EN BANC

[G.R. No. 157013. July 10, 2003]

ATTY. ROMULO B. MACALINTAL, petitioner, vs. COMMISSION ON ELECTIONS, HON. ALBERTO

ROMULO, in his official capacity as Executive Secretary, and HON. EMILIA T. BONCODIN, Secretary of
the Department of Budget and Management, respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal, a member of
the Philippine Bar, seeking a declaration that certain provisions of Republic Act No. 9189 (The Overseas
Absentee Voting Act of 2003)[1] suffer from constitutional infirmity. Claiming that he has actual and
material legal interest in the subject matter of this case in seeing to it that public funds are properly and
lawfully used and appropriated, petitioner filed the instant petition as a taxpayer and as a lawyer.

The Court upholds the right of petitioner to file the present petition.

R.A. No. 9189, entitled, An Act Providing for A System of Overseas Absentee Voting by Qualified Citizens
of the Philippines Abroad, Appropriating Funds Therefor, and for Other Purposes, appropriates funds
under Section 29 thereof which provides that a supplemental budget on the General Appropriations Act
of the year of its enactment into law shall provide for the necessary amount to carry out its
provisions. Taxpayers, such as herein petitioner, have the right to restrain officials from wasting public
funds through the enforcement of an unconstitutional statute.[2] The Court has held that they may assail
the validity of a law appropriating public funds[3] because expenditure of public funds by an officer of the
State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds.[4]

The challenged provision of law involves a public right that affects a great number of citizens. The Court
has adopted the policy of taking jurisdiction over cases whenever the petitioner has seriously and
convincingly presented an issue of transcendental significance to the Filipino people. This has been
explicitly pronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs.
Tan,[5] where the Court held:

Objections to taxpayers suit for lack of sufficient personality standing, or interest are, however, in the
main procedural matters. Considering the importance to the public of the cases at bar, and in keeping
with the Courts duty, under the 1987 Constitution, to determine whether or not the other branches of
government have kept themselves within the limits of the Constitution and the laws and that they have
not abused the discretion given to them, the Court has brushed aside technicalities of procedure and
has taken cognizance of these petitions.[6]

Indeed, in this case, the Court may set aside procedural rules as the constitutional right of suffrage of a
considerable number of Filipinos is involved.

The question of propriety of the instant petition which may appear to be visited by the vice of
prematurity as there are no ongoing proceedings in any tribunal, board or before a government official
exercising judicial, quasi-judicial or ministerial functions as required by Rule 65 of the Rules of
Court, dims in light of the importance of the constitutional issues raised by the petitioner. In Taada vs.
Angara,[7] the Court held:

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution,
the petition no doubt raises a justiciable controversy. Where an action of the legislative branch is
seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of
the judiciary to settle the dispute. The question thus posed is judicial rather than political. The duty (to
adjudicate) remains to assure that the supremacy of the Constitution is upheld. Once a controversy as to
the application or interpretation of constitutional provision is raised before this Court (as in the instant
case), it becomes a legal issue which the Court is bound by constitutional mandate to decide.

In another case of paramount impact to the Filipino people, it has been expressed that it is illogical to
await the adverse consequences of the law in order to consider the controversy actual and ripe for
judicial resolution.[8] In yet another case, the Court said that:

. . . despite the inhibitions pressing upon the Court when confronted with constitutional issues, it will
not hesitate to declare a law or act invalid when it is convinced that this must be done. In arriving at this
conclusion, its only criterion will be the Constitution and God as its conscience gives it in the light to
probe its meaning and discover its purpose. Personal motives and political considerations are
irrelevancies that cannot influence its decisions. Blandishment is as ineffectual as intimidation, for all the
awesome power of the Congress and Executive, the Court will not hesitate to make the hammer fall
heavily, where the acts of these departments, or of any official, betray the peoples will as expressed in
the Constitution . . .[9]

The need to consider the constitutional issues raised before the Court is further buttressed by the fact
that it is now more than fifteen years since the ratification of the 1987 Constitution requiring Congress
to provide a system for absentee voting by qualified Filipinos abroad.Thus, strong reasons of public
policy demand that the Court resolves the instant petition[10] and determine whether Congress has acted
within the limits of the Constitution or if it had gravely abused the discretion entrusted to it.[11]

The petitioner raises three principal questions:

A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are immigrants or
permanent residents in other countries by their mere act of executing an affidavit expressing their
intention to return to the Philippines, violate the residency requirement in Section 1 of Article V of the
Constitution?

B. Does Section 18.5 of the same law empowering the COMELEC to proclaim the winning candidates for
national offices and party list representatives including the President and the Vice-President violate the
constitutional mandate under Section 4, Article VII of the Constitution that the winning candidates for
President and the Vice-President shall be proclaimed as winners by Congress?

C. May Congress, through the Joint Congressional Oversight Committee created in Section 25 of Rep. Act
No. 9189, exercise the power to review, revise, amend, and approve the Implementing Rules and
Regulations that the Commission on Elections shall promulgate without violating the independence of
the COMELEC under Section 1, Article IX-A of the Constitution?

The Court will resolve the questions in seriatim.

A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987 Constitution of the
Republic of the Philippines?

Section 5(d) provides:

Sec. 5. Disqualifications. The following shall be disqualified from voting under this Act:

.........

d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she
executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that
he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years
from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not
applied for citizenship in another country. Failure to return shall be cause for the removal of the name
of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her
permanent disqualification to vote in absentia.

Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of the 1987
Constitution which requires that the voter must be a resident in the Philippines for at least one year and
in the place where he proposes to vote for at least six months immediately preceding an election.
Petitioner cites the ruling of the Court in Caasi vs. Court of Appeals[12] to support his claim. In that case,
the Court held that a green card holder immigrant to the United States is deemed to have abandoned
his domicile and residence in the Philippines.

Petitioner further argues that Section 1, Article V of the Constitution does not allow provisional
registration or a promise by a voter to perform a condition to be qualified to vote in a political
exercise;[13] that the legislature should not be allowed to circumvent the requirement of the Constitution
on the right of suffrage by providing a condition thereon which in effect amends or alters the aforesaid
residence requirement to qualify a Filipino abroad to vote.[14] He claims that the right of suffrage should
not be granted to anyone who, on the date of the election, does not possess the qualifications provided
for by Section 1, Article V of the Constitution.

Respondent COMELEC refrained from commenting on this issue.[15]

In compliance with the Resolution of the Court, the Solicitor General filed his comment for all public
respondents. He contraposes that the constitutional challenge to Section 5(d) must fail because of the
absence of clear and unmistakable showing that said provision of law is repugnant to the
Constitution. He stresses: All laws are presumed to be constitutional; by the doctrine of separation of
powers, a department of government owes a becoming respect for the acts of the other two
departments; all laws are presumed to have adhered to constitutional limitations; the legislature
intended to enact a valid, sensible, and just law.

In addition, the Solicitor General points out that Section 1, Article V of the Constitution is
a verbatim reproduction of those provided for in the 1935 and the 1973 Constitutions. Thus, he cites Co
vs. Electoral Tribunal of the House of Representatives[16] wherein the Court held that the term residence
has been understood to be synonymous with domicile under both Constitutions. He further argues that
a person can have only one domicile but he can have two residences, one permanent (the domicile) and
the other temporary;[17] and that the definition and meaning given to the term residence likewise applies
to absentee voters. Invoking Romualdez-Marcos vs. COMELEC[18] which reiterates the Courts ruling
in Faypon vs. Quirino,[19] the Solicitor General maintains that Filipinos who are immigrants or permanent
residents abroad may have in fact never abandoned their Philippine domicile.[20]

Taking issue with the petitioners contention that green card holders are considered to have abandoned
their Philippine domicile, the Solicitor General suggests that the Court may have to discard its ruling
in Caasi vs. Court of Appeals[21] in so far as it relates to immigrants and permanent residents in foreign
countries who have executed and submitted their affidavits conformably with Section 5(d) of R.A. No.
9189. He maintains that through the execution of the requisite affidavits, the Congress of the Philippines
with the concurrence of the President of the Republic had in fact given these immigrants and permanent
residents the opportunity, pursuant to Section 2, Article V of the Constitution, to manifest that they had
in fact never abandoned their Philippine domicile; that indubitably, they would have formally and
categorically expressed the requisite intentions, i.e., animus manendi and animus revertendi; that
Filipino immigrants and permanent residents abroad possess the unquestionable right to exercise the
right of suffrage under Section 1, Article V of the Constitution upon approval of their registration,
conformably with R.A. No. 9189.[22]

The seed of the present controversy is the interpretation that is given to the phrase, qualified citizens of
the Philippines abroad as it appears in R.A. No. 9189, to wit:

SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a system of honest and orderly
overseas absentee voting that upholds the secrecy and sanctity of the ballot. Towards this end, the State
ensures equal opportunity to all qualified citizens of the Philippines abroad in the exercise of this
fundamental right.

SEC. 3. Definition of Terms. For purposes of this Act:

a) Absentee Voting refers to the process by which qualified citizens of the Philippines abroad, exercise
their right to vote;

. . . (Emphasis supplied)

f) Overseas Absentee Voter refers to a citizen of the Philippines who is qualified to register and
vote under this Act, not otherwise disqualified by law, who is abroad on the day of elections. (Emphasis
supplied)

SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at
least eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators
and party-list representatives. (Emphasis supplied)

in relation to Sections 1 and 2, Article V of the Constitution which read:

SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who
are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and
in the place wherein they propose to vote for at least six months immediately preceding the election. No
literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.
SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well
as a system for absentee voting by qualified Filipinos abroad.

. . . . . . . . . (Emphasis supplied)

Section 1, Article V of the Constitution specifically provides that suffrage may be exercised by (1) all
citizens of the Philippines, (2) not otherwise disqualified by law, (3) at least eighteen years of age, (4)
who are residents in the Philippines for at least one year and in the place where they propose to vote for
at least six months immediately preceding the election. Under Section 5(d) of R.A. No. 9189, one of
those disqualified from voting is an immigrant or permanent resident who is recognized as such in the
host country unless he/she executes an affidavit declaring that he/she shall resume actual physical
permanent residence in the Philippines not later than three years from approval of his/her registration
under said Act.

Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the Filipinos
abroad who are immigrants or permanent residents, to vote. He focuses solely on Section 1, Article V of
the Constitution in ascribing constitutional infirmity to Section 5(d) of R.A. No. 9189, totally ignoring the
provisions of Section 2 empowering Congress to provide a system for absentee voting by qualified
Filipinos abroad.

A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the impression that it
contravenes Section 1, Article V of the Constitution. Filipino immigrants and permanent residents
overseas are perceived as having left and abandoned the Philippines to live permanently in their host
countries and therefore, a provision in the law enfranchising those who do not possess the residency
requirement of the Constitution by the mere act of executing an affidavit expressing their intent to
return to the Philippines within a given period, risks a declaration of unconstitutionality. However, the
risk is more apparent than real.

The Constitution is the fundamental and paramount law of the nation to which all other laws must
conform and in accordance with which all private rights must be determined and all public authority
administered.[23] Laws that do not conform to the Constitution shall be stricken down for being
unconstitutional.

Generally, however, all laws are presumed to be constitutional. In Peralta vs. COMELEC, the Court said:

. . . An act of the legislature, approved by the executive, is presumed to be within constitutional

limitations. The responsibility of upholding the Constitution rests not on the courts alone but on the
legislature as well. The question of the validity of every statute is first determined by the legislative
department of the government itself.[24]

Thus, presumption of constitutionality of a law must be overcome convincingly:

. . . To declare a law unconstitutional, the repugnancy of that law to the Constitution must be clear and
unequivocal, for even if a law is aimed at the attainment of some public good, no infringement of
constitutional rights is allowed. To strike down a law there must be a clear showing that what the
fundamental law condemns or prohibits, the statute allows it to be done.[25]

As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court to
take a holistic view of the pertinent provisions of both the Constitution and R.A. No. 9189. It is a basic
rule in constitutional construction that the Constitution should be construed as a whole. In Chiongbian
vs. De Leon,[26] the Court held that a constitutional provision should function to the full extent of its
substance and its terms, not by itself alone, but in conjunction with all other provisions of that great
document. Constitutional provisions are mandatory in character unless, either by express statement or
by necessary implication, a different intention is manifest.[27] The intent of the Constitution may be
drawn primarily from the language of the document itself. Should it be ambiguous, the Court may
consider the intent of its framers through their debates in the constitutional convention.[28]

R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V of
the Constitution that Congress shall provide a system for voting by qualified Filipinos abroad. It must be
stressed that Section 2 does not provide for the parameters of the exercise of legislative authority in
enacting said law. Hence, in the absence of restrictions, Congress is presumed to have duly exercised its
function as defined in Article VI (The Legislative Department) of the Constitution.

To put matters in their right perspective, it is necessary to dwell first on the significance of absentee
voting. The concept of absentee voting is relatively new. It is viewed thus:

The method of absentee voting has been said to be completely separable and distinct from the regular
system of voting, and to be a new and different manner of voting from that previously known, and an
exception to the customary and usual manner of voting. The right of absentee and disabled voters to
cast their ballots at an election is purely statutory; absentee voting was unknown to, and not recognized
at, the common law.

Absentee voting is an outgrowth of modern social and economic conditions devised to accommodate
those engaged in military or civil life whose duties make it impracticable for them to attend their polling
places on the day of election, and the privilege of absentee voting may flow from constitutional
provisions or be conferred by statutes, existing in some jurisdictions, which provide in varying terms for
the casting and reception of ballots by soldiers and sailors or other qualified voters absent on election
day from the district or precinct of their residence.

Such statutes are regarded as conferring a privilege and not a right, or an absolute right. When the
legislature chooses to grant the right by statute, it must operate with equality among all the class to
which it is granted; but statutes of this nature may be limited in their application to particular types of
elections. The statutes should be construed in the light of any constitutional provisions affecting
registration and elections, and with due regard to their texts prior to amendment and to predecessor
statutes and the decisions thereunder; they should also be construed in the light of the circumstances
under which they were enacted; and so as to carry out the objects thereof, if this can be done without
doing violence to their provisions and mandates. Further, in passing on statutes regulating absentee
voting, the court should look to the whole and every part of the election laws, the intent of the entire
plan, and reasons and spirit of their adoption, and try to give effect to every portion
thereof.[29] (Emphasis supplied)

Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a
resident and an absentee.[30]However, under our election laws and the countless pronouncements of
the Court pertaining to elections, an absentee remains attached to his residence in the Philippines as
residence is considered synonymous with domicile.
In Romualdez-Marcos,[31] the Court enunciated:

Article 50 of the Civil Code decrees that [f]or the exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is their place of habitual residence. In Ong vs. Republic, this
court took the concept of domicile to mean an individuals permanent home, a place to which, whenever
absent for business or for pleasure, one intends to return, and depends on facts and circumstances in
the sense that they disclose intent. Based on the foregoing, domicile includes the twin elements of the
fact of residing or physical presence in a fixed place and animus manendi, or the intention of returning
there permanently.

Residence, in its ordinary conception, implies the factual relationship of an individual to a certain
place. It is the physical presence of a person in a given area, community or country. The essential
distinction between residence and domicile in law is that residence involves the intent to leave when
the purpose for which the resident has taken up his abode ends. One may seek a place for purposes
such as pleasure, business, or health. If a persons intent be to remain, it becomes his domicile; if his
intent is to leave as soon as his purpose is established it is residence. It is thus, quite perfectly normal for
an individual to have different residences in various places. However, a person can only have a single
domicile, unless, for various reasons, he successfully abandons his domicile in favor of another domicile
of choice. In Uytengsu vs. Republic, we laid this distinction quite clearly:

There is a difference between domicile and residence. Residence is used to indicate a place of abode,
whether permanent or temporary; domicile denotes a fixed permanent residence to which, when
absent, one has the intention of returning. A man may have a residence in one place and a domicile in
another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an
unlimited time. A man can have but one domicile for the same purpose at any time, but he may have
numerous places of residence. His place of residence is generally his place of domicile, but it is not by
any means necessarily so since no length of residence without intention of remaining will constitute
domicile.

For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of
political laws. As these concepts have evolved in our election law, what has clearly and unequivocally
emerged is the fact that residence for election purposes is used synonymously with
domicile.[32](Emphasis supplied)

Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the
framers of the Constitution considered the circumstances that impelled them to require Congress to
establish a system for overseas absentee voting, thus:

MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, which here has a
residential restriction, is not denied to citizens temporarily residing or working abroad. Based on the
statistics of several government agencies, there ought to be about two million such Filipinos at this time.
Commissioner Bernas had earlier pointed out that these provisions are really lifted from the two
previous Constitutions of 1935 and 1973, with the exception of the last paragraph. They could not
therefore have foreseen at that time the phenomenon now described as the Filipino labor force
explosion overseas.
According to government data, there are now about 600,000 contract workers and employees, and
although the major portions of these expatriate communities of workers are to be found in the Middle
East, they are scattered in 177 countries in the world.

In a previous hearing of the Committee on Constitutional Commissions and Agencies, the Chairman of
the Commission on Elections, Ramon Felipe, said that there was no insuperable obstacle to making
effective the right of suffrage for Filipinos overseas. Those who have adhered to their Filipino citizenship
notwithstanding strong temptations are exposed to embrace a more convenient foreign citizenship. And
those who on their own or under pressure of economic necessity here, find that they have to detach
themselves from their families to work in other countries with definite tenures of employment. Many of
them are on contract employment for one, two, or three years. They have no intention of changing their
residence on a permanent basis, but are technically disqualified from exercising the right of suffrage in
their countries of destination by the residential requirement in Section 1 which says:

Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by law, who are
eighteen years of age or over, and who shall have resided in the Philippines for at least one year and in
the place wherein they propose to vote for at least six months preceding the election.

I, therefore, ask the Committee whether at the proper time they might entertain an amendment that
will make this exercise of the right to vote abroad for Filipino citizens an effective, rather than merely a
nominal right under this proposed Constitution.

FR. BERNAS. Certainly, the Committee will consider that. But more than just saying that, I would like to
make a comment on the meaning of residence in the Constitution because I think it is a concept that has
been discussed in various decisions of the Supreme Court, particularly in the case of Faypon vs.
Quirino, a 1954 case which dealt precisely with the meaning of residence in the Election Law. Allow me
to quote:

A citizen may leave the place of his birth to look for greener pastures, as the saying goes, to improve his
lot and that, of course, includes study in other places, practice of his avocation, reengaging in
business. When an election is to be held, the citizen who left his birthplace to improve his lot may
decide to return to his native town, to cast his ballot, but for professional or business reasons, or for any
other reason, he may not absent himself from the place of his professional or business activities.

So, they are here registered as voters as he has the qualifications to be one, and is not willing to give up
or lose the opportunity to choose the officials who are to run the government especially in national
elections. Despite such registration, the animus revertendi to his home, to his domicile or residence of
origin has not forsaken him.

This may be the explanation why the registration of a voter in a place other than his residence of origin
has not been deemed sufficient to consider abandonment or loss of such residence of origin.

In other words, residence in this provision refers to two residence qualifications: residence in the
Philippines and residence in the place where he will vote. As far as residence in the Philippines is
concerned, the word residence means domicile, but as far as residence in the place where he will
actually cast his ballot is concerned, the meaning seems to be different. He could have a domicile
somewhere else and yet he is a resident of a place for six months and he is allowed to vote there. So
that there may be serious constitutional obstacles to absentee voting, unless the vote of the person
who is absent is a vote which will be considered as cast in the place of his domicile.

MR. OPLE. Thank you for citing the jurisprudence.

