streamers, not more than
two (2) and not exceeding three (3) feet by eight (8) feet each
may be displayed five (5) days before the date of the meeting
or rally, and shall be removed within twenty-four (24) hours
after said meeting or rally; . . . (Emphasis supplied)
Petitioner Blo Umpar Adiong, a senatorial candidate in the May
11, 1992 elections now assails the COMELEC's Resolution
insofar as it prohibits the posting of decals and stickers in
"mobile" places like cars and other moving vehicles. According
to him such prohibition is violative of Section 82 of theOmnibus
Election Code and Section 11(a) of Republic Act No. 6646. In
addition, the petitioner believes that with the ban on radio,
television and print political advertisements, he, being a
neophyte in the field of politics stands to suffer grave and
irreparable injury with this prohibition. The posting of decals
and stickers on cars and other moving vehicles would be his
last medium to inform the electorate that he is a senatorial
candidate in the May 11, 1992 elections. Finally, the petitioner
states that as of February 22, 1992 (the date of the petition) he
has not received any notice from any of the Election Registrars
in the entire country as to the location of the supposed
"Comelec Poster Areas."
The petition is impressed with merit. The COMELEC's
prohibition on posting of decals and stickers on "mobile" places
whether public or private except in designated areas provided
for by the COMELEC itself is null and void on constitutional
grounds.
First the prohibition unduly infringes on the citizen's
fundamental right of free speech enshrined in the Constitution
(Sec. 4, Article III) There is no public interest substantial
enough to warrant the kind of restriction involved in this case.
There are various concepts surrounding the freedom of speech
clause which we have adopted as part and parcel of our own
Bill of Rights provision on this basic freedom.
All of the protections expressed in the Bill of Rights are
important but we have accorded to free speech the status of a
preferred freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed.
430 [1945]; Mutuc v. Commission on Elections, 36 SCRA 228
[1970]).
This qualitative significance of freedom of expression arises
from the fact that it is the matrix, the indispensable condition of
nearly every other freedom. (Palko v. Connecticut 302 U.S.
319 [1937]; Salonga v. Pao, 134 SCRA 438 [1985]) It is
difficult to imagine how the other provisions of the Bill of Rights
and the right to free elections may be guaranteed if the
freedom to speak and to convince or persuade is denied and
taken away.
We have adopted the principle that debate on public issues
should be uninhibited, robust, and wide open and that it may
well include vehement, caustic and sometimes unpleasantly
sharp attacks on government and public officials. (New York
Times Co. v. Sullivan 376 U.S. 254, 11 L. Ed. 2d 686 [1964];
cited in the concurring opinion of then Chief Justice Enrique
Fernando in Babst v. National Intelligence Board, 132 SCRA
316 [1984]). Too many restrictions will deny to people the
robust, uninhibited, and wide open debate, the generating of
interest essential if our elections will truly be free, clean, and
honest.
We have also ruled that the preferred freedom of expression
calls all the more for the utmost respect when what may be
curtailed is the dissemination of information to make more
meaningful the equally vital right of suffrage. (Mutuc v.
Commission on Elections, supra)
The determination of the limits of the Government's power to
regulate the exercise by a citizen of his basic freedoms in order
to promote fundamental public interests or policy objectives is
always a difficult and delicate task. The so-called balancing of
interests individual freedom on one hand and substantial
public interests on the other is made even more difficult in
election campaign cases because the Constitution also gives
specific authority to the Commission on Elections to supervise
the conduct of free, honest, and orderly elections.
We recognize the fact that under the Constitution, the
COMELEC during the election period is granted regulatory
powers vis-a-vis the conduct and manner of elections, to wit:
"SEC. 4. The Commission may, during the election period
supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and
other public utilities, media of communication or information, all
grants special privileges, or concessions granted by the
government or any subdivision, agency, or instrumentality
thereof, including any government-owned or controlled
corporation or its subsidiary. Such supervision or regulation
shall aim to ensure equal opportunity, time, and space, and the
right to reply, including reasonable equal rates therefore, for
public information campaigns and forms among candidates in
connection with the object of holding free, orderly, honest,
peaceful and credible elections " (Article IX (c) section 4)
The variety of opinions expressed by the members of this
Court in the recent case of National Press Club v. Commission
on Elections (G.R. No. 102653, March 5, 1991) and its
companion cases underscores how difficult it is to draw a
dividing line between permissible regulation of election
campaign activities and indefensible repression committed in
the name of free and honest elections. In the National Press
Club case, the Court had occasion to reiterate the preferred
status of freedom of expression even as it validated
COMELEC regulation of campaigns through political
advertisements. The gray area is rather wide and we have to
go on a case to case basis. LLpr
There is another problem involved. Considering that the period
of legitimate campaign activity is fairly limited and, in the
opinion of some, too short, it becomes obvious that unduly
restrictive regulations may prove unfair to affected parties and
the electorate.
For persons who have to resort to judicial action to strike down
requirements which they deem inequitable or oppressive, a
court case may prove to be a hollow remedy. The judicial
process, by its very nature, requires time for rebuttal, analysis
and reflection. We cannot act instantly on knee-jerk impulse.
By the time we revoke an unallowably restrictive regulation or
ruling, time which is of the essence to a candidate may have
lapsed and irredeemable opportunities may have been lost.
When faced with border line situations where freedom to speak
by a candidate or party and freedom to know on the part of the
electorate are invoked against actions intended for maintaining
clean and free elections, the police, local officials and
COMELEC should lean in favor of freedom. For in the ultimate
analysis, the freedom of the citizen and the State's power to
regulate are not antagonistic. There can be no free and honest
elections if in the efforts to maintain them, the freedom to
speak and the right to know are unduly curtailed. LLphil
There were a variety of opinions expressed in the National
Press Club v. Commission on Elections (supra) case but all of
us were unanimous that regulation of election activity has its
limits. We examine the limits of regulation and not the limits of
free speech. The carefully worded opinion of the Court,
through Mr. Justice Feliciano, shows that regulation of election
campaign activity may not pass the test of validity if it is too
general in its terms or not limited in time and scope in its
application, if it restricts one's expression of belief in a
candidate or one's opinion of his or her qualifications, if it cuts
off the flow of media reporting, and if the regulatory measure
bears no clear and reasonable nexus with the constitutionally
sanctioned objective.
Even as the Court sustained the regulation of political
advertisements, with some rather strong dissents, in National
Press Club, we find the regulation in the present case of a
different category. The promotion of a substantial Government
interest is not clearly shown.
"A government regulation is sufficiently justified if it is within the
constitutional power of the Government, if it furthers an
important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S
Ct 1673." (City Council v. Taxpayers For Vincent, 466 US 789,
80 L Ed 2d 772, 104 S Ct 2118 [1984])
The posting of decals and stickers in mobile places like cars
and other moving vehicles does not endanger any substantial
government interest. There is no clear public interest
threatened by such activity so as to justify the curtailment of
the cherished citizen's right of free speech and expression.
Under the clear and present danger rule not only must the
danger be patently clear and pressingly present but the evil
sought to be avoided must be so substantive as to justify a
clamp over one's mouth or a writing instrument to be
stilled: LLjur
"The case confronts us again with the duty our system places
on the Court to say where the individual's freedom ends and
the State's power begins. Choice on that border, now as
always delicate, is perhaps more so where the usual
presumption supporting legislation is balanced by the preferred
place given in our scheme to the great, the indispensable
democratic freedoms secured by the First Amendment . . .
That priority gives these liberties a sanctity and a sanction not
permitting dubious intrusions and it is the character of the right,
not of the limitation, which determines what standard governs
the choice . . .
For these reasons any attempt to restrict those liberties must
be justified by clear public interest, threatened not doubtfully or
remotely, but by clear and present danger. The rational
connection between the remedy provided and the evil to be
curbed, which in other context might support legislation against
attack on due process grounds, will not suffice. These rights
rest on firmer foundation. Accordingly, whatever occasion
would restrain orderly discussion and persuasion, at
appropriate time and place, must have clear support in public
danger, actual or impending. Only the greatest abuses,
endangering permanent interests, give occasion for
permissible limitation. (Thomas V. Collins, 323 US 516 [1945]."
(Emphasis supplied)
Significantly, the freedom of expression curtailed by the
question prohibition is not so much that of the candidate or the
political party. The regulation strikes at the freedom of an
individual to express his preference and, by displaying it on his
car, to convince others to agree with him. A sticker may be
furnished by a candidate but once the car owner agrees to
have it placed on his private vehicle, the expression becomes
a statement by the owner, primarily his own and not of
anybody else. If, in the National Press Club case, the Court
was careful to rule out restrictions on reporting by newspapers
or radio and television stations and commentators or
columnists as long as these are not correctly paid-for
advertisements or purchased opinions with less reason can
sanction the prohibition against a sincere manifestation of
support and a proclamation of belief by an individual person
who pastes a sticker or decal on his private property.
Second the questioned prohibition premised on the statute
and as couched in the resolution is void for overbreadth.
A statute is considered void for overbreadth when "it offends
the constitutional principle that a governmental purpose to
control or prevent activities constitutionally subject to state
regulations may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected
freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).
"In a series of decisions this Court has held that, even though
the governmental purpose be legitimate and substantial, that
purpose cannot be pursued by means that broadly stifle
fundamental personal liberties when the end can be more
narrowly achieved. The breadth of legislative abridgment must
be viewed in the light of less drastic means for achieving the
same basic purpose.
In Lovell v. Griffin , 303 US 444, 82 L ed 949, 58 S Ct. 666, the
Court invalidated an ordinance prohibiting all distribution of
literature at any time or place in Griffin, Georgia, without a
license, pointing out that so broad an interference was
unnecessary to accomplish legitimate municipal aims. In
Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct..
146, the Court dealt with ordinances of four different
municipalities which either banned or imposed prior restraints
upon the distribution of handbills. In holding the ordinances
invalid, the court noted that where legislative abridgment of
'fundamental personal rights and liberties' is asserted, ' the
courts should be astute to examine the effect of the challenged
legislation. Mere legislative preferences or beliefs respecting
matters of public convenience may well support regulation
directed at other personal activities, but be insufficient to justify
such as diminishes the exercise of rights so vital to the
maintenance of democratic institutions.' 308 US, at 161. In
Cantwell v. Connecticut, 310 US 296, 84 L ed 1213, 60 S Ct.
900, 128 ALR 1352, the Court said that '[c]onduct remains
subject to regulation for the protection of society,' but pointed
out that in each case 'the power to regulate must be so
exercised as not, in attaining a permissible end, unduly to
infringe the protected freedom." (310 US at 304) (Shelton v.
Tucker, 364 US 479 [1960])
The resolution prohibits the posting of decals and stickers not
more than eight and one-half (8-1/2) inches in width and
fourteen (14) inches in length in any place, including mobile
places whether public or private except in areas designated by
the COMELEC. Verily, the restriction as to where the decals
and stickers should be posted is so broad that it encompasses
even citizen's private property, which in this case is a privately-
owned vehicle. In consequence of this prohibition, another
cardinal rule prescribed by the Constitution would be violated.
Section 1, Article III of the Bill of Rights provides that no person
shall be deprived of his property without due process of law.
"Property is more than the mere thing which a person owns, it
includes the right to acquire, use, and dispose of it; and the
Constitution, in the 14th Amendment, protects these essential
attributes.
Property is more than the mere thing which a person owns. It is
elementary that it includes the right to acquire, use, and
dispose of it. The Constitution protects these essential
attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41
L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the
free use, enjoyment, and disposal of a person's acquisitions
without control or diminution save by the law of the land. 1
Cooley's Bl. Com. 127." (Buchanan v. Warley 245 US 60
[1917])
As earlier stated, we have to consider the fact that in the
posting of decals and stickers on cars and other moving
vehicles, the candidate needs the consent of the owner of the
vehicle. In such a case, the prohibition would not only deprive
the owner who consents to such posting of the decals and
stickers the use of his property but more important, in the
process, it would deprive the citizen of his right to free speech
and information:
"Freedom to distribute information to every citizen wherever he
desires to receive it is so clearly vital to the preservation of a
free society that, putting aside reasonable police and health
regulations of time and manner of distribution, it must be fully
preserved. The danger of distribution can so easily be
controlled by traditional legal methods leaving to each
householder the full right to decide whether he will receive
strangers as visitors, that stringent prohibition can serve no
purpose but that forbidden by the constitution, the naked
restriction of the dissemination of ideas." (Martin v. City of
Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])
The right to property may be subject to a greater degree of
regulation but when this right is joined by a "liberty" interest,
the burden of justification on the part of the Government must
be exceptionally convincing and irrefutable. The burden is not
met in this case. LexLia
Section 11 of Rep. Act 6646 is so encompassing and invasive
that it prohibits the posting or display of election propaganda in
any place, whether public or private, except in the common
poster areas sanctioned by COMELEC. This means that a
private person cannot post his own crudely prepared personal
poster on his own front door or on a post in his yard. While the
COMELEC will certainly never require the absurd, there are no
limits to what overzealous and partisan police officers, armed
with a copy of the statute or regulation, may do. LexLib
The provisions allowing regulations are so loosely worded that
they include the posting of decals or stickers in the privacy of
one's living room or bedroom. This is delegation running riot.
As stated by Justice Cardozo in his concurrence in Panama
Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446 [1935]),
"The delegated power is unconfined and vagrant. . . This is
delegation running riot. No such plentitude of power is
susceptible of transfer."
Third the constitutional objective to give a rich candidate
and a poor candidate equal opportunity to inform the electorate
as regards their candidacies, mandated by Article II, Section
26 and Article XIII, Section 1 in relation to Article IX (c) Section
4 of the Constitution, is not impaired by posting decals and
stickers on cars and other private vehicles. Compared to the
paramount interest of the State in guaranteeing freedom of
expression, any financial considerations behind the regulation
are of marginal significance. LLpr
Under section 26, Article II of the Constitution, "The State shall
guarantee equal access to opportunities for public service, . . .
while under section 1, Article XIII thereof "The Congress shall
give highest priority to the enactment of measures that protect
and enhance the right of all the people to human dignity,
reduce social, economic, and political inequalities, and remove
cultural inequities by equitably diffusing wealth and political
power for the common good." (Emphasis supplied)
It is to be reiterated that the posting of decals and stickers on
cars, calesas, tricycles, pedicabs and other moving vehicles
needs the consent of the owner of the vehicle. Hence, the
preference of the citizen becomes crucial in this kind of
election propaganda not the financial resources of the
candidate. Whether the candidate is rich and, therefore, can
afford to doleout more decals and stickers or poor and without
the means to spread out the number of decals and stickers is
not as important as the right of the owner to freely express his
choice and exercise his right of free speech. The owner can
even prepare his own decals or stickers for posting on his
personal property. To strike down this right and enjoin it is
impermissible encroachment of his liberties.
In sum, the prohibition on posting of decals and stickers on
"mobile" places whether public or private except in the
authorized areas designated by the COMELEC becomes
censorship which cannot be justified by the Constitution:
". . . The concept of the Constitution as the fundamental law,
setting forth the criterion for the validity of any public act
whether proceeding from the highest official or the lowest
functionary, is a postulate of our system of government. That is
to manifest fealty to the rule of law, with priority accorded to
that which occupies the topmost rung in the legal hierarchy.
The three departments of government in the discharge of the
functions with which it is entrusted have no choice but to yield
obedience to its commands. Whatever limits it imposes must
be observed. Congress in the enactment of statutes must ever
be on guard lest the restrictions on its authority, either
substantive or formal, be transcended. The Presidency in the
execution of the laws cannot ignore or disregard what it
ordains. In its task of applying the law to the facts as found in
deciding cases, the judiciary is called upon to maintain
inviolate what is decreed by the fundamental law. Even its
power of judicial review to pass upon the validity of the acts of
the coordinate branches in the course of adjudication is a
logical corollary of this basic principle that the Constitution is
paramount. It overrides any governmental measure that fails to
live up to its mandates. Thereby there is a recognition of its
being the supreme law." (Mutuc v. Commission on
Elections, supra)
The unusual circumstances of this year's national and local
elections call for a more liberal interpretation of the freedom to
speak and the right to know. It is not alone the widest possible
dissemination of information on platforms and programs which
concern us. Nor are we limiting ourselves to protecting the
unfettered interchange of ideas to bring about political change.
(Cf. New York Times v. Sullivan, supra) The big number of
candidates and elective positions involved has resulted in the
peculiar situation where almost all voters cannot name half or
even two-thirds of the candidates running for Senator. The
public does not know who are aspiring to be elected to public
office.
There are many candidates whose names alone evoke
qualification, platforms, programs and ideologies which the
voter may accept or reject. When a person attaches a sticker
with such a candidate's name on his car bumper, he is
expressing more than the name; he is espousing ideas. Our
view of the validity of the challenged regulation includes its
effects in today's particular circumstances. We are constrained
to rule against the COMELEC prohibition.
WHEREFORE, the petition is hereby GRANTED. The portion
of Section 15(a) of Resolution No. 2347 of the Commission on
Elections providing that "decals and stickers may be posted
only in any of the authorized posting areas provided in
paragraph (f) of Section 21 hereof" is DECLARED NULL and
VOID.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Grio-
Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon,
JJ., concur.
Feliciano and Bellosillo, JJ., is on leave.
||| (Adiong v. COMELEC, G.R. No. 103956, [March 31, 1992])
3. ABS-CBN v. COMELEC
EN BANC
[G.R. No. 133486. January 28, 2000.]
ABS-CBN BROADCASTING CORPORATION, petitioner, vs.
COMMISSION ON ELECTIONS, respondent.
Quiason Makalintal Barot Torres & Ibarra for petitioner.
The Solicitor General for respondent.
SYNOPSIS
This is a petition for certiorari under Rule 65 of the Rules of
Court filed by ABS-CBN Broadcasting Corporation assailing
the COMELEC En Banc Resolution No. 98-1419 dated April
21, 1998 approving the issuance of a restraining order to stop
petitioner ABS-CBN or any other groups, its agents or
representatives from conducting exit survey and to authorize
the Honorable Chairman to issue the same. Because of the
issuance of this resolution, petitioner filed the instant case, and
on May 9, 1998, the Court issued the temporary restraining
order prayed for by petitioner. The lone issue to be resolved in
this case is whether or not the respondent Comelec acted with
grave abuse of discretion amounting to lack or excess of
jurisdiction when it approved the issuance of a restraining
order enjoining the petitioner or any other group, its agents or
representatives from conducting exit polls during the May 11,
1998 elections.
The Supreme Court found the petition meritorious. The Court
ruled that the holding of exit polls and the dissemination of their
results through mass media constitute an essential part of the
freedoms of speech and of the press. Hence, the Comelec
cannot ban them totally in the guise of promoting clean,
honest, orderly and credible elections. Moreover, the
Comelec's concern with the possible noncommunicative effect
of exit polls disorder and confusion in the voting centers
does not justify a total ban on them. Undoubtedly, the assailed
Comelec Resolution was too broad, since its application is
without qualification as to whether the polling is disruptive or
not. Concededly, the Omnibus Election Code prohibits
disruptive behaviors around the voting centers. There was no
showing, however, that exit polls or the means to interview
voters cause chaos in voting centers. Neither had any
evidence been presented proving that the presence of exit poll
reporters near the election precincts tended to create disorder
or confuse the voters. Accordingly, the petition was granted
and the temporary restraining order issued by the Court was
made permanent.
SYLLABUS
1. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF
RIGHTS; FREEDOM OF SPEECH AND OF THE PRESS;
NATURE AND SCOPE THEREOF. The freedom of
expression is a fundamental principle of our democratic
government. It "is a 'preferred' right and, therefore, stands on a
higher level than substantive economic or other liberties. . . .
[T]his must be so because the lessons of history, both political
and legal, illustrate that freedom of thought and speech is the
indispensable condition of nearly every other form of freedom."
Our Constitution clearly mandates that no law shall be passed
abridging the freedom of speech or of the press. In the
landmark case Gonzales v. Comelec, this Court enunciated
that at the very least, free speech and a free press consist of
the liberty to discuss publicly and truthfully any matter of public
interest without prior restraint. The freedom of expression is a
means of assuring individual self-fulfillment, of attaining the
truth, of securing participation by the people in social and
political decision-making, and of maintaining the balance
between stability and change. It represents a profound
commitment to the principle that debates on public issues
should be uninhibited, robust, and wide open. It means more
than the right to approve existing political beliefs or economic
arrangements, to lend support to official measures, or to take
refuge in the existing climate of opinion on any matter of public
consequence. And paraphrasing the eminent Justice Oliver
Wendell Holmes, we stress that the freedom encompasses the
thought we hate, no less than the thought we agree
with. DTAaCE
2. ID.; ID.; ID.; ID.; LIMITATIONS; CLEAR AND PRESENT
DANGER TEST. This Court adheres to the "clear and
present danger" test. It implicitly did in its earlier decisions
in Primicias v. Fugoso and American Bible Society v. City of
Manila; as well as in later ones, Vera v. Arca, Navarro v.
Villegas, Imbong v. Ferrer, Blo Umpar Adiong v. Comelec and,
more recently, in Iglesia ni Cristo v. MTRCB. In setting the
standard or test for the "clear and present danger" doctrine, the
Court echoed the words of Justice Holmes: "The question in
every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive
evils that Congress has a right to prevent. It is a question of
proximity and degree." A limitation on the freedom of
expression may be justified only by a danger of such
substantive character that the state has a right to prevent.
Unlike in the "dangerous tendency" doctrine, the danger must
not only be clear but also present. "Present" refers to the time
element; the danger must not only be probable but very likely
to be inevitable. The evil sought to be avoided must be so
substantive as to justify a clamp over one's mouth or a restraint
of a writing instrument.
3. ID.; ID.; ID.; ID.; JUSTIFICATION FOR RESTRICTION.
Doctrinally, the Court has always ruled in favor of the freedom
of expression, and any restriction is treated an exemption. The
power to exercise prior restraint is not to be presumed; rather
the presumption is against its validity. And it is respondent's
burden to overthrow such presumption. Any act that restrains
speech should be greeted with furrowed brows, so it has been
said. To justify a restriction, the promotion of a substantial
government interest must be clearly shown. Thus: "A
government regulation is sufficiently justified if it is within the
constitutional power of the government, if it furthers an
important or substantial government interest; if the
governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest." Hence, even though the
government's purposes are legitimate and substantial, they
cannot be pursued by means that broadly stifle fundamental
personal liberties, when the end can be more narrowly
achieved.
4. ID.; ID.; ID.; ID.; TOTAL BAN ON EXIT POLL NOT
JUSTIFIED. The Comelec's concern with the possible
noncommunicative effect of exit polls disorder and
confusion in the voting centers does not justify a total ban
on them. Undoubtedly, the assailed Comelec Resolution is too
broad, since its application is without qualification as to
whether the polling is disruptive or not. Concededly, the
Omnibus Election Code prohibits disruptive behavior around
the voting centers. There is no showing, however, that exit
polls or the means to interview voters cause chaos in voting
centers. Neither has any evidence been presented proving that
the presence of exit poll reporters near an election precinct
tends to create disorder or confuse the voters. Moreover, the
prohibition incidentally prevents the collection of exit poll data
and their use for any purpose. The valuable information and
ideas that could be derived from them, based on the voters'
answers to the survey questions will forever remain unknown
and unexplored. Unless the ban is restrained, candidates,
researchers, social scientists and the electorate in general
would be deprived of studies on the impact of current events
and of election-day and other factors on voters' choices.
In Daily Herald Co. vs. Munro, the US Supreme Court held that
a statute, one of the purposes of which was to prevent the
broadcasting of early returns, was unconstitutional because
such purpose was impermissible, and the statute was neither
narrowly tailored to advance a state interest nor the least
restrictive alternative. Furthermore, the general interest of the
State in insulating voters from outside influences is insufficient
to justify speech regulation. Just as curtailing election-day
broadcasts and newspaper editorials for the reason that they
might indirectly affect the voters' choices is impermissible, so is
regulating speech via an exit poll restriction. The absolute ban
imposed by the Comelec cannot, therefore, be justified. It does
not leave open any alternative channel of communication to
gather the type of information obtained through exit polling. On
the other hand, there are other valid and reasonable ways and
means to achieve the Comelec end of avoiding or minimizing
disorder and confusion that may be brought about by exit
surveys.
5. ID.; ID.; ID.; ID.; EXIT POLLS DO NOT TRANSGRESS THE
SANCTITY AND SECRECY OF THE BALLOT. The
contention of public respondent that exit polls indirectly
transgress the sanctity and the secrecy of the ballot is off-
tangent to the real issue. Petitioner does not seek access to
the ballots cast by the voters. The ballot system of voting is not
at issue here. The reason behind the principle of ballot secrecy
is to avoid vote buying through voter identification. Thus, voters
are prohibited from exhibiting the contents of their official
ballots to other persons, from making copies thereof, or from
putting distinguishing marks thereon so as to be identified. Also
proscribed is finding out contents of the ballots cast by
particular voters or disclosing those of disabled or illiterate
voters who have been assisted. Clearly, what is forbidden is
the association of voters with their respective votes, for the
purpose of assuring that the votes have been cast in
accordance with the instructions of a third party. This result
cannot, however, be achieved merely through the voters'
verbal and confidential disclosure to a pollster of whom they
have voted for. In exit polls, the contents of the official ballot
are not actually exposed. Furthermore, the revelation of whom
an elector has voted for is not compulsory, but voluntary.
Voters may also choose not to reveal their identities. Indeed,
narrowly tailored countermeasures may be prescribed by the
Comelec, so as to minimize or suppress incidental problems in
the conduct of exit polls, without transgressing the fundamental
rights of our people.
VITUG, J., separate opinion:
CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO FREE
SPEECH AND INFORMATION; NOT ILLIMITABLE AND
IMMUNE FROM THE VALID EXERCISE OF AN EVER
DEMANDING AND PERVASIVE POLICE POWER. While I
understand what the ponencia is saying quite laudably, I also
appreciate, upon the other hand, the concern of the
Commission on Elections, i.e., that the conduct of exit polls can
have some adverse effects on the need to preserve the
sanctity of the ballot. The Commission performs an
indispensable task of ensuring free, honest, and orderly
elections and of guarding against any frustration of the true will
of the people. Expectedly, it utilizes all means available within
its power and authority to prevent the electoral process from
being manipulated and rendered an absurdity. Like my
colleagues, I greatly prize the freedom of expression but, so
also, I cherish no less the right of the people to express their
will by means of the ballot. In any case, I must accept the
reality that the right to information and free speech is not
illimitable and immune from the valid exercise of an ever
demanding and pervasive police power. Whether any kind of
restraint should be upheld or declared invalid in the proper
balancing of interest is one that must be resolved at any given
moment, not on perceived circumstances, but on prevailing
facts. aDIHCT
KAPUNAN, J., dissenting opinion:
1. POLITICAL LAW; CONSTITUTIONAL LAW; RIGHT TO
FREE SPEECH; IF THE RIGHT TO FREE SPEECH
COLLIDES WITH A NORM OF CONSTITUTIONAL STATURE,
THE RULE ON HEAVY PRESUMPTION OF INVALIDITY
DOES NOT APPLY. The majority opinion cites the general
rule that any restrictions to freedom of expression would be
burdened with a presumption of invalidity and should be
greeted with "furrowed brows." While this has been the
traditional approach, this rule does not apply where, as in this
case, the Comelec exercised its Constitutional functions of
securing the secrecy and sanctity of the ballots and ensuring
the integrity of the elections. Thus, Mr. Justice Feliciano
in National Press Club (NPC) v. Comelec wrote: The technical
effect of Article IX (C) (4) of the Constitution may be seem to
be that no presumption of invalidity arises in respect of
supervisory or regulatory authority on the part of the
COMELEC for the purpose of securing equal opportunity
among candidates for political office, although such
supervision or regulation may result in some limitation of the
right of free speech and free press. For supervision or
regulation of the operations of media enterprises is scarcely
conceivable without such accompanying limitation. Thus, the
applicable rule is the general, time honored one that a
statute is presumed to be constitutional and that the party
asserting its unconstitutionality must discharge the burden of
clearly and convincingly proving that assertion. The NPC
decision holds that if the right to free speech collides with a
norm of constitutional stature, the rule on heavy presumption of
invalidity does not apply.
2. ID.; ID.; ID.; IF NO PRESUMPTION OF INVALIDITY
ARISES, THERE IS NO OCCASION FOR THE APPLICATION
OF THE CLEAR AND PRESENT DANGER TEST. Our
Constitution mandates the Comelec to enforce and administer
laws and regulations relative to the conduct of elections and to
secure the secrecy and sanctity of the ballots to ensure
orderly, honest, credible and peaceful elections. This
Constitutional provision effectively displaces the general
presumption of invalidity in favor of the presumption that
Comelec acted in the exercise of its constitutionally mandated
powers. If no presumption of invalidity arises, I see no
occasion for the application of the "clear and present danger
test." As this Court, through Mr. Justice Mendoza, succinctly
observed: . . . the clear-and-present danger test is not,
however, a sovereign remedy for all free speech problems. As
has been pointed out by a thoughtful student of constitutional
law, it was originally formulated for the criminal law and only
later appropriated for free speech cases. For the criminal law is
necessarily concerned with the line at which innocent
preparation ends and guilty conspiracy or attempt begins.
Clearly, it is inappropriate as a test for determining the
constitutional validity of law which, like 11(b) of R.A. No.
6646, are not concerned with the content of political ads but
only with their incidents. To apply the clear-and-present danger
test to such regulatory measures would be like using a
sledgehammer to drive a nail when a regular hammer is all that
is needed.
DECISION
PANGANIBAN, J p:
The holding of exit polls and the dissemination of their results
through mass media constitute an essential part of the
freedoms of speech and of the press. Hence, the Comelec
cannot ban them totally in the guise of promoting clean,
honest, orderly and credible elections. Quite the contrary, exit
polls properly conducted and publicized can be vital tools
in eliminating the evils of election-fixing and fraud. Narrowly
tailored countermeasures may be prescribed by the Comelec
so as to minimize or suppress the incidental problems in the
conduct of exit polls, without transgressing in any manner the
fundamental rights of our people.
The Case and the Facts
Before us is a Petition for Certiorari under Rule 65 of the Rules
of Court assailing Commission on Elections (Comelec) en
banc Resolution No. 98-1419 1dated April 21, 1998. In the said
Resolution, the poll body
"RESOLVED to approve the issuance of a restraining order to
stop ABS-CBN or any other groups, its agents or
representatives from conducting such exit survey and to
authorize the Honorable Chairman to issue the same."
The Resolution was issued by the Comelec allegedly upon
"information from [a] reliable source that ABS-CBN (Lopez
Group) has prepared a project, with PR groups, to conduct
radio-TV coverage of the elections . . . and to make [an] exit
survey of the . . . vote during the elections for national officials
particularly for President and Vice President, results of which
shall be [broadcast] immediately." 2 The electoral body
believed that such project might conflict with the official
Comelec count, as well as the unofficial quick count of the
National Movement for Free Elections (Namfrel). It also noted
that it had not authorized or deputized Petitioner ABS-CBN to
undertake the exit survey.
On May 9, 1998, this Court issued the Temporary Restraining
Order prayed for by petitioner. We directed the Comelec to
cease and desist, until further orders, from implementing the
assailed Resolution or the restraining order issued pursuant
thereto, if any. In fact, the exit polls were actually conducted
and reported by media without any difficulty or problem.
The Issues
Petitioner raises this lone issue: "Whether or not the
Respondent Commission acted with grave abuse of discretion
amounting to a lack or excess of jurisdiction when it approved
the issuance of a restraining order enjoining the petitioner or
any [other group], its agents or representatives from
conducting exit polls during the . . . May 11 elections." 3
In his Memorandum, 4 the solicitor general, in seeking to
dismiss the Petition, brings up additional issues: (1) mootness
and (2) prematurity, because of petitioner's failure to seek a
reconsideration of the assailed Comelec Resolution. LibLex
The Court's Ruling
The Petition 5 is meritorious.
Procedural Issues:
Mootness and Prematurity
The solicitor general contends that the petition is moot and
academic, because the May 11, 1998 election has already
been held and done with. Allegedly, there is no longer any
actual controversy before us.
The issue is not totally moot. While the assailed Resolution
referred specifically to the May 11, 1998 election, its
implications on the people's fundamental freedom of
expression transcend the past election. The holding of periodic
elections is a basic feature of our democratic government. By
its very nature, exit polling is tied up with elections. To set
aside the resolution of the issue now will only postpone a task
that could well crop up again in future elections. 6
In any event, in Salonga v. Cruz Pano, the Court had occasion
to reiterate that it "also has the duty to formulate guiding and
controlling constitutional principles, precepts, doctrines, or
rules. It has the symbolic function of educating bench and bar
on the extent of protection given by constitutional
guarantees." 7 Since the fundamental freedoms of speech and
of the press are being invoked here, we have resolved to
settle, for the guidance of posterity, whether they likewise
protect the holding of exit polls and the dissemination of data
derived therefrom.
The solicitor general further contends that the Petition should
be dismissed for petitioner's failure to exhaust available
remedies before the issuing forum, specifically the filing of a
motion for reconsideration.
This Court, however, has ruled in the past that this procedural
requirement may be glossed over to prevent a miscarriage of
justice, 8 when the issue involves the principle of social justice
or the protection of labor, 9 when the decision or resolution
sought to be set aside is a nullity, 10 or when the need for
relief is extremely urgent and certiorari is the only adequate
and speedy remedy available. 11
The instant Petition assails a Resolution issued by the
Comelec en banc on April 21, 1998, only twenty (20) days
before the election itself. Besides, the petitioner got hold of a
copy thereof only on May 4, 1998. Under the circumstances,
there was hardly enough opportunity to move for a
reconsideration and to obtain a swift resolution in time for the
May 11, 1998 elections. Moreover, not only is time of the
essence; the Petition involves transcendental constitutional
issues. Direct resort to this Court through a special civil action
for certiorari is therefore justified.