It gives me scant comfort thinking of about two million Filipinos who should enjoy the right of suffrage,
at least a substantial segment of these overseas Filipino communities. The Committee, of course, is
aware that when this Article of the Constitution explicitly and unequivocally extends the right of
effective suffrage to Filipinos abroad, this will call for a logistical exercise of global proportions. In effect,
this will require budgetary and administrative commitments on the part of the Philippine government,
mainly through the COMELEC and the Ministry of Foreign Affairs, and perhaps, a more extensive
elaboration of this mechanism that will be put in place to make effective the right to
vote. Therefore, seeking shelter in some wise jurisprudence of the past may not be sufficient to meet
the demands of the right of suffrage for Filipinos abroad that I have mentioned. But I want to thank the
Committee for saying that an amendment to this effect may be entertained at the proper time. . . . . . . . .
.
[33]
(Emphasis supplied)

Thus, the Constitutional Commission recognized the fact that while millions of Filipinos reside abroad
principally for economic reasons and hence they contribute in no small measure to the economic uplift
of this country, their voices are marginal insofar as the choice of this countrys leaders is concerned.

The Constitutional Commission realized that under the laws then existing and considering the novelty of
the system of absentee voting in this jurisdiction, vesting overseas Filipinos with the right to vote would
spawn constitutional problems especially because the Constitution itself provides for the residency
requirement of voters:

MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod if the term absentee
voting also includes transient voting; meaning, those who are, let us say, studying in Manila need not go
back to their places of registration, for instance, in Mindanao, to cast their votes.

MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad.

MR. REGALADO. How about those people who cannot go back to the places where they are registered?

MR. MONSOD. Under the present Election Code, there are provisions for allowing students and military
people who are temporarily in another place to register and vote. I believe that those situations can be
covered by the Omnibus Election Code. The reason we want absentee voting to be in the Constitution
as a mandate to the legislature is that there could be inconsistency on the residence rule if it is just a
question of legislation by Congress.So, by allowing it and saying that this is possible, then legislation
can take care of the rest.[34] (Emphasis supplied)

Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the
inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems that could
impede the implementation of its pursuit to enfranchise the largest number of qualified Filipinos who
are not in the Philippines that the Constitutional Commission explicitly mandated Congress to provide a
system for overseas absentee voting.
The discussion of the Constitutional Commission on the effect of the residency requirement prescribed
by Section 1, Article V of the Constitution on the proposed system of absentee voting for qualified
Filipinos abroad is enlightening:

MR. SUAREZ. May I just be recognized for a clarification. There are certain qualifications for the exercise
of the right of suffrage like having resided in the Philippines for at least one year and in the place where
they propose to vote for at least six months preceding the elections. What is the effect of these
mandatory requirements on the matter of the exercise of the right of suffrage by the absentee voters
like Filipinos abroad?

THE PRESIDENT. Would Commissioner Monsod care to answer?

MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that the domicile
requirements as well as the qualifications and disqualifications would be the same.

THE PRESIDENT. Are we leaving it to the legislature to devise the system?

FR. BERNAS. I think there is a very legitimate problem raised there.

THE PRESIDENT. Yes.

MR. BENGZON. I believe Commissioner Suarez is clarified.

FR. BERNAS. But I think it should be further clarified with regard to the residence requirement or the
place where they vote in practice; the understanding is that it is flexible. For instance, one might be a
resident of Naga or domiciled therein, but he satisfies the requirement of residence in Manila, so he is
able to vote in Manila.

MR. TINGSON. Madam President, may I then suggest to the Committee to change the word Filipinos to
QUALIFIED FILIPINO VOTERS. Instead of VOTING BY FILIPINOS ABROAD, it should be QUALIFIED FILIPINO
VOTERS. If the Committee wants QUALIFIED VOTERS LIVING ABROAD, would that not satisfy the
requirement?

THE PRESIDENT. What does Commissioner Monsod say?

MR. MONSOD. Madam President, I think I would accept the phrase QUALIFIED FILIPINOS ABROAD
because QUALIFIED would assume that he has the qualifications and none of the disqualifications to
vote.

MR. TINGSON. That is right. So does the Committee accept?

FR. BERNAS. QUALIFIED FILIPINOS ABROAD?

THE PRESIDENT. Does the Committee accept the amendment?

MR. REGALADO. Madam President.

THE PRESIDENT. Commissioner Regalado is recognized.

MR. REGALADO. When Commissioner Bengzon asked me to read my proposed amendment, I specifically
stated that the National Assembly shall prescribe a system which will enable qualified citizens,
temporarily absent from the Philippines, to vote. According to Commissioner Monsod, the use of the
phrase absentee voting already took that into account as its meaning. That is referring to qualified
Filipino citizens temporarily abroad.

MR. MONSOD. Yes, we accepted that. I would like to say that with respect to registration we will leave it
up to the legislative assembly, for example, to require where the registration is. If it is, say, members of
the diplomatic corps who may be continuously abroad for a long time, perhaps, there can be a system of
registration in the embassies. However, we do not like to preempt the legislative assembly.

THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is only to provide a system.

MR. MONSOD. Yes.

THE PRESIDENT. The Commissioner is not stating here that he wants new qualifications for these
absentee voters.

MR. MONSOD. That is right. They must have the qualifications and none of the disqualifications.

THE PRESIDENT. It is just to devise a system by which they can vote.

MR. MONSOD. That is right, Madam President.[35] (Emphasis supplied)

Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the
responsibility of devising a system of absentee voting. The qualifications of voters as stated in Section 1
shall remain except for the residency requirement. This is in fact the reason why the Constitutional
Commission opted for the term qualified Filipinos abroad with respect to the system of absentee voting
that Congress should draw up. As stressed by Commissioner Monsod, by the use of the
adjective qualified with respect to Filipinos abroad, the assumption is that they have the qualifications
and none of the disqualifications to vote. In fine-tuning the provision on absentee voting, the
Constitutional Commission discussed how the system should work:

MR. SUAREZ. For clarification purposes, we just want to state for the record that in the case of qualified
Filipino citizens residing abroad and exercising their right of suffrage, they can cast their votes for the
candidates in the place where they were registered to vote in the Philippines. So as to avoid any
complications, for example, if they are registered in Angeles City, they could not vote for a mayor in
Naga City.

In other words, if that qualified voter is registered in Angeles City, then he can vote only for the local
and national candidates in Angeles City. I just want to make that clear for the record.

MR. REGALADO. Madam President.

THE PRESIDENT. What does Commissioner Regalado say?

MR. REGALADO. I just want to make a note on the statement of Commissioner Suarez that this envisions
Filipinos residing abroad. The understanding in the amendment is that the Filipino is temporarily
abroad. He may not be actually residing abroad; he may just be there on a business trip. It just so
happens that the day before the elections he has to fly to the United States, so he could not cast his
vote. He is temporarily abroad, but not residing there. He stays in a hotel for two days and comes
back. This is not limited only to Filipinos temporarily residing abroad. But as long as he is temporarily
abroad on the date of the elections, then he can fall within the prescription of Congress in that
situation.

MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we need this clarification
on record.

MR. MONSOD. Madam President, to clarify what we mean by temporarily abroad, it need not be on
very short trips. One can be abroad on a treaty traders visa. Therefore, when we talk about registration,
it is possible that his residence is in Angeles and he would be able to vote for the candidates in Angeles,
but Congress or the Assembly may provide the procedure for registration, like listing ones name, in a
registry list in the embassy abroad. That is still possible under the system.

FR. BERNAS. Madam President, just one clarification if Commissioner Monsod agrees with this.

Suppose we have a situation of a child of a diplomatic officer who reaches the voting age while living
abroad and he has never registered here. Where will he register? Will he be a registered voter of a
certain locality in the Philippines?

MR. MONSOD. Yes, it is possible that the system will enable that child to comply with the registration
requirements in an embassy in the United States and his name is then entered in the official registration
book in Angeles City, for instance.

FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a registered voter of a
locality here.

MR. MONSOD. That is right. He does not have to come home to the Philippines to comply with the
registration procedure here.

FR. BERNAS. So, he does not have to come home.

MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are more clarifications
needed from the body.

Also, the Floor Leader is happy to announce that there are no more registered Commissioners to
propose amendments. So I move that we close the period of amendments.
[36]
(Emphasis supplied)

It is clear from these discussions of the members of the Constitutional Commission that they intended to
enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of
origin. The Commission even intended to extend to young Filipinos who reach voting age abroad whose
parents domicile of origin is in the Philippines, and consider them qualified as voters for the first time.

It is in pursuance of that intention that the Commission provided for Section 2 immediately after the
residency requirement of Section 1.By the doctrine of necessary implication in statutory construction,
which may be applied in construing constitutional provisions,[37] the strategic location of Section 2
indicates that the Constitutional Commission provided for an exception to the actual residency
requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in effect
declared that qualified Filipinos who are not in the Philippines may be allowed to vote even though they
do not satisfy the residency requirement in Section 1, Article V of the Constitution.
That Section 2 of Article V of the Constitution is an exception to the residency requirement found in
Section 1 of the same Article was in fact the subject of debate when Senate Bill No. 2104, which became
R.A. No. 9189, was deliberated upon on the Senate floor, thus:

Senator Arroyo. Mr. President, this bill should be looked into in relation to the constitutional provisions.
I think the sponsor and I would agree that the Constitution is supreme in any statute that we may enact.

Let me read Section 1, Article V, of the Constitution entitled, Suffrage. It says:

Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law,
who are at least eighteen years of age, and who shall have resided in the Philippines for at least one
year and in the place wherein they propose to vote for at least six months immediately preceding the
election.

Now, Mr. President, the Constitution says, who shall have resided in the Philippines. They are
permanent immigrants. They have changed residence so they are barred under the Constitution. This is
why I asked whether this committee amendment which in fact does not alter the original text of the bill
will have any effect on this?

Senator Angara. Good question, Mr. President. And this has been asked in various fora. This is in
compliance with the Constitution. One, the interpretation here of residence is synonymous with
domicile.

As the gentleman and I know, Mr. President, domicile is the intent to return to ones home. And the fact
that a Filipino may have been physically absent from the Philippines and may be physically a resident
of the United States, for example, but has a clear intent to return to the Philippines, will make him
qualified as a resident of the Philippines under this law.

This is consistent, Mr. President, with the constitutional mandate that we that Congress must provide a
franchise to overseas Filipinos.

If we read the Constitution and the suffrage principle literally as demanding physical presence, then
there is no way we can provide for offshore voting to our offshore kababayan, Mr. President.

Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, it reads: The
Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for
absentee voting by qualified Filipinos abroad.

The key to this whole exercise, Mr. President, is qualified. In other words, anything that we may do or
say in granting our compatriots abroad must be anchored on the proposition that they are qualified.
Absent the qualification, they cannot vote. And residents(sic) is a qualification.

I will lose votes here from permanent residents so-called green-card holders, but the Constitution is the
Constitution. We cannot compromise on this. The Senate cannot be a party to something that would
affect or impair the Constitution.

Look at what the Constitution says In the place wherein they propose to vote for at least six months
immediately preceding the election.

Mr. President, all of us here have run (sic) for office.

I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are separated only by a
creek. But one who votes in Makati cannot vote in Pateros unless he resides in Pateros for six months.
That is how restrictive our Constitution is. I am not talking even about the Election Code. I am talking
about the Constitution.

As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But he must do so,
make the transfer six months before the election, otherwise, he is not qualified to vote.

That is why I am raising this point because I think we have a fundamental difference here.

Senator Angara. It is a good point to raise, Mr. President. But it is a point already well-debated even in
the constitutional commission of 1986.And the reason Section 2 of Article V was placed immediately
after the six-month/one-year residency requirement is to demonstrate unmistakably that Section 2
which authorizes absentee voting is an exception to the six-month/one-year residency
requirement. That is the first principle, Mr. President, that one must remember.

The second reason, Mr. President, is that under our jurisprudence and I think this is so well-entrenched
that one need not argue about itresidency has been interpreted as synonymous with domicile.

But the third more practical reason, Mr. President, is, if we follow the interpretation of the
gentleman, then it is legally and constitutionally impossible to give a franchise to vote to overseas
Filipinos who do not physically live in the country, which is quite ridiculous because that is exactly the
whole point of this exercise to enfranchise them and empower them to vote.
[38]
(Emphasis supplied)

Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting process, to wit:

SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at
least eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators
and party-list representatives.

which does not require physical residency in the Philippines; and Section 5 of the assailed law which
enumerates those who are disqualified, to wit:

SEC. 5. Disqualifications. The following shall be disqualified from voting under this Act:

a) Those who have lost their Filipino citizenship in accordance with Philippine laws;

b) Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to
a foreign country;

c) Those who have committed and are convicted in a final judgment by a court or tribunal of an offense
punishable by imprisonment of not less than one (1) year, including those who have committed and
been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, such disability
not having been removed by plenary pardon or amnesty: Provided, however, That any person
disqualified to vote under this subsection shall automatically acquire the right to vote upon expiration of
five (5) years after service of sentence; Provided, further, That the Commission may take cognizance of
final judgments issued by foreign courts or tribunals only on the basis of reciprocity and subject to the
formalities and processes prescribed by the Rules of Court on execution of judgments;
d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she
executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that
he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years
from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not
applied for citizenship in another country. Failure to return shall be cause for the removal of the name
of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her
permanent disqualification to vote in absentia.

e) Any citizen of the Philippines abroad previously declared insane or incompetent by competent
authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or foreign
service establishments concerned, unless such competent authority subsequently certifies that such
person is no longer insane or incompetent.

As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies
an immigrant or permanent resident who is recognized as such in the host country because immigration
or permanent residence in another country implies renunciation of ones residence in his country of
origin. However, same Section allows an immigrant and permanent resident abroad to register as voter
for as long as he/she executes an affidavit to show that he/she has not abandoned his domicile in
pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V that all citizens of the
Philippines not otherwise disqualified by law must be entitled to exercise the right of suffrage and, that
Congress must establish a system for absentee voting; for otherwise, if actual, physical residence in the
Philippines is required, there is no sense for the framers of the Constitution to mandate Congress to
establish a system for absentee voting.

Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or
enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the
immigrant or permanent resident to go back and resume residency in the Philippines, but more
significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin.
Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates the
Constitution that proscribes provisional registration or a promise by a voter to perform a condition to be
qualified to vote in a political exercise.

To repeat, the affidavit is required of immigrants and permanent residents abroad because by their
status in their host countries, they are presumed to have relinquished their intent to return to this
country; thus, without the affidavit, the presumption of abandonment of Philippine domicile shall
remain.

Further perusal of the transcripts of the Senate proceedings discloses another reason why the Senate
required the execution of said affidavit. It wanted the affiant to exercise the option to return or to
express his intention to return to his domicile of origin and not to preempt that choice by
legislation. Thus:

Senator Villar. Yes, we are going back.

It states that: For Filipino immigrants and those who have acquired permanent resident status abroad, a
requirement for the registration is the submission of a Sworn Declaration of Intent to Return duly sworn
before any Philippine embassy or consulate official authorized to administer oath
Mr. President, may we know the rationale of this provision? Is the purpose of this Sworn Declaration to
include only those who have the intention of returning to be qualified to exercise the right of suffrage?
What if the Filipino immigrant has no purpose of returning? Is he automatically disbarred from
exercising this right to suffrage?

Senator Angara. The rationale for this, Mr. President, is that we want to be expansive and all-inclusive
in this law. That as long as he is a Filipino, no matter whether he is a green-card holder in the U.S. or
not, he will be authorized to vote. But if he is already a green-card holder, that means he has acquired
permanent residency in the United States, then he must indicate an intention to return. This is what
makes for the definition of domicile. And to acquire the vote, we thought that we would require the
immigrants and the green-card holders . . . Mr. President, the three administration senators are leaving,
maybe we may ask for a vote [Laughter].

Senator Villar. For a merienda, Mr. President.

Senator Angara. Mr. President, going back to the business at hand. The rationale for the requirement
that an immigrant or a green-card holder should file an affidavit that he will go back to the Philippines is
that, if he is already an immigrant or a green-card holder, that means he may not return to the country
any more and that contradicts the definition of domicile under the law.

But what we are trying to do here, Mr. President, is really provide the choice to the voter. The voter,
after consulting his lawyer or after deliberation within the family, may decide No, I think we are risking
our permanent status in the United States if we file an affidavit that we want to go back. But we want to
give him the opportunity to make that decision. We do not want to make that decision for
him. [39](Emphasis supplied)

The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are disqualified to
run for any elective office finds no application to the present case because the Caasi case did not, for
obvious reasons, consider the absentee voting rights of Filipinos who are immigrants and permanent
residents in their host countries.

In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still be considered as
a qualified citizen of the Philippines abroad upon fulfillment of the requirements of registration under
the new law for the purpose of exercising their right of suffrage.

It must be emphasized that Section 5(d) does not only require an affidavit or a promise to resume actual
physical permanent residence in the Philippines not later than three years from approval of his/her
registration, the Filipinos abroad must also declare that they have not applied for citizenship in another
country. Thus, they must return to the Philippines; otherwise, their failure to return shall be cause for
the removal of their names from the National Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia.

Thus, Congress crafted a process of registration by which a Filipino voter permanently residing abroad
who is at least eighteen years old, not otherwise disqualified by law, who has not relinquished Philippine
citizenship and who has not actually abandoned his/her intentions to return to his/her domicile of
origin, the Philippines, is allowed to register and vote in the Philippine embassy, consulate or other
foreign service establishments of the place which has jurisdiction over the country where he/she has
indicated his/her address for purposes of the elections, while providing for safeguards to a clean
election.

Thus, Section 11 of R.A. No. 9189 provides:

SEC. 11. Procedure for Application to Vote in Absentia.

11.1. Every qualified citizen of the Philippines abroad whose application for registration has been
approved, including those previously registered under Republic Act No. 8189, shall, in every national
election, file with the officer of the embassy, consulate or other foreign service establishment
authorized by the Commission, a sworn written application to vote in a form prescribed by the
Commission. The authorized officer of such embassy, consulate or other foreign service establishment
shall transmit to the Commission the said application to vote within five (5) days from receipt
thereof. The application form shall be accomplished in triplicate and submitted together with the
photocopy of his/her overseas absentee voter certificate of registration.

11.2. Every application to vote in absentia may be done personally at, or by mail to, the embassy,
consulate or foreign service establishment, which has jurisdiction over the country where he/she has
indicated his/her address for purposes of the elections.

11.3. Consular and diplomatic services rendered in connection with the overseas absentee voting
processes shall be made available at no cost to the overseas absentee voter.

Contrary to petitioners claim that Section 5(d) circumvents the Constitution, Congress enacted the law
prescribing a system of overseas absentee voting in compliance with the constitutional mandate. Such
mandate expressly requires that Congress provide a system of absentee voting that necessarily
presupposes that the qualified citizen of the Philippines abroad is not physically present in the
country. The provisions of Sections 5(d) and 11 are components of the system of overseas absentee
voting established by R.A. No. 9189. The qualified Filipino abroad who executed the affidavit is deemed
to have retained his domicile in the Philippines. He is presumed not to have lost his domicile by his
physical absence from this country. His having become an immigrant or permanent resident of his host
country does not necessarily imply an abandonment of his intention to return to his domicile of origin,
the Philippines. Therefore, under the law, he must be given the opportunity to express that he has not
actually abandoned his domicile in the Philippines by executing the affidavit required by Sections 5(d)
and 8(c) of the law.

Petitioners speculative apprehension that the implementation of Section 5(d) would affect the
credibility of the elections is insignificant as what is important is to ensure that all those who possess the
qualifications to vote on the date of the election are given the opportunity and permitted to freely do
so. The COMELEC and the Department of Foreign Affairs have enough resources and talents to ensure
the integrity and credibility of any election conducted pursuant to R.A. No. 9189.

As to the eventuality that the Filipino abroad would renege on his undertaking to return to the
Philippines, the penalty of perpetual disenfranchisement provided for by Section 5(d) would suffice to
serve as deterrence to non-compliance with his/her undertaking under the affidavit.

Petitioner argues that should a sizable number of immigrants renege on their promise to return, the
result of the elections would be affected and could even be a ground to contest the proclamation of the
winning candidates and cause further confusion and doubt on the integrity of the results of the
election. Indeed, the probability that after an immigrant has exercised the right to vote, he shall opt to
remain in his host country beyond the third year from the execution of the affidavit, is not
farfetched. However, it is not for this Court to determine the wisdom of a legislative exercise. As
expressed in Taada vs. Tuvera,[40] the Court is not called upon to rule on the wisdom of the law or to
repeal it or modify it if we find it impractical.