Main Issue:
Validity of Conducting Exit Polls
An exit poll is a species of electoral survey conducted by
qualified individuals or group of individuals for the purpose of
determining the probable result of an election by confidentially
asking randomly selected voters whom they have voted for,
immediately after they have officially cast their ballots. The
results of the survey are announced to the public, usually
through the mass media, to give an advance overview of how,
in the opinion of the polling individuals or organizations, the
electorate voted. In our electoral history, exit polls had not
been resorted to until the recent May 11, 1998 elections.
In its Petition, ABS-CBN Broadcasting Corporation maintains
that it is a responsible member of the mass media, committed
to report balanced election-related data, including "the
exclusive results of Social Weather Station (SWS) surveys
conducted in fifteen administrative regions."
It argues that the holding of exit polls and the nationwide
reporting of their results are valid exercises of the freedoms of
speech and of the press. It submits that, in precipitately and
unqualifiedly restraining the holding and the reporting of exit
polls, the Comelec gravely abused its discretion and grossly
violated the petitioner's constitutional rights.
Public respondent, on the other hand, vehemently denies that,
in issuing the assailed Resolution, it gravely abused its
discretion. It insists that the issuance thereof was "pursuant to
its constitutional and statutory powers to promote a clean,
honest, orderly and credible May 11, 1998 elections"; and "to
protect, preserve and maintain the secrecy and sanctity of the
ballot." It contends that "the conduct of exit surveys might
unduly confuse and influence the voters," and that the surveys
were designed "to condition the minds of people and cause
confusion as to who are the winners and the [losers] in the
election," which in turn may result in "violence and anarchy."
Public respondent further argues that "exit surveys indirectly
violate the constitutional principle to preserve the sanctity of
the ballots," as the "voters are lured to reveal the contents of
ballots," in violation of Section 2, Article V of the
Constitution; 12 and relevant provisions of the Omnibus
Election Code. 13 It submits that the constitutionally protected
freedoms invoked by petitioner "are not immune to regulation
by the State in the legitimate exercise of its police power," such
as in the present case.
The solicitor general, in support of the public respondent, adds
that the exit polls pose a "clear and present danger of
destroying the credibility and integrity of the electoral process,"
considering that they are not supervised by any government
agency and can in general be manipulated easily. He insists
that these polls would sow confusion among the voters and
would undermine the official tabulation of votes conducted by
the Commission, as well as the quick count undertaken by the
Namfrel.
Admittedly, no law prohibits the holding and the reporting of
exit polls. The question can thus be more narrowly defined:
May the Comelec, in the exercise of its powers, totally ban exit
polls? In answering this question, we need to review quickly
our jurisprudence on the freedoms of speech and of the press.
Nature and Scope of Freedoms
of Speech and of the Press
The freedom of expression is a fundamental principle of our
democratic government. It "is a 'preferred' right and, therefore,
stands on a higher level than substantive economic or other
liberties. . . . [T]his must be so because the lessons of history,
both political and legal, illustrate that freedom of thought and
speech is the indispensable condition of nearly every other
form of freedom." 14
Our Constitution clearly mandates that no law shall be passed
abridging the freedom of speech or of the press. 15 In the
landmark case Gonzales v.Comelec, 16 this Court enunciated
that at the very least, free speech and a free press consist of
the liberty to discuss publicly and truthfully any matter of public
interest without prior restraint. LLpr
The freedom of expression is a means of assuring individual
self-fulfillment, of attaining the truth, of securing participation by
the people in social and political decision-making, and of
maintaining the balance between stability and change. 17 It
represents a profound commitment to the principle that
debates on public issues should be uninhibited, robust, and
wide open. 18 It means more than the right to approve existing
political beliefs or economic arrangements, to lend support to
official measures, or to take refuge in the existing climate of
opinion on any matter of public consequence. And
paraphrasing the eminent Justice Oliver Wendell
Holmes, 19 we stress that the freedom encompasses the
thought we hate, no less than the thought we agree with.
Limitations
The realities of life in a complex society, however, preclude an
absolute exercise of the freedoms of speech and of the press.
Such freedoms could not remain unfettered and unrestrained
at all times and under all circumstances. 20 They are not
immune to regulation by the State in the exercise of its police
power. 21 While the liberty to think is absolute, the power to
express such thought in words and deeds has limitations.
In Cabansag v. Fernandez 22 this Court had occasion to
discuss two theoretical tests in determining the validity of
restrictions to such freedoms, as follows:
"These are the 'clear and present danger' rule and the
'dangerous tendency' rule. The first, as interpreted in a number
of cases, means that the evil consequence of the comment or
utterance must be 'extremely serious and the degree of
imminence extremely high' before the utterance can be
punished. The danger to be guarded against is the 'substantive
evil' sought to be prevented. . . ." 23
"The 'dangerous tendency' rule, on the other hand, . . . may be
epitomized as follows: If the words uttered create a dangerous
tendency which the state has a right to prevent, then such
words are punishable. It is not necessary that some definite or
immediate acts of force, violence, or unlawfulness be
advocated. It is sufficient that such acts be advocated in
general terms. Nor is it necessary that the language used be
reasonably calculated to incite persons to acts of force,
violence, or unlawfulness. It is sufficient if the natural tendency
and probable effect of the utterance be to bring about the
substantive evil which the legislative body seeks to
prevent." 24
Unquestionably, this Court adheres to the "clear and present
danger" test. It implicitly did in its earlier decisions in Primicias
v. Fugoso 25 and American Bible Society v. City of
Manila; 26 as well as in later ones, Vera v. Arca, 27 Navarro
v. Villegas, 28 Imbong v. Ferrer, 29 Blo Umpar Adiong
v. Comelec 30 and, more recently, in Iglesia ni Cristo
v. MTRCB. 31 In setting the standard or test for the "clear and
present danger" doctrine, the Court echoed the words of
Justice Holmes: "The question in every case is whether the
words used are used in such circumstances and are of such a
nature as to create a clear and present danger that they will
bring about the substantive evils that Congress has a right to
prevent. It is a question of proximity and degree." 32
A limitation on the freedom of expression may be justified only
by a danger of such substantive character that the state has a
right to prevent. Unlike in the "dangerous tendency" doctrine,
the danger must not only be clear but also present. "Present"
refers to the time element; the danger must not only be
probable but very likely to be inevitable. 33 The evil sought to
be avoided must be so substantive as to justify a clamp over
one's mouth or a restraint of a writing instrument. 34
Justification for a Exit Polling
Restriction
Doctrinally, the Court has always ruled in favor of the freedom
of expression, and any restriction is treated an exemption. The
power to exercise prior restraint is not to be presumed; rather
the presumption is against its validity. 35 And it is respondent's
burden to overthrow such presumption. Any act that restrains
speech should be greeted with furrowed brows, 36 so it has
been said. Cdpr
To justify a restriction, the promotion of a substantial
government interest must be clearly shown. 37 Thus:
"A government regulation is sufficiently justified if it is within the
constitutional power of the government, if it furthers an
important or substantial government interest; if the
governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest." 38
Hence, even though the government's purposes are legitimate
and substantial, they cannot be pursued by means that broadly
stifle fundamental personal liberties, when the end can be
more narrowly achieved. 39
The freedoms of speech and of the press should all the more
be upheld when what is sought to be curtailed is the
dissemination of information meant to add meaning to the
equally vital right of suffrage. 40 We cannot support any ruling
or order "the effect of which would be to nullify so vital a
constitutional right as free speech." 41 When faced with
borderline situations in which the freedom of a candidate or a
party to speak or the freedom of the electorate to know is
invoked against actions allegedly made to assure clean and
free elections, this Court shall lean in favor of freedom. For in
the ultimate analysis, the freedom of the citizen and the State's
power to regulate should not be antagonistic. There can be no
free and honest elections if, in the efforts to maintain them, the
freedom to speak and the right to know are unduly curtailed. 42
True, the government has a stake in protecting the
fundamental right to vote by providing voting places that are
safe and accessible. It has the duty to secure the secrecy of
the ballot and to preserve the sanctity and the integrity of the
electoral process. However, in order to justify a restriction of
the people's freedoms of speech and of the press, the state's
responsibility of ensuring orderly voting must far outweigh
them.
These freedoms have additional importance, because exit polls
generate important research data which may be used to study
influencing factors and trends in voting behavior. An absolute
prohibition would thus be unreasonably restrictive, because it
effectively prevents the use of exit poll data not only for
election-day projections, but also for long-term research. 43
Comelec Ban on
In the case at bar, the Comelec justifies its assailed Resolution
as having been issued pursuant to its constitutional mandate to
ensure a free, orderly, honest, credible and peaceful election.
While admitting that "the conduct of an exit poll and the
broadcast of the results thereof [are] . . . an exercise of press
freedom," it argues that "[p]ress freedom may be curtailed if
the exercise thereof creates a clear and present danger to the
community or it has a dangerous tendency." It then contends
that "an exit poll has the tendency to sow confusion
considering the randomness of selecting interviewees, which
further make[s] the exit poll highly unreliable. The probability
that the results of such exit poll may not be in harmony with the
official count made by the Comelec . . . is ever present. In
other words, the exit poll has a clear and present danger of
destroying the credibility and integrity of the electoral process."
Such arguments are purely speculative and clearly
untenable. First, by the very nature of a survey, the
interviewees or participants are selected at random, so that the
results will as much as possible be representative or reflective
of the general sentiment or view of the community or group
polled.Second, the survey result is not meant to replace or be
at par with the official Comelec count. It consists merely of
the opinion of the polling group as to who the electorate in
general has probably voted for, based on the limited data
gathered from polled individuals. Finally, not at stake here are
the credibility and the integrity of the elections, which are
exercises that are separate and independent from the exit
polls. The holding and the reporting of the results of exit polls
cannot undermine those of the elections, since the former is
only part of the latter. If at all, the outcome of one can only be
indicative of the other.
The Comelec's concern with the possible noncommunicative
effect of exit polls disorder and confusion in the voting
centers does not justify a total ban on them. Undoubtedly,
the assailed Comelec Resolution is too broad, since its
application is without qualification as to whether the polling is
disruptive or not. 44 Concededly, the Omnibus Election Code
prohibits disruptive behavior around the voting
centers. 45 There is no showing, however, that exit polls or the
means to interview voters cause chaos in voting centers.
Neither has any evidence been presented proving that the
presence of exit poll reporters near an election precinct tends
to create disorder or confuse the voters.
Moreover, the prohibition incidentally prevents the collection of
exit poll data and their use for any purpose. The valuable
information and ideas that could be derived from them, based
on the voters' answers to the survey questions will forever
remain unknown and unexplored. Unless the ban is restrained,
candidates, researchers, social scientists and the electorate in
general would be deprived of studies on the impact of current
events and of election-day and other factors on voters' choices.
In Daily Herald Co. v. Munro, 46 the US Supreme Court held
that a statute, one of the purposes of which was to prevent the
broadcasting of early returns, was unconstitutional because
such purpose was impermissible, and the statute was neither
narrowly tailored to advance a state interest nor the least
restrictive alternative. Furthermore, the general interest of the
State in insulating voters from outside influences is insufficient
to justify speech regulation. Just as curtailing election-day
broadcasts and newspaper editorials for the reason that they
might indirectly affect the voters' choices is impermissible, so is
regulating speech via an exit poll restriction. 47
The absolute ban imposed by the Comelec cannot, therefore,
be justified. It does not leave open any alternative channel of
communication to gather the type of information obtained
through exit polling. On the other hand, there are other valid
and reasonable ways and means to achieve the Comelec end
of avoiding or minimizing disorder and confusion that may be
brought about by exit surveys.
For instance, a specific limited area for conducting exit polls
may be designated. Only professional survey groups may be
allowed to conduct the same. Pollsters may be kept at a
reasonable distance from the voting center. They may be
required to explain to voters that the latter may refuse to be
interviewed, and that the interview is not part of the official
balloting process. The pollsters may further be required to
wear distinctive clothing that would show they are not election
officials. 48 Additionally, they may be required to undertake an
information campaign on the nature of the exercise and the
results to be obtained therefrom. These measures, together
with a general prohibition of disruptive behavior, could ensure
a clean, safe and orderly election. prcd
For its part, Petitioner ABS-CBN explains its survey
methodology as follows: (1) communities are randomly
selected in each province; (2) residences to be polled in such
communities are also chosen at random; (3) only individuals
who have already voted, as shown by the indelible ink on their
fingers, are interviewed; (4) the interviewers use no cameras of
any sort; (5) the poll results are released to the public only on
the day after the elections. 49 These precautions, together with
the possible measures earlier stated, may be undertaken to
abate the Comelec's fear, without consequently and
unjustifiably stilling the people's voice.
With the foregoing premises, we conclude that the interest of
the state in reducing disruption is outweighed by the drastic
abridgment of the constitutionally guaranteed rights of the
media and the electorate. Quite the contrary, instead of
disrupting elections, exit polls properly conducted and
publicized can be vital tools for the holding of honest,
orderly, peaceful and credible elections; and for the elimination
of election-fixing, fraud and other electoral ills.
Violation of Ballot Secrecy
The contention of public respondent that exit polls indirectly
transgress the sanctity and the secrecy of the ballot is off-
tangent to the real issue. Petitioner does not seek access to
the ballots cast by the voters. The ballot system of voting is not
at issue here.
The reason behind the principle of ballot secrecy is to avoid
vote buying through voter identification. Thus, voters are
prohibited from exhibiting the contents of their official ballots to
other persons, from making copies thereof, or from putting
distinguishing marks thereon so as to be identified. Also
proscribed is finding out the contents of the ballots cast by
particular voters or disclosing those of disabled or illiterate
voters who have been assisted. Clearly, what is forbidden is
the association of voters with their respective votes, for the
purpose of assuring that the votes have been cast in
accordance with the instructions of a third party. This result
cannot, however, be achieved merely through the voters'
verbal and confidential disclosure to a pollster of whom they
have voted for.
In exit polls, the contents of the official ballot are not actually
exposed. Furthermore, the revelation of whom an elector has
voted for is not compulsory, but voluntary. Voters may also
choose not to reveal their identities. Indeed, narrowly tailored
countermeasures may be prescribed by the Comelec, so as to
minimize or suppress incidental problems in the conduct of exit
polls, without transgressing the fundamental rights of our
people. cdrep
WHEREFORE, the Petition is GRANTED, and the Temporary
Restraining Order issued by the Court on May 9, 1998 is made
PERMANENT. Assailed Minute Resolution No. 98-1419 issued
by the Comelec en banc on April 21, 1998 is hereby
NULLIFIED and SET ASIDE. No costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Quisumbing, Purisima,
Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon,
Jr., JJ., concur.
Melo and Mendoza, JJ., join separate opinion of J. Vitug.
Vitug, J., see separate opinion.
Kapunan, J., see dissenting opinion.
Pardo, J ., took no part.
||| (ABS-CBN Broadcasting Corp. v. COMELEC, G.R. No.
133486, [January 28, 2000], 380 PHIL 780-804)
4. SWS v. COMELEC
EN BANC
[G.R. No. 147571. May 5, 2001.]
SOCIAL WEATHER STATIONS, INCORPORATED and
KAMAHALAN PUBLISHING CORPORATION, doing
business as MANILA STANDARD,petitioners, vs.
COMMISSION ON ELECTIONS, respondent.
DECISION
MENDOZA, J p:
Petitioner, Social Weather Stations, Inc. (SWS), is a private
non-stock, non-profit social research institution conducting
surveys in various fields, including economics, politics,
demography, and social development, and thereafter
processing, analyzing, and publicly reporting the results
thereof. On the other hand, petitioner Kamahalan Publishing
Corporation publishes the Manila Standard, a newspaper of
general circulation, which features newsworthy items of
information including election surveys.
Petitioners brought this action for prohibition to enjoin the
Commission on Elections from enforcing 5.4 of R.A. No.
9006 (Fair Election Act), which provides:
Surveys affecting national candidates shall not be published
fifteen (15) days before an election and surveys affecting local
candidates shall not be published seven (7) days before an
election.
The term "election surveys" is defined in 5.1 of the law as
follows:
Election surveys refer to the measurement of opinions and
perceptions of the voters as regards a candidate's popularity,
qualifications, platforms or a matter of public discussion in
relation to the election, including voters' preference for
candidates or publicly discussed issues during the campaign
period (hereafter referred to as "Survey").
To implement 5.4, Resolution 3636, 24(h), dated March 1,
2001, of the COMELEC enjoins
Surveys affecting national candidates shall not be published
fifteen (15) days before an election and surveys affecting local
candidates shall not be published seven (7) days before an
election.
Petitioner SWS states that it wishes to conduct an election
survey throughout the period of the elections both at the
national and local levels and release to the media the results of
such survey as well as publish them directly. Petitioner
Kamahalan Publishing Corporation, on the other hand, states
that it intends to publish election survey results up to the last
day of the elections on May 14, 2001.
Petitioners argue that the restriction on the publication of
election survey results constitutes a prior restraint on the
exercise of freedom of speech without any clear and present
danger to justify such restraint. They claim that SWS and other
pollsters conducted and published the results of surveys prior
to the 1992, 1995, and 1998 elections up to as close as two
days before the election day without causing confusion among
the voters and that there is neither empirical nor historical
evidence to support the conclusion that there is an immediate
and inevitable danger to the voting process posed by election
surveys. They point out that no similar restriction is imposed on
politicians from explaining their opinion or on newspapers or
broadcast media from writing and publishing articles
concerning political issues up to the day of the election.
Consequently, they contend that there is no reason for ordinary
voters to be denied access to the results of election surveys
which are relatively objective. ETHaDC
Respondent Commission on Elections justifies the restrictions
in 5.4 of R.A. No. 9006 as necessary to prevent the
manipulation and corruption of the electoral process by
unscrupulous and erroneous surveys just before the election. It
contends that (1) the prohibition on the publication of election
survey results during the period proscribed by law bears a
rational connection to the objective of the law, i.e., the
prevention of the debasement of the electoral process resulting
from manipulated surveys, bandwagon effect, and absence of
reply; (2) it is narrowly tailored to meet the "evils" sought to be
prevented; and (3) the impairment of freedom of expression is
minimal, the restriction being limited both in duration, i.e., the
last 15 days before the national election and the last 7 days
before a local election, and in scope as it does not prohibit
election survey results but only require timeliness. Respondent
claims that in National Press Club v. COMELEC, 1 a total ban
on political advertisements, with candidates being merely
allocated broadcast time during the so-called COMELEC
space or COMELEC hour, was upheld by this Court. In
contrast, according to respondent, it states that the prohibition
in 5.4 of R.A. No. 9006 is much more limited.
For reasons hereunder given, we hold that 5.4 of R.A. No.
9006 constitutes an unconstitutional abridgment of freedom of
speech, expression, and the press.
To be sure, 5.4 lays a prior restraint on freedom of speech,
expression, and the press by prohibiting the publication of
election survey results affecting candidates within the
prescribed periods of fifteen (15) days immediately preceding a
national election and seven (7) days before a local election.
Because of the preferred status of the constitutional rights of
speech, expression, and the press, such a measure is vitiated
by a weighty presumption of invalidity. 2 Indeed, "any system
of prior restraints of expression comes to this Court bearing a
heavy presumption against its constitutional validity. . . . The
Government 'thus carries a heavy burden of showing
justification for the enforcement of such restraint.'" 3 There is
thus a reversal of the normal presumption of validity that
inheres in every legislation.
Nor may it be argued that because of Art. IX-C, 4 of
the Constitution, which gives the COMELEC supervisory power
to regulate the enjoyment or utilization of franchise for the
operation of media of communication, no presumption of
invalidity attaches to a measure like 5.4. For as we have
pointed out in sustaining the ban on media political
advertisements, the grant of power to the COMELEC under
Art. IX-C, 4 is limited to ensuring "equal opportunity, time,
space, and the right to reply" as well as uniform and
reasonable rates of charges for the use of such media facilities
for "public information campaigns and forums among
candidates." 4 This Court stated:
The technical effect of Article IX (C) (4) of the Constitution may
be seen to be that no presumption of invalidity arises in respect
of exercises of supervisory or regulatory authority on the part
of the Comelec for the purpose of securing equal opportunity
among candidates for political office, although such
supervision or regulation may result in some limitation of the
rights of free speech and free press. 5
MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate
the test of clear and present danger for determining the validity
of 5.4. Indeed, as has been pointed out in Osmea v.
COMELEC, 6 this test was originally formulated for the criminal
law and only later appropriated for free speech cases. Hence,
while it may be useful for determining the validity of laws
dealing with inciting to sedition or incendiary speech, it may not
be adequate for such regulations as the one in question. For
such a test is concerned with questions of the gravity and
imminence of the danger as basis for curtailing free speech,
which is not the case of 5.4 and similar regulations.
Instead, MR. JUSTICE KAPUNAN purports to engage in a
form of balancing by "weighing and balancing the
circumstances to determine whether public interest [in free,
orderly, honest, peaceful and credible elections] is served by
the regulation of the free enjoyment of the rights" (page 7).
After canvassing the reasons for the prohibition, i.e., to prevent
last-minute pressure on voters, the creation of bandwagon
effect to favor candidates, misinformation, the "junking" of
weak and "losing" candidates by their parties, and the form of
election cheating called "dagdag-bawas" and invoking the
State's power to supervise media of information during the
election period (pages 11-16), the dissenting opinion simply
concludes: ACTEHI
Viewed in the light of the legitimate and significant objectives of
Section 5.4, it may be seen that its limiting impact on the rights
of free speech and of the press is not unduly repressive or
unreasonable. Indeed, it is a mere restriction, not an absolute
prohibition, on the publication of election surveys. It is limited in
duration; it applies only during the period when the voters are
presumably contemplating whom they should elect and when
they are most susceptible to such unwarranted persuasion.
These surveys may be published thereafter. (Pages 17-18)
The dissent does not, however, show why, on balance, these
considerations should outweigh the value of freedom of
expression. Instead, reliance is placed on Art. IX-C, 4. As
already stated, the purpose of Art. IX-C, 4 is to "ensure equal
opportunity, time, and space and the right of reply, including
reasonable, equal rates therefor for public information
campaigns and forums among candidates." Hence the validity
of the ban on media advertising. It is noteworthy that R.A. No.
9006, 14 has lifted the ban and now allows candidates to
advertise their candidacies in print and broadcast media.
Indeed, to sustain the ban on the publication of survey results
would sanction the censorship of all speaking by candidates in
an election on the ground that the usual bombasts and
hyperbolic claims made during the campaigns can confuse
voters and thus debase the electoral process.
In sum, the dissent has engaged only in a balancing at the
margin. This form of ad hoc balancing predictably results in
sustaining the challenged legislation and leaves freedom of
speech, expression, and the press with little protection. For
anyone who can bring a plausible justification forward can
easily show a rational connection between the statute and a
legitimate governmental purpose. In contrast, the balancing of
interest undertaken by then Justice Castro in Gonzales
v. COMELEC, 7 from which the dissent in this case takes its
cue, was a strong one resulting in his conclusion that 50-B
of R.A. No. 4880, which limited the period of election campaign
and partisan political activity, was an unconstitutional
abridgment of freedom of expression.
Nor can the ban on election surveys be justified on the ground
that there are other countries 78, according to the Solicitor
General, while the dissent cites 28 which similarly impose
restrictions on the publication of election surveys. At best this
survey is inconclusive. It is noteworthy that in the United States
no restriction on the publication of election survey results
exists. It cannot be argued that this is because the United
States is a mature democracy. Neither are there laws imposing
an embargo on survey results, even for a limited period, in
other countries. As pointed out by petitioners, the United
Kingdom, Austria, Belgium, Denmark, Estonia, Finland,
Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands,
Norway, Sweden, and Ukraine, some of which are no older nor
more mature than the Philippines in political development, do
not restrict the publication of election survey results.
What test should then be employed to determine the
constitutional validity of 5.4? The United States Supreme
Court, through Chief Justice Warren, held in United States
v. O'Brien:
[A] government regulation is sufficiently justified [1] if it is within
the constitutional power of the Government; [2] if it furthers an
important or substantial governmental interest; [3] if the
governmental interest is unrelated to the suppression of free
expression; and [4] if the incidental restriction on alleged First
Amendment freedoms [of speech, expression and press] is no
greater than is essential to the furtherance of that interest. 8
This is so far the most influential test for distinguishing content-
based from content-neutral regulations and is said to have
"become canonical in the review of such laws." 9 It is
noteworthy that the O'Brien test has been applied by this Court
in at least two cases. 10
Under this test, even if a law furthers an important or
substantial governmental interest, it should be invalidated if
such governmental interest is "not unrelated to the suppression
of free expression." Moreover, even if the purpose is unrelated
to the suppression of free speech, the law should nevertheless
be invalidated if the restriction on freedom of expression is
greater than is necessary to achieve the governmental purpose
in question.
Our inquiry should accordingly focus on these two
considerations as applied to 5.4.
First. Sec. 5.4 fails to meet criterion [3] of the O'Brien test
because the causal connection of expression to the asserted
governmental interest makes such interest "not unrelated to
the suppression of free expression." By prohibiting the
publication of election survey results because of the possibility
that such publication might undermine the integrity of the
election, 5.4 actually suppresses a whole class of expression,
while allowing the expression of opinion concerning the same
subject matter by newspaper columnists, radio and TV
commentators, armchair theorists, and other opinion makers.
In effect, 5.4 shows a bias for a particular subject matter, if
not viewpoint, by preferring personal opinion to statistical
results. The constitutional guarantee of freedom of expression
means that "the government has no power to restrict
expression because of its message, its ideas, its subject
matter, or its content." 11 The inhibition of speech should be
upheld only if the expression falls within one of the few
unprotected categories dealt with in Chaplinsky v.New
Hampshire, 12 thus:
There are certain well-defined and narrowly limited classes of
speech, the prevention and punishment of which have never
been thought to raise any Constitutional problem. These
include the lewd and obscene, the profane, the libelous, and
the insulting or 'fighting' words those which by their very
utterance inflict injury or tend to incite an immediate breach of
the peace. [S]uch utterances are no essential part of any
exposition of ideas, and are of such slight social value as a
step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality.
Nor is there justification for the prior restraint which 5.4 lays
on protected speech. In Near v. Minnesota, 13 it was held:
[The] protection even as to previous restraint is not absolutely
unlimited. But the limitation has been recognized only in
exceptional cases. . . . No one would question but that a
government might prevent actual obstruction to its recruiting
service or the publication of the sailing dates of transports or
the number and location of troops. On similar grounds, the
primary requirements of decency may be enforced against
obscene publications. The security of the community life may
be protected against incitements to acts of violence and the
overthrow by force of orderly government . . . . ACcaET
Thus, contrary to the claim of the Solicitor General, the
prohibition imposed by 5.4 cannot be justified on the ground
that it is only for a limited period and is only incidental. The
prohibition may be for a limited time, but the curtailment of the
right of expression is direct, absolute, and substantial. It
constitutes a total suppression of a category of speech and is
not made less so because it is only for a period of fifteen (15)
days immediately before a national election and seven (7) days
immediately before a local election.
This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b),
which this Court found to be valid in National Press Club
v. COMELEC 14 and Osmea v.COMELEC. 15 For the ban
imposed by R.A. No. 6646, 11(b) is not only authorized by a
specific constitutional provision, 16 but it also provided an
alternative so that, as this Court pointed out in Osmea, there
was actually no ban but only a substitution of media
advertisements by the COMELEC space and COMELEC hour.
Second. Even if the governmental interest sought to be
promoted is unrelated to the suppression of speech and the
resulting restriction of free expression is only incidental, 5.4
nonetheless fails to meet criterion [4] of the O'Brien test,
namely, that the restriction be not greater than is necessary to
further the governmental interest. As already stated, 5.4 aims
at the prevention of last-minute pressure on voters, the
creation of bandwagon effect, "junking" of weak or "losing"
candidates, and resort to the form of election cheating called
"dagdag-bawas." Praiseworthy as these aims of the regulation
might be, they cannot be attained at the sacrifice of the
fundamental right of expression, when such aim can be more
narrowly pursued by punishing unlawful acts, rather
than speech because of apprehension that such speech
creates the danger of such evils. Thus, under the
Administrative Code of 1987, 17 the COMELEC is given the
power:
To stop any illegal activity, or confiscate, tear down, and stop
any unlawful, libelous, misleading or false election
propaganda, after due notice and hearing.
This is surely a less restrictive means than the prohibition
contained in 5.4. Pursuant to this power of the COMELEC, it
can confiscate bogus survey results calculated to mislead
voters. Candidates can have their own surveys conducted. No
right of reply can be invoked by others. No principle of equality
is involved. It is a free market to which each candidate brings
his ideas. As for the purpose of the law to prevent bandwagon
effects, it is doubtful whether the Government can deal with
this natural-enough tendency of some voters. Some voters
want to be identified with the "winners." Some are susceptible
to the herd mentality. Can these be legitimately prohibited by
suppressing the publication of survey results which are a form
of expression? It has been held that "[mere] legislative
preferences or beliefs respecting matters of public
convenience may well support regulation directed at other
personal activities, but be insufficient to justify such as
diminishes the exercise of rights so vital to the maintenance of
democratic institutions." 18
To summarize then, we hold that 5.4 is invalid because (1) it
imposes a prior restraint on the freedom of expression, (2) it is
a direct and total suppression of a category of expression even
though such suppression is only for a limited period, and (3)
the governmental interest sought to be promoted can be
achieved by means other than the suppression of freedom of
expression.
On the other hand, the COMELEC contends that under Art. IX-
A, 7 of the Constitution, its decisions, orders, or resolutions
may be reviewed by this Court only by certiorari. The flaws in
this argument is that it assumes that its Resolution 3636, dated
March 1, 2001 is a "decision, order, or resolution" within the
meaning of Art. IX-A, 7. Indeed, counsel for COMELEC
maintains that Resolution 3636 was "rendered" by the
Commission. However, the Resolution does not purport to
adjudicate the right of any party. It is not an exercise by the
COMELEC of its adjudicatory power to settle the claims of
parties. To the contrary, Resolution 3636 clearly states that it is
promulgated to implement the provisions of R.A. No. 9006.
Hence, there is no basis for the COMELEC's claim that this
petition for prohibition is inappropriate. Prohibition has been
found appropriate for testing the constitutionality of various
election laws, rules, and regulations. 19
WHEREFORE, the petition for prohibition is GRANTED and
5.4 of R.A. No. 9006 and 24(h) of COMELEC Resolution
3636, dated March 1, 2001, are declared unconstitutional.
SO ORDERED.
||| (Social Weather Stations, Inc. v. COMELEC, G.R. No.
147571, [May 5, 2001], 409 PHIL 571-617)
5. CHAVEZ v. COMELEC
EN BANC
[G.R. No. 162777. August 31, 2004.]
FRANCISCO I. CHAVEZ, petitioner, vs. COMMISSION ON
ELECTIONS, represented by its Chairman, BENJAMIN S.
ABALOS, ESMERALDA AMORA-LADRA, in her capacity as
Acting Director IV, National Capital Judicial Region,
Commission on Elections, and the SOLICITOR
GENERAL, respondents.
DECISION
AZCUNA, J p:
In this petition for prohibition with prayer for the issuance of a
writ of preliminary injunction, Francisco I. Chavez stands as a
taxpayer and a citizen asking this Court to enjoin the
Commission on Elections (COMELEC) from enforcing Section