Congress itself was conscious of said probability and in fact, it has addressed the expected
problem. Section 5(d) itself provides for a deterrence which is that the Filipino who fails to return as
promised stands to lose his right of suffrage. Under Section 9, should a registered overseas absentee
voter fail to vote for two consecutive national elections, his name may be ordered removed from the
National Registry of Overseas Absentee Voters.

Other serious legal questions that may be raised would be: what happens to the votes cast by the
qualified voters abroad who were not able to return within three years as promised? What is the effect
on the votes cast by the non-returnees in favor of the winning candidates?The votes cast by qualified
Filipinos abroad who failed to return within three years shall not be invalidated because they were
qualified to vote on the date of the elections, but their failure to return shall be cause for the removal of
the names of the immigrants or permanent residents from the National Registry of Absentee Voters and
their permanent disqualification to vote in absentia.

In fine, considering the underlying intent of the Constitution, the Court does not find Section 5(d) of R.A.
No. 9189 as constitutionally defective.

B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in contravention of Section 4,
Article VII of the Constitution?

Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for president, vice-
president, senators and party-list representatives.

Section 18.5 of the same Act provides:

SEC. 18. On-Site Counting and Canvassing.

.........

18. 5 The canvass of votes shall not cause the delay of the proclamation of a winning candidate if the
outcome of the election will not be affected by the results thereof. Notwithstanding the foregoing, the
Commission is empowered to order the proclamation of winning candidates despite the fact that the
scheduled election has not taken place in a particular country or countries, if the holding of elections
therein has been rendered impossible by events, factors and circumstances peculiar to such country or
countries, in which events, factors and circumstances are beyond the control or influence of the
Commission. (Emphasis supplied)

Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the COMELEC to order
the proclamation of winning candidates insofar as it affects the canvass of votes and proclamation of
winning candidates for president and vice-president, is unconstitutional because it violates the following
provisions of paragraph 4, Section 4 of Article VII of the Constitution:
SEC. 4 . . .

The returns of every election for President and Vice-President, duly certified by the board of canvassers
of each province or city, shall be transmitted to the Congress, directed to the President of the
Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than
thirty days after the day of the election, open all the certificates in the presence of the Senate and the
House of Representatives in joint public session, and the Congress, upon determination of the
authenticity and due execution thereof in the manner provided by law, canvass the votes.

The person having the highest number of votes shall be proclaimed elected, but in case two or more
shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a
majority of all the Members of both Houses of the Congress, voting separately.

The Congress shall promulgate its rules for the canvassing of the certificates.

...

which gives to Congress the duty to canvass the votes and proclaim the winning candidates for president
and vice-president.

The Solicitor General asserts that this provision must be harmonized with paragraph 4, Section 4, Article
VII of the Constitution and should be taken to mean that COMELEC can only proclaim the winning
Senators and party-list representatives but not the President and Vice-President.[41]

Respondent COMELEC has no comment on the matter.

Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189 is far too
sweeping that it necessarily includes the proclamation of the winning candidates for the presidency and
the vice-presidency.

Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the Constitution only
insofar as said Section totally disregarded the authority given to Congress by the Constitution to
proclaim the winning candidates for the positions of president and vice-president.

In addition, the Court notes that Section 18.4 of the law, to wit:

18.4. . . . Immediately upon the completion of the canvass, the chairman of the Special Board of
Canvassers shall transmit via facsimile, electronic mail, or any other means of transmission equally safe
and reliable the Certificates of Canvass and the Statements of Votes to the Commission, . . . [Emphasis
supplied]

clashes with paragraph 4, Section 4, Article VII of the Constitution which provides that the returns of
every election for President and Vice-President shall be certified by the board of canvassers to Congress.

Congress could not have allowed the COMELEC to usurp a power that constitutionally belongs to it or, as
aptly stated by petitioner, to encroach on the power of Congress to canvass the votes for president and
vice-president and the power to proclaim the winners for the said positions. The provisions of the
Constitution as the fundamental law of the land should be read as part of The Overseas Absentee Voting
Act of 2003 and hence, the canvassing of the votes and the proclamation of the winning candidates for
president and vice-president for the entire nation must remain in the hands of Congress.
C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IX-A of the Constitution?

Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A (Common Provisions) of the
Constitution, to wit:

Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service
Commission, the Commission on Elections, and the Commission on Audit. (Emphasis supplied)

He submits that the creation of the Joint Congressional Oversight Committee with the power to review,
revise, amend and approve the Implementing Rules and Regulations promulgated by the COMELEC, R.A.
No. 9189 intrudes into the independence of the COMELEC which, as a constitutional body, is not under
the control of either the executive or legislative departments of government; that only the COMELEC
itself can promulgate rules and regulations which may be changed or revised only by the majority of its
members; and that should the rules promulgated by the COMELEC violate any law, it is the Court that
has the power to review the same via the petition of any interested party, including the legislators.

It is only on this question that respondent COMELEC submitted its Comment. It agrees with the
petitioner that Sections 19 and 25 of R.A. No. 9189 are unconstitutional. Like the petitioner, respondent
COMELEC anchors its claim of unconstitutionality of said Sections upon Section 1, Article IX-A of the
Constitution providing for the independence of the constitutional commissions such as the COMELEC. It
asserts that its power to formulate rules and regulations has been upheld in Gallardo vs. Tabamo,
Jr.[42] where this Court held that the power of the COMELEC to formulate rules and regulations is implicit
in its power to implement regulations under Section 2(1) of Article IX-C[43] of the Constitution. COMELEC
joins the petitioner in asserting that as an independent constitutional body, it may not be subject to
interference by any government instrumentality and that only this Court may review COMELEC rules and
only in cases of grave abuse of discretion.

The COMELEC adds, however, that another provision, vis--vis its rule-making power, to wit:

SEC. 17. Voting by Mail.

17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not more than three
(3) countries, subject to the approval of the Congressional Oversight Committee. Voting by mail may
be allowed in countries that satisfy the following conditions:

a) Where the mailing system is fairly well-developed and secure to prevent occasion for fraud;

b) Where there exists a technically established identification system that would preclude multiple or
proxy voting; and

c) Where the system of reception and custody of mailed ballots in the embassies, consulates and other
foreign service establishments concerned are adequate and well-secured.

Thereafter, voting by mail in any country shall be allowed only upon review and approval of the Joint
Congressional Oversight Committee.

. . . . . . . . . (Emphasis supplied)

is likewise unconstitutional as it violates Section 1, Article IX-A mandating the independence of

constitutional commissions.
The Solicitor General takes exception to his prefatory statement that the constitutional challenge must
fail and agrees with the petitioner that Sections 19 and 25 are invalid and unconstitutional on the
ground that there is nothing in Article VI of the Constitution on Legislative Department that would as
much as imply that Congress has concurrent power to enforce and administer election laws with the
COMELEC; and by the principles of exclusio unius est exclusio alterius and expressum facit cessare
tacitum, the constitutionally enumerated powers of Congress circumscribe its authority to the exclusion
of all others.

The parties are unanimous in claiming that Sections 19, 25 and portions of Section 17.1 are
unconstitutional. Thus, there is no actual issue forged on this question raised by petitioner.

However, the Court finds it expedient to expound on the role of Congress through the Joint
Congressional Oversight Committee (JCOC) vis--vis the independence of the COMELEC, as a
constitutional body.

R.A. No. 9189 created the JCOC, as follows:

SEC. 25. Joint Congressional Oversight Committee. A Joint Congressional Oversight Committee is hereby
created, composed of the Chairman of the Senate Committee on Constitutional Amendments, Revision
of Codes and Laws, and seven (7) other Senators designated by the Senate President, and the Chairman
of the House Committee on Suffrage and Electoral Reforms, and seven (7) other Members of the House
of Representatives designated by the Speaker of the House of Representatives: Provided, That, of the
seven (7) members to be designated by each House of Congress, four (4) should come from the majority
and the remaining three (3) from the minority.

The Joint Congressional Oversight Committee shall have the power to monitor and evaluate the
implementation of this Act. It shall review, revise, amend and approve the Implementing Rules and
Regulations promulgated by the Commission. (Emphasis supplied)

SEC. 19. Authority of the Commission to Promulgate Rules. The Commission shall issue the necessary
rules and regulations to effectively implement the provisions of this Act within sixty (60) days from the
effectivity of this Act. The Implementing Rules and Regulations shall be submitted to the Joint
Congressional Oversight Committee created by virtue of this Act for prior approval.

. . . . . . . . . (Emphasis supplied)

Composed of Senators and Members of the House of Representatives, the Joint Congressional Oversight
Committee (JCOC) is a purely legislative body. There is no question that the authority of Congress to
monitor and evaluate the implementation of R.A. No. 9189 is geared towards possible amendments or
revision of the law itself and thus, may be performed in aid of its legislation.

However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to the JCOC the
following functions: (a) to review, revise, amend and approve the Implementing Rules and Regulations
(IRR) promulgated by the COMELEC [Sections 25 and 19]; and (b) subject to the approval of the JCOC
[Section 17.1], the voting by mail in not more than three countries for the May 2004 elections and in any
country determined by COMELEC.
The ambit of legislative power under Article VI of the Constitution is circumscribed by other
constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution
ordaining that constitutional commissions such as the COMELEC shall be independent.

Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be
an independent COMELEC, the Court has held that [w]hatever may be the nature of the functions of the
Commission on Elections, the fact is that the framers of the Constitution wanted it to be independent
from the other departments of the Government.[44] In an earlier case, the Court elucidated:

The Commission on Elections is a constitutional body. It is intended to play a distinct and important part
in our scheme of government. In the discharge of its functions, it should not be hampered with
restrictions that would be fully warranted in the case of a less responsible organization. The Commission
may err, so may this court also. It should be allowed considerable latitude in devising means and
methods that will insure the accomplishment of the great objective for which it was created free, orderly
and honest elections. We may not agree fully with its choice of means, but unless these are clearly illegal
or constitute gross abuse of discretion, this court should not interfere. Politics is a practical matter, and
political questions must be dealt with realistically not from the standpoint of pure theory. The
Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and
its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly
advantageous position to decide complex political questions.
[45]
(Emphasis supplied)

The Court has no general powers of supervision over COMELEC which is an independent body except
those specifically granted by the Constitution, that is, to review its decisions, orders and rulings.[46] In the
same vein, it is not correct to hold that because of its recognized extensive legislative power to enact
election laws, Congress may intrude into the independence of the COMELEC by exercising supervisory
powers over its rule-making authority.