32 of its Resolution No. 6520, dated January 6, 2004. The
assailed provision is, as follows:
Section 32. All propaganda materials such as posters,
streamers, stickers or paintings on walls and other materials
showing the picture, image, or name of a person, and all
advertisements on print, in radio or on television showing the
image or mentioning the name of a person, who subsequent to
the placement or display thereof becomes a candidate for
public office shall be immediately removed by said candidate
and radio station, print media or television station within 3 days
after the effectivity of these implementing rules; otherwise, he
and said radio station, print media or television station shall be
presumed to have conducted premature campaigning in
violation of Section 80 of the Omnibus Election Code.
Petitioner Chavez, on various dates, entered into formal
agreements with certain establishments to endorse their
products. On August 18, 2003, he authorized a certain Andrew
So to use his name and image for 96 North, a clothing
company. Petitioner also signed Endorsement Agreements
with Konka International Plastics Manufacturing Corporation
and another corporation involved in the amusement and video
games business, G-Box. These last two agreements were
entered into on October 14, 2003 and November 10, 2003,
respectively. Pursuant to these agreements, three billboards
were set up along the Balintawak Interchange of the North
Expressway. One billboard showed petitioner promoting the
plastic products of Konka International Plastics Manufacturing
Corporation, and the other two showed petitioner endorsing the
clothes of 96 North. One more billboard was set up along
Roxas Boulevard showing petitioner promoting the game and
amusement parlors of G-Box.
On December 30, 2003, however, petitioner filed his certificate
of candidacy for the position of Senator under Alyansa ng Pag-
asa, a tripartite alliance of three political parties: PROMDI,
REPORMA, and Aksyon Demokratiko.
On January 6, 2004, respondent COMELEC issued Resolution
No. 6520, which contained Section 32, the provision assailed
herein. On January 21, 2004, petitioner was directed to comply
with the said provision by the COMELEC's Law Department.
He replied, on January 29, 2004, by requesting the COMELEC
that he be informed as to how he may have violated the
assailed provision. He sent another letter dated February 23,
2004, this time asking the COMELEC that he be exempted
from the application of Section 32, considering that the
billboards adverted to are mere product endorsements and
cannot be construed as paraphernalia for premature
campaigning under the rules. IEHTaA
The COMELEC answered petitioner's request by issuing
another letter, dated February 27, 2004, wherein it ordered him
to remove or cause the removal of the billboards, or to cover
them from public view pending the approval of his request.
Feeling aggrieved, petitioner Chavez asks this Court that the
COMELEC be enjoined from enforcing the assailed provision.
He urges this Court to declare the assailed provision
unconstitutional as the same is allegedly (1) a gross violation
of the non-impairment clause; (2) an invalid exercise of police
power; (3) in the nature of an ex-post facto law; (4) contrary to
the Fair Elections Act; and (5) invalid due to overbreadth.
Is Section 32 of COMELEC Resolution No. 6520 an invalid
exercise of police power? Petitioner argues that the billboards,
while they exhibit his name and image, do not at all announce
his candidacy for any public office nor solicit support for such
candidacy from the electorate. They are, he claims, mere
product endorsements and not election propaganda.
Prohibiting, therefore, their exhibition to the public is not within
the scope of the powers of the COMELEC, he concludes.
This Court takes a contrary view. Police power, as an inherent
attribute of sovereignty, is the power to prescribe regulations to
promote the health, morals, peace, education, good order, or
safety, and the general welfare of the people. 1 To determine
the validity of a police measure, two questions must be asked:
(1) Does the interest of the public in general, as distinguished
from those of a particular class, require the exercise of police
power? and (2) Are the means employed reasonably
necessary for the accomplishment of the purpose and not
unduly oppressive upon individuals?
A close examination of the assailed provision reveals that its
primary objectives are to prohibit premature campaigning and
to level the playing field for candidates of public office, to
equalize the situation between popular or rich candidates, on
one hand, and lesser-known or poorer candidates, on the
other, by preventing the former from enjoying undue advantage
in exposure and publicity on account of their resources and
popularity. The latter is a valid reason for the exercise of police
power as held in National Press Club v. COMELEC, 2 wherein
the petitioners questioned the constitutionality of Section 11(b)
of Republic Act No. 6646, which prohibited the sale or donation
of print space and air time "for campaigning or other political
purposes," except to the COMELEC. The obvious intention of
this provision is to equalize, as far as practicable, the situations
of rich and poor candidates by preventing the former from
enjoying the undue advantage offered by huge campaign "war
chests." This Court ruled therein that this objective is of special
importance and urgency in a country which, like ours, is
characterized by extreme disparity in income distribution
between the economic elite and the rest of society, and by the
prevalence of poverty, with so many of our population falling
below the poverty line.
Moreover, petitioner cannot claim that the subject billboards
are purely product endorsements and do not announce nor
solicit any support for his candidacy. Under the Omnibus
Election Code, "election campaign" or "partisan political
activity" is defined as an act designed to promote the election
or defeat of a particular candidate or candidates to a public
office. Activities included under this definition are:
(1) Forming organizations, associations, clubs, committees, or
other groups of persons for the purpose of soliciting votes
and/or undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies,
parades, or other similar assemblies, for the purpose of
soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or
holding interviews for or against the election of any candidate
for public office;
(4) Publishing or distributing campaign literature or materials
designed to support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for
or against a candidate. 3 (emphasis ours)
It is true that when petitioner entered into the contracts or
agreements to endorse certain products, he acted as a private
individual and had all the right to lend his name and image to
these products. However, when he filed his certificate of
candidacy for Senator, the billboards featuring his name and
image assumed partisan political character because the same
indirectly promoted his candidacy. Therefore, the COMELEC
was acting well within its scope of powers when it required
petitioner to discontinue the display of the subject billboards. If
the subject billboards were to be allowed, candidates for public
office whose name and image are used to advertise
commercial products would have more opportunity to make
themselves known to the electorate, to the disadvantage of
other candidates who do not have the same chance of lending
their faces and names to endorse popular commercial products
as image models. Similarly, an individual intending to run for
public office within the next few months, could pay private
corporations to use him as their image model with the intention
of familiarizing the public with his name and image even before
the start of the campaign period. This, without a doubt, would
be a circumvention of the rule against premature
campaigning: HCSEcI
Sec. 80. Election campaign or partisan political activity outside
campaign period. It shall be unlawful for any person,
whether or not a voter or candidate, or for any party, or
association of persons, to engage in an election campaign or
partisan political activity except during the campaign period . .
.4
Article IX(C)(4) of the Constitution provides:
Sec. 4. The Commission may, during the election period,
supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and
other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality
thereof, including any government-owned or controlled
corporation or its subsidiary. Such supervision or regulation
shall aim to ensure equal opportunity, time, and space, and the
right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in
connection with the objective of holding free, orderly, honest,
peaceful, and credible elections.
Under the abovementioned Constitutional provision, the
COMELEC is expressly authorized to supervise or regulate the
enjoyment or utilization of all media communication or
information to ensure equal opportunity, time, and space. All
these are aimed at the holding of free, orderly, honest,
peaceful, and credible elections.
Neither is Section 32 of Resolution No. 6520 a gross violation
of the non-impairment clause. The non-impairment clause of
the Constitution must yield to the loftier purposes targeted by
the Government. 5 Equal opportunity to proffer oneself for
public office, without regard to the level of financial resources
one may have at his disposal, is indeed of vital interest to the
public. The State has the duty to enact and implement rules to
safeguard this interest. Time and again, this Court has said
that contracts affecting public interest contain an implied
reservation of the police power as a postulate of the existing
legal order. This power can be activated at anytime to change
the provisions of the contract, or even abrogate it entirely, for
the promotion or protection of the general welfare. Such an act
will not militate against the impairment clause, which is subject
to and limited by the paramount police power. 6
Furthermore, this Court notes that the very contracts entered
into by petitioner provide that the endorser's photograph and
image shall be utilized in whatever form, mode and manner "in
keeping with norms of decency, reasonableness, morals and
law;" 7 and in whatever form, mode and manner not contrary to
law and norms of decency," 8 and "in whatever form, mode
and manner in keeping with norms of decency,
reasonableness, morals and law."9
Petitioner also claims that Section 32 of Resolution No. 6520 is
in the nature of an ex post facto law. He urges this Court to
believe that the assailed provision makes an individual
criminally liable for an election offense for not removing such
advertisement, even if at the time the said advertisement was
exhibited, the same was clearly legal. Hence, it makes a
person, whose name or image is featured in any such
advertisement, liable for premature campaigning under
the Omnibus Election Code. 10 A close scrutiny of this
rationale, however, demonstrates its lack of persuasiveness.
Section 32, although not penal in nature, defines an offense
and prescribes a penalty for said offense. Laws of this nature
must operate prospectively, except when they are favorable to
the accused. It should be noted, however, that the offense
defined in the assailed provision is not the putting up
of "propaganda materials such as posters, streamers, stickers
or paintings on walls and other materials showing the picture,
image or name of a person, and all advertisements on print, in
radio or on television showing the image or mentioning the
name of a person, who subsequent to the placement or display
thereof becomes a candidate for public office." Nor does it
prohibit or consider an offense the entering of contracts for
such propaganda materials by an individual who subsequently
becomes a candidate for public office. One definitely does not
commit an offense by entering into a contract with private
parties to use his name and image to endorse certain products
prior to his becoming a candidate for public office. The offense,
as expressly prescribed in the assailed provision, is the non-
removal of the described propaganda materials three (3) days
after the effectivity of COMELEC Resolution No. 6520. If the
candidate for public office fails to remove such propaganda
materials after the given period, he shall be liable under
Section 80 of the Omnibus Election Code for premature
campaigning. Indeed, nowhere is it indicated in the assailed
provision that it shall operate retroactively. There is, therefore,
no ex post facto law in this case.
Next, petitioner urges that Section 32 is a violation of the Fair
Elections Act. According to him, under this law, billboards are
already permitted as lawful election propaganda. He claims,
therefore, that the COMELEC, in effectively prohibiting the use
of billboards as a form of election propaganda through the
assailed provision, violated the Fair Elections Act. Petitioner's
argument is not tenable. The Solicitor General rightly points out
that the assailed provision does not prohibit billboards as lawful
election propaganda. It only regulates their use to prevent
premature campaigning and to equalize, as much as
practicable, the situation of all candidates by preventing
popular and rich candidates from gaining undue advantage in
exposure and publicity on account of their resources and
popularity. 11 Moreover, by regulating the use of such election
propaganda materials, the COMELEC is merely doing its duty
under the law. Under Sections 3 and 13 of the Fair Elections
Act, all election propaganda are subject to the supervision and
regulation by the COMELEC:
SECTION 3. Lawful Election Propaganda. Election
propaganda, whether on television, cable television radio,
newspapers or any other medium is hereby allowed for all
registered political parties, national, regional, sectoral parties
or organizations participating under the party list elections and
for all bona fide candidates seeking national and local elective
positions subject to the limitation on authorized expenses of
candidates and political parties observance of truth in
advertising and to the supervision and regulation by the
Commission on Elections (COMELEC).
For the purpose of this Act, lawful election propaganda shall
include:
3.1. Pamphlets, leaflets, cards, decals, stickers or other written
or printed materials the size of which does not exceed eight
and one half inches in width and fourteen inches in length;
3.2. Handwritten or printed letters urging voters to vote for or
against any particular political party or candidate for public
office;
3.3. Cloth, paper or cardboard posters whether framed or
posted, with an area not exceeding two (2) feet by three (3)
feet, except that, at the site and on the occasion of a public
meeting or rally, or in announcing the holding of said meeting
or rally, streamers not exceeding three (3) feet by eight (8) feet
in size, shall be allowed: Provided, That said streamers may be
displayed five (5) days before the date of the meeting or rally
and shall be removed within twenty-four (24) hours after said
meeting or rally; DaIACS
3.4. Paid advertisements in print or broadcast media: Provided,
That the advertisements shall follow the requirements set forth
in Section 4 of this Act; and
3.5. All other forms of election propaganda not prohibited by
the Omnibus Election Code or this Act.
xxx xxx xxx
SECTION 13. Authority of the COMELEC to Promulgate
Rules; Election Offenses. The COMELEC shall promulgate
and furnish all political parties and candidates and the mass
media entities the rules and regulations for the implementation
of this Act, consistent with the criteria established in Article IX-
C, Section 4 of the Constitution and Section 86 of the Omnibus
Election Code (Batas Pambansa Blg. 881).
Rules and regulations promulgated by the COMELEC under
and by authority of this Section shall take effect on the seventh
day after their publication in at least two (2) daily newspapers
of general circulation. Prior to effectivity of said rules and
regulations, no political advertisement or propaganda for or
against any candidate or political party shall be published or
broadcast through mass media.
Violation of this Act and the rules and regulations of the
COMELEC issued to implement this Act shall be an election
offense punishable under the first and second paragraphs of
Section 264 of the Omnibus Election Code (Batas Pambansa
Blg. 881).
Finally, petitioner contends that Section 32 of COMELEC
Resolution No. 6520 is invalid because of overbreadth.
A statute or regulation is considered void for overbreadth when
it offends the constitutional principle that a governmental
purpose to control or prevent activities constitutionally subject
to State regulations may not be achieved by means that sweep
unnecessarily broadly and thereby invade the area of protected
freedoms. 12
The provision in question is limited in its operation both as to
time and scope. It only disallows the continued display of a
person's propaganda materials and advertisements after he
has filed a certificate of candidacy and before the start of the
campaign period. Said materials and advertisements must also
show his name and image.
There is no blanket prohibition of the use of propaganda
materials and advertisements. During the campaign period,
these may be used subject only to reasonable limitations
necessary and incidental to achieving the purpose of
preventing premature campaigning and promoting equality of
opportunities among all candidates.
The provision, therefore, is not invalid on the ground of
overbreadth.
WHEREFORE, the petition is DISMISSED and Section 32 of
COMELEC Resolution No. 6520 is declared valid and
constitutional. The prayer for a Temporary Restraining Order
and/or a Writ of Preliminary Injunction is hereby DENIED. No
costs.
SO ORDERED.
||| (Chavez v. COMELEC, G.R. No. 162777, [August 31, 2004])
RA. 7166 SYNCHRONIZED ELECTIONS LAW OF 1991
SECTION 13. Authorized Expenses of Candidates and Political
Parties. The aggegate amount that a candidate or
registered political party may spend for election campaign shall
be as follows:
(a) For candidates. Ten pesos (P10.00) for President and
Vice-President; and for other candidates, Three Pesos (P3.00)
for every voter currently registered in the constituency where
he filed his certificate of candidacy: Provided, That, a
candidate without any political party and without support from
any political party may be allowed to spend Five Pesos (P5.00)
for every such voter; and
(b) For political parties. Five pesos (P5.00) for every voter
currently registered in the constituency or constituencies where
it has official candidates.
Any provision of law to the contrary notwithstanding, any
contribution in cash or in kind to any candidate or political party
or coalition of parties for campaign purposes, duly reported to
the Commission shall not be subject to the payment of any gift
tax.
SECTION 14. Statement of Contributions and Expenditures:
Effect of Failure to File Statement. Every candidate and
treasurer of the political party shall, within thirty (30) days after
the day of the election, file in duplicate with the offices of the
Commission the full, true and itemized statement of all
contributions and expenditures in connection with the election.
No person elected to any public office shall enter upon the
duties of his office until he has filed the statement of
contributions and expenditures herein required.
The same prohibition shall apply if the political party which
nominated the winning candidate fails to file the statement
required herein within the period prescribed by this Act.
Except candidates for elective barangay office, failure to file
the statements or reports in connection with electoral
contributions and expenditures are required herein shall
constitute an administrative offense for which the offenders
shall be liable to pay an administrative fine ranging from One
thousand pesos (P1,000.00) to Thirty thousand pesos
(P30,000.00), in the discretion of the Commission.
The fine shall be paid within thirty (30) days from receipt of
notice of such failure; otherwise, it shall be enforceable by a
writ of execution issued by the Commission against the
properties of the offender.
It shall be the duty of every city or municipal election registrar
to advise in writing, by personal delivery or registered mail,
within five (5) days from the date of election all candidates
residing in his jurisdiction to comply with their obligation to file
their statements of contributions and expenditures.
For the commission of a second or subsequent offense under
this section, the administrative fine shall be from Two thousand
pesos (P2,000.00) to Sixty thousand pesos (P60,000.00), in
the discretion of the Commission. In addition, the offender shall
be subject to perpetual disqualification to hold public office.
||| (Synchronized Elections Law of 1991, REPUBLIC ACT NO.
7166, [1991])
CASE:
6. PILAR v. COMELEC
EN BANC
[G.R. No. 115245. July 11, 1995.]
JUANITO C. PILAR, petitioner, vs. COMMISSION ON
ELECTION, respondent.
Diosdado G. Gozar for petitioner.
The Solicitor General for respondent.
SYLLABUS
1. ELECTION LAW; STATEMENT OF CONTRIBUTION AND
EXPENDITURE; THE TERM "EVERY CANDIDATE" MAKES
NO DISTINCTION OR QUALIFICATION. Section 14 of R.A.
No. 7166 states that "every candidate" has the obligation to file
his statement of contributions and expenditures. Well-
recognized is the rule that where the law does not distinguish,
courts should not distinguish. Ubi lex non distinguit nec nos
distinguere debemos. No distinction is to be made in the
application of a law where none is indicated. In the case at
bench, as the law makes no distinction or qualification as to
whether the candidate pursued his candidacy or withdrew the
same, the term "every candidate" must be deemed to refer not
only to a candidate who pursued his campaign, but also to one
who withdrew his candidacy. The COMELEC, the body tasked
with the enforcement and administration of all laws and
regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall (The Constitution of the
Republic of the Philippines, Art. IX(C), Sec. 2[1]), issued
Resolution No. 2348 in implementation or interpretation of the
provisions of Republic Act No. 7166 on election contributions
and expenditures. Section 13 of Resolution No. 2348
categorically refers to "all candidates who filed their certificates
of candidacy."
2. ID.; ID.; MANDATORY. Section 14 of the law uses the
word "shall." As a general rule, the use of the word "shall" in a
statute implies that the statute is mandatory, and imposes a
duty which may be enforced, particularly if public policy is in
favor of this meaning or where public interest is involved. We
apply the general rule.
3. ID.; ID.; ID.; REASON THEREFOR. The state has an
interest in seeing that the electoral process is clean, and
ultimately expressive of the true will of the electorate. One way
of attaining such objective is to pass legislation regulating
contributions and expenditures of candidates, and compelling
the publication of the same. Admittedly, contributions and
expenditures are made for the purpose of influencing the
results of the elections. Thus, laws and regulations prescribe
what contributions are prohibited, or unlawful, and what
expenditures are authorized or lawful. Such statutes are not
peculiar to the Philippines. In "corrupt and illegal practices
acts" of several states in the United States, as well as in
federal statutes, expenditures of candidates are regulated by
requiring the filing of statements of expenses and by limiting
the amount of money that may be spent by a candidate. Some
statutes also regulate the solicitation of campaign
contributions. These laws are designed to compel publicity with
respect to matters contained in the statements and to prevent,
by such publicity, the improper use of moneys devoted by
candidates to the furtherance of their ambitions. These statutes
also enable voters to evaluate the influences exerted on behalf
of candidates by the contributors, and to furnish evidence of
corrupt practices for annulment of elections. State courts have
also ruled that such provisions are mandatory as to the
requirement of filing. It is not improbable that a candidate who
withdrew his candidate has accepted contributions and
incurred expenditures, even in the short span of his campaign.
The evil sought to be prevented by the law is not all too
remote. It is noteworthy that Resolution No. 2348 even
contemplates the situation where a candidate may not have
received any contribution or made any expenditure. Such a
candidate is not excused from filing a statement, and is in fact
required to file a statement of that effect. Under Section 15 of
Resolution No. 2348, it is provided that "[i]f a candidate or
treasurer of the party has received no contribution, made no
expenditure, or has no pending obligation, the statement shall
reflect such fact."
4. ID.; ID.; DUTY THERETO, NOT EXTINGUISHED BY
CANDIDATES WITHDRAWAL OF CANDIDACY. We note
that under the fourth paragraph of Section 73 of the B.P. Blg.
881 or the Omnibus Election Code of the Philippines, it is
provided that "[t]he filing or withdrawal of certificate of
candidacy shall not affect whatever civil, criminal or
administrative liabilities which a candidate may have incurred."
Petitioner's withdrawal of his candidacy did not extinguish his
liability for the administrative fine.
DECISION
QUIASON, J p:
This is a petition for certiorari under Rule 65 of the Revised
Rules of Court assailing the Resolution dated April 28, 1994 of
the Commission on Elections (COMELEC) in UND No. 94-040.
I to advise in writing, by personal delivery or registered mail,
On March 22, 1992, petitioner Juanito C. Pilar filed his
certificate of candidacy for the position of member of the
Sangguniang Panlalawigan of the Province of Isabela.
On March 25, 1992, petitioner withdrew his certificate of
candidacy.
In M.R. Nos. 93-2654 and 94-0065 dated November 3, 1993
and February 13, 1994 respectively, the COMELEC imposed
upon petitioner the fine of Ten Thousand Pesos (P10,000.00)
for failure to file his statement of contributions and
expenditures.
In M.R. No. 94-0594 dated February 24, 1994, the COMELEC
denied the motion for reconsideration of petitioner and deemed
final M. R. Nos. 93-2654 and 94-0065 (Rollo, p. 14).
Petitioner went to the COMELEC En Banc (UND No. 94-
040), which denied the petition in a Resolution dated April 28,
1994 (Rollo, pp. 10-13).
Hence, this petition for certiorari.
We dismiss the petition.
II
Section 14 of R.A. No. 7166 entitled "An Act Providing for
Synchronized National and Local Elections and for Electoral
Reforms, Authorizing Appropriations Therefore, and for Other
Purposes" provides as follows:
"Statement of Contributions and Expenditures: Effect of Failure
to File Statement. Every candidate and treasurer of the political
party shall, within thirty (30) days after the day of the election,
file in duplicate with the offices of the Commission the full, true
and itemized statement of all contributions and expenditures in
connection with the election.
"No person elected to any public office shall enter upon the
duties of his office until he has filed the statement of
contributions and expenditures herein required.
"The same prohibition shall apply if the political party which
nominated the winning candidate fails to file the statement
required herein within the period prescribed by this Act.
"Except candidates for elective barangay office, failure to file
the statements or reports in connection with electoral
contributions and expenditures as required herein shall
constitute an administrative offense for which the offenders
shall be liable to pay an administrative fine ranging from One
Thousand Pesos (P1,000.00) to Thirty Thousand Pesos
(P30,000.00), in the discretion of the Commission.
"The fine shall be paid within thirty (30) days from receipt of
notice of such failure; otherwise, it shall be enforceable by a
writ of execution issued by the Commission against the
properties of the offender.
"It shall be the duty of every city or municipal election registrar
within five (5) days from the date of election all
candidates residing in his jurisdiction to comply with their
obligation to file their statements of contributions and
expenditures.
"For the commission of a second or subsequent offense under
this Section, the administrative fine shall be from Two
Thousand Pesos (P2,000.00) to Sixty Thousand Pesos
(P60,000.00), in the discretion of the Commission. In addition,
the offender shall be subject to perpetual disqualification to
hold public office" (Emphasis supplied).
To implement the provisions of law relative to election
contributions and expenditures, the COMELEC promulgated
on January 13, 1992Resolution No. 2348 (Re: Rules and
Regulations Governing Electoral Contributions and
Expenditures in Connection with the National and Local
Elections on May 11, 1992). The pertinent provisions of said
Resolution are:
"Sec. 13 Statement of contributions and expenditures:
Reminders to candidates to file statements. Within five (5) days
from the day of the election, the Law Department of the
Commission, the regional election director of the National
Capital Region, the provincial election supervisors and the
election registrars shall advise in writing by personal delivery or
registered mail all candidates who filed their certificates of
candidacy with them to comply with their obligation to file their
statements of contribution and expenditures in connection with
the elections. Every election registrar shall also advise all
candidates residing in his jurisdiction to comply with said
obligation." (Emphasis supplied)
"Sec. 17. Effect of failure to file statement. (a) No person
elected to any public office shall enter upon the duties of his
office until he has filed the statement of contributions and
expenditures herein required.
"The same prohibition shall apply if the political party which
nominated the winning candidates fails to file the statement
required within the period prescribed by law.
"(b) Except candidates for elective barangay office, failure to
file statements or reports in connection with the electoral
contributions and expenditures as required herein shall
constitute an administrative offense for which the offenders
shall be liable to pay an administrative fine ranging from One
Thousand Pesos (P1,000.00) to Thirty Thousand Pesos
(P30,000.00), in the discretion of the Commission.
"The fine shall be paid within thirty (30) days from receipt of
notice of such failure; otherwise, it shall be enforceable by a
writ of execution issued by the Commission against the
properties of the offender.
"For the commission of a second or subsequent offense under
this section, the administrative fine shall be from Two
Thousand Pesos (P2,000.00) to Sixty Thousand Pesos
(P60,000.00), in the discretion of the Commission. In addition,
the offender shall be subject to perpetual disqualification to
hold public office."
Petitioner argues that he cannot be held liable for failure to file
a statement of contributions and expenditures because he was
a "non-candidate," having withdraw his certificate of candidacy
three days after its filing. Petitioner posits that "it is . . . clear
from the law that the candidate must have entered the political
contest, and should have either won or lost." (Rollo, p. 39)
Petitioner's argument is without merit.
Section 14 of R. A. No. 7166 states that "every candidate" has
the obligation to file his statement of contributions and
expenditures.
Well-recognized is the rule that where the law does not
distinguished, courts should not distinguished. Ubi lex non
distinguit nec nos distinguere debemos (Philippine British
Assurance Co. Inc. v. Intermediate Appellate Court, 150 SCRA
520 [1987]; cf. Olfato v. Commission on Election, 103 SCRA
741 [1981]). No distinction is to be made in the application of a
law where none is indicated (Lo Cham v. Ocampo, 77 Phil. 636
[1946]).
In the case at bench, as the law makes no distinction or
qualification as to whether the candidate pursued his
candidacy or withdrew the same, the term "every candidate"
must be deemed to refer not only to a candidate who pursued
his campaign, but also to one who withdrew his candidacy.
The COMELEC, the body tasked with the enforcement and
administration of all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and
recall (The Constitution of the Republic of the Philippines, Art.
IX(C), Sec. 2[1]), issued Resolution No. 2348 in
implementation or interpretation of the provisions of
Republic Act No. 7166 on election contributions and
expenditures. Section 13 of Resolution No. 2348 categorically
refers to "all candidates who filed their certificates of
candidacy."
Furthermore, Section 14 of the law uses the word "shall." As a
general rule, the use the word "shall" in a statute implies that
the statute is mandatory, and imposes a duty which may be
enforced, particularly if public policy is in favor of this meaning
or where public interest is involved. We apply the general rule
(Baranda v. Gustilo, 165 SCRA 757 [1988]; Diokno v.
Rehabilitation Finance Corporation, 91 Phil. 608 [1952]).
The state has an interest in seeing that the electoral process is
clean, and ultimately expressive of the true will of the
electorate. One way of attaining such objective is t to pass
legislation regulating contributions and expenditures of
candidates, and compelling the publication of the same.
Admittedly, contributions and expenditures are made for the
purpose of influencing the results of the elections (B.P. Blg.
881, Sec. 94; Resolution No. 2348, Sec. 1). Thus, laws and
regulations prescribe what contributions are prohibited (B.P.
Blg. 881, Sec. 95; Resolution No. 2348, Sec. 4), or unlawful
(B.P. Blg. 881, Sec. 96), and what expenditures are authorized
(B.P. Blg. 881, Sec. 102; R.A. No. 7166, Sec. 13; Resolution
No. 2348, Sec. 7) or lawful (Resolution No. 2348, Sec. 8).
Such statutes are not peculiar to the Philippines. In "corrupt
and illegal practices acts" of several states in the United
States, as well as in federal statutes, expenditures of
candidates are regulated by requiring the filing of statements of
expenses and by limiting the amount of money that may be
spent by a candidate. Some statutes also regulate the
solicitation of campaign contributions (26 Am Jur 2d, Elections
S 287). These laws are designed to compel publicity with
respect to matters contained in the statements and to prevent,
by such publicity, the improper use of moneys devoted by
candidates to the furtherance of their ambitions (26 Am Jur 2d,
Elections S 289). These statutes also enable voters to evaluate
the influences exerted on behalf of candidates by the
contributors, and to furnish evidence of corrupt practices for
annulment of elections (Sparkman v. Saylor [Court of Appeals
of Kentucky], 180 Ky. 263, 202 S.W. 649 [1918]).
State courts have also ruled that such provisions are
mandatory as to the requirement of filing (State ex rel.
Butchofsky v. Crawford [Court of Civil Appeals of Texas], 269
S. W. 2d 536 [1954]; Best v. Sidebottom, 270 Ky. 423, 109
S.W. 2d 826 [1937]; Sparkman v. Saylor, supra.)
It is not improbable that a candidate who withdrew his
candidacy has accepted contributions and incurred
expenditures, even in the short span of his campaign. The evil
sought to be prevented by the law is not all too remote.
It is noteworthy that Resolution No. 2348 even contemplates
the situation where a candidate may not have received any
contribution or made any expenditure. Such a candidate is not
excused from filing a statement, and is in fact required to file a
statement to that effect. Under Section 15 of Resolution No.
2348, it is provided that "[i]f a candidate or treasurer of the
party has received no contribution, made no expenditure, or
has no pending obligation, the statement shall reflect such
fact."
Lastly, we note that under the fourth paragraph of Section 73
of the B.P. Blg. 881 or the Omnibus Election Code of the
Philippines, it is provided that "[t]he filing or withdrawal of
certificate of candidacy shall not affect whatever civil, criminal
or administrative liabilities which a candidate may have
incurred." Petitioner's withdrawal of his candidacy did not
extinguish his liability for the administrative fine.
WHEREFORE, the petition is DISMISSED.
||| (Pilar v. COMELEC, G.R. No. 115245, [July 11, 1995], 315
PHIL 851-860)
ARTICLE XV
Watchers
SECTION 178. Official watchers of candidates.
Every registered political party, coalition of political parties
and every independent candidate shall each be entitled to one
watcher in every polling place.
No person shall be appointed watcher unless he is a qualified
voter of the city or municipality, of good reputation and shall
not have been convicted by final judgment of any election
offense or of any other crime, must know how to read and write
Pilipino, English, Spanish or any of the prevailing local dialects,
and not related within the fourth civil degree of consanguinity
or affinity to the chairman or any member of the board of
election inspectors in the polling place where he seeks
appointment as a watcher.
Each candidate, political party or coalition of political parties
shall designate in every province, highly urbanized city or
district in the Metropolitan Manila area, a representative
authorized to appoint watchers, furnishing the provincial
election supervisor or the city election registrar, as the case
may be, the names of such representatives. The provincial
election supervisors shall furnish the municipal election
registrars and election registrars of component cities with the
list of such representatives.
election inspectors, or to any voter, or among themselves, in
such a manner as would distract the proceedings, and to be
furnished with a certificate of the number of votes in words and
figures cast for each candidate, duly signed and thumbmarked
by the chairman and all the members of the board of election
inspectors. Refusal of the chairman and the members of the
board of election inspectors to sign and furnish such certificate
shall constitute an election offense and shall be penalized
under this Code. (Sec. 28, BP 697)
SECTION 180. Other watchers.
The duly accredited citizens arm of the Commission shall be
entitled to appoint a watcher in every polling place. Other civic,
religious, professional, business, service, youth and any other
similar organizations, with prior authority of the Commission,
shall be entitled collectively to appoint one watcher in every
polling place. (Sec. 27, BP 697 with amendments)

In the case of Metropolitan Manila, the designation of the

persons authorized to appoint watchers shall be filed with the
Commission, which shall furnish the list of such
representatives to the respective city and municipal election
registrars. (Sec. 26, BP 697, with amendments) cdt

SECTION 179. Rights and duties of watchers.

Upon entering the polling place, the watchers shall present

and deliver to the chairman of the board of election inspectors
his appointment, and forthwith, his name shall be recorded in
the minutes with a notation under his signature that he is not
disqualified under the second paragraph of Section 178. The
appointments of the watchers shall bear the personal signature
or the facsimile signature of the candidate or the duly
authorized representatives of the political party or coalition of
political parties who appointed him or of organizations
authorized by the Commission under Section 180. The
watchers shall have the right to stay in the space reserved for
them inside the polling place. They shall have the right to
witness and inform themselves of the proceedings of the board
of election inspectors, including its proceedings during the
registration of voters, to take notes of what they may see or
hear, to take photographs of the proceedings and incidents, if
any, during the counting of votes, as well as of election returns,
tally boards and ballot boxes, to file a protest against any
irregularity or violation of law which they believe may have
been committed by the board of election inspectors or by any
of its members or by any persons, to obtain from the board of
election inspectors a certificate as to the filing of such protest
and/or of the resolution thereon, to read the ballots after they
shall have been read by the chairman, as well as the election
returns after they shall have been completed and signed by the
members of the board of election inspectors without touching
them, but they shall not speak to any member of the board of
 ELECTION PROPER
CASTING OF VOTES
SECTION 196. Preparation of ballots for illiterate and
disabled persons.
A voter who is illiterate or physically unable to prepare the
ballot by himself may be assisted in the preparation of his
ballot by a relative, by affinity or consanguinity within the fourth
civil degree or if he has none, by any person of his confidence
who belong to the same household or any member of the
board of election inspectors, except the two party members:
Provided, That no voter shall be allowed to vote as illiterate or
physically disabled unless it is so indicated in his registration
record:
Provided, further, That in no case shall an assistor assist more
than three times except the non-party members of the board of
election inspectors.
The person thus chosen shall prepare the ballot for the illiterate
or disabled voter inside the voting booth.
The person assisting shall bind himself in a formal document
under oath to fill out the ballot strictly in accordance with the
instructions of the voter and not to reveal the contents of the
ballot prepared by him.
Violation of this provision shall constitute an election offense.
(Sec. 141, 1978 EC)
AUTHENTICATION OF BALLOTS (RA 7166)
Section 24. Signature of Chairman at the Back of Every
Ballot.
In every case before delivering an official ballot to the voter,
the chairman of the board of election inspectors shall, in the
presence of the voter, affix his signature at the back thereof.
Failure to so authenticate shall be noted in the minutes of the
board of election inspectors and shall constitute an election
offense punishable under Section 263 and 264 of the Omnibus
Election Code.
CASE:
LIBANAN v. HRET
EN BANC
[G.R. No. 129783. December 22, 1997.]
MARCELINO C. LIBANAN, petitioner, vs. HOUSE OF
REPRESENTATIVES ELECTORAL TRIBUNAL and JOSE T.
RAMIREZ, respondents.
Cesar A. Sevilla & Associates for petitioner.
The Solicitor General for public respondent.
SYNOPSIS
Petitioner Marcelino Libanan and private respondent Jose
Ramirez were among the candidates for the lone
congressional of Eastern Samar in the May 1995 elections.
After the canvass of the returns, the Provincial Board of
Canvassers of Eastern Samar proclaimed respondent
Ramirez. Petitioner Libanan seasonably filed an election
protest before the House of Representatives Electoral Tribunal
(HRET). The evidence and the issues submitted by the parties
for consideration by the HRET related mainly to the proper
appreciation of the ballots objected to, or claimed by, the
parties during the revision. The HRET affirmed the
proclamation of private respondent Jose Tan Ramirez.
Petitioner Libanan moved for reconsideration of the decision of
the HRET arguing, among other grounds, that the absence of
the Board of Election Inspectors (BEI) Chairman's signature at
the back of the ballots could not but indicate that the ballots
were spurious and not those issued to the voters during the
elections. The HRET denied with finality petitioner's motion for
reconsideration. Hence, the present petition.
The Supreme Court dismissed-the petition. The Court ruled
that Section 24 of R.A. No. 7166, the applicable law, does not
provide that a ballot not so authenticated shall thereby deemed
spurious. The law merely renders the BEI Chairman
accountable for such failure. What should, instead be given
weight is the consistent rule laid down by HRET that a ballot is
considered valid and genuine for as long as it bears any of the
following authenticated marks, to wit: (a) the COMELEC
watermark, or (b) the signature or initials, or thumbprint of the
chairman of the BEI; and, (c) in those cases where the
COMELEC watermarks are blurred or not readily apparent to
the naked eye, the presence of red and blue fibers in the ballot.
It is only when none of these marks appears extant that the
ballot can be considered spurious and subject to rejection.
SYLLABUS
STATUTES; STATUTORY CONSTRUCTION; SECTION 24
OF R.A. 7166 CONSTRUED; SAID PROVISION DOES NOT
.PROVIDE THAT A BALLOT WHICH IS NOT SO
AUTHENTICATED SHALL THEREBY BE :DEEMED
SPURIOUS; IT MERELY RENDERS THE BOARD OF
ELECTION INSPECTORS (BEI) ACCOUNTABLE FOR SUCH
FAILURE; APPLICABLE PRINCIPLES. Section 24 of R.A.
7166 does not provide that a ballot which is not so;
authenticated shall thereby be deemed spurious. The law
merely renders the BEI Chairman accountable for such failure.
The courts may not, in the guise of interpretation, enlarge the
scope of a statute and embrace situations neither provided nor
intended by the lawmakers. Where the words and phrases of a
statute are not obscure and ambiguous, the meaning and
intention of the legislature should be determined from the
language employed, and where there is no ambiguity in the
words, there should be no room for construction.
DECISION
VITUG, J p:
The 28th May 1997 decision of the House of Representatives
Electoral Tribunal ("HRET"), which affirmed the proclamation of
herein private respondent Jose Tan Ramirez declaring him to
be the duly elected Representative of Eastern Samar for
having obtained the plurality of votes over petitioner Marcelino
Libanan, and the 20th June 1997 resolution of the HRET,
which denied with finality petitioner's motion for
reconsideration, are sought to be annulled in this special civil
action for certiorari. LLpr
Petitioner Marcelino Libanan and private respondent Jose
Ramirez were among the candidates for the lone
congressional seat of Eastern Samar in the May 1995
elections. After the canvass of the returns was made on 13
May 1995, the Provincial Board of Canvassers of Eastern
Samar proclaimed respondent Ramirez to have been duly
elected Representative of the District with a total of forty-one
thousand five hundred twenty-three (41,523) votes, compared
to petitioner's forty thousand eight hundred sixty-nine (40,869)
votes, or a margin of six hundred fifty-four (654) votes over
those of petitioner.
Petitioner Libanan seasonably filed an election protest before
the HRET claiming, among other things, that the 08th May
1995 elections in Eastern Samar were marred by massive
electoral irregularities perpetrated or instigated by respondent
Ramirez, as well as his leaders and followers, in the twenty-
three (23) municipalities of the lone district of Eastern Samar
with the aid, in various instances, of peace officers supposedly
charged with maintaining an orderly and honest election.
Petitioner contested seventy-nine (79) precincts in five (5)
municipalities. He also maintained that the election returns
and/or ballots in certain precincts were tampered with,
substituted, or systematically marked in favor of respondent
Ramirez. Libanan prayed that, after due proceedings, the
HRET should issue an order to annul the election and
proclamation of Ramirez and to thereafter so proclaim
petitioner as the duly elected Representative of the Lone
District of Eastern Samar.
In his answer and counter-protest, with a petition for
preliminary hearing on the special and affirmative defenses,
respondent Ramirez denied the charges. He counter-protested
the results of the elections in certain precincts where, he
claimed, Libanan engaged in massive vote buying, lansadera,
terrorism and tearing of the list of voters to disenfranchise
voters therein listed. Accordingly, he prayed, inter alia, for the
dismissal of the protest and the confirmation of his election as
the duly elected representative of the Lone District of Eastern
Samar.
After some peripheral issues were settled by the HRET, the
revision of ballots in the protested precincts commenced on 20
February 1996. The HRET noted that Libanan contested a total
of seventy-nine (79) precincts. It was noted during the revision,
however, that six (6) of the contested precincts, namely,
Precincts Nos. 14, 15, 16, 18, 19 and 20 of Arteche, were
found to have been merged during the 08 May 1995 elections
into three (3) precincts, i.e., Precincts Nos. 14 and 19,
Precincts Nos. 15 and 16 and Precincts Nos. 18 and 20. Thus,
only seventy-six (76) ballot boxes were actually opened for
revision, one of which, Precinct No. 4-1 of Guiuan, did not
contain any ballot.
On 22 February 1996, while the revision of the counter-
protested precincts was being held, Ramirez filed an "Urgent
Motion to Withdraw/Abandon Counter-Protest in Specific
Municipalities/Precincts" praying that he be granted leave to
withdraw and abandon partially his counter-protest in certain
precincts. 1 Libanan filed an opposition thereto but the motion
was eventually granted by the Chairman of the HRET and
subsequently confirmed in a resolution by the tribunal.
On 21 March 1996, the HRET designated a Hearing
Commissioner and a Deputy Hearing Commissioner for the
reception of evidence. Following that reception, the respective
memoranda of Libanan and Ramirez were filed.
The evidence and the issues submitted by the parties for
consideration by the HRET related mainly to the proper
appreciation of the ballots objected to, or claimed by, the
parties during the revision. No evidence was presented in
support of the other allegations of the protest (like the alleged
tampering of election returns) and of the counter-protest (such
as the alleged tearing of some of the pages of the
computerized list of voters to disenfranchise legitimate voters
and the use of goons to terrorize and compel voters to vote for
Libanan), nor were these issues discussed in the memoranda
of the parties. The HRET thus concentrated, such as can be
rightly expected, its attention to the basic appreciation of
ballots. 2
The particular matter focused in this petition deals with what
petitioner claims to be spurious ballots; on this score, the
HRET has explained:
"No spurious ballot was found in this case. For a ballot to be
rejected for being spurious, the ballot must not have any of the
following authenticating marks: a) the COMELEC watermark;
b) the signatures or initial of the BEI Chairman at the back of
the ballot; and c) red and blue fibers. In the present case, all
the ballots examined by the Tribunal had COMELEC
watermarks.
"The Tribunal did not adopt protestant's submission in his
Memorandum that the absence of thumbmark or BEI
Chairman's signature at the back of the ballot rendered the
ballot spurious. The applicable law on this issue is Sec.
24, R.A. 7166. It reads:
"'In every case before delivering an official ballot to the voter,
the Chairman of the Board of Election Inspectors shall, in the
presence of the voter, affix his signature at the back thereof.
Failure to so authenticate shall be noted in the minutes of the
board of election inspectors and shall constitute an election
offense punishable under Section 263 and 264 of the Omnibus
Election Code.'
"As may be gleaned above, unlike the provision of Section 210
of the Omnibus Election Code where the BEI Chairman was
required to affix his right thumbmark at the back of the ballot
immediately after it was counted, the present law no longer
requires the same.
"Anent the BEI Chairman's signature, while Section 24 of R.A.
7166 provides that failure to authenticate the ballot shall
constitute an election offense, there is nothing in the said law
which provides that ballots not so authenticated shall be
considered invalid. In fact, the members of the Committee on
Suffrage and Electoral Reforms agreed during their
deliberation on the subject that the absence of the BEI
Chairman's signature at the back of the ballot will not per se
make a ballot spurious.
"Moreover, while Rep. Palacol, then Chairman of the
Committee on Suffrage and Electoral Reforms, mentioned
during his sponsorship speech that one of the salient features
of the bill filed was 'to require the chairman of the Board of
Election Inspectors to authenticate a ballot given to a voter by
affixing his signature on (sic) the back thereof and to consider
any ballot as spurious,' R.A. 7166, as approved, does not
contain any provision to that effect. Clearly, therefore, the
Congress as a whole (House of Representatives and Senate)
failed to adopt the proposal of Rep. Palacol that ballots without
the BEI Chairman's signature at the back will be declared
spurious. What is clearly provided under the said law is the
sanction imposable upon an erring Chairman of the BEI, and
not the disenfranchisement of the voter." 3
In its assailed decision, the HRET ruled in favor of respondent
Ramirez; it concluded:
"WHEREFORE, in light of the foregoing, the Tribunal Resolved
to DISMISS the instant election protest, including the parties'
mutual claims for damages and attorney's fee; AFFIRM the
proclamation of Protestee Jose Tan Ramirez; and DECLARE
him to be the duly elected Representative of the Lone District
of Eastern Samar, for having obtained a plurality of 143 votes
over second placer Protestant Marcelino Libanan." 4
Petitioner Libanan moved for a reconsideration of the decision
of the HRET arguing, among other grounds, 5 that the absence
of the BEI Chairman's signature at the back of the ballots could
not but indicate that the ballots were not those issued to the
voters during the elections. He averred that the law would
require the Chairman of the BEI to authenticate or sign the
ballot before issuing it to the voter. Acting on petitioner's
motion for reconsideration, the HRET credited petitioner
Libanan with thirty (30) votes because of the error in the
computation of the base figure and rejected twelve (12) ballots
for respondent Ramirez. Respondent Ramirez, nevertheless,
remained to be the winner with a lead of ninety-nine (99) votes
in his favor. As regards the absence of BEI Chairman's
signature at the back of the ballots, the HRET stressed:
"Fraud is not presumed. It must be sufficiently established.
Moreover, Section 211 of the Omnibus Election Code provides
in part that 'in the reading and appreciation of ballots, every
ballot shall be presumed to be valid unless there is clear and
good reason to justify its rejection.' In the instant case, there is
no evidence to support protestant's allegation that the ballots
he enumerated in his Motion for Reconsideration are substitute
ballots. The absence of the BEI Chairman's signature at the
back of the ballot cannot be an indication of ballot switching or
substitution. At best, such absence of BEI Chairman's
signature is a prima facie evidence that the BEI Chairmen
concerned were derelict in their duty of authenticating the
ballots. Such omission, as stated in the Decision, is not fatal to
the validity of the ballots. 6
Thus, the present recourse.
A perusal of the grounds raised by petitioner to annul the
HRET decision and resolution boils down to the issue of
whether or not the HRET committed grave abuse of discretion
in ruling that the absence of the signature of the Chairman of
the BEI in the ballots did not render the ballots spurious.
Petitioner Libanan contends that the three hundred eleven
(311) ballots (265 of which have been for private respondent
Ramirez) without the signature of the Chairman of the BEI, but
which had the COMELEC watermarks and/or colored fibers,
should be invalidated. It is the position of petitioner that the
purpose of the law in requiring the BEI Chairman to affix his
signature at the back of the ballot when he issues it to the voter
is "to authenticate" the ballot and, absent that signature, the
ballot must be considered spurious.
Prefatorily, the Court touches base on its jurisdiction to review
and pass upon decisions or resolutions of the electoral
tribunals.
The Constitution mandates that the House of Representatives
Electoral Tribunal and the Senate Electoral Tribunal shall each,
respectively, be the sole judge of all contests relating to the
election, returns and qualifications of their respective
members. 7 In Lazatin vs. HRET , 8 the Court has observed
that
"The use of the word 'sole' emphasizes the exclusive character
of the jurisdiction conferred. The exercise of the power by the
Electoral Commission under the 1935 Constitution has been
described as 'intended to be as complete and unimpaired as if
it had remained originally in the legislature.' Earlier this grant of
power to the legislature was characterized by Justice Malcolm
as ''full, clear and complete.' Under the amended
1935 Constitution, the power was unqualifiedly reposed upon
the Electoral Tribunal and it remained as full, clear and
complete as that previously granted the Legislature and the
Electoral Commission. The same may be said with regard to
the jurisdiction of the Electoral Tribunals under the
1987 Constitution." 9
The Court has stressed that ". . . so long as
the Constitution grants the HRET the power to be the sole
judge of all contests relating to the election, returns and
qualifications of members of the House of Representatives,
any final action taken by the HRET on a matter within its
jurisdiction shall, as a rule, not be reviewed by this Court . . .
the power granted to the Electoral Tribunal . . . excludes the
exercise of any authority on the part of this Court that would in
any wise restrict it or curtail it or even affect the same."
The Court did recognize, of course, its power of judicial review
in exceptional cases. In Robles vs. HRET , 10 the Court has
explained that while the judgments of the Tribunal are beyond
judicial interference, the Court may do so, however, but only "in
the exercise of this Court's so-called extraordinary jurisdiction, .
. . upon a determination that the Tribunal's decision or
resolution was rendered without or in excess of its jurisdiction,
or with grave abuse of discretion or paraphrasing Morrero,
upon a clear showing of such arbitrary and improvident use by
the Tribunal of its power as constitutes a denial of due process
of law, or upon a demonstration of a very clear unmitigated
error, manifestly constituting such grave abuse of discretion
that there has to be a remedy for such abuse."
In the old, but still relevant, case of Morrero vs. Bocar, 11 the
Court has ruled that the power of the Electoral Commission "is
beyond judicial interference except, in any event, upon a clear
showing of such arbitrary and improvident use of power as will
constitute a denial of due process." The Court does not, to
paraphrase it in Co vs. HRET , 12 venture into the perilous
area of correcting perceived errors of independent branches of
the Government; it comes in only when it has to vindicate a
denial of due process or correct an abuse of discretion so
grave or glaring that no less than the Constitutionitself calls for
remedial action.
In the instant controversy, it would appear that the HRET
"reviewed and passed upon the validity of all the ballots in the
protested and counter-protested precincts, including those not
contested and claimed by the parties." 13 The Tribunal, added,
that (t)his course of action was adopted not only to give effect
to the intent of each and every voter, but also to rectify any
mistake in appreciation, deliberate or otherwise, committed at
the precinct level and overlooked during the revision stage of
this case." 14 In holding that the absence of the signature of
the Chairman of the BEI at the back of the ballot does not
invalidate it, the HRET has ratiocinated in this wise: LLphil
"No spurious ballot was found in this case. For a ballot to be
rejected for being spurious, the ballot must not have any of the
following authenticating marks: a) the COMELEC watermark;
b) the signatures or initial of the BEI Chairman at the back of
the ballot; and c) red and blue fibers. In the present case, all
the ballots examined by the Tribunal had COMELEC
watermarks.
"xxx xxx xxx
"Anent the BEI Chairman's signature, while Section 24 of R.A.
7166 provides that failure to authenticate the ballot shall
constitute an election offense, there is nothing in the said law
which provides that ballots not so authenticated shall be
considered invalid. In fact, the members of the Committee on
Suffrage and Electoral Reforms agreed during their
deliberation on the subject that the absence of the BEI
Chairman's signature at the back of the ballot will not per se
make a ballot spurious.
"Moreover, while Rep. Palacol, then Chairman of the
Committee on Suffrage and Electoral Reforms, mentioned
during his sponsorship speech that one of the salient features
of the bill filed was to require the chairman of the Board of
Election Inspectors to authenticate a ballot given to a voter by
affixing his signature on (sic) the back thereof and to consider
any ballot as spurious,' R.A. 7166, as approved, does not
contain any provision to that effect. Clearly, therefore, the
Congress as a whole (House of Representatives and Senate)
failed to adopt the proposal of Rep. Palacol that ballots without
the BEI Chairman's signature at the back will be declared
spurious. What is clearly provided under the said law is the
sanction imposable upon an erring Chairman of the BEI, and
not the disenfranchisement of the voter." 15
The pertinent provision of the law, Section 24 of R.A.. No.
7166, provides:
"SEC. 24. Signature of Chairman at the back of Every Ballot.
In every case before delivering an official ballot to the voter,
the Chairman of the Board of Election Inspectors shall, in the
presence of the voter, affix his signature at the back thereof.
Failure to authenticate shall be noted in the minutes of the
Board of Election Inspectors and shall constitute an election
offense punishable under Section 263 and 264 of the Omnibus
Election Code."
There is really nothing in the above law to the effect that a
ballot which is not so authenticated shall thereby be deemed
spurious. The law merely renders the BEI Chairman
accountable for such failure. The courts may not, in the guise
of interpretation, enlarge the scope of a statute and embrace
situations neither provided nor intended by the lawmakers.
Where the words and phrases of a statute are not obscure and
ambiguous, the meaning and intention of the legislature should
be determined from the language employed, and where there
is no ambiguity in the words, there should be no room for
construction. 16
As so aptly observed by the Solicitor-General, House Bill
("HB") No. 34811 (which later became R.A. No. 7166),
approved by the House of Representatives on third reading,
was a consolidation of different bills. Two of the bills
consolidated and considered in drafting H.B. No. 34811 were
H.B. 34639 and H.B. No. 34660. Section 22 of the two latter
bills provided that:
"In every case before delivering an official ballot to the voter,
the chairman of the Board of Election Inspectors shall, in the
presence of the voter, affix his signature at the back thereof.
Any ballot which is not so authenticated shall be deemed
spurious. Failure to so authenticate shall constitute an election
offense." 17
During the deliberation of the Committee on Suffrage and
Electoral Reforms, held on 08 August 1991, the members
agreed to delete the phrase "Any ballot which is not so
authenticated shall be deemed spurious." Pertinent portions of
the transcript of stenographic notes ("TSN") taken during the
Meeting of the Committee on Suffrage and Electoral Reforms
read:
"THE CHAIRMAN. Yes, Congressman Mercado.
"HON. MERCADO. I think, Section 22, we go to the intent of
the provision. I think the intent here is to sanction the inspector
so I would propose a compromise. The ballot should not be
deemed as spurious. However, it would rather be failure of the
inspector to, or the chairman to affix his signature would rather
be a circumstance which would aggravate the crime, which
would aggravate the election offense, on the part of the
inspector, but not to disenfranchise the voter. Because the
intention here is to punish the election inspector for not affixing
the signature. Why should we punish the voter? So I think the
compromise here . . .
"THE CHAIRMAN. A serious election offense.
"HON. MERCADO. Yes, it should be a serious election offense
on the part of the chairman for not affixing the signature, but
not to make the ballot spurious.
"HON. RONO. Mr. Chairman.
"THE CHAIRMAN. Yes, Congressman Rono.
"HON. RONO. One thing that we have to guard against is
when we deal with the ballot and the right to suffrage, we
should not really make law that would prevent the flexibility of
the Commission on Elections, and the Supreme Court from
getting other extraneous efforts to confirm authenticity or the
spuriousness of the ballot, by making a provision that by that
single mistake or inadvertence of the chairman we make the
ballot automatically spurious is dangerous. It should be. . .
what I'm saying is that the Commission or the proper bodies by
which this matter will be taken up may consider it as one of the
evidences of spuriousness but not per se or ipso facto it
becomes; it should look for other extraneous evidence. So
what I am suggesting is let us give them this kind of flexibility
before we determine or before we say that this ballot is
spurious, we give the COMELEC some flexibility in the
determination of other extraneous evidence.
"HON. GARCIA. May I offer a suggestion?
"THE CHAIRMAN. Yes, Congressman Garcia.
"HON. GARCIA. That the fact that a ballot does not contain the
signature, I think, initial will not be sufficient, the signature of
the Chairman should be noted in the minutes. Noted in the
minutes. So that in case of protest, there is basis.
"HON. RONO. Oo may basis na. lyon lang. I think that would
solve our problem.
"THE CHAIRMAN. Yes, Mr. Chairman.
"MR. MONSOD. Your honor, we're willing to accept that
amendment. Take out that sentence spurious, with the
introduction of the proposed measure . . ." 18
The TSN of the proceedings of the Bicameral Conference
Committee on Election Law, held on 29 October 1991, in turn,
would show these exchanges:
"CHAIRMAN GONZALEZ. Are there anything more?
"HON. ROCO. There is a section in the Senate version about
the ballot being signed at the back.
"CHAIRMAN GONZALEZ. Counter side.
"HON. ROCO. If it is not signed then it is being spurious which
is a very dangerous, I (think) (it) is a very dangerous provision
and so. . .
"MR MONSOD. We agree with the House version that anyway
when chairman of BEI doesn't sign subject to an election
offense. But it should not be a basis for disenfranchisement of
the voter. So, we believe we set this in the hearings in the
House that we should strike out that sentence that says that
this ballot is automatically spurious." 19
Thus, the final draft, which was later to become R.A. No. 7166,
no longer included the provision "Any ballot not so
authenticated shall be deemed spurious." The intention of the
legislature even then was quite evident.
The reliance on Bautista vs. Castro 20 by petitioner, is
misdirected. It must be stressed that B.P. Blg.
222, 21 otherwise known as the "Barangay Election Act of
1982," approved on 25 March 1982, itself categorically
expresses that it shall only be "applicable to the election of
barangay officials." Section 14 ofB.P. Blg. 222 and its
implementing rule in Section 36 of COMELEC Resolution No.
1539 have both provided:
Section 14 of B.P. 222:
"Sec. 14. Official barangay ballots. The official barangay
ballots shall be provided by the city or municipality concerned
of a size and color to be prescribed by the Commission on
Elections.
"Such official ballot shall, before it is handed to the voter at the
voting center, be authenticated in the presence of the voter,
the other Tellers, and the watchers present by the Chairman of
the Board of Election Tellers who shall affix his signature at the
back thereof."
Section 36 of COMELEC Resolution No. 1539:
"Sec. 36. Procedure in the casting of votes. . . .
"b. Delivery of ballot. Before delivering the ballot to the
voter, the chairman shall, in the presence of the voter, the
other members of the board and the watchers present, affix his
signature at the back thereof and write the serial number of the
ballot in the space provided in the ballot, beginning with No. '1'
for the first ballot issued, and so on consecutively for the
succeeding ballots, which serial number shall be entered in the
corresponding space of the voting record. He shall then fold
the ballot once, and without removing the detachable coupon,
deliver it to the voter, together with a ball pen.
"xxx xxx xxx
"e. Returning the ballot. (1) In the presence of all the members
of the Board, the voter shall affix his right hand thumbmark on
the corresponding space in the detachable coupon, and shall
give the folded ballot to the chairman. (2) The chairman shall
without unfolding the ballot or looking at its contents, and in the
presence of the voter and all the members of the Board, verify
if it bears his signature and the same serial number recorded in
the voting record. (3) If the ballot is found to be authentic, the
voter shall then be required to imprint his right hand
thumbmark on the proper space in the voting record. (4) The
chairman shall then detach the coupon and shall deposit the
folded ballot in the compartment for valid ballot and the coupon
in the compartment for spoiled ballots. (5) The voter shall then
leave the voting center.
"f. When ballot may be considered spoiled. Any ballot returned
to the chairman with its coupon already detached, or which
does not bear the signature of the chairman, or any ballot with
a serial number that does not tally with the serial number of the
ballot delivered to the voter as recorded in the voting record,
shall be considered as spoiled and shall be marked and signed
by the members of the board and shall not be counted." 22
The difference in the rules may not be too difficult to discern.
The stringent requirements in B.P. Blg. 222 should be
justifiable considering that the official barangay ballots would
be provided by the city or municipality concerned with the
COMELEC merely prescribing their size and color. Thus, the
official ballots in B.P. Blg. 222, being supplied and furnished by
the local government themselves, the possibility of the ballots
being easily counterfeited might not have been discounted.
The absence of authenticating marks prescribed by law i.e.,
the signature of the chairman of the Board of Election Tellers
at the back of the ballot, could have well been really thought of
to be fatal to the validity of the ballot.
Section 24 of R.A. No. 7166, upon the other hand, contains no
similar stringent provisions such as that seen in Section 36(f)
of COMELEC Resolution No. 1539. The pertinent part in
Resolution No. 2676 on the requirement of the signature of the
chairman is found in Section 73 thereof which merely provides:
"Sec. 73. Signature of chairman at the back of every ballot.
In every case, the chairman of the board shall, in the presence
of the voter, authenticate every ballot by affixing his signature
at the back thereof before delivering it to the voter. FAILURE
TO SO AUTHENTICATE SHALL BE NOTED IN THE
MINUTES OF THE BOARD AND SHALL CONSTITUTE AN
ELECTION OFFENSE."
Again, in Resolution No. 2738, 23 promulgated by the
COMELEC on 03 January 1995, 24 which implemented,
among other election laws, R.A. No. 7166(that governed the
election for Members of the House of Representatives held on
08 May 1995), the relevant provision is in Section 13 which
itself has only stated:
"Sec. 13. Authentication of the ballot. Before delivering a
ballot to the voter, the chairman of the board shall, in the
presence of the voter, affix his signature at the back thereof."
It would appear evident that the ruling in Bautista
vs. Castro was prompted because of the express declaration in
Section 36(f) of COMELEC Resolution No. 1539, implementing
Section 14 of B.P. Blg. 222, that: "Any ballot returned to the
chairman . . . which does not bear the signature of the
chairman . . . shall be considered as spoiled . . . and shall not
be counted." This Court thus stated in Bautista: cda
"The law (Sec. 14 of B.P. Blg. 222) and the rules implementing
it (Sec. 36 of Comelec Res. No. 1539) leave no room for
interpretation. The absence of the signature of the Chairman of
the Board of Election Tellers in the ballot given to a voter as
required by law and the rules as proof of the authenticity of
said ballot is fatal. This requirement is mandatory for the
validity of the said ballot."
It should be noteworthy that in an unsigned 03rd April 1990
resolution, in "Jolly Fernandez vs. COMELEC," 25 the Court en
banc had the opportunity to debunk the argument that all
ballots not signed at the back thereof by the Chairman and the
Poll Clerk were to be considered spurious for non-compliance
with Section 15 of R.A. No. 6646, 26 i.e., "The Electoral
Reforms Law of 1987," reading as follows:
"Sec. 15. Signature of Chairman and Poll Clerk at the Back of
Every Ballot. In addition to the preliminary acts before the
voting as enumerated in Section 191 of Batas Pambansa Blg.
881, the chairman and the poll clerk of the board of election
inspectors shall affix their signatures at the back of each and
every official ballot to be used during the voting. A certification
to that effect must be entered in the minutes of the voting."
The Court declared:
"The cardinal objective in the appreciation of the ballots is to
discover and give effect to the intention of the voter. That
intention would be nullified by the strict interpretation of the
said section as suggested by the petitioner for it would result in
the invalidation of the ballot even if duly accomplished by the
voter, and simply because of an omission not imputable to him
but to the election officials. The citizen cannot be deprived of
his constitutional right of suffrage on the specious ground that
other persons were negligent in performing their own duty,
which in the case at bar was purely ministerial and technical,
by no means mandatory but a mere antecedent measure
intended to authenticate the ballot. A contrary ruling would
place a premium on official ineptness and make it possible for
a small group of functionaries, by their negligence or, worse,
their deliberate inaction to frustrate the will of the
electorate." 27
Petitioner Libanan suggests that the Court might apply the
"ruling" of respondent HRET in the case of Yap vs. Calalay
(HRET Case No. 95-026). He states that it is the HRET itself,
ironically, that deals the coup de grace to its ruling in HRET
Case No. 95-020." The "ruling" cited by petitioner is actually a ||| (Libanan v. House of Representatives Electoral Tribunal,
"Confidential Memorandum," 28 dated 28 April 1997, from a G.R. No. 129783, [December 22, 1997], 347 PHIL 797-814)
certain Atty. Emmanuel Mapili addressed to "PA Committees in
HRET Case No. 95-026 (Yap vs. Calalay)" which has for its
subject "(n)ew rulings to be followed in the appreciation of
ballots in HRET Case No. 95-026 (Yap vs. Calalay) and other PUNZALAN v. COMELEC
concerns." Petitioner Libanan quotes the pertinent portion of
EN BANC
the said Memorandum, viz.:
[G.R. No. 126669. April 27, 1998.]
"WHEREFORE, the Tribunal Resolved that the following rules
and guidelines on the appreciation of ballots shall be given ERNESTO
effect in the resolution of this case and shall be applied M. PUNZALAN, petitioner, vs. COMMISSION ON ELECTION
prospectively to other pending cases: S and FERDINAND D. MENESES, respondents.
"1. The absence of the signature of the BEI Chairman at the [G.R. No. 127900. April 27, 1998.]
back of the ballot shall nullify the same and all the votes
therein shall not be counted in favor of any candidate." 29 FERDINAND D.
MENESES, petitioner, vs. COMMISSION ON ELECTIONS an
Reliance by petitioner on this alleged "ruling," obviously d ERNESTO M. PUNZALAN, respondents.
deserves scant consideration. What should, instead, be given
weight is the consistent rule laid down by the HRET that a [G.R. No. 128800. April 27, 1998.]
ballot is considered valid and genuine for as long as it bears