By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to issue the necessary
rules and regulations to effectively implement the provisions of this Act within sixty days from the
effectivity of this Act. This provision of law follows the usual procedure in drafting rules and regulations
to implement a law the legislature grants an administrative agency the authority to craft the rules and
regulations implementing the law it has enacted, in recognition of the administrative expertise of that
agency in its particular field of operation.[47] Once a law is enacted and approved, the legislative function
is deemed accomplished and complete. The legislative function may spring back to Congress relative to
the same law only if that body deems it proper to review, amend and revise the law, but certainly not to
approve, review, revise and amend the IRR of the COMELEC.

By vesting itself with the powers to approve, review, amend, and revise the IRR for The Overseas
Absentee Voting Act of 2003,Congress went beyond the scope of its constitutional authority. Congress
trampled upon the constitutional mandate of independence of the COMELEC. Under such a situation,
the Court is left with no option but to withdraw from its usual reticence in declaring a provision of law
unconstitutional.

The second sentence of the first paragraph of Section 19 stating that [t]he Implementing Rules and
Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of this
Act for prior approval, and the second sentence of the second paragraph of Section 25 stating that [i]t
shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by the
Commission, whereby Congress, in both provisions, arrogates unto itself a function not specifically
vested by the Constitution, should be stricken out of the subject statute for constitutional infirmity. Both
provisions brazenly violate the mandate on the independence of the COMELEC.

Similarly, the phrase, subject to the approval of the Congressional Oversight Committee in the first
sentence of Section 17.1 which empowers the Commission to authorize voting by mail in not more than
three countries for the May, 2004 elections; and the phrase, only upon review and approval of the Joint
Congressional Oversight Committee found in the second paragraph of the same section are
unconstitutional as they require review and approval of voting by mail in any country after the 2004
elections. Congress may not confer upon itself the authority to approve or disapprove the countries
wherein voting by mail shall be allowed, as determined by the COMELEC pursuant to the conditions
provided for in Section 17.1 of R.A. No. 9189.[48] Otherwise, Congress would overstep the bounds of its
constitutional mandate and intrude into the independence of the COMELEC.

During the deliberations, all the members of the Court agreed to adopt the separate opinion of Justice
Reynato S. Puno as part of the ponencia on the unconstitutionality of Sections 17.1, 19 and 25 of R.A.
No. 9189 insofar as they relate to the creation of and the powers given to the Joint Congressional
Oversight Committee.

WHEREFORE, the petition is partly GRANTED. The following portions of R.A. No. 9189 are declared VOID
for being UNCONSTITUTIONAL:

a) The phrase in the first sentence of the first paragraph of Section 17.1, to wit: subject to the approval
of the Joint Congressional Oversight Committee;

b) The portion of the last paragraph of Section 17.1, to wit: only upon review and approval of the Joint
Congressional Oversight Committee;

c) The second sentence of the first paragraph of Section 19, to wit: The Implementing Rules and
Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of
this Act for prior approval; and

d) The second sentence in the second paragraph of Section 25, to wit: It shall review, revise, amend and
approve the Implementing Rules and Regulations promulgated by the Commission of the same law;

for being repugnant to Section 1, Article IX-A of the Constitution mandating the independence of
constitutional commission, such as COMELEC.

The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect only to the authority given
to the COMELEC to proclaim the winning candidates for the Senators and party-list representatives but
not as to the power to canvass the votes and proclaim the winning candidates for President and Vice-
President which is lodged with Congress under Section 4, Article VII of the Constitution.

The constitutionality of Section 5(d) is UPHELD.

Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law continues to be in full
force and effect.
SO ORDERED.
EN BANC

LOIDA NICOLAS-LEWIS, GREGORIO B. MACABENTA, G.R. No. 162759

ALEJANDRO A. ESCLAMADO, ARMANDO B. HEREDIA,
REUBEN S. SEGURITAN, ERIC LACHICA FURBEYRE,
TERESITA A. CRUZ, JOSEFINA OPENA DISTERHOFT, Present:
MERCEDES V. OPENA, CORNELIO R. NATIVIDAD, EVELYN
D. NATIVIDAD,

Petitioners, PANGANIBAN, C.J.,

PUNO,

QUISUMBING,

YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,

CARPIO,

- versus - AUSTRIA-MARTINEZ,

CORONA,

CARPIO-MORALES,

CALLEJO, SR.,

AZCUNA,

TINGA,

COMMISSION ON ELECTIONS, CHICO-NAZARIO,

Respondent. GARCIA, and

VELASCO, JR., JJ.

Promulgated:

August 4, 2006

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
GARCIA, J.:

In this petition for certiorari and mandamus, petitioners, referring to themselves as "duals" or dual
citizens, pray that they and others who retained or reacquired Philippine citizenship under Republic
Act (R.A.) No. 9225, the Citizenship Retention and Re-Acquisition Act of 2003, be allowed to avail
themselves of the mechanism provided under the Overseas Absentee Voting Act of 2003[1] (R.A.
9189) and that the Commission on Elections (COMELEC) accordingly be ordered to allow them to vote
and register as absentee voters under the aegis of R.A. 9189.

The facts:

Petitioners are successful applicants for recognition of Philippine citizenship under R.A. 9225 which
accords to such applicants the right of suffrage, among others. Long before the May 2004 national and
local elections, petitioners sought registration and certification as "overseas absentee voter" only to
be advised by the Philippine Embassy in the United States that, per a COMELEC letter to the
Department of Foreign Affairs dated September 23, 2003[2], they have yet no right to vote in such
elections owing to their lack of the one-year residence requirement prescribed by the
Constitution. The same letter, however, urged the different Philippine posts abroad not to discontinue
their campaign for voters registration, as the residence restriction adverted to would contextually
affect merely certain individuals who would likely be eligible to vote in future elections.

Prodded for clarification by petitioner Loida Nicolas-Lewis in the light of the ruling in Macalintal vs.
COMELEC [3] on the residency requirement, the COMELEC wrote in response:

Although R.A. 9225 enjoys the presumption of constitutionality , it is the Commission's position that
those who have availed of the law cannot exercise the right of suffrage given under the OAVL for the
reason that the OAVL was not enacted for them. Hence, as Filipinos who have merely re-acquired
their citizenship on 18 September 2003 at the earliest, and as law and jurisprudence now stand, they
are considered regular voters who have to meet the requirements of residency, among others under
Section 1, Article 5 of the Constitution. [4]
Faced with the prospect of not being able to vote in the May 2004 elections owing to
the COMELEC's refusal to include them in the National Registry of Absentee Voters, petitioner Nicolas-
Lewis et al., [5] filed on April 1, 2004 this petition for certiorari and mandamus.

A little over a week before the May 10, 2004 elections, or on April 30, 2004, the COMELEC filed
a Comment,[6] therein praying for the denial of the petition. As may be expected, petitioners were not
able to register let alone vote in said elections.

On May 20, 2004, the Office of the Solicitor General (OSG) filed a Manifestation (in Lieu of Comment),
therein stating that all qualified overseas Filipinos, including dual citizens who care to exercise the
right of suffrage, may do so , observing, however, that the conclusion of the 2004 elections had
rendered the petition moot and academic.[7]

The holding of the 2004 elections had, as the OSG pointed out, indeed rendered the petition moot and
academic, but insofar only as petitioners participation in such political exercise is concerned. The
broader and transcendental issue tendered or subsumed in the petition, i.e., the propriety of allowing
duals to participate and vote as absentee voter in future elections, however, remains unresolved.

Observing the petitioners and the COMELECs respective formulations of the issues, the same may be
reduced into the question of whether or not petitioners and others who might have meanwhile
retained and/or reacquired Philippine citizenship pursuant to R.A. 9225 may vote as absentee voter
under R.A. 9189.

The Court resolves the poser in the affirmative, and thereby accords merit to the petition.

In esse, this case is all about suffrage. A quick look at the governing provisions on the right of suffrage
is, therefore, indicated.

We start off with Sections 1 and 2 of Article V of the Constitution, respectively reading as follows:

SECTION 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by
law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least
one year and in the place wherein they propose to vote for at least six months immediately preceding
the election. xxx.

SEC 2. The Congress shall provide a system for absentee voting by qualified Filipinos abroad.
In a nutshell, the aforequoted Section 1 prescribes residency requirement as a general eligibility factor
for the right to vote. On the other hand, Section 2 authorizes Congress to devise a system wherein an
absentee may vote, implying that a non-resident may, as an exception to the residency prescription in
the preceding section, be allowed to vote.

In response to its above mandate, Congress enacted R.A. 9189 - the OAVL[8] - identifying in its Section
4 who can vote under it and in the following section who cannot, as follows:

Section 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law,
at least eighteen (18) years of age on the day of elections, may vote for president, vice-president,
senators and party-list representatives.

Section 5. Disqualifications. The following shall be disqualified from voting under this Act:

(a) Those who have lost their Filipino citizenship in accordance with Philippine laws;

(b) Those who have expressly renounced their Philippine citizenship and who have pledged allegiance
to a foreign country;

(c) Those who have [been] convicted in a final judgment by a court or tribunal of an offense
punishable by imprisonment of not less than one (1) year, including those who have been found guilty
of Disloyalty as defined under Article 137 of the Revised Penal Code, .;

(d) An immigrant or a permanent resident who is recognized as such in the host country, unless
he/she executes, upon registration, an affidavit prepared for the purpose by the Commission
declaring that he/she shall resume actual physical permanent residence in the Philippines not later
than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state
that he/she has not applied for citizenship in another country. Failure to return shall be the cause for
the removal of the name of the immigrant or permanent resident from the National Registry of
Absentee Voters and his/her permanent disqualification to vote in absentia.