any one of these authenticating marks, to wit: (a) the ERNESTO
COMELEC watermark, or (b) the signature or initials, or M. PUNZALAN, petitioner, vs. COMMISSION ON ELECTION
thumbprint of the Chairman of the BEI; and, (c) in those cases S and FERDINAND D. MENESES, respondents.
where the COMELEC watermarks are blurred or not readily
apparent to the naked eye, the presence of red and blue fibers [G.R. No. 132435. April 27, 1998.]
in the ballots. 30 It is only when none of these marks appears
extant that the ballot can be considered spurious and subject ERNESTO
to rejection. M. PUNZALAN, petitioner, vs. COMMISSION ON ELECTION
S and FERDINAND D. MENESES, respondents.
It is quite clear, in the opinion of the Court, that no grave abuse
of discretion has been committed by respondent House of Punzalan Tiongson & Lising and Romulo C. Felizmena for
Representatives Electoral Tribunal in its issuance of the Ernesto Punzalan.
assailed decision and resolution.
Pete Quirino Cuadra for Ferdinand Meneses.
One other important point. Regarding the membership of
SYNOPSIS
certain Justices of this Court in the HRET and their
participation in the resolution of the instant petition, the Court
Danilo Manalastas, Ferdinand Meneses and
sees no conflict at all, and it, therefore, rejects the offer of
Ernesto Punzalan were among the four candidates for mayor
inhibition by each of the concerned justices. As early as Vera
of Mexico, Pampanga during the May 8, 1995 elections. The
vs. Avelino, 31this Court, confronted with a like situation, has
Municipal Board of Canvassers (MBC) proclaimed Meneses as
said unequivocally:
the duly elected mayor. Manalastas and Punzalan each filed
their own election protests that were consolidated and were
". . . Mulling over this, we experience no qualmish feelings
jointly tried by the RTC of San Fernando, Pampanga. After
about the coincidence. Their designation to the electoral
hearing the election protests, the trial court rendered judgment
tribunals deducted not a whit from their functions as members
in favor of Punzalan, who was declared winner of the elections.
of this Supreme Court, and did not disqualify them in this
Meneses filed a notice of appeal with the COMELEC while
litigation. Nor will their deliverances hereat on a given question
Manalastas did not appeal. Punzalan filed a motion for
operate to prevent them from voting in the electoral forum on
execution pending appeal with the trial court and was granted
identical questions; because the Constitution, establishing no
by the latter. After several petitions, some of which even
incompatibility between the two roles, naturally did not
reached the Supreme Court, the COMELEC finally issued a
contemplate, nor want, justices opining one way here, and
resolution setting aside the trial court's decision and affirming
thereafter holding otherwise, pari materia, in the electoral
the proclamation of Meneses by the MBC as the duly elected
tribunal, or vice-versa." 32
mayor of Mexico, Pampanga. Punzalan filed a motion for
Such has thus been, and so it is to be in this petition, as well reconsideration of the aforesaid resolution, which was denied.
as in the cases that may yet come before the Court. Hence, this petition for certiorari with preliminary injunction and
a prayer for the issuance of a temporary restraining order to
WHEREFORE, the instant petition is DISMISSED. set aside the COMELEC's resolution. TCaEAD
The Supreme Court dismissed the petition. The Court upheld
the findings of the COMELEC, stressing the well-founded rule
that laws and election statutes governing election contests
especially appreciation of ballots must be liberally construed to
the end that the will of the electorate in the choice of public
officials may not be defeated by technical infirmities. An
election protest is imbued with public interest so much so that
the need to dispel uncertainties which becloud the real choice
of the people is imperative.
SYLLABUS
1. POLITICAL LAW; ELECTION LAW; REPUBLIC ACT NO.
7166; FAILURE BY THE BOARD OF ELECTION
INSPECTORS CHAIRMAN TO AFFIX HIS SIGNATURE AT
THE BACK OF THE BALLOT DOES NOT INVALIDATE THE
BALLOT ITSELF; RATIONALE. While Section 24 of
Republic Act No. 7166, otherwise known as "An Act Providing
For Synchronized National and Local Elections and For
Electoral Reforms," requires the BEI chairman to affix his
signature at the back of the ballot, the mere failure to do so
does not invalidate the same although it may constitute an
election offense imputable to said BEI chairman. Nowhere in
said provision does it state that the votes contained therein
shall be nullified. It is a well-settled rule that the failure of the
BEI chairman or any of the members of the board to comply
with their mandated administrative responsibility, i.e., signing,
authenticating and thumbmarking of ballots, should not
penalize the voter with disenfranchisement, thereby frustrating
the will of the people. In the recent case of Marcelino C.
Libanan vs. House of Representatives Electoral Tribunal and
Jose T. Ramirez, this Court affirmed the ruling of the Tribunal
in Libanan vs. Ramirez to the effect that a ballot without BEI
chairman's signature at the back is valid and not spurious,
provided that it bears any one of the these other authenticating
marks, to wit: (a) the COMELEC watermark; and (b) in those
cases where the COMELEC watermarks are blurred or not
readily apparent, the presence of red and blue fibers in the
ballots. The Court explained in this wise: What should, instead,
be given weight is the consistent rule laid down by the HRET
that a ballot is considered valid and genuine for as long as it
bears any one of these authenticating marks, to wit: (a) the
COMELEC watermark, or (b) the signature or initials, or
thumbprint of the Chairman of the BEI; and (c) in those cases
where the COMELEC watermarks are blurred or not readily
apparent to the naked eye, the presence of red or blue fibers in
the ballots. It is only when none of these marks appears extant
that the ballot can be considered spurious and subject to
rejection. Similarly, Section 211 of Batas Pambansa Blg. 881;
otherwise known as the "Omnibus Election Code of the
Philippines" provides that in the reading and appreciation of
ballots, every ballot shall be presumed to be valid unless there
is a clear and good reason to justify its rejection. Certainly, the
inefficiency of an election officer in failing to affix his signature
at the back of the ballot does not constitute as a good and
clear reason to justify the rejection of a ballot.
2. ID.; ID.; COMMISSION ON ELECTIONS (COMELEC);
MATTERS FALLING WITHIN ITS JURISDICTION SHOULD
NOT BE INTERFERED WITH BY THE COURT. The
appreciation of the contested ballots and election documents
involves a question of fact best left to the determination of the
COMELEC, a specialized agency tasked with the supervision
of elections all over the country. It is the constitutional
commission vested with the exclusive original jurisdiction over
election contests involving regional, provincial and city officials,
as well as appellate jurisdiction over election protests involving
elective municipal and barangay officials. Consequently, in the
absence of grave abuse of discretion or any jurisdiction
infirmity or error of law, the factual findings, conclusions,
rulings and decisions rendered by the said Commission on
matters falling within its competence shall not be interfered
with by this Court. cIHCST
3. ID.; ID.; ID.; NEED NOT CONDUCT AN ADVERSARIAL
PROCEEDING OR A HEARING TO DETERMINE THE
AUTHENTICITY OF BALLOTS OR THE HANDWRITING
FOUND THEREON; RATIONALE. It is axiomatic that the
COMELEC need not conduct an adversarial proceeding or a
hearing to determine the authenticity of ballots or the
handwriting found thereon. Neither does it need to solicit the
help of handwriting experts in examining or comparing the
handwriting. In fact, even evidence aliunde is not necessary to
enable the Commission to determine the authenticity of the
ballots and the genuineness of the handwriting on the ballots
as an examination of the ballots themselves is already
sufficient. Section 22 of Rule 132 of the Revised Rules on
Evidence explicitly authorizes the court, by itself, to make a
comparison of the disputed handwriting "with writings admitted
or treated as genuine by the party against whom the evidence
is offered, or proved to be genuine to the satisfaction of the
judge." Consequently, the examination of the ballots
themselves by the COMELEC should not be brushed aside.
Section 23, Rule 132 of the Rules of Court explicitly authorizes
the court (the COMELEC in this case) to make itself the
comparison of the disputed handwriting "with writings admitted
as genuine by the party whom the evidence is offered." Expert
opinions are not ordinarily conclusive in the sense that they
must be accepted as true on the subject of their testimony, but
are generally regarded as purely advisory in character; the
courts may place whatever weight they choose upon such
testimony and may reject it, if they find that it is consistent with
the facts in the case or otherwise unreasonable.
4. ID.; ID.; LAWS AND STATUTES GOVERNING ELECTION
CONTESTS MUST BE LIBERALLY CONSTRUED;
RATIONALE. This Court as a well-founded rule ensconced
in our jurisprudence that laws and statutes governing election
contests especially appreciation of ballots must be liberally
construed to the end that the will of the electorate in the choice
of public officials may not be defeated by technical infirmities.
An election protest is imbued with public interest so much so
that the need to dispel uncertainties which becloud the real
choice of the people is imperative. EIcSTD
DECISION
KAPUNAN, J p:
Danilo Manalastas, Ferdinand Meneses and
Ernesto Punzalan were among the four (4) candidates for
mayor of the municipality of Mexico, Pampanga during the May
8, 1995 elections. cdrep
On May 24, 1995, the Municipal Board of Canvassers (MBC)
proclaimed Ferdinand Meneses as the duly elected mayor,
having garnered a total of 10,301 votes against Danilo
Manalastas' 9,317 votes and Ernesto Punzalan's 8,612 votes.
On May 30, 1995, Danilo Manalastas filed an election protest
docketed as Election Case No. E-005-95 before the Regional
Trial Court of San Fernando, Pampanga, challenging the
results of the elections in the municipality's forty-seven (47)
precincts. 1 In due time, Ferdinand Meneses filed his answer
with counter protest impugning the results in twenty-one (21)
precincts 2 of the 47 protested by Manalastas.
On June 2, 1995, Ernesto Punzalan filed his own election
protest docketed as Election Case No. E-006-95, also before
the RTC in San Fernando, Pampanga, questioning the results
of the elections in one hundred and fifty seven (157)
precincts. 3 Meneses, on his part, filed an answer with counter-
protest with respect to ninety-six (96) precincts 4 of the 157
protested by Punzalan.
Since the two (2) election protests involved the same parties
and subject matter, they were ordered consolidated and were
jointly tried by the RTC of San Fernando Pampanga, Branch
44.
Succinctly, the election contests sought the nullification of the
election of Meneses allegedly due to massive fraud,
irregularities and other illegal electoral practices during the
registration and the voting as well as during the counting of
votes such as:
a. the registration of flying voters;
b. the preparation of ballots by persons other than the
registered electors concerned;
c. the use of electoral fraudulent practice such as the
'lansadera;'
d. false reading of votes for the petitioner/protestant;
e. the counting of illegal and marked ballots and stray votes as
votes for the respondent/protestee;
f. switching of ballots in favor of respondent/protestee;
g. tampering with the ballots for the petitioner/protestant after
having been cast, so as to annul the same or to substitute
therefor illegal votes for respondent/protestee,
h. the adding of more votes to those actually counted for the
respondent/protestee and the reducing of the votes actually
counted for the petitioner/protestant in the preparation of the
corresponding election return;
i. groups of two or more ballots for the respondent/protestee
were written each group, by only one (1) person;
j. one (1) ballot for the respondent/protestee written by two or
more persons. 5
By way of counter-protest to the two (2) election protests,
Meneses alleged that he, too, was a victim of massive fraud
and illegal electoral practices such as:
a) The preparation of the ballots by persons other than the
registered electors concerned;
b) The use of electoral fraudulent practice known as the
'lansadera;'
c) False reading of votes for the protestee;
d) The counting of illegal and marked ballots and stray votes
for the protestant;
c) Switching of ballots in favor of protestant;
f) Tampering with the ballots for the Protestee after having
been cast, so as to annul the same or to substitute therefor
illegal votes for the protestant;
g) The adding of more votes to those actually counted for the
protestant and the reducing of the votes actually counted for
the protestee in the preparation of the corresponding election
returns;
h) Group of two (2) or more ballots for protestant were written,
each group, by only one (1) person;
i) One (1) ballot for the protestant written by two (2) or more
persons. 6
Finding the protests and counter-protests sufficient in form and
substance, the trial court ordered a revision of the ballots. The
result of said physical count coincided with the figures reflected
in the election returns, thus: Meneses 10,301 votes;
Manalastas 9,317 votes; and Punzalan 8,612
votes.cdrep
After hearing the election protests, the trial court rendered
judgment on September 23, 1996 with the following
findings, viz: that massive fraud, illegal electoral practices and
serious anomalies marred the May 8, 1995 elections; that
ballots, election returns and tally sheets pertaining to Precinct
Nos. 8, 20, 41, 53, 68, 68-A and 70 "disappeared under
mysterious circumstances;" and that filled-up ballots with
undetached lower stubs and groups of ballots with stubs cut
out with scissors were found inside ballot boxes. Because of
these irregularities, the trial court was constrained to examine
the contested ballots and the handwritings appearing thereon
and came up with the declaration that Punzalan. was the
winner in the elections. The dispositive portion of the decision
reads:
WHEREFORE, premises considered, judgment is hereby
rendered:
1. In EPC No. E-005-95 declaring Ferdinand D. Meneses as
having garnered 7,719 votes or 33 votes more than the 7,686
votes received by Danilo D. Manalastas and dismissing the
instant protest.
2. In EPC No. E-006-95 declaring Ernesto M. Punzalan as
the duly elected Municipal Mayor of Mexico, Pampanga.
Protestee Ferdinand D. Meneses is hereby ordered to vacate
his position and to cease and desist from further discharging
the duties and functions officially vested in the Office of the
Municipal Mayor of Mexico, Pampanga which now and
henceforth, unless otherwise disqualified by law, are conferred
unto and in favor of Ernesto M. Punzalan, who is hereby
ordered to act, perform and discharge the duties, functions and
responsibilities and all incidents appertaining to and in
connection with the Office of the Municipal Mayor of Mexico,
Pampanga, immediately and after he shall have taken his oath
of office as such.
3. The counterclaims interposed by Ferdinand D. Meneses in
both cases are hereby dismissed.
The authorities concerned are hereby ordered to enforce,
implement and assist in the enforcement and implementation
of this Decision immediately after Ernesto M. Punzalan shall
have had taken his oath of office.
As soon as this Decision becomes final, let notice thereof be
sent to the Commission on Elections, Department of Interior
and Local Governments and Commission on Audit.
Without pronouncement as to costs.
SO ORDERED. 7
Immediately thereafter, Meneses filed a notice of appeal from
the aforesaid decision declaring Punzalan as the duly elected
mayor of Mexico, Pampanga. The case was docketed as EAC
No. 48-96 by the COMELEC. Manalastas did not appeal from
the said decision.
On October 1, 1996, Punzalan filed a motion for execution
pending appeal with the RTC in San Fernando, Pampanga. On
the same day, the COMELEC issued an order directing the
RTC to elevate the entire records of the case.
On October 10, 1996, the RTC issued an order which
granted Punzalan's motion for execution pending appeal. On
the same date, Meneses filed before the COMELEC a petition
for certiorari and prohibition with prayer for the issuance of
temporary restraining order (TRO) and/or preliminary
injunction, docketed as SPR No. 47-96, seeking the
nullification of the RTC's order of execution pending appeal.
On October 11, 1996, the COMELEC issued a TRO enjoining
the RTC from enforcing its Order dated October 10, 1996.
On October 22, 1996, Meneses filed with the COMELEC a
motion for contempt against Punzalan, alleging that the latter
was holding the office of mayor of Mexico, Pampanga in
violation of the TRO issued by the COMELEC.
On October 28, 1996, Punzalan filed before this Court a
petition for certiorari, prohibition and declaratory relief with
application for a writ of preliminary injunction and temporary
restraining order, docketed as G.R. No. 126669, to set aside
the COMELEC's TRO issued on October 11, 1996.
On November 7, 1996, the COMELEC issued two (2) orders,
one which submitted for resolution Meneses' application for a
writ of preliminary injunction and motion for contempt and
another which granted a writ of preliminary injunction enjoining
the enforcement of the RTC's order of execution dated October
10, 1996.
On November 12, 1996, this Court issued a TRO directing the
COMELEC to cease and desist from enforcing the TRO it
issued on October 11, 1996 in SPR No. 47-96.
On November 21, 1996, Punzalan filed before this Court a
supplement to the petition seeking to declare as void the
COMELEC's preliminary prohibitory and mandatory injunction
and to declare Meneses in contempt of court.
On January 9, 1997, the COMELEC issued an order which
dispositively read as follows:
Considering that the 7 November 1996 preliminary injunction of
the Commission was pursuant to its 11 October 1996
temporary restraining order, which was specifically covered by
the Supreme Court's temporary restraining order, the
Commission will respect and abide by the order of the
Supreme Court. Considering, however, that the temporary
restraining order of the Supreme Court relates only to the
implementation of the order of execution of judgment pending
appeal of the Regional Trial Court, the Commission finds no
legal impediment to proceed with the resolution of the main
action for certiorari pending before it and shall act accordingly.
On January 30, 1997, the COMELEC issued an order stating
that: 1) it need not act on Meneses' motion reiterating the
prayer to suspend pendente litethe implementation of the
Order dated January 9, 1997, and 2) the Order dated January
9, 1997 shall take effect thirty (30) days from notice thereof to
the parties.
On February 10, 1997, Meneses filed with this Court a petition
for certiorari with prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction, docketed
as G.R. No. 127900, which sought to set aside the COMELEC
Orders dated January 9 and 30, 1997.
On April 24, 1997, the COMELEC issued a resolution granting
the petition of Meneses to set aside the RTC's order of
execution pending appeal and allowing Meneses to continue to
discharge the duties and functions of municipal mayor of
Mexico, Pampanga, without prejudice to the resolution of his
pending appeal from the RTC's decision.
On April 28, 1997, Punzalan filed with this Court a petition
for certiorari, docketed as G.R. No. 128000, which sought to
nullify the COMELEC's Resolution dated April 24, 1997.
On December 8, 1997, the COMELEC promulgated a
resolution in EAC No. 48-96 setting aside the trial court's
decision and affirming the proclamation of Meneses by the
MBC as the duly elected mayor of Mexico, Pampanga, thusly:
WHEREFORE, premises considered, the decision of the court
a quo in Election Protest Case No. E-006-95 declaring
protestant-appellee Ernesto M.Punzalan as the duly elected
Mayor of the Municipality of Mexico, Pampanga in the May 8,
1995 local elections is hereby ANNULLED and SET-ASIDE.
ACCORDINGLY, the Commission [First Division] hereby
AFFIRMS the proclamation of protestee-appellant Ferdinand
D. Meneses by the Municipal Board of Canvassers as the duly
elected Mayor of Mexico, Pampanga but with the modification
that protestee-appellant received only 9,864 votes, or a
deduction of 437 votes from his original 10,301 votes. Further,
this Commission [First Division] hereby COMMANDS
protestant-appellee Ernesto M.Punzalan to RELINQUISH his
post in favor of protestee-appellant Ferdinand Meneses
immediately upon finality of this Resolution. 8
Punzalan filed a motion for reconsideration of the aforesaid
resolution. In its Resolution dated February 13, 1998, the
COMELEC denied said motion for lack of merit.
Hence, this petition for certiorari with preliminary injunction and
a prayer for the issuance of a temporary restraining order, filed
on February 16, 1998 and docketed as G.R. No. 132435, to set
aside the COMELEC's resolutions of December 8, 1997 and
February 13, 1998. Thus, petitioner alleges:
1. that the decision (resolution) in question is tainted with grave
abuse of discretion amounting to lack of jurisdiction;
2. that it was rendered in disregard of law and the evidence;
3. that the decision (resolution) in question is a 'prejudged
decision;' and
4. that the decision (resolution) in question is the culmination of
a series of acts of the public respondent favoring the private
respondent. 9
First. Punzalan maintains that the COMELEC acted with grave
abuse of discretion in declaring as valid the ballots credited to
Meneses which did not bear the signature of the BEI chairman
at the back thereof, invoking the ruling of this Court
in Bautista v. Castro 10 wherein it was held that the absence of
the signature of the BEI chairman in the ballot given to a voter
as required by law and the rules as proof of the authenticity of
said ballot is fatal.
This contention is not meritorious.
While Section 24 11 of Republic Act No. 7166, otherwise
known as "An Act Providing For Synchronized National and
Local Elections and For Electoral Reforms," requires the BEI
chairman to affix his signature at the back of the ballot, the
mere failure to do so does not invalidate the same although it
may constitute an election offense imputable to said BEI
chairman. Nowhere in said provision does it state that the
votes contained therein shall be nullified. It is a well-settled rule
that the failure of the BEI chairman or any of the members of
the board to comply with their mandated administrative
responsibility, i.e., signing, authenticating and thumbmarking of
ballots, should not penalize the voter with disenfranchisement,
thereby frustrating the will of the people. 12
In the recent case of Marcelino C . Libanan v. House of
Representatives Electoral Tribunal and Jose
T . Ramirez, 13 this Court affirmed the ruling of the Tribunal
in Libanan v. Ramirez 14 to the effect that a ballot without BEI
chairman's signature at the back is valid and not spurious,
provided that it bears any one of these other authenticating
marks, to wit: (a) the COMELEC watermark; and (b) in those
cases where the COMELEC watermarks are blurred or not
readily apparent, the presence of red and blue fibers in the
ballots. The Court explained in this wise:
What should, instead, be given weight is the consistent rule
laid down by the HRET that a ballot is considered valid and
genuine for as long as it bears any one of these authenticating
marks, to wit: (a) the COMELEC watermark, or (b) the
signature or initials, or thumbprint of the Chairman of the BEI;
and (c) in those cases where the COMELEC watermarks are
blurred or not readily apparent to the naked eye, the presence
of red or blue fibers in the ballots. It is only when none of these
marks appears extant that the ballot can be considered
spurious and subject to rejection.
Similarly, Section 211 of Batas Pambansa Blg. 881, otherwise
known as the "Omnibus Election Code of the Philippines"
provides that in the reading and appreciation of ballots, every
ballot shall be presumed to be valid unless there is a clear and
good reason to justify its rejection. Certainly, the inefficiency of
an election officer in failing to affix his signature at the back of
the ballot does not constitute as a good and clear reason to
justify the rejection of a ballot.
Second. Punzalan contends that the COMELEC committed
grave abuse of discretion in declaring valid (a) the ballots
wherein the signatures of the BEI chairmen were different from
their respective signatures appearing on several COMELEC
documents, (b) those group of ballots allegedly written by one
(1) hand and (c) a number of single ballots written by two (2)
persons. He argues that the trial court's findings on the
authenticity of said handwritings must prevail over the findings
of the COMELEC because: 1) the finding of the Regional Trial
Court was based first on the findings of the revisors with the
assistance of an expert witness in the person of Atty. Desiderio
Pagui; (2) the finding of the Regional Trial Court was arrived at
after an adversarial proceeding where both parties were
represented by their lawyers and the expert witness was cross-
examined; and (3) on the other hand, the findings of the public
respondent were made unilaterally, without any hearing and
without the presence of the lawyers of the parties and of the
parties themselves.15
These arguments fail to persuade us.
The appreciation of the contested ballots and election
documents involves a question of fact best left to the
determination of the COMELEC, a specialized agency tasked
with the supervision of elections all over the country. It is the
constitutional commission vested with the exclusive original
jurisdiction over election contests involving regional, provincial
and city officials, as well as appellate jurisdiction over election
protests involving elective municipal and barangay officials.
Consequently, in the absence of grave abuse of discretion or
any jurisdictional infirmity or error of law, the factual findings,
conclusions, rulings and decisions rendered by the said
Commission on matters falling within its competence shall not
be interfered with by this Court. 16
Anent Punzalan's assertion that the trial court's finding which
was arrived at after an adversarial proceeding wherein an
expert witness testified and was cross-examined, should not
be interfered with by the COMELEC whose finding was arrived
at without the benefit of a hearing or the aid of an expert, it is
axiomatic that the COMELEC need not conduct an adversarial
proceeding or a hearing to determine the authenticity of ballots
or the handwriting found thereon. Neither does it need to solicit
the help of handwriting experts in examining or comparing the
handwriting. 17 In fact, even evidence aliunde is not necessary
to enable the Commission to determine the authenticity of the
ballots and the genuineness of the handwriting on the ballots
as an examination of the ballots themselves is already
sufficient. 18
In Erni v. COMELEC , 19 we held that:
. . . With respect to the contention that a technical examination
of the ballots should have been ordered to determine whether
they had been written by two or more persons, or in groups
written by only one hand, we hold that the Commission en
banc did not commit an abuse of its discretion in denying
petitioner-protestee's request. The rule is settled that the
Commission itself can make the determination without the
need of calling handwriting experts.
Nor was evidence aliunde necessary to enable the
Commission to determine the genuineness of the handwriting
on the ballots, an examination of the ballots themselves being
sufficient. . . 20
In Bocobo v. COMELEC, 21 we likewise ruled that:
. . . Handwriting experts, while probably useful, are not
indispensable in examining or comparing handwriting; this can
be done by the COMELEC itself. We have ruled that
evidence aliunde is not allowed to prove that a ballot is
marked, an inspection of the ballot itself being sufficient
(Penson v. Parungao, 52 Phil. 718). . . 22
In the case at bar, the opinion of Atty. Pagui, who was claimed
to be a handwriting expert, was not binding upon the
COMELEC especially so where the question involved the mere
similarity or dissimilarity of handwritings which could be
determined by a comparison of existing signatures or
handwriting.23 Section 22 of Rule 132 of the Revised Rules on
Evidence explicitly authorizes the court, by itself, to make a
comparison of the disputed handwriting "with writings admitted
or treated as genuine by the party against whom the evidence
is offered, or proved to be genuine to the satisfaction of the
judge."
In Lorenzo v. Diaz, 24 this Court enumerated the tools to aid
one in the examination of handwriting, thus:
The authenticity of a questioned signature cannot be
determined solely upon its general characteristics, similarities
or dissimilarities with the genuine signature. Dissimilarities as
regards spontaneity, rhythm , presence of the pen, loops in the
strokes, signs of stops, shades, etc., that may be found
between the questioned signature and the genuine one are not
decisive on the question of the former's authenticity. The result
of examination of questioned handwriting, even with the benefit
of aid of experts and scientific instruments, is, at best,
inconclusive. There are other factors that must be taken into
consideration. The position of the writer, the condition of the
surface on which the paper where the questioned signature is
written is placed, his state of mind, feelings and nerves, and
the kind of pen and/or paper used, played an important role on
the general appearance of the signature. Unless, therefore,
there is, in a given case, absolute absence, or manifest dearth,
or direct or circumstantial competent evidence of the character
of a questioned handwriting, much weight should not be given
to characteristic similarities, or dissimilarities, between the
questioned handwriting and an authentic one. 25
Indeed, the haste and pressure, the rush and excitement
permeating the surroundings of polling places could certainly
affect the handwriting of both the voters and the election
officers manning the said precincts. The volume of work to be
done and the numerous documents to be filled up and signed
must likewise be considered. Verily, minor and insignificant
variations in handwriting must be perceived as indicia of
genuineness rather than of falsity.
In Go Fay v. Bank of the Philippine Islands, 26 this Court held
that carelessness, spontaneity, unpremeditation, and speed in
signing are evidence of genuineness. In U .S. v. Kosel, 27 it
was ruled that dissimilarity in certain letters in a handwriting
may be attributed to the mental and physical condition of the
signer and his position when he signed. Grief, anger,. vexation,
stimulant, pressure and weather have some influence in one's
writing. Because of these, it is an accepted fact that it is very
rare that two (2) specimens of a person's signature are exactly
alike.
On the issue of the genuineness of the handwriting on the
ballots, it is observed that the specimens examined by Atty.
Desiderio A. Pagui, presented byPunzalan as an expert
witness, were mere certified true copies of the ballots and
documents concerned. 28 This fact raised a cloud of doubt and
made the findings suspect. Consequently, the examination of
the ballots themselves by the COMELEC should not be
brushed aside. Section 23, Rule 132 of the Rules of Court
explicitly authorizes the court (the COMELEC in this case) to
make itself the comparison of the disputed handwriting "with
writings admitted as genuine by the party whom the evidence
is offered."
Expert opinions are not ordinarily conclusive in the sense that
they must be accepted as true on the subject of their
testimony, but are generally regarded as purely advisory in
character, the courts may place whatever weight they choose
upon such testimony and may reject it, if they find that it is
consistent with the facts in the case or otherwise
unreasonable. 29
In the same manner, whether or not certain ballots were
marked had been addressed by the COMELEC by personally
and actually examining the ballots themselves. We find no
compelling reasons to disturb its findings.
In closing, we would like to stress a well-founded rule
ensconced in our jurisprudence that laws and statutes
governing election contests especially appreciation of ballots
must be liberally construed to the end that the will of the
electorate in the choice of public officials may not be defeated
by technical infirmities. 30 An election protest is imbued with
public interest so much so that the need to dispel uncertainties
which becloud the real choice of the people is imperative.
Prescinding from the foregoing, we find that respondent
COMELEC did not act with grave abuse of discretion in G.R.
No. 132435. The petitions in G.R. Nos. 126669, 127900 and
128800 are rendered moot by the preceding disquisition.
WHEREFORE, premises considered, the petition in G.R. No.
132435 is hereby DISMISSED. The status quo order issued by
this Court on February 24, 1998 is LIFTED. The petitions in
G.R. Nos. 126669, 127900 and 128800 are rendered moot and
academic by the foregoing disquisition. cdrep
Further, this decision is immediately executory in view of the
shortness of time between now and the next elections and to
prevent the case from becoming moot and academic.
SO ORDERED.
Narvasa, C .J ., Regalado, Davide, Jr., Romero, Bellosillo,
Melo, Puno, Vitug, Mendoza, Panganiban, Martinez,
Quisumbing and Purisima, JJ., concur.
||| (Punzalan v. Commission on Elections, G.R. No. 126669,
127900, 128800, 132435, [April 27, 1998], 538 PHIL 538-557)
SECTION 199. Challenge of illegal voters.
(a) Any voter, or watcher may challenge any person offering to
vote for not being registered, for using the name of another or
suffering from existing disqualification. In such case, the board
of election inspectors shall satisfy itself as to whether or not the
ground for the challenge is true by requiring proof of
registration or the identity of the voter; and
(b) No voter shall be required to present his voter's affidavit on
election day unless his identity is challenged. His failure or
inability to produce his voter's affidavit upon being challenged,
shall not preclude him from voting if his identity be shown from
the photograph, fingerprints, or specimen signatures in his
approved application in the book of voters or if he is identified
under oath by a member of the board of election inspectors
and such identification shall be reflected in the minutes of the
board.
SECTION 200. Challenge based on certain illegal acts.
Any voter or watcher may challenge any voter offering to vote
on the ground that the challenged person has received or
expects to receive, has paid, offered or promised to pay, has
contributed, offered or promised to contribute money or
anything of value as consideration for his vote or for the vote of
another; that he has made or received a promise to influence
the giving or withholding of any such vote or that he has made
a bet or is interested directly or indirectly in a bet which
depends upon the result of the election. The challenged person
shall take a prescribed oath before the board of election
inspectors that he has not committed any of the acts alleged in
the challenge. Upon the taking of such oath, the challenge
shall be dismissed and the challenged voter shall be allowed to
vote, but in case of his refusal to take such oath, the challenge
shall be sustained and he shall not be allowed to vote.
(Sec. 145, 1978 EC) cda
SECTION 201. Admission of challenged vote immaterial in
criminal proceedings.
The admission of the challenged vote under the two preceding
sections shall not be conclusive upon any court as to the
legality of the registration of the voter challenged or his vote in
a criminal action against such person for illegal registration or
voting. (Sec. 146, 1978 EC)
SECTION 202. Record of challenges and oaths.
The poll clerk shall keep a prescribed record of challenges and
oaths taken in connection therewith and the resolution of the
board of election inspectors in each case and, upon the
termination of the voting, shall certify that it contains all the
challenges made. The original of this record shall be attached
to the original copy of the minutes of the voting as provided in
the succeeding section. (Sec. 147, 1978 EC)
BOARD OF ELECTION INSPECTORS
SECTION 164. Composition and appointment of board of
election inspectors.
At least thirty days before the date when the voters list is to be
prepared in accordance with this Code, in the case of a regular
election or fifteen days before a special election, the
Commission shall, directly or through its duly authorized
representatives, constitute a board of election inspectors for
each precinct to be composed of a chairman and a poll clerk
who must be public school teachers, priority to be given to civil
service eligibles, and two members, each representing the two
accredited political parties. The appointment shall state the
precinct to which they are assigned and the date of the
appointment.
SECTION 165. Oath of the members of the board of
election inspectors.

The members of the board of election inspectors, whether

permanent, substitute or temporary, shall before assuming
their office, take and sign an oath upon forms prepared by the
Commission, before an officer authorized to administer oaths
or, in his absence, before any other member of the board of
election inspectors present, or in case no one is present, they
shall take it before any voter. The oaths shall be sent
immediately to the city or municipal treasurer. (Sec. 157, 1971
EC)

SECTION 166. Qualification of members of the board of

election inspectors.

No person shall be appointed chairman, member or substitute

member of the board of election inspectors unless he is of
good moral character and irreproachable reputation, a
registered voter of the city or municipality, has never been
convicted of any election offense or of any other crime
punishable by more than six months of imprisonment, or if he
has pending against him an information for any election
offense. He must be able to speak and write English or the
local dialect. (Sec. 114, 1978 EC)

SECTION 167. Disqualification.

No person shall serve as chairman or member of the board of

election inspectors if he is related within the fourth civil degree
of consanguinity or affinity to any member of the board of
election inspectors or to any candidate to be voted for in the
polling place or his spouse. (Sec. 115, 1978 EC)

SECTION 168. Powers of the board of election inspectors.

The board of election inspectors shall have the following

powers and functions:

a. Conduct the voting and counting of votes in their respective

polling places;

b. Act as deputies of the Commission in the supervision and

control of the election in the polling places wherein they are
assigned, to assure the holding of the same in a free, orderly
and honest manner; and