(e) Any citizen of the Philippines abroad previously declared insane or incompetent by
competent authority . (Words in bracket added.)
Notably, Section 5 lists those who cannot avail themselves of the absentee voting mechanism.
However, Section 5(d) of the enumeration respecting Filipino immigrants and permanent residents in
another country opens an exception and qualifies the disqualification rule. Section 5(d) would,
however, face a constitutional challenge on the ground that, as narrated in Macalintal, it -

violates Section 1, Article V of the 1987 Constitution which requires that the voter must be a resident
in the Philippines for at least one year and in the place where he proposes to vote for at least six
months immediately preceding an election. [The challenger] cites Caasi vs. Court of Appeals [9] to
support his claim [where] the Court held that a green card holder immigrant to the [US] is deemed to
have abandoned his domicile and residence in the Philippines.

[The challenger] further argues that Section 1, Article V of the Constitution does not allow provisional
registration or a promise by a voter to perform a condition to be qualified to vote in a political
exercise; that the legislature should not be allowed to circumvent the requirement of the Constitution
on the right of suffrage by providing a condition thereon which in effect amends or alters the
aforesaid residence requirement to qualify a Filipino abroad to vote. He claims that the right of
suffrage should not be granted to anyone who, on the date of the election, does not possess the
qualifications provided for by Section 1, Article V of the Constitution.[10] (Words in bracket added.)

As may be recalled, the Court upheld the constitutionality of Section 5(d) of R.A. 9189 mainly on the
strength of the following premises:

As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies
an immigrant or permanent resident who is recognized as such in the host country because
immigration or permanent residence in another country implies renunciation of one's residence in his
country of origin. However, same Section allows an immigrant and permanent resident abroad to
register as voter for as long as he/she executes an affidavit to show that he/she has not abandoned
his domicile in pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V
that all citizens of the Philippines not otherwise disqualified by law must be entitled to exercise the
right of suffrage and, that Congress must establish a system for absentee voting; for otherwise, if
actual, physical residence in the Philippines is required, there is no sense for the framers of the
Constitution to mandate Congress to establish a system for absentee voting.

Contrary to the claim of [the challenger], the execution of the affidavit itself is not the enabling or
enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the
immigrant or permanent resident to go back and resume residency in the Philippines, but more
significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of
origin. Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates the
Constitution that proscribes provisional registration or a promise by a voter to perform a condition to
be qualified to vote in a political exercise. [11]

Soon after Section 5(d) of R.A. 9189 passed the test of constitutionality, Congress
enacted R.A. 9225 the relevant portion of which reads:

SEC. 2. Declaration of Policy. It is hereby declared the policy of the State that all Philippine citizens
who become citizens of another country shall be deemed not to have lost their Philippine citizenship
under the conditions of this Act.

SEC. 3. Retention of Philippine Citizenship. Any provision of law to the contrary notwithstanding,
natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their
naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine
citizenship upon taking the following oath of allegiance to the Republic:

xxx xxx xxx

Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a
foreign country shall retain their Philippine citizenship upon taking the aforesaid oath.

SEC. 4. Derivative Citizenship. The unmarried child, whether legitimate, illegitimate or adopted, below
eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act
shall be deemed citizens of the Philippines.

SEC. 5. Civil and Political Rights and Liabilities. Those who retain or re-acquire Philippine citizenship
under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following conditions:

(1) Those intending to exercise their right of suffrage must meet the requirements under Section 1,
Article V of the Constitution, Republic Act No. 9189, otherwise known as The Overseas Absentee
Voting Act of 2003 and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such
public office as required by the Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship ;

3) xxx xxx xxx.

(4) xxx xxx xxx;

(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be
exercised by, or extended to, those who:

(a) are candidates for or are occupying any public office in the country of which they are naturalized
citizens; and/or

(b) are in active service as commissioned or non-commissioned officers in the armed forces of the
country which they are naturalized citizens.

After what appears to be a successful application for recognition of Philippine citizenship under R.A.
9189, petitioners now invoke their right to enjoy political rights, specifically the right of suffrage,
pursuant to Section 5 thereof.

Opposing the petitioners bid, however, respondent COMELEC invites attention to the same Section 5
(1) providing that duals can enjoy their right to vote, as an adjunct to political rights, only if they meet
the requirements of Section 1, Article V of the Constitution, R.A. 9189 and other existing
laws. Capitalizing on what at first blush is the clashing provisions of the aforecitedprovision of the
Constitution, which, to repeat, requires residency in the Philippines for a certain period, and R.A. 9189
which grants a Filipino non-resident absentee voting rights,[12] COMELEC argues:

4. DUALS MUST FIRST ESTABLISH THEIR DOMICILE/ RESIDENCE IN THE PHILIPPINES

4.01. The inclusion of such additional and specific requirements in RA 9225 is logical. The duals, upon
renouncement of their Filipino citizenship and acquisition of foreign citizenship, have practically and
legally abandoned their domicile and severed their legal ties to the homeland as a
consequence. Having subsequently acquired a second citizenship (i.e., Filipino) then, duals must, for
purposes of voting, first of all, decisively and definitely establish their domicile through positive
acts; [13]

The Court disagrees.

As may be noted, there is no provision in the dual citizenship law - R.A. 9225 - requiring "duals" to
actually establish residence and physically stay in the Philippines first before they can exercise their
right to vote. On the contrary, R.A. 9225, in implicit acknowledgment that duals are most likely non-
residents, grants under its Section 5(1) the same right of suffrage as that granted an absentee voter
under R.A. 9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as much
as possible all overseas Filipinos who, save for the residency requirements exacted of an ordinary
voter under ordinary conditions, are qualified to vote. Thus, wrote the Court in Macalintal:

It is clear from these discussions of the Constitutional Commission that [it] intended to enfranchise as
much as possible all Filipino citizens abroad who have not abandoned their domicile of origin. The
Commission even intended to extend to young Filipinos who reach voting age abroad whose parents
domicile of origin is in the Philippines, and consider them qualified as voters for the first time.

It is in pursuance of that intention that the Commission provided for Section 2 [Article V] immediately
after the residency requirement of Section 1. By the doctrine of necessary implication in statutory
construction, , the strategic location of Section 2 indicates that the Constitutional Commission
provided for an exception to the actual residency requirement of Section 1 with respect to qualified
Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in
the Philippines may be allowed to vote even though they do not satisfy the residency requirement in
Section 1, Article V of the Constitution.

That Section 2 of Article V of the Constitution is an exception to the residency requirement found in
Section 1 of the same Article was in fact the subject of debate when Senate Bill No. 2104, which
became R.A. No. 9189, was deliberated upon on the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked into in relation to the constitutional
provisions. I think the sponsor and I would agree that the Constitution is supreme in any statute that
we may enact.

Let me read Section 1, Article V, of the Constitution .

xxx xxx xxx

Now, Mr. President, the Constitution says, who shall have resided in the Philippines. They are
permanent immigrants. They have changed residence so they are barred under the Constitution. This
is why I asked whether this committee amendment which in fact does not alter the original text of the
bill will have any effect on this?

Senator Angara. Good question, Mr. President. And this has been asked in various fora. This is in
compliance with the Constitution. One, the interpretation here of residence is synonymous with
domicile.

As the gentleman and I know, Mr. President, domicile is the intent to return to one's home. And the
fact that a Filipino may have been physically absent from the Philippines and may be physically a
resident of the United States, for example, but has a clear intent to return to the Philippines, will make
him qualified as a resident of the Philippines under this law.

This is consistent, Mr. President, with the constitutional mandate that we that Congress must provide
a franchise to overseas Filipinos.

If we read the Constitution and the suffrage principle literally as demanding physical presence, then
there is no way we can provide for offshore voting to our offshore kababayan, Mr. President.

Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, it reads: The
Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system
for absentee voting by qualified Filipinos abroad.
The key to this whole exercise, Mr. President, is qualified. In other words, anything that we may do or
say in granting our compatriots abroad must be anchored on the proposition that they are
qualified. Absent the qualification, they cannot vote. And residents (sic) is a qualification.

xxx xxx xxx

Look at what the Constitution says In the place wherein they propose to vote for at least six months
immediately preceding the election.

Mr. President, all of us here have run (sic) for office.

I live in Makati. My neighbor is Pateros . We are separated only by a creek. But one who votes
in Makati cannot vote in Pateros unless he resides in Pateros for six months. That is how restrictive
our Constitution is. .

As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But he must do
so, make the transfer six months before the election, otherwise, he is not qualified to vote.

xxx xxx xxx

Senator Angara. It is a good point to raise, Mr. President. But it is a point already well-debated even
in the constitutional commission of 1986. And the reason Section 2 of Article V was placed
immediately after the six-month/one-year residency requirement is to demonstrate unmistakably that
Section 2 which authorizes absentee voting is an exception to the six-month/one-year residency
requirement. That is the first principle, Mr. President, that one must remember.

The second reason, Mr. President, is that under our jurisprudence residency has been interpreted as
synonymous with domicile.

But the third more practical reason, is, if we follow the interpretation of the gentleman, then it is
legally and constitutionally impossible to give a franchise to vote to overseas Filipinos who do not
physically live in the country, which is quite ridiculous because that is exactly the whole point of this
exercise to enfranchise them and empower them to vote. [14] (Emphasis and words in bracket added;
citations omitted)
Lest it be overlooked, no less than the COMELEC itself admits that the Citizenship Retention and
Re-Acquisition Act expanded the coverage of overseas absentee voting. According to the poll body:

1.05 With the passage of RA 9225 the scope of overseas absentee voting has been consequently
expanded so as to include Filipinos who are also citizens of other countries, subject, however, to the
strict prerequisites indicated in the pertinent provisions of RA 9225; [15]

Considering the unison intent of the Constitution and R.A. 9189 and the expansion of the scope of that
law with the passage of R.A. 9225, the irresistible conclusion is that "duals" may now exercise the
right of suffrage thru the absentee voting scheme and as overseas absentee voters. R.A. 9189 defines
the terms adverted to in the following wise:

Absentee Voting refers to the process by which qualified citizens of the Philippines abroad exercise
their right to vote;

Overseas Absentee Voter refers to a citizen of the Philippines who is qualified to register and vote
under this Act, not otherwise disqualified by law, who is abroad on the day of elections;

While perhaps not determinative of the issue tendered herein, we note that the expanded thrust of
R.A. 9189 extends also to what might be tag as the next generation of "duals". This may be deduced
from the inclusion of the provision on derivative citizenship in R.A. 9225 which reads:

SEC. 4. Derivative Citizenship. The unmarried child, whether legitimate, illegitimate or adopted, below
eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act
shall be deemed citizens of the Philippines.