c. Perform such other functions prescribed by this Code or by

the rules and regulations promulgated by the Commission.
(Sec. 116,1978 EC)
POST ELECTION
COUNTING OF VOTES
SECTION 206. Counting to be public and without
interruption.
As soon as the voting is finished, the board of election
inspectors shall publicly count in the polling place the votes
cast and ascertain the results. The board of election inspectors
shall not adjourn or postpone or delay the count until it has
been fully completed, unless otherwise ordered by the
Commission.
The Commission, in the interest of free, orderly, and honest
elections, may order the board of election inspectors to count
the votes and to accomplish the election returns and other
forms prescribed under this Code in any other place within a
public building in the same municipality or city: Provided, That
the said public building shall not be located within the
perimeter of or inside a military or police camp or reservation
nor inside a prison compound. (Sec. 150, 1978 EC)
Section 25. Manner of Counting Votes. (RA 7166)
In addition to the requirement in the fourth paragraph of
Section 12 of Republic Act No. 6646 ad Section 210 of the
Omnibus Election Code, in reading the individual official ballots
during the counting, the chairman, the poll clerk and the third
member shall assume such positions as to provide the
watchers and the members of the public as may be
conveniently accommodated in the polling place, an
unimpeded view of the ballot being read by the chairman, of
the election return and the tally board being simultaneously
accomplished by the poll clerk and the third member
respectively, without touching any of these election documents.
The table shall be cleared of all unnecessary writing
paraphernalia. Any violation of this requirement shall constitute
an election offense punishable under Sections 263 and 264 of
the Omnibus Election Code.
RULE ON APPLICATION OF BALLOTS
SECTION 211. Rules for the appreciation of ballots.
In the reading and appreciation of ballots, every ballot shall be
presumed to be valid unless there is clear and good reason to
justify its rejection. The board of election inspectors shall
observe the following rules, bearing in mind that the object of
the election is to obtain the expression of the voters' will:
1. Where only the first name of a candidate or only his
surname is written, the vote for such candidate is valid, if there
is no other candidate with the same first name or surname for
the same office.
2. Where only the first name of a candidate is written on the
ballot, which when read, has a sound similar to the surname of
another candidate, the vote shall be counted in favor of the
candidate with such surname. If there are two or more
candidates with the same full name, first name or surname and
one of them is the incumbent, and on the ballot is written only
such full name, first name or surname, the vote shall be
counted in favor of the incumbent.
3. In case the candidate is a woman who uses her maiden or
married surname or both and there is another candidate with
the same surname, a ballot bearing only such surname shall
be counted in favor of the candidate who is an incumbent.
4. When two or more words are written on the same line on the
ballot, all of which are the surnames of two or more
candidates, the same shall not be counted for any of them,
unless one is a surname of an incumbent who has served for
at least one year in which case it shall be counted in favor of
the latter.
When two or more words are written on different lines on
the ballot all of which are the surnames of two or more
candidates bearing the same surname for an office for which
the law authorizes the election of more than one and there are
the same number of such surnames written as there are
candidates with that surname, the vote shall be counted in
favor of all the candidates bearing the surname.
5. When on the ballot is written a single word which is the first
name of a candidate and which is at the same time the
surname of his opponent, the vote shall be counted in favor of
the latter.
6. When two words are written on the ballot, one of which is
the first name of the candidate and the other is the surname of
his opponent, the vote shall not be counted for either.
7. A name or surname incorrectly written which, when read,
has a sound similar to the name or surname of a candidate
when correctly written shall be counted in his favor; cdasia
8. When a name of a candidate appears in a space of the
ballot for an office for which he is a candidate and in another
space for which he is not a candidate, it shall be counted in his
favor for the office for which he is a candidate and the vote for
the office for which he is not a candidate shall be considered
as stray, except when it is used as a means to identify the
voter, in which case, the whole ballot shall be void.
If the word or words written on the appropriate blank on the
ballot is the identical name or surname or full name, as the
case may be, of two or more candidates for the same office
none of whom is an incumbent, the vote shall be counted in
favor of that candidate to whose ticket belong all the other
candidates voted for in the same ballot for the same
constituency.
9. When in a space in the ballot there appears a name of a
candidate that is erased and another clearly written, the vote is
valid for the latter.
10. The erroneous initial of the first name which accompanies
the correct surname of a candidate, the erroneous initial of the
surname accompanying the correct first name of a candidate,
or the erroneous middle initial of the candidate shall not annul
the vote in favor of the latter.
11. The fact that there exists another person who is not a
candidate with the first name or surname of a candidate shall
not prevent the adjudication of the vote of the latter.
12. Ballots which contain prefixes such as "Sir.", "Mr.", "Datu",
"Don", "Ginoo", "Hon.", "Gob." or suffixes like "Hijo", "Jr.",
"Segundo", are valid.
13. The use of the nicknames and appellations of affection and
friendship, if accompanied by the first name or surname of the
candidate, does not annul such vote, except when they were
used as a means to identify the voter, in which case the whole
ballot is invalid: Provided, That if the nickname used is
unaccompanied by the name or surname of a candidate and it
is the one by which he is generally or popularly known in the
locality, the name shall be counted in favor of said candidate, if
there is no other candidate for the same office with the same
nickname.
14. Any vote containing initials only or which is illegible or
which does not sufficiently identify the candidate for whom it is
intended shall be considered as a stray vote but shall not
invalidate the whole ballot.
15. If on the ballot is correctly written the first name of a
candidate but with a different surname, or the surname of the
candidate is correctly written but with different first name, the
vote shall not be counted in favor of any candidate having such
first name and/or surname but the ballot shall be considered
valid for other candidates.
16. Any ballot written with crayon, lead pencil, or in ink, wholly
or in part, shall be valid.
17. Where there are two or more candidates voted for in an
office for which the law authorizes the election of only one, the
vote shall not be counted in favor of any of them, but this shall
not affect the validity of the other votes therein.
18. If the candidates voted for exceed the number of those to
be elected, the ballot is valid, but the votes shall be counted
only in favor of the candidates whose names were firstly
written by the voter within the spaces provided for said office in
the ballot until the authorized number is covered.
19. Any vote in favor of a person who has not filed a certificate
of candidacy or in favor of a candidate for an office for which
he did not present himself shall be considered as a stray vote
but it shall not invalidate the whole ballot.
20. Ballots containing the name of a candidate printed and
pasted on a blank space of the ballot or affixed thereto through
any mechanical process are totally null and void. cdasia
21. Circles, crosses or lines put on the spaces on which the
voter has not voted shall be considered as signs to indicate his
desistance from voting and shall not invalidate the ballot.
22. Unless it should clearly appear that they have been
deliberately put by the voter to serve as identification marks,
commas, dots, lines, or hyphens between the first name and
surname of a candidate, or in other parts of the ballot, traces of
the letter "T", "J", and other similar ones, the first letters or
syllables of names which the voter does not continue, the use
of two or more kinds of writing and unintentional or accidental
flourishes, strokes, or strains, shall not invalidate the ballot.
23. Any ballot which clearly appears to have been filled by two
distinct persons before it was deposited in the ballot box during
the voting is totally null and void.
24. Any vote cast in favor of a candidate who has been
disqualified by final judgment shall be considered as stray and
shall not be counted but it shall not invalidate the ballot.
25. Ballots wholly written in Arabic in localities where it is of
general use are valid. To read them, the board of election
inspectors may employ an interpreter who shall take an oath
that he shall read the votes correctly.
26. The accidental tearing or perforation of a ballot does not
annul it.
27. Failure to remove the detachable coupon from a ballot
does not annul such ballot.
28. A vote for the President shall also be a vote for the Vice-
President running under the same ticket of a political party,
unless the voter votes for a Vice-President who does not
belong to such party. (Sec. 155, 1978 EC)
SECTION 212. Election returns.
The board of election inspectors shall prepare the election
returns simultaneously with the counting of the votes in the
polling place as prescribed in Section 210 hereof. The return
shall be prepared in sextuplicate. The recording of votes shall
be made as prescribed in said section. The entry of votes in
words and figures for each candidate shall be closed with the
signature and the clear imprint of the thumbmark of the right
hand of all the members, likewise to be affixed in full view of
the public, immediately after the last vote recorded or
immediately after the name of the candidate who did not
receive any vote.
The returns shall also show the date of the election, the polling
place, the barangay and the city of municipality in which it was
held, the total number of ballots found in the compartment for
valid ballots, the total number of valid ballots withdrawn from
the compartment for spoiled ballots because they were
erroneously placed therein, the total number of excess ballots,
the total number of marked or void ballots, and the total
number of votes obtained by each candidate, writing out the
said number in words and figures and, at the end thereof, the
board of election inspectors shall certify that the contents are
correct. The returns shall be accomplished in a single sheet of
paper, but if this is not possible, additional sheets may be used
which shall be prepared in the same manner as the first sheet
and likewise certified by the board of election inspectors.
The Commission shall take steps so that the entries on the first
copy of the election returns are clearly reproduced on the
second, third, fourth, fifth, and sixth copies thereof, and for this
purpose the Commission shall use a special kind of paper.
Immediately upon the accomplishment of the election returns,
each copy thereof shall be sealed in the presence of the
watchers and the public, and placed in the proper envelope,
which shall likewise be sealed and distributed as herein
provided (Sec. 156, 1978 EC) cda
Any election return with a separately printed serial number or
which bears a different serial number from that assigned to the
particular polling place concerned shall not be canvassed. This
is to be determined by the board of canvassers prior to its
canvassing on the basis of the certification of the provincial,
city or municipal treasurer as to the serial number of the
election return assigned to the said voting precinct, unless the
Commission shall order in writing for its canvassing, stating the
reason for the variance in serial numbers.
If the signatures and/or thumbmarks of the members of the
board of election inspectors or some of them as required in this
provision are missing in the election returns, the board of
canvassers may summon the members of the board of election
inspectors concerned to complete the returns. (Sec. 156, 1978
EC)
SECTION 213. Proclamation of the result of the election in
the polling place.
Upon the completion of the election returns, the chairman of
the board of election inspectors shall orally and publicly
announce the total number of votes received in the election in
the polling place by each and every one of the candidates,
stating their corresponding office. (Sec. 157, 1978 EC)
SECTION 215. Board of election inspectors to issue a
certificate of the number of votes polled by the candidates
for an office to the watchers.
After the announcement of the results of the election and
before leaving the polling place, it shall be the duty of the
board of election inspectors to issue a certificate of the number
of the votes received by a candidate upon request of the
watchers. All the members of the board of election inspectors
shall sign the certificate. (Sec. 159, 1978 EC)
ARTICLE XX
Pre-proclamation Controversies
SECTION 241. Definition.
A pre-proclamation controversy refers to any question
pertaining to or affecting the proceedings of the board of
canvassers which may be raised by any candidate or by any
registered political party or coalition of political parties before
the board or directly with the Commission, or any matter raised
under Sections 233, 234, 235 and 236 in relation to the
preparation, transmission, receipt, custody and appreciation of
the election returns.
SECTION 242. Commission's exclusive jurisdiction of all
pre-proclamation controversies.
The Commission shall have exclusive jurisdiction of all pre-
proclamation controversies. It may motu proprio or upon
written petition, and after due notice and hearing, order the
partial or total suspension of the proclamation of any
candidate-elect or annual partially or totally any proclamation, if
one has been made, as the evidence shall warrant in
accordance with the succeeding sections.
SECTION 243. Issues that may be raised in pre-
proclamation controversy.
The following shall be proper issues that may be raised in a
pre-proclamation controversy:
(a) Illegal composition or proceedings of the board of
canvassers;
(b) The canvassed election returns are incomplete, contain
material defects, appear to be tampered with or falsified, or
contain discrepancies in the same returns or in other authentic
copies thereof as mentioned in Section 233, 234, 235 and 236
of this Code;
(c) The election returns were prepared under duress, threats,
coercion, or intimidation, or they are obviously manufactured or
not authentic; and
(d) When substitute or fraudulent returns in controverted
polling places were canvassed, the results of which materially
affected the standing of the aggrieved candidate or candidates.
SECTION 244. Contested composition or proceedings of the
board. When the composition or proceedings of the board of
canvassers are contested, the board of canvassers shall,
within twenty-four hours, make a ruling thereon with notice to
the contestant who, if adversely affected, may appeal the
matter to the Commission within five days after the ruling with
proper notice to the board of canvassers. After due notice and
hearing, the Commission shall decide the case within ten days
from the filing thereof. During the pendency of the case, the
board of canvassers shall suspend the canvass until the
Commission orders the continuation or resumption thereof and
citing their reasons or grounds therefor.
SECTION 245. Contested election returns. Any candidate,
political party or coalition of political parties, contesting the
inclusion or exclusion in the canvass of any election returns on
any of the grounds authorized under this article or in Sections
234, 235 and 236 of Article XIX shall submit their verbal
objections to the chairman of the board of canvassers at the
time the questioned returns is presented for inclusion or
exclusion, which objections shall be noted in the minutes of the
canvassing.
The board of canvassers upon receipt of any such objections
shall automatically defer the canvass of the contested returns
and shall proceed to canvass the rest of the returns which are
not contested by any party.
Within twenty-four hours from and after the presentation of a
verbal objection, the same shall be submitted in written form to
the board of canvassers. Thereafter, the board of canvassers
shall take up each contested return, consider the written
objections thereto and summarily rule thereon. Said ruling shall
be made oral initially and then reduced to writing by the board
within twenty-four hours from the time the oral ruling is
made. cd
Any party adversely affected by an oral ruling on its/his
objection shall immediately state orally whether it/he intends to
appeal said ruling. The said intent to appeal shall be stated in
the minutes of the canvassing. If a party manifests its intent to
appeal, the board of canvassers shall set aside the return and
proceed to rule on the other contested returns. When all the
contested returns have been ruled upon by it, the board of
canvassers shall suspend the canvass and shall make an
appropriate report to the Commission, copy furnished the
parties.
The board of canvassers shall not proclaim any candidate as
winner unless authorized by the Commission after the latter
has ruled on the objections brought to it on appeal by the
losing party and any proclamation made in violation hereof
shall be void ab initio, unless the contested returns will not
adversely affect the results of the election.
SECTION 246. Summary proceedings before the Commission.
All pre-proclamation controversies shall be heard summarily
by the Commission after due notice and hearing, and its
decisions shall be executory after the lapse of five days from
receipt by the losing party of the decision of the Commission,
unless restrained by the Supreme Court. (Sec. 55, BP 697)
SECTION 247. Partial proclamation. Notwithstanding the
pendency of any pre-proclamation controversy, the
Commission may, motuproprio or upon the filing of a verified
petition and after due notice and hearing, order the
proclamation of other winning candidates whose election will
not be affected by the outcome of the controversy.
(Sec. 56, BP 697)
SECTION 248. Effect of filing petition to annual or to suspend
the proclamation. The filing with the Commission of a
petition to annual or to suspend the proclamation of any
candidate shall suspend the running of the period within which
to file an election protest or quo warranto proceedings.
CASES:
LAGUMBAY v. COMELEC
EN BANC
[G.R. No. L-25444. January 31, 1966.]
WENCESLAO RANCAP LAGUMBAY, petitioner, vs. THE
COMMISSION ON ELECTIONS and CESAR
CLIMACO, respondents.
Wenceslao R. Lagumbay for the petitioner.
Ambrosio Padilla for the respondents.
SYLLABUS
1. ELECTION LAWS; JURISDICTION; ELECTION FRAUDS.
Frauds in the holding of election should be settled by the
corresponding courts or electoral tribunals where testimonial or
documentary evidence is necessary; but where the fraud is so
palpable from the return itself, there is no reason to give
itprima facie value.
2. ID.; ID.; FALSE OR FABRICATED RETURNS; DUTY OF
THE COMMISSION ON ELECTIONS TO REJECT THEM.
Where the returns were obviously false or fabricated, the
Commission on Elections has the power and duty to reject
them.
DECISION
BENGZON, J p:
This petition prays for revision of an order of the Commission
on Elections declining to reject the returns of certain precincts
of some municipalities in Mindanao. The Constitution provides
for review by this Court of the rulings of the said Commission.
The matter being urgent, and having reached the conclusion
that the returns of certain questioned precincts were "obviously
manufactured" within the meaning of pertinent jurisprudence,
particularly Mitchell vs. Stevens,1 we issued on December 24,
1965, a short resolution upholding the Commission's power
and duty to reject the returns of about fifty precincts.
"It appearing therein that contrary to all statistical
probabilities in the first set, in each precinct the number of
registered voters equalled the number of ballots and the
number of votes reportedly cast and tallied for each and
every candidate of the Liberal Party, the party in power;
whereas, all the candidates of the Nacionalista Party
got exactly zero; and in the second set, again contrary to all
statistical probabilities all the reported votes were for
candidates of the Liberal Party, all of whom were credited
with exactly the same number of votes in each precinct,
ranging from 240 in one precinct to 650 in another precinct;
whereas, all the candidates of the Nacionalista Party were
given exactly zero in all said precincts."
We opined that the election result in said precincts as reported,
was utterly improbable and clearly incredible. For it is not likely,
in the ordinary course of things, that all the electors of one
precinct would, as one man, vote for all the eight candidates of
the Liberal Party, without giving a single vote to one of the
eight candidates of the Nacionalista Party. Such extraordinary
coincidence was quite impossible to believe, knowing that the
Nacionalista Party had and has a nationwide organization, with
branches in every province, and was, in previous years, the
party in power in these islands.
We also know from our experience in examining ballots in the
three Electoral Tribunals (Presidential, Senate, and House)
that a large portion of the electors do not fill all the blanks for
senators in their ballots. Indeed, this observation is confirmed
by the big differences in the votes received by the eight
winning senators in this as well as in previous national
elections;2 almost a million votes between the first place and
the eight. Furthermore, in 1965, the total number of electors
who cast their votes was 6,833,369 (more or less). If every
voter had written eight names on his ballot, the total number of
votes cast for all the candidates would be that number
multiplied by 8, namely 54,666,952. But the total number of
votes tallied for the candidates for senator amounted to
49,374,942 only. The difference between the two sums
represents the number of ballots that did not contain eight
names for senators. In other words, some 5 million ballots did
not carry eight names. Of course, this is a rough estimate,
because some ballots may have omitted more names, in which
case, the number of incomplete ballots would be less. But the
general idea and the statistical premise is there.
The same statistical result is deducible from the 1963 election
data: total number of electors who voted, 7,712,019; if each of
them named eight senators, the total votes tallied should have
been 61,696,152, and yet the total number tallied for all the
senatorial candidates was 45,812,470 only. A greater number
of incomplete ballots.
It must be noted that this is not an instance wherein one return
gives to one candidate all the votes in the precinct, even as it
gives exactly zero to the other. This is not a case
where some senatorial candidates obtain zero exactly, while
some others receive a few scattered votes. Here, all the
eightcandidates of one party garnered all the votes, each of
them receiving exactly the same number; whereas all the eight
candidates of the other party got precisely nothing.
The main point to remember is that there is no blockvoting
nowadays.
What happened to the vote of the Nacionalista inspector?
There was one in every precinct. Evidently, either he became a
traitor to his party, or was made to sign a false return by force
or other illegal means. If he signed voluntarily, but in breach of
faith, the Nacionalista inspector betrayed his party; and, any
voting or counting of ballots therein, was a sham and a
mockery of the national suffrage.
Hence, denying prima facie recognition to such returns on the
ground that they are manifestly fabricated or falsified, would
constitute a practical approach to the Commission's mission to
insure free and honest elections.
In Mitchell vs. Stevens, supra, the returns showed a noticeable
excess of votes over the number of registered voters, and the
court rejected the returns as obviously "manufactured". Why?
The excess could have been due to the fact that, disregarding
all pertinent data, the election officers wrote the number of
votes their fancy dictated; and so the return was literally a
"manufactured", "fabricated" return. Or maybe because
persons other than voters, were permitted to take part and
vote; or because registered voters cast more than one ballot
each, or because those in charge of the tally sheet falsified
their counts. Hence, as the Mitchell decision concluded, the
returns were "not true returns . . . but simply manufactured
evidences of an attempt to defeat the popular will." All these
possibilities and/or probabilities were plain fraudulent practices,
resulting in misrepresentation of the election outcome.
"Manufactured" was the word used. "Fabricated" or "false"
could as well have been employed.
The same ratio decidendi applies to the situation in the
precincts herein mentioned. These returns were obviously
false or fabricated prima facie. Let us take for example,
precinct No. 3 of Andong, Lanao del Sur. There were 648
registered voters. According to such return all the
eight candidates of the Liberal Party got 648 each,3 and the
eight Nacionalista candidates got exactly zero. We hold such
return to be evidently fraudulent or false because of the
inherent improbability of such a result against statistical
probabilities specially because at least one vote should
have been received by the Nacionalista candidates, i. e., the
vote of the Nacionalista inspector. It is, of course, "possible"
that such inspector did not like his party's senatorial line-up;
but it is not probable that he disliked all of such candidates,
and it is not likely that he favored all the eight candidates of the
Liberal Party. Therefore, most probably, he was made to sign
an obviously false return, or else he betrayed his party, in
which case, the election therein if any was no more than
a barefaced fraud and a brazen contempt of the popular polls.
Of course we agree that frauds in the holding of the election
should be handled and finally settled by the
corresponding courts or electoral tribunals. That is the general
rule, where testimonial or documentary evidence, is necessary;
but where the fraud is so palpable from the return itself (res
ipsa loquitur the thing speaks for itself), there is no reason
to accept it and give it prima facie value.
At any rate, fraud or no fraud, the verdict in these fifty
precincts may ultimately be ascertained before the Senate
Electoral Tribunal.4 All we hold now, is that the returns show
"prima facie" that they do not reflect true and valid reports of
regular voting. The contrary may be shown by candidate
Climaco in the corresponding election protest.
The well-known delay in the adjudication of election protests
often gave the successful contestant a mere pyrrhic victory,
i.e., a vindication when the term of office is about to expire, or
has expired. And so the notion has spread among candidates
for public office that the "important thing" is the proclamation;
and to win it, they or their partisans have tolerated or abetted
the tampering or the "manufacture" of election returns just to
get the proclamation, and then let the victimized candidate to
file the protest, and spend his money to work for an empty
triumph.
It is generally admitted that the practice has prevailed in all
previous elections. Never was the point pressed upon us in a
more clear-cut manner. And without, in any way, modifying our
stand as outlined in the Nacionalista Party vs. Commission
decision, we feel the mores of the day require application
even extension of the principle in the Mitchel decision,
which is realistic and commonsensical even as it strikes a blow
at such pernicious "grab-the- proclamation-prolong-the-protest"
slogan of some candidates or parties.
It is strongly urged that the results reported in these returns are
quite "possible", bearing in mind the religious or political control
of some leaders in the localities affected. We say, possible, not
probable. It is possible to win the sweepstakes ten times; but
not probable. Anyway, judges are not disposed to believe that
such "control" has proved so powerful as to convert the
electors into mere sheep or robots voting as ordered. Their
reason and conscience refuse to believe that 100% of the
voters in such precincts abjectly yet lawfully surrendered their
precious freedom to choose the senators of this Republic.
Indeed, social scientists might wonder whether courts could,
consistently with morality and public policy,5 render judgment
acknowledging such "control" or validating such "controlled
votes" or candidate Climaco chose to call them.
In view of the foregoing, and overlooking some intemperate
language which detracts from the force of the arguments, we
hereby deny the motion to reconsider our resolution of
December 24, 1965, as well as the petition for a re-hearing.
Concepcion, Reyes, J.B.L., Dizon and Makalintal, JJ., concur.
Regala, Bautista Angelo, Zaldivar and Bengzon, JJ., dissent.
||| (Lagumbay v. COMELEC, G.R. No. L-25444, [January 31,
1966], 122 PHIL 1274-1291)
UTUTALUM v COMELEC
EN BANC
[G.R. Nos. 84843-44. January 22, 1990.]
NURHUSSEIN
A. UTUTALUM, petitioner, vs. COMMISSION ON ELECTION
S and ARDEN S. ANNI, respondents.
Pedro Q. Quadra for petitioner.
Brillantes, Nachura, Navarro & Arcilla Law Offices for private
respondent.
DECISION
MELENCIO-HERRERA, J p:
Petitioner, Nurhussein A. Ututalum, prays for the
reversal, on the ground of grave abuse of discretion, of the 19
April and 31 August 1988 Resolutions of public
respondent Commission on Elections (COMELEC), in Case
Nos. SP 87-469 and 87-497, which declined to reject the
election returns from all the precincts of the Municipality of
Siasi, Sulu, in the last 30 May 1987
Congressional elections and to annul respondent Arden S.
Anni's proclamation.
The undisputed facts follow:
1. Petitioner Ututalum and private respondent, Arden S. Anni,
were among the candidates in the last 30 May 1987
Congressional elections for the Second District of Sulu. 30 May
was the date reset by the COMELEC from the 11 May
1987 elections.
2. The election returns from Siasi showed that
Petitioner Ututalum obtained four hundred and eighty-two (482)
votes while respondent Anni received thirty-five thousand five
hundred and eighty-one (35,581) votes out of the thirty-nine
thousand eight hundred and one (39,801) registered voters
(pp. 13,187, Rollo). If the returns of Siasi were excluded,
Petitioner Ututalum would have a lead of 5,301 votes. prLL
3. On 4 June 1987, during the canvass of votes,
Petitioner Ututalum, without availing of verbal objections, filed
written objections to the returns from Siasi on the ground that
they "appear to be tampered with or falsified" owing to the
"great excess of votes" appearing in said returns. He then
claimed that multiplying the 42 precincts of Siasi by 300 voters
per precinct, there should have been only 12,600 registered
voters and not 36,663 voters who cast their votes, thereby
exceeding the actual authorized voters by 23,947 "ghost
voters." (In his Petition, however, he admits that an error was
committed since "in the May 30, 1987 elections, Siasi had 148
precincts" (p. 6, Rollo). He then prayed for the exclusion from
the canvass of any election returns from Siasi.
4. On the same day, 4 June, the Provincial Board of
Canvassers of Sulu dismissed petitioner's objections because
they had been "filed out of time or only after the Certificate of
Canvass had already been canvassed by the Board and
because the grounds for the objection were not one of those
enumerated in Section 243 of the Election Code" (See Order,
p. 155, Rollo). Also on the same day, 4 June 1987, petitioner
filed with the Board of Canvassers his Notice of Appeal from
said Resolution to the COMELEC.
5. On 5 June 1987, petitioner filed his first Petition with the
COMELEC seeking a declaration of failure of elections in the
Municipality of Siasi and other mentioned municipalities; that
the COMELEC annul the elections in Siasi and conduct
another election thereat; and order the Provincial Board of
Canvassers to desist from proclaiming any candidate pending
a final determination of the Petition.
6. On 8 June 1987, the Provincial Board of Canvassers
forwarded Petitioner's appeal as well as its Order dismissing
the written objections to the COMELEC, with the request for
authority to proclaim Respondent Anni as the winning
candidate.
7. On 11 June 1987, in Case No. SPC 87-180, the COMELEC
resolved that there was no failure of elections in the 1st and
2nd Districts of Sulu except in specified precincts in the 1st
District. dctai
8. On 14 June 1987, the Sulu Provincial Board of Canvassers
proclaimed respondent Anni as the winner. He subsequently
took his oath of office and entered upon the discharge of its
functions in July 1987.
9. On 16 June 1987, petitioner filed a second Petition with the
COMELEC praying for the annulment of Respondent Anni's
proclamation and for his own proclamation as Congressman
for the Second District of Sulu.
10. While those two petitions were pending, one Lupay Loong,
a candidate for Governor of Sulu, filed a verified Petition with
the COMELEC to annul the List of Voters of Siasi, for purposes
of the election of local government officials (docketed as SPC
Case No. 87-624, p. 9, Rollo). This Petition was opposed by
Respondent Anni. Petitioner Ututalum was not a party to this
proceeding.
On 16 January 1988, the COMELEC issued, in said SPC 87-
624, a Resolution annulling the Siasi List of Voters "on the
ground of massive irregularities committed in the preparation
thereof and being statistically improbable", and ordering a new
registration of voters for the local elections of 15 February
1988 (p. 41 Rollo). cdll
Said Resolution was affirmed by this Court in Anni vs.
COMELEC, G.R. No. 81398, 26 January 1988 (p. 43, Rollo). A
new Registry List was subsequently prepared yielding only
12,555 names (p. 228, Rollo).
11. Immediately after having been notified of the annulment of
the previous Siasi List of Voters, Petitioner Ututalum filed a
supplemental pleading with the COMELEC entreating that
such annulment be considered and applied by
the Commission in resolving his two Petitions against
Respondent Anni (p. 319, Rollo).
12. On 19 April 1988, in a consolidated Per Curiam Resolution,
the COMELEC (First Division) denied Petitioner Ututalum's two
Petitions "for lack of merit, with the advise (sic) that he may file
an election contest before the proper forum, if so desired."
Declared the COMELEC inter alia:
"While we believe that there was padding of the registry list of
voters in Siasi, yet to annul all the votes in this municipality for
purposes of the May 30, 1987 elections would disenfranchise
the good or valid votes. As held in Espaldon vs. Comelec (G.R.
No. L-78987, August 25, 1987), this Commission is not the
proper forum nor is it a proper ground in a pre-proclamation
controversy, to wit:
"Padded voter's list, massive fraud and terrorism is clearly not
among the issues that may be raised in a pre-proclamation
controversy. They are proper grounds for an election protest."
Petitioner Ututalum is now before us assailing the foregoing
Resolution.
Petitioner contends that the issue he raised before the
COMELEC actually referred to "obviously manufactured
returns," a proper subject matter for a pre-proclamation
controversy and, therefore, cognizable by the COMELEC, in
accordance with Section 243 of the Omnibus Election Code,
which provides:
"Sec. 243. The following shall be the issues that may be raised
in a pre-proclamation controversy:
xxx xxx xxx
"c) The election returns were prepared under duress, threats,
coercion or intimidation or they are obviously manufactured or
not authentic; (emphasis supplied)
xxx xxx xxx
Further, that the election returns from Siasi should be excluded
from the canvass of the results since its original List of Voters
had already been finally annulled; and, lastly, that there is no
need to re-litigate in an election protest the matter of
annulment of the Registry List, this being already a "fait
accompli."
It is our considered view, however, that given the factual
setting, it can not justifiably be contended that the Siasi
returns, per se, were "obviously manufactured" and, thereby, a
legitimate issue in a pre-proclamation controversy. It is true
that in Lagumbay vs. COMELEC (L-2544, 31 January 1966, 16
SCRA 175), relied upon heavily by Petitioner Ututalum, this
Court ruled that the returns are obviously manufactured where
they show a great excess of votes over what could have been
legally cast. The Siasi returns, however, do not show prima
facie that on the basis of the old List of Voters, there is actually
a great excess of votes over what could have been legally cast
considering that only 36,000 persons actually voted out of the
39,801 voters. Moreover, the Lagumbay case dealt with the
"manufacture" of returns by those charged with their
preparation as shown prima facie on the questioned returns
themselves. Not so in this case which deals with the
preparation of the registry list of voters, a matter that is not
reflected on the face of said returns. Cdpr
Basically, therefore, petitioner's cause of action is the padding
of the Siasi List of Voters, which, indeed, is not a listed ground
for a pre-proclamation controversy.
"SEC. 243. Issues that may be raised in pre-proclamation
controversy. The following shall be proper issues that may
be raised in a pre-proclamation controversy:
(a) Illegal composition or proceedings of the board of
canvassers;
(b) The canvassed election returns are incomplete, contain
material defects, appear to be tampered with or falsified, or
contain discrepancies in the same returns or in other authentic
copies thereof as mentioned in Sections 233,234, 235 and 236
of this Code;
(c) The election returns were prepared under duress, threats,
coercion, or intimidation, or they are obviously manufactured or
not authentic; and
(d) When substitute or fraudulent returns in controverted
polling places were canvassed, the results of which materially
affected the standing of the aggrieved candidate or
candidates."
As pointed out in Espaldon vs. COMELEC, L-78987, 25 August
1987:
"Padded voters' list, massive fraud, and terrorism are clearly
not among the issues that may be raised in a pre-proclamation
controversy. They are proper grounds for an election
protest." cdtai
And as held in the case of Bautista vs. COMELEC, G.R. No.
78994, March 10, 1988:
"The scope of pre-proclamation controversy is limited to the
issues enumerated under Section 243 of the Omnibus Election
Code. The enumeration therein of the issues that may be
raised in a pre-proclamation controversy is restrictive and
exclusive" (see also Sanchez vs. COMELEC, G.R. No. L-
78461, 12 August 1987, 153 SCRA 67).
But petitioner insists that the new Registry List should be
considered and applied by the COMELEC as the legal basis in
determining the number of votes which could be legally cast in
Siasi. To allow the COMELEC to do so retroactively, however,
would be to empower it to annul a previous election because of
the subsequent annulment of a questioned registry in a
proceeding where petitioner himself was not a party. This
cannot be done. In the case ofBashier vs. COMELEC (L-
33692, 24 February 1972, 43 SCRA 238), this Court
categorically ruled:
"The subsequent annulment of the voting list in a separate
proceeding initiated motu proprio by the Commission and in
which the protagonists here were not parties, cannot
retroactively and without due process result in nullifying
accepted election returns in a previous election simply
because such returns came from municipalities where the
precinct books of voters were ordered annulled due to
irregularities in their preparation."
Besides, the List of Voters used in the 1987
Congressional elections was then a validly existing and still
unquestioned permanent Registry List. Then, it was the only
legitimate roster which could be used as basis for voting. There
was no prior petition to set it aside for having been effected
with fraud, intimidation, force, or any other similar irregularity in
consonance with Section 145 of the Omnibus Election Code. 1
That list must then be considered conclusive evidence of
persons who could exercise the right of suffrage in a particular
election (Abendante vs. Relato, 94 Phil. 8; Medenilla vs.
Kayanan, L-28448-49, 30 July 1971, 40 SCRA 154). LibLex
Moreover, the preparation of a voter's list is not a proceeding
before the Board of Canvassers. A pre-proclamation
controversy is limited to challenges directed against the Board
of Canvassers, not the Board of Election Inspectors
(Sanchez vs. COMELEC, ante), and such challenges should
relate to specified election returns against which petitioner
should have made specific verbal objections (Sec. 245,
Omnibus Election Code; Pausing vs. Yorac, et al., G.R. No.
82700, 4 August 1988, Endique vs. COMELEC, G.R. Nos.
82020-21, 22 November 1988), but did not.
That the padding of the List of Voters may constitute fraud, or
that the Board of Election Inspectors may have fraudulently
conspired in its preparation, would not be a valid basis for a
pre-proclamation controversy either. For, whenever
irregularities, such as fraud, are asserted, the proper course of
action is an election protest.
"Such irregularities as fraud, vote-buying and terrorism are
proper grounds in an election contest but may not as a rule be
invoked to declare a failure of election and to disenfranchise
the greater number of the electorate through the misdeeds,
precisely, of only a relative few. Otherwise, elections will never
be carried out with the resultant disenfranchisement of the
innocent voters, for the losers will always cry fraud and
terrorism" (GAD vs. COMELEC, G.R. No. 78302, May 26,
1987, 150 SCRA 665).
Petitioner Ututalum's other submission is that the Siasi returns
should be excluded since the List of Voters on which it was
based has been conclusively annulled. He thus asks for the
application of the rule on res judicata. This is neither possible.
Aside from the fact that the indispensable requisites of res
judicata, namely, identity of parties, of subject matter, and of
cause of action are not all present, the ruling desired would, as
the COMELEC had opined, disenfranchise the good and valid
votes in the Congressional elections of 30 May 1987.
Finally, this Petition has to fail if only on the basis of the equally
important doctrine enunciated in Padilla vs. COMELEC (L-
68351-52, 9 July 1985,137 SCRA 424), reiterated in Baldo vs.
COMELEC (G.R. No. 83205,14 July 1988) that:
"Where the respondent had already been proclaimed as the
elected representative of the contested congressional district,
and has long assumed office and has been exercising the
powers, functions, and duties appurtenant to said office, the
remedy of the petitioner lies with the House of Representatives
Electoral Tribunal. The pre-proclamation controversy becomes
moot and academic."
and in the more recent case of Antonio vs. COMELEC (G.R.
No. 84678, 29 March 1989):
"Where the winning candidates have been proclaimed, the pre-
proclamation controversies cease. A pre-proclamation
controversy is no longer viable at this point in time and should
be dismissed. The proper remedy thereafter is an election
protest before the proper forum. Recourse to such remedy
would settle the matter in controversy conclusively and once
and for all."
Having arrived at the foregoing conclusions, a discussion of
the other peripheral issues raised has been rendered
unnecessary. cdphil
WHEREFORE, this Petition for Certiorari is hereby
DISMISSED and the assailed Resolutions are AFFIRMED. No
costs.
SO ORDERED.
Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino,
Medialdea and Regalado, JJ., concur.
||| (Ututalum v. COMELEC, G.R. Nos. 84843-44, [January 22,
1990], 260 PHIL 354-364)
ARTICLE XXI
Election Contests
SECTION 249. Jurisdiction of the Commission. The
Commission shall be the sole judge of all contests relating to
the elections, returns, and qualifications of all Members of
the Batasang Pambansa, elective regional, provincial and city
officials. (Art. XII-C, Sec. 2(b), Const.; Art. XIV, Sec. 58, BP
697)
SECTION 250. Election contests for Batasang Pambansa,
regional, provincial and city offices. A sworn petition
contesting the election of any Member of the Batasang
Pambansa or any regional, provincial or city official shall be
filed with the Commission by any candidate who has duly filed
a certificate of candidacy and has been voted for the same
office, within ten days after the proclamation of the results of
the election. (Art. XIV, Sec. 59, BP 697)
SECTION 251. Election contests for municipal offices. A
sworn petition contesting the election of a municipal officer
shall be filed with the proper regional trial court by any
candidate who has duly filed a certificate of candidacy and has
been voted for the same office, within ten days after
proclamation of the results of the election. (Art. XVIII,
Sec. 190, 1978 EC)
SECTION 252. Election contest for barangay offices. A
sworn petition contesting the election of a barangay officer
shall be filed with the proper municipal or metropolitan trial
court by any candidate who has duly filed a certificate of
candidacy and has been voted for the same office, within ten
days after the proclamation of the results of the election. The
trial court shall decide the election protest within fifteen days
after the filing thereof. The decision of the municipal or
metropolitan trial court may be appealed within ten days from
receipt of a copy thereof by the aggrieved party to the regional
trial court which shall decide the case within thirty days from its
submission, and whose decisions shall be final. (Art. XVIII,
Sec.191, 1978 EC; Sec. 20, BP 222)
SECTION 253. Petition for quo warranto. Any voter
contesting the election of any Member of the Batasang
Pambansa, regional, provincial, or city officer on the ground of
ineligibility or of disloyalty to the Republic of the Philippines
shall file a sworn petition for quo warranto with the Commission
within ten days after the proclamation of the results of the
election. (Art. XIV, Sec. 60, BP 697; Art. XVIII, Sec. 189,
par. 2, 1978 EC)
Any voter contesting the election of any municipal
or barangay officer on the ground of ineligibility or of disloyalty
to the Republic of the Philippines shall file a sworn petition
for quo warranto with the regional trial court or metropolitan or
municipal trial court, respectively, within ten days after the
proclamation of the results of the election. (Art. XVIII, Sec. 189,
par. 2, 1978 EC) acd
SECTION 254. Procedure in election contests. The
Commission shall prescribe the rules to govern the procedure
and other matters relating to election contests pertaining to all
national, regional, provincial, and city offices not later than
thirty days before such elections. Such rules shall provide a
simple and inexpensive procedure for the expeditious
disposition of election contests and shall be published in at
least two newspapers of general circulation. (Art. XVIII,
Sec. 192, 1978 EC; Art. XIV, Sec. 62, BP 697)
However, with respect to election contests involving municipal
and barangay offices the following rules of procedure shall
govern:
(a) Notice of the protest contesting the election of a candidate
for a municipal or barangay office shall be served upon the
candidate by means of a summons at the postal address
stated in his certificate of candidacy except when the
protestee, without waiting for the summons, has made the
court understand that he has been notified of the protest or has
filed his answer hereto;
(b) The protestee shall answer the protest within five days after
receipt of the summons, or, in case there has been no
summons from the date of his appearance and in all cases
before the commencement of the hearing of the protest or
contest. The answer shall deal only with the election in the
polling places which are covered by the allegations of the
contest;
(c) Should the protestee desire to impugn the votes received
by the protestant in other polling places, he shall file a counter-
protest within the same period fixed for the answer serving a
copy thereof upon the protestant by registered mail or by
personal delivery or through the sheriff;
(d) The protestant shall answer the counter-protest within five
days after notice;
(e) Within the period of five days counted from the filing of the
protest any other candidate for the same office may intervene
in the case as other contestants and ask for affirmative relief in
his favor by a petition in intervention, which shall be considered
as another contest, except that it shall be substantiated within
the same proceedings. The protestant or protestee shall
answer the protest in intervention within five days after notice;
(f) If no answer shall be filed to the contest, counter-protest, or
to the protest in intervention, within the time limits respectively
fixed, a general denial shall be deemed to have been entered;
(g) In election contest proceedings, the permanent registry list
of voters shall be conclusive in regard to the question as to
who had the right to vote in said election. cdasia
SECTION 255. Judicial counting of votes in election contest.
Where allegations in a protest or counter-protest so warrant, or
whenever in the opinion of the court the interests of justice so
require, it shall immediately order the book of voters, ballot
boxes and their keys, ballots and other documents used in the
election be brought before it and that the ballots be examined
and the votes recounted. (Sec. 221, 1971 EC)
SECTION 256. Appeals. Appeals from any decision
rendered by the regional trial court under Section 251 and
paragraph two, Section 253 hereof with respect to quo
warranto petitions filed in election contests affecting municipal
officers, the aggrieved party may appeal to the Intermediate
Appellate Court within five days after receipt of a copy of the
decision. No motion for reconsideration shall be entertained by
the court. The appeal shall be decided within sixty days after
the case has been submitted for decision. (Art. XVIII,
Sec. 196, 1978 EC)
SECTION 257. Decision in the Commission. The
Commission shall decide all election cases brought before it
within ninety days from the date of their submission for
decision. The decision of the Commission shall become final
thirty days after receipt of judgment. (Art. XII, C, Sec. 3, Const.;
Art. XVIII, Sec. 193, 1978 EC)
SECTION 258. Preferential disposition of contests in courts.
The courts, in their respective cases, shall give preference to
election contests over all other cases, except those of habeas
corpus, and shall without delay, hear and, within thirty days
from the date of their submission for decision, but in every
case within six months after filing, decide the same. (Art. XVIII,
Sec. 197, 1978 EC)
SECTION 259. Actual or compensatory damages. Actual or
compensatory damages may be granted in all election contests
or in quo warranto proceedings in accordance with law.
SECTION 260. Notice of decisions. The clerk of court and
the corresponding official in the Commission before whom an
election contest or a quo warranto proceeding has been
instituted or where the appeal of said case has been taken
shall notify immediately the President of the Philippines of the
final disposition thereof. In election contests involving
provincial, city, municipal, or barangay offices, notice of such
final disposition shall also be sent to the secretary of the
local sanggunian concerned. If the decision be that none of the
parties has been legally elected, said official shall certify such
decision to the President of the Philippines and, in appropriate
cases, to the Commission. (Art. XVIII, Sec. 198, 1978 EC)
ARTICLE XXII
Election Offenses
SECTION 261. Prohibited Acts. The following shall be guilty
of an election offense:
(a) Vote-buying and vote-selling. (1) Any person who gives,
offers or promises money or anything of value, gives or
promises any office or employment, franchise or grant, public
or private, or makes or offers to make an expenditure, directly
or indirectly, or cause an expenditure to be made to any
person, association, corporation, entity, or community in order
to induce anyone or the public in general to vote for or against
any candidate or withhold his vote in the election, or to vote for
or against any aspirant for the nomination or choice of a
candidate in a convention or similar selection process of a
political party.
(2) Any person, association, corporation, group or community
who solicits or receives, directly or indirectly, any expenditure
or promise of any office or employment, public or private, for
any of the foregoing considerations. (Par. (a), Sec. 178, 1978
EC)
(b) Conspiracy to bribe voters. Two or more persons,
whether candidates or not, who come to an agreement
concerning the commission of any violation of paragraph (a) of
this section and decide to commit it. (Par. (b), Id.)
(c) Wagering upon result of election. Any person who bets
or wagers upon the outcome of, or any contingency connected
with an election. Any money or thing of value or deposit of
money or thing of value situated anywhere in the Philippines
put as such bet or wager shall be forfeited to the government.
(Par. (c), Id.)
(d) Coercion of subordinates. (1) Any public officer, or any
officer of any public or private corporation or association, or
any head, superior, or administrator of any religious
organization, or any employer or land-owner who coerces or
intimidates or compels, or in any manner influence, directly or
indirectly, any of his subordinates or members or parishioners
or employees or house helpers, tenants, overseers, farm
helpers, tillers, or lease holders to aid, campaign or vote for or
against any candidate or any aspirant for the nomination or
selection of candidates.
(2) Any public officer or any officer of any commercial,
industrial, agricultural, economic or social enterprise or public
or private corporation or association, or any head, superior or
administrator of any religious organization, or any employer or
landowner who dismisses or threatens to dismiss, punishes or
threatens to punish by reducing his salary, wage or
compensation, or by demotion, transfer, suspension,
separation, excommunication, ejectment, or causing him
annoyance in the performance of his job or in his membership,
any subordinate member or affiliate, parishioner, employee or
house helper, tenant, overseer, farm helper, tiller, or lease
holder, for disobeying or not complying with any of the acts
ordered by the former to aid, campaign or vote for or against
any candidate, or any aspirant for the nomination or selection
of candidates. (Par. (d), Id.)
(e) Threats, intimidation, terrorism, use of fraudulent device or
other forms of coercion. Any person who, directly or
indirectly, threatens, intimidates or actually causes, inflicts or
produces any violence, injury, punishment, damage, loss or
disadvantage upon any person or persons or that of the
immediate members of his family, his honor or property, or
uses any fraudulent device or scheme to compel or induce the
registration or refraining from registration of any voter, or the
participation in a campaign or refraining or desistance from any
campaign, or the casting of any vote or omission to vote, or
any promise of such registration, campaign, vote, or omission
therefrom. (Par. (e), Id.)
(f) Coercion of election officials and employees. Any person
who, directly or indirectly, threatens, intimidates, terrorizes or
coerces any election official or employee in the performance of
his election functions or duties. (New)
(g) Appointment of new employees, creation of new position,
promotion, or giving salary increases. During the period of
forty-five days before a regular election and thirty days before
a special election, (1) any head, official or appointing officer of
a government office, agency or instrumentality, whether
national or local, including government-owned or controlled
corporations, who appoints or hires any new employee,
whether provisional, temporary or casual, or creates and fills
any new position, except upon prior authority of the
Commission. The Commission shall not grant the authority
sought unless, it is satisfied that the position to be filled is
essential to the proper functioning of the office or agency
concerned, and that the position shall not be filled in a manner
that may influence the election.
As an exception to the foregoing provisions, a new employee
may be appointed in case of urgent need: Provided, however,
That notice of the appointment shall be given to the
Commission within three days from the date of the
appointment. Any appointment or hiring in violation of this
provision shall be null and void.
(2) Any government official who promotes, or gives any
increase of salary or remuneration or privilege to any
government official or employee, including those in
government-owned or controlled corporations. (Par. (f),
Sec. 178, 1978 EC)
(h) Transfer of officers and employees in the civil service.
Any public official who makes or causes any transfer or detail
whatever of any officer or employee in the civil service
including public school teachers, within the election period
except upon prior approval of the Commission. (Par. (g), Id.)
(i) Intervention of public officers and employees. Any officer
or employee in the civil service, except those holding political
offices; any officer, employee, or member of the Armed Forces
of the Philippines, or any police force, special forces, home
defense forces, barangay self-defense units and all other para-
military units that now exist or which may hereafter be
organized who, directly or indirectly, intervenes in any election
campaign or engages in any partisan political activity, except to
vote or to preserve public order, if he is a peace officer.
(Par. (jjj), Id.)
(j) Undue influence. It is unlawful for any person to promise
any office or employment, public or private, or to make or offer
to make an expenditure, directly or indirectly, or to cause an
expenditure to be made to any person, association, corporation
or entity, which may induce anyone or the public in general
either to vote or withhold his vote, or to vote for or against any
candidate in any election or any aspirant for the nomination or
selection of an official candidate in a convention of a political
party. It is likewise unlawful for any person, association,
corporation or community, to solicit or receive, directly or
indirectly, any expenditure or promise or any office, or
employment, public or private, for any of the foregoing
considerations. (Sec. 53, 1971 EC)
(k) Unlawful electioneering. It is unlawful to solicit votes or
undertake any propaganda on the day of registration before
the board of election inspectors and on the day of election, for
or against any candidate or any political party within the polling
place and with a radius of thirty meters thereof. (Sec. 56, 1971
EC)
(l) Prohibition against dismissal of employees, laborers, or
tenants. No employee or laborer shall be dismissed, nor a
tenant be ejected from his landholdings for refusing or failing to
vote for any candidate of his employer or landowner. Any
employee, laborer or tenant so dismissed or ejected shall be
reinstated and the salary or wage of the employee or laborer,
or the share of the harvest of the tenant, shall be restored to
the aggrieved party upon application to the proper court.
(Sec. 74, 1971 EC)
(m) Appointment or use of special policemen, special agents,
confidential agents or the like. During the campaign period,
on the day before and on election day, any appointing authority
who appoints or any person who utilizes the services of special
policemen, special agents, confidential agents or persons
performing similar functions; persons previously appointed as
special policemen, special agents, confidential agents or
persons performing similar functions who continue acting as
such, and those who fail to turn over their firearms, uniforms,
insignias and other badges of authority to the proper officer
who issued the same.
At the start of the aforementioned period,
the barangay chairman, municipal mayor, city mayor, provincial
governor, or any appointing authority shall submit to the
Commission a complete list of all special policemen, special
agents, confidential agents or persons performing similar
functions in the employ of their respective political
subdivisions, with such particulars as the Commission may
require. (Par. (h), Sec. 178, 1978 EC)
(n) Illegal release of prisoners before and after election. The
Director of the Bureau of Prisons, any provincial warden, the
keeper of the jail or the person or persons required by law to
keep prisoners in their custody who illegally orders or allows
any prisoner detained in the national penitentiary, or the
provincial, city or municipal jail to leave the premises thereof
sixty days before and thirty days after the election. The
municipal or city warden, the provincial warden, the keeper of
the jail or the person or persons required by law to keep
prisoners in their custody shall post in three conspicuous public
places a list of the prisoners or detention prisoners under their
care. Detention prisoners must be categorized as such.
(Par. (i), Id.) acd
(o) Use of public funds, money deposited in trust, equipment,
facilities owned or controlled by the government for an election
campaign. Any person who uses under any guise
whatsoever, directly or indirectly, (1) public funds or money
deposited with, or held in trust by, public financing institutions
or by government offices, banks, or agencies; (2) any printing
press, radio, or television station or audio-visual equipment
operated by the Government or by its divisions, sub-divisions,
agencies or instrumentalities, including government-owned or
controlled corporations, or by the Armed Forces of the
Philippines; or (3) any equipment, vehicle, facility, apparatus,
or paraphernalia owned by the government or by its political
subdivisions, agencies including government-owned or
controlled corporations, or by the Armed Forces of the
Philippines for any election campaign or for any partisan
political activity. (Par. (j) Id.)
(p) Deadly weapons. Any person who carries any deadly
weapon in the polling place and within a radius of one hundred
meters thereof during the days and hours fixed by law for the
registration of voters in the polling place, voting, counting of
votes, or preparation of the election returns. However, in cases
of affray, turmoil, or disorder, any peace officer or public officer
authorized by the Commission to supervise the election is
entitled to carry firearms or any other weapon for the purpose
of preserving order and enforcing the law. (Par. (k), Id.)
(q) Carrying firearms outside residence or place of business.
Any person who, although possessing a permit to carry
firearms, carries any firearms outside his residence or place of
business during the election period, unless authorized in
writing by the Commission: Provided, That a motor vehicle,
water or air craft shall not be considered a residence or place
of business or extension hereof. (Par. (l), Id.)
This prohibition shall not apply to cashiers and disbursing
officers while in the performance of their duties or to persons
who by nature of their official duties, profession, business or
occupation habitually carry large sums of money or valuables.
(r) Use of armored land, water or air craft. Any person who
uses during the campaign period, on the day before and on
election day, any armored land, water or air craft, provided with
any temporary or permanent equipment or any other device or
contraption for the mounting or installation of cannons,
machine guns and other similar high caliber firearms, including
military type tanks, half trucks, scout trucks, armored trucks, of
any make or model, whether new, reconditioned, rebuilt or
remodelled: Provided, That banking or financial institutions and
all business firms may use not more than two armored vehicles
strictly for, and limited to, the purpose of transporting cash,
gold bullion or other valuables in connection with their business
from and to their place of business, upon previous authority of
the Commission. (Par. (m), Id.)
(s) Wearing of uniforms and bearing arms. During the
campaign period, on the day before and on election day, any
member of security or police organization of government
agencies, commissions, councils, bureaus, offices, or
government-owned or controlled corporations, or privately-
owned or operated security, investigative, protective or
intelligence agencies, who wears his uniform or uses his
insignia, decorations or regalia, or bears arms outside the
immediate vicinity of his place of work: Provided, That this
prohibition shall not apply when said member is in pursuit of a
person who has committed or is committing a crime in the
premises he is guarding; or when escorting or providing
security for the transport of payrolls, deposits, or other
valuables; or when guarding the residence of private persons
or when guarding private residences, buildings or
offices: Provided, further, That in the last case prior written
approval of the Commission shall be obtained. The
Commission shall decide all applications for authority under
this paragraph within fifteen days from the date of the filing of
such application. (Par. (n), Id.) cda
During the same period, and ending thirty days thereafter any
member of the Armed Forces of the Philippines, special,
forces, home defense forces,barangay self-defense units and
all other para-military units that now exist or which may
hereafter be organized who wears his uniform or bears arms
outside the camp, garrison or barracks to which he is assigned
or detailed or outside their homes, in case of members of para-
military units, unless (1) the President of the Philippines shall
have given previous authority therefor, and the Commission
notified thereof in writing, or (2) the Commission authorizes
him to do so, which authority it shall give only when necessary
to assist it in maintaining free, orderly and honest elections,
and only after notice and hearing. All personnel of the Armed
Forces authorized by the President or the Commission to bear
arms or wear their uniforms outside their camps and all police
and peace officers shall bear their true name, rank and serial
number, if any, stitched in block letters on a white background
on the left breast of their uniform, in letters and numbers of a
clearly legible design at least two centimeters tall, which shall
at all times remain visible and uncovered. (Sec. 64,
par. (a), BP 697)
During the election period, whenever the Commission finds it
necessary for the promotion of free, orderly, honest and
peaceful elections in a specific area, it shall confiscate or order
the confiscation of firearms of any member or members of the
Armed Forces of the Philippines, police forces, home defense
forces, barangay self-defense units, and all other para-military
units that now exist, or which may hereafter be organized, or
any member or members of the security or police organization,
government ministries, commissions, councils, bureaus,
offices, instrumentalities, or government-owned or controlled
corporations and other subsidiaries, or of any member or
members of privately owned or operated security, investigative,
protective or intelligence agencies performing identical or
similar functions. (Id.)
(t) Policemen and provincial guards acting as bodyguards or
security guards. During the campaign period, on the day
before and on election day, any member of the city or
municipal police force, any provincial or sub-provincial guard,
any member of the Armed Forces of the Philippines, special
forces, home defense forces, barangay self-defense units and
all other para-military units that now exist or which may
hereafter be organized who acts as bodyguard or security
guard of any public official, candidate or any other person, and
any of the latter who utilizes the services of the former as
bodyguard or security guard: Provided, That, after due notice
and hearing, when the life and security of a candidate is in
jeopardy, the Commission is empowered to assign at the
candidate's choice, any member of the Philippine Constabulary
or the police force of any municipality within the province to act
as his bodyguard or security guard in a number to be
determined by the Commission but not to exceed three per
candidate: Provided, however, That when the circumstances
require immediate action, the Commission may issue a
temporary order allowing the assignment of any member of the
Philippine Constabulary or the local police force to act as
bodyguard or security guard of the candidate, subject to
confirmation or revocation. (Par. (o), Sec. 178, 1978
EC) cdasia
(u) Organization or maintenance of reaction forces, strike
forces, or other similar forces. Any person who organizes or
maintains a reaction force, strike force or similar force during
the election period.
The heads of all reaction forces, strike forces, or similar forces
shall, not later than forty-five days before the election, submit
to the Commission a complete list of all members thereof with
such particulars as the Commission may require.
(Sec. 65, 1971 EC; Sec. 64 (b) BP 697)
(v) Prohibition against release, disbursement or expenditure of
public funds. Any public official or employee
including barangay officials and those of government-owned or
controlled corporations and their subsidiaries, who, during
forty-five days before a regular election and thirty days before
a special election, releases, disburses or expends any public
funds for:
(1) Any and all kinds of public works, except the following:
(a) Maintenance of existing and/or completed public works
project: Provided, That not more than the average number of
laborers or employees already employed therein during the six-
month period immediately prior to the beginning of the forty-
five day period before election day shall be permitted to work
during such time: Provided, further, That no additional laborers
shall be employed for maintenance work within the said period
of forty-five days;
(b) Work undertaken by contract through public bidding held, or
by negotiated contract awarded, before the forty-five day
period before election:Provided, That work for the purpose of
this section undertaken under the so-called "takay" or
"paquiao" system shall not be considered as work by contract;
(c) Payment for the usual cost of preparation for working
drawings, specifications, bills of materials, estimates, and other
procedures preparatory to actual construction including the
purchase of materials and equipment, and all incidental
expenses for wages of watchmen and other laborers employed
for such work in the central office and field storehouses before
the beginning of such period: Provided, That the number of
such laborers shall not be increased over the number hired
when the project or projects were commenced; and
(d) Emergency work necessitated by the occurrence of a public
calamity, but such work shall be limited to the restoration of the
damaged facility.
No payment shall be made within five days before the date of
election to laborers who have rendered services in projects or
works except those falling under subparagraphs (a), (b), (c),
and (d), of this paragraph.
This prohibition shall not apply to ongoing public works projects
commenced before the campaign period or similar projects
under foreign agreements. For purposes of this provision, it
shall be the duty of the government officials or agencies
concerned to report to the Commission the list of all such
projects being undertaken by them.
(2) The Ministry of Social Services and Development and any
other office in other ministries of the government performing
functions similar to said ministry, except for salaries of
personnel, and for such other routine and normal expenses,
and for such other expenses as the Commission may authorize
after due notice and hearing. Should a calamity or disaster
occur, all releases normally or usually coursed through the said
ministries and offices of other ministries shall be turned over to,
and administered and disbursed by, the Philippine National
Red Cross, subject to the supervision of the Commission on
Audit or its representatives, and no candidate or his or her
spouse or member of his family within the second civil degree
of affinity or consanguinity shall participate, directly or
indirectly, in the distribution of any relief or other goods to the
victims of the calamity or disaster; and acd
(3) The Ministry of Human Settlements and any other office in
any other ministry of the government performing functions
similar to said ministry, except for salaries of personnel and for
such other necessary administrative or other expenses as the
Commission may authorize after due notice and hearing.
(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.
(Sec. 64 (d), BP 697)
(x) Suspension of elective provincial, city, municipal or
barangay officer. The provisions of law to the contrary
notwithstanding during the election period, any public official
who suspends, without prior approval of the Commission, any
elective provincial, city, municipal or barangay officer, unless
said suspension will be for purposes of applying the "Anti-Graft
and Corrupt Practices Act" in relation to the suspension and
removal of elective officials; in which case the provisions of this
section shall be inapplicable. (Sec. 64 (o), Id.)
(y) On Registration of Voters:
(1) Any person who, having all the qualifications and none of
the disqualifications of a voter, fails without justifiable excuse to
register as a voter in an election, plebiscite or referendum in
which he is qualified to vote. (Par. (p), Sec. 178, 1978 EC)
(2) Any person who knowingly makes any false or untruthful
statement relative to any of the data or information required in
the application for registration. (Par. (q), Id.)
(3) Any person who deliberately imprints or causes the
imprinting of blurred or indistinct fingerprints on any of the
copies of the application for registration or on the voter's
affidavit; or any person in charge of the registration of voters
who deliberately or through negligence, causes or allows the
imprinting of blurred or indistinct fingerprints on any of the
aforementioned registration forms, or any person who tampers
with the fingerprints in said registration records. (Sec. 231
(5), 1971 EC)
(4) Any member of the board of election inspectors who
approves any application which on its face shows that the
applicant does not possess all the qualifications prescribed by
law for a voter; or who disapproves any application which on its
face shows that the applicant possesses all such qualifications.
(Par. (r), Sec. 178, 1978 EC)
(5) Any person who, being a registered voter, registers anew
without filing an application for cancellation of his previous
registration. (Par. (s), Id.)
(6) Any person who registers in substitution for another
whether with or without the latter's knowledge or consent.
(Par. (t), Id.)
(7) Any person who tampers with or changes without authority
any data or entry in any voter's application for registration.
(Par. (u), Id.)
(8) Any person who delays, hinders or obstructs another from
registering. (Par. (v), Id.)
(9) Any person who falsely certifies or identifies another as
a bona fide resident of a particular place or locality for the
purpose of securing the latter's registration as a voter.
(Par. (w), Id.)
(10) Any person who uses the voter's affidavit of another for
the purpose of voting, whether or not he actually succeeds in
voting. (Par.(aa), Sec. 178, 1978 EC)
(11) Any person who places, inserts or otherwise includes, as
approved application for registration in the book of voters or in
the provincial or national central files of registered voters, the
application of any fictitious voter or any application that has not
been approved; or removes from, or otherwise takes out of the
book of voters or the provincial or national central files of
registered voters any duly approved voter's application, except
upon lawful order of the Commission, or of a competent court
or after proper cancellation as provided in Sections 122, 123,
124 and 125 hereof. (Par. (bb), Sec. 178, 1978 EC)
(12) Any person who transfers or causes the transfer of the
registration record of a voter to the book of voters of another
polling place, unless said transfer was due to a change of
address of the voter and the voter was duly notified of his new
polling place. (New) cd
(13) Any person who asks, demands, takes, accepts or
possesses, directly or indirectly, the voter's affidavit of another,
in order to induce the latter to withhold his vote, or to vote for
or against any candidate in an election or any issue in a
plebiscite or referendum. It shall be presumed prima facie that
the asking, demanding, taking, accepting, or possessing is with
such intent if done within the period beginning ten days before
election day and ending ten days after election day, unless the
voter's affidavit of another and the latter are both members of
the same family. (Par. (cc), Id.)
(14) Any person who delivers, hands over, entrusts, gives,
directly or indirectly his voter's affidavit to another in
consideration of money or other benefit or promises thereof, or
takes or accepts such voter's affidavit directly or indirectly, by
giving or causing the giving of money or other benefit or
making or causing the making of a promise thereof. (Par. (a),
Subpar. 8, Sec. 231, 1971 EC)
(15) Any person who alters in any manner, tears, defaces,
removes or destroys any certified list of voters. (Par. (dd),
Sec. 178, 1978 EC)
(16) Any person who takes, carries or possesses any blank or
unused registration form already issued to a city or municipality
outside of said city or municipality except as otherwise
provided in this Code or when directed by express order of the
court or of the Commission. (Par. (a), Subpar. 15,
Sec. 231, 1971 EC)
(17) Any person who maliciously omits, tampers or transfers to
another list the name of a registered voter from the official list
of voters posted outside the polling place.
(z) On voting:
(1) Any person who fails to cast his vote without justifiable
excuse. (Par. (ee), Sec. 178, 1978 EC)
(2) Any person who votes more than once in the same
election, or who, not being a registered voter, votes in an
election. (Par. (ff), Id.)
(3) Any person who votes in substitution for another whether
with or without the latter's knowledge and/or consent.
(Par. (gg), Id.)
(4) Any person who, not being illiterate or physically disabled,
allows his ballot to be prepared by another, or any person who
prepares the ballot of another who is not illiterate or physically
disabled, with or without the latter's knowledge and/or consent
(Par. (a), Subpar. 24, Sec. 231, 1971 EC with amendments)
(5) Any person who avails himself of any means of scheme to
discover the contents of the ballot of a voter who is preparing
or casting his vote or who has just voted. (Par. (hh),
Sec. 178, 1978 EC)
(6) Any voter who, in the course of voting, uses a ballot other
than the one given by the board of election inspectors or has in
his possession more than one official ballot. (Par. (ii), Id.)
(7) Any person who places under arrest or detains a voter
without lawful cause, or molests him in such a manner as to
obstruct or prevent him from going to the polling place to cast
his vote or from returning home after casting his vote, or to
compel him to reveal how he voted. (Par. (jj), Id.)
(8) Any member of the board of election inspectors charged
with the duty of reading the ballot during the counting of votes
who deliberately omits to read the vote duly written on the
ballot, or misreads the vote actually written thereon or reads
the name of a candidate where no name is written on the
ballot. (Par. (kk), Id.) cdt
(9) Any member of the board of election inspectors charged
with the duty of tallying the votes in the tally board or sheet,
election returns or other prescribed form who deliberately fails
to record a vote therein or records erroneously the votes as
read, or records a vote where no such vote has been read by
the chairman. (Par. (ll), Id.)
(10) Any member of a board of election inspectors who has
made possible the casting of more votes than there are
registered voters.
(11) Any person who, for the purpose of disrupting or
obstructing the election process or causing confusion among
the voters, propagates false and alarming reports or
information or transmits or circulates false orders, directives or
messages regarding any matter relating to the printing of
official ballots, the postponement of the election, the transfer of
polling place or the general conduct of the election. (Par. (oo),
Id.)
(12) Any person who, without legal authority, destroys,
substitutes or takes away from the possession of those having
legal custody thereof, or from the place where they are legally
deposited, any election form or document or ballot box which
contains official ballots or other documents used in the
election. (Par. (qq), Sec. 178, 1978 EC)
(13) Any person having legal custody of the ballot box
containing the official ballots used in the election who opens or
destroys said box or removes or destroys its contents without
or against the order of the Commission or who, through his
negligence, enables any person to commit any of the
aforementioned acts, or takes away said ballot box from his
custody. (Par. (rr), Id.)
(14) Any member of the board of election inspectors who
knowingly uses ballots other than the official ballots, except in
those cases where the use of emergency ballots is authorized.
(Par. (tt), Id.)
(15) Any public official who neglects or fails to properly
preserve or account for any ballot box, documents and forms
received by him and kept under his custody. (Par. (uu), Id.)
(16) Any person who reveals the contents of the ballot of an
illiterate or disabled voter whom he assisted in preparing a
ballot. (Par. (vv), Id.)
(17) Any person who, without authority, transfers the location
of a polling place. (Par. (ww), Id.)
(18) Any person who, without authority, prints or causes the
printing of any ballot or election returns that appears as official
ballots or election returns or who distributes or causes the
same to be distributed for use in the election, whether or not
they are actually used. (Par. (aaa), Id.)
(19) Any person who, without authority, keeps, uses or carries
out or causes to be kept, used or carried out, any official ballot
or election returns or printed proof thereof, type-form mould,
electro-type printing plates and any other plate, numbering
machines and other printing paraphernalia being used in
connection with the printing of official ballots or election
returns. (Par. (bbb), Id.)
(20) Any official or employee of any printing establishment or of
the Commission or any member of the committee in charge of
the printing of official ballots or election returns who causes
official ballots or election returns to be printed in quantities
exceeding those authorized by the Commission or who
distributes, delivers, or in any manner disposes of or causes to
be distributed, delivered, or disposed of, any official ballot or
election returns to any person or persons not authorized by law
or by the Commission to receive or keep official ballots or
election returns or who sends or causes them to be sent to any
place not designated by law or by the Commission. (Par. (ccc),
Id.)
(21) Any person who, through any act, means or device,
violates the integrity of any official ballot or election returns
before or after they are used in the election. (Par. (ddd), Id.)
(22) Any person who removes, tears, defaces or destroys any
certified list of candidates posted inside the voting booths
during the hours of voting. (New)
(23) Any person who holds or causes the holding of an election
on any other day than that fixed by law or by the Commission,
or stops any election being legally held. (Par. (pp), Id.) asia dc
(24) Any person who deliberately blurs his fingerprint in the
voting record. (New)
(aa) On Canvassing:
(1) Any chairman of the board of canvassers who fails to give
due notice of the date, time and place of the meeting of said
board to the candidates, political parties and/or members of the
board.
(2) Any member of the board of canvassers who proceeds with
the canvass of the votes and/or proclamation of any candidate
which was suspended or annulled by the Commission. (New)
(3) Any member of the board of canvassers who proceeds with
the canvass of votes and/or proclamation of any candidate in
the absence of quorum, or without giving due notice of the
date, time and place of the meeting of the board to the
candidates, political parties, and/or other members of the
board. (New)
(4) Any member of the board of canvassers who, without
authority of the Commission, uses in the canvass of votes
and/or proclamation of any candidate any document other than
the official copy of the election returns. (New)
(bb) Common to all boards of election inspectors and boards of
canvassers:
(1) Any member of any board of election inspectors or board
of canvassers who deliberately absents himself from the
meetings of said body for the purpose of obstructing or
delaying the performance of its duties or functions. (Par. (zz),
Sec. 178, 1978 EC)
(2) Any member of any board of election inspectors or board of
canvassers who, without justifiable reason, refuses to sign and
certify any election form required by this Code or prescribed by
the Commission although he was present during the meeting
of the said body. (Par. (yy), Id.)
(3) Any person who, being ineligible for appointment as
member of any board of election inspectors or board of
canvassers, accepts an appointment to said body, assumes
office, and actually serves as a member thereof, or any public
officer or any person acting in his behalf who appoints such
ineligible person knowing him to be ineligible. (Par. (xx), Id.)
(4) Any person who, in the presence or within the hearing of
any board of election inspectors or board of canvassers during
any of its meetings, conducts himself in such a disorderly
manner as to interrupt or disrupt the work or proceedings to the
end of preventing said body from performing its functions,
either partly or totally. (Par. (nn), Id.)
(5) Any public official or person acting in his behalf who
relieves any member of any board of election inspectors or
board of canvassers or who changes or causes the change of
the assignments of any member of said board of election
inspectors or board of canvassers without authority of the
Commission. (Par. (ss), Id.) cdt
(cc) On candidacy and campaign:
(1) Any political party which holds political conventions or
meetings to nominate its official candidates earlier than the
period fixed in this Code. (Par. (eee), Sec. 178, 1978 EC)
(2) Any person who abstracts, destroys or cancels any
certificate of candidacy duly filed and which has not been
cancelled upon order of the Commission. (Par. (fff), Id.)
(3) Any person who misleads the board of election inspectors
by submitting any false or spurious certificate of candidacy or
document to the prejudice of a candidate. (Par. (fff), Id.)
(4) Any person who, being authorized to receive certificates of
candidacy, receives any certificate of candidacy outside the
period for filing the same and makes it appear that said
certificate of candidacy was filed on time; or any person who,
by means of fraud, threat, intimidation, terrorism or coercion,
causes or compels the commission of said act. (New)
(5) Any person who, by any device or means, jams, obstructs
or interferes with a radio or television broadcast of any lawful
political program. (Par. (ggg), Id.)
(6) Any person who solicits votes or undertakes any
propaganda, on the day of election, for or against any
candidate or any political party within the polling place or within
a radius of thirty meters thereof. (Par. (hhh), Id.)
(dd) Other prohibitions:
(1) Any person who sells, furnishes, offers, buys, serves or
takes intoxicating liquor on the days fixed by law for the
registration of voters in the polling place, or on the day before
the election or on election day: Provided, That hotels and other
establishments duly certified by the Ministry of Tourism as
tourist oriented and habitually in the business of catering to
foreign tourists may be exempted for justifiable reasons upon
prior authority of the Commission: Provided, further, That
foreign tourists taking intoxicating liquor in said authorized
hotels or establishments are exempted from the provisions of
this subparagraph. asia dc
(2) Any person who opens in any polling place or within a
radius of thirty meters thereof on election day and during the
counting of votes, booths or stalls of any kind for the sale,
dispensing or display of wares, merchandise or refreshments,
whether solid or liquid, or for any other purposes.
(3) Any person who holds on election day, fairs, cockfights,
boxing, horse races, jai-alai or any other similar sports.
(Par. (iii), Id.)
(4) Refusal to carry election mail matter. Any operator or
employee of a public utility or transportation company
operating under a certificate of public convenience, including
government-owned or controlled postal service or its
employees or deputized agents who refuse to carry official
election mail matters free of charge during the election period.
In addition to the penalty prescribed herein, such refusal shall
constitute a ground for cancellation or revocation of certificate
of public convenience or franchise. (Par. (kkk), Id.)
(5) Prohibition against discrimination in the sale of air time.
Any person who operates a radio or television station who
without justifiable cause discriminates against any political
party, coalition or aggroupment of parties or any candidate in
the sale of air time. In addition to the penalty prescribed herein,
such refusal shall constitute a ground for cancellation or
revocation of the franchise.
SECTION 262. Other election offenses. Violation of the
provisions, or pertinent portions, of the following sections of
this Code shall constitute election offenses: Sections 9, 18, 74,
75, 76, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 95, 96, 97, 98,
99, 100, 101, 102, 103, 104, 105, 106 107, 108, 109, 110, 111,
112, 122, 123, 127, 128, 129, 132, 134, 135, 145, 148, 150,
152, 172, 173, 174, 178, 180, 182, 184, 185, 186, 189, 190,
191, 192, 194, 195, 196, 197, 198, 202, 203, 204, 205, 206,
207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218,
219, 220, 223, 229, 230, 231, 233, 234, 235, 236, 239 and
240.