It is very likely that a considerable number of those unmarried children below eighteen (18) years of a
ge had never set foot in the Philippines. Now then, if the next generation of "duals" may nonetheless
avail themselves the right to enjoy full civil and political rights under Section 5 of the Act, then there is
neither no rhyme nor reason why the petitioners and other present day "duals," provided they meet
the requirements under Section 1, Article V of the Constitution in relation to R.A. 9189, be denied the
right of suffrage as an overseas absentee voter. Congress could not have plausibly intended such
absurd situation.

WHEREFORE, the instant petition is GRANTED. Accordingly, the Court rules and so holds that those
who retain or re-acquire Philippine citizenship under Republic Act No. 9225, the Citizenship Retention
and Re-Acquisition Act of 2003, may exercise the right to vote under the system of absentee voting
in Republic Act No. 9189, the Overseas Absentee Voting Act of 2003.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 93867 December 18, 1990

SIXTO S. BRILLANTES, JR., petitioner,

vs.

HAYDEE B. YORAC, in her capacity as ACTING CHAIRPERSON of the COMMISSION ON

ELECTIONS, respondent.

DECISION

CRUZ, J.:

The petitioner is challenging the designation by the President of the Philippines of Associate
Commissioner Haydee B. Yorac as Acting Chairman of the Commission on Elections, in place of
Chairman Hilario B. Davide, who had been named chairman of the fact-finding commission to
investigate the December 1989 coup d’ etat attempt.

The qualifications of the respondent are conceded by the petitioner and are not in issue in this case.
What is the power of the President of the Philippines to make the challenged designation in view of
the status of the Commission on Elections as an independent constitutional body and the specific
provision of Article IX-C, Section 1(2) of the Constitution that “(I)n no case shall any Member (of the
Commission on Elections) be appointed or designated in a temporary or acting capacity.”

The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where President Elpidio
Quirino designated the Solicitor General as acting member of the Commission on Elections and the
Court revoked the designation as contrary to the Constitution. It is also alleged that the respondent is
not even the senior member of the Commission on Elections, being outranked by Associate
Commissioner Alfredo E. Abueg, Jr.

The petitioner contends that the choice of the Acting Chairman of the Commission on Elections is an
internal matter that should be resolved by the members themselves and that the intrusion of the
President of the Philippines violates their independence. He cites the practice in this Court, where the
senior Associate Justice serves as Acting Chief Justice in the absence of the Chief Justice. No
designation from the President of the Philippines is necessary.

In his Comment, the Solicitor General argues that no such designation is necessary in the case of the
Supreme Court because the temporary succession cited is provided for in Section 12 of the Judiciary
Act of 1948. A similar rule is found in Section 5 of BP 129 for the Court of Appeals. There is no such
arrangement, however, in the case of the Commission on Elections.

The designation made by the President of the Philippines should therefore be sustained for reasons of
“administrative expediency,” to prevent disruption of the functions of the COMELEC.
Expediency is a dubious justification. It may also be an overstatement to suggest that the operations
of the Commission on Elections would have been disturbed or stalemated if the President of the
Philippines had not stepped in and designated an Acting Chairman. There did not seem to be any such
problem. In any event, even assuming that difficulty, we do not agree that “only the President (could)
act to fill the hiatus,” as the Solicitor General maintains.

Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional Commissions as
“independent.” Although essentially executive in nature, they are not under the control of the
President of the Philippines in the discharge of their respective functions. Each of these Commissions
conducts its own proceedings under the applicable laws and its own rules and in the exercise of its
own discretion. Its decisions, orders and rulings are subject only to review on certiorari by this Court
as provided by the Constitution in Article IX-A, Section 7.

The choice of a temporary chairman in the absence of the regular chairman comes under that
discretion. That discretion cannot be exercised for it, even with its consent, by the President of the
Philippines.

A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at
will. No cause need be established to justify its revocation. Assuming its validity, the designation of
the respondent as Acting Chairman of the Commission on Elections may be withdrawn by the
President of the Philippines at any time and for whatever reason she sees fit. It is doubtful if the
respondent, having accepted such designation, will not be estopped from challenging its withdrawal.

It is true, as the Solicitor General points out, that the respondent cannot be removed at will from her
permanent position as Associate Commissioner. It is no less true, however, that she can be replaced
as Acting Chairman, with or without cause, and thus deprived of the powers and perquisites of that
temporary position.

The lack of a statutory rule covering the situation at bar is no justification for the President of the
Philippines to fill the void by extending the temporary designation in favor of the respondent. This is
still a government of laws and not of men. The problem allegedly sought to be corrected, if it existed
at all, did not call for presidential action. The situation could have been handled by the members of
the Commission on Elections themselves without the participation of the President, however well-
meaning.

In the choice of the Acting Chairman, the members of the Commission on Elections would most likely
have been guided by the seniority rule as they themselves would have appreciated it. In any event,
that choice and the basis thereof were for them and not the President to make.

The Court has not the slightest doubt that the President of the Philippines was moved only by the best
of motives when she issued the challenged designation. But while conceding her goodwill, we cannot
sustain her act because it conflicts with the Constitution. Hence, even as this Court revoked the
designation in the Bautista case, so too must it annul the designation in the case at bar.

The Constitution provides for many safeguards to the independence of the Commission on Elections,
foremost among which is the security of tenure of its members. That guaranty is not available to the
respondent as Acting Chairman of the Commission on Elections by designation of the President of the
Philippines.
WHEREFORE, the designation by the President of the Philippines of respondent Haydee B. Yorac as
Acting Chairman of the Commission on Elections is declared UNCONSTITUTIONAL, and the respondent
is hereby ordered to desist from serving as such. This is without prejudice to the incumbent Associate
Commissioners of the Commission on Elections restoring her to the same position if they so desire, or
choosing another member in her place, pending the appointment of a permanent Chairman by the
President of the Philippines with the consent of the Commission on Appointments.

SO ORDERED.
EN BANC

[G.R. No. 149036. April 2, 2002]

MA. J. ANGELINA G. MATIBAG, petitioner, vs. ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA,

FLORENTINO A. TUASON, JR., VELMA J. CINCO, and GIDEON C. DE GUZMAN in his capacity as Officer-
In-Charge, Finance Services Department of the Commission on Elections, respondents.

DECISION

CARPIO, J.:

The Case

Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary
injunction and a temporary restraining order under Rule 65 of the 1997 Rules of Civil
Procedure. Petitioner Ma. J. Angelina G. Matibag (Petitioner for brevity) questions the constitutionality
of the appointment and the right to hold office of the following: (1) Alfredo L. Benipayo (Benipayo for
brevity) as Chairman of the Commission on Elections (COMELEC for brevity); and (2) Resurreccion Z.
Borra (Borra for brevity) and Florentino A. Tuason, Jr. (Tuason for brevity) as COMELEC
Commissioners. Petitioner also questions the legality of the appointment of Velma J. Cinco[1] (Cinco for
brevity) as Director IV of the COMELECs Education and Information Department (EID for brevity).

The Facts

On February 2, 1999, the COMELEC en banc appointed petitioner as Acting Director IV of the EID. On
February 15, 2000, then Chairperson Harriet O. Demetriou renewed the appointment of petitioner as
Director IV of EID in a Temporary capacity. On February 15, 2001, Commissioner Rufino S.B. Javier
renewed again the appointment of petitioner to the same position in a Temporary capacity.[2]

On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as COMELEC
Chairman,[3] and Borra[4] and Tuason[5] as COMELEC Commissioners, each for a term of seven years and
all expiring on February 2, 2008. Benipayo took his oath of office and assumed the position of COMELEC
Chairman. Borra and Tuason likewise took their oaths of office and assumed their positions as COMELEC
Commissioners. The Office of the President submitted to the Commission on Appointments on May 22,
2001 the ad interim appointments of Benipayo, Borra and Tuason for confirmation.[6] However, the
Commission on Appointments did not act on said appointments.

On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra and Tuason
to the same positions and for the same term of seven years, expiring on February 2, 2008.[7] They took
their oaths of office for a second time. The Office of the President transmitted on June 5, 2001 their
appointments to the Commission on Appointments for confirmation.[8]

Congress adjourned before the Commission on Appointments could act on their appointments. Thus, on
June 8, 2001, President Macapagal Arroyo renewed again the ad interim appointments of Benipayo,
Borra and Tuason to the same positions.[9] The Office of the President submitted their appointments for
confirmation to the Commission on Appointments.[10] They took their oaths of office anew.

In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11,
2001[11] addressed to petitioner as Director IV of the EID and to Cinco as Director III also of the EID,
designating Cinco Officer-in-Charge of the EID and reassigning petitioner to the Law
Department.COMELEC EID Commissioner-in-Charge Mehol K. Sadain objected to petitioners
reassignment in a Memorandum dated April 14, 2001[12] addressed to the COMELEC en
banc. Specifically, Commissioner Sadain questioned Benipayos failure to consult the Commissioner-in-
Charge of the EID in the reassignment of petitioner.

On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the EID and
her reassignment to the Law Department.[13]Petitioner cited Civil Service Commission Memorandum
Circular No. 7 dated April 10, 2001, reminding heads of government offices that transfer and detail of
employees are prohibited during the election period beginning January 2 until June 13, 2001. Benipayo
denied her request for reconsideration on April 18, 2001,[14] citing COMELEC Resolution No. 3300 dated
November 6, 2000, which states in part:

NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the
Constitution, the Omnibus Election Code and other election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new
positions and transfer or reassign its personnel, when necessary in the effective performance of its
mandated functions during the prohibited period, provided that the changes in the assignment of its
field personnel within the thirty-day period before election day shall be effected after due notice and
hearing.

Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a
Memorandum dated April 23, 2001.[15] Petitioner also filed an administrative and criminal
complaint[16] with the Law Department[17] against Benipayo, alleging that her reassignment violated
Section 261 (h) of the Omnibus Election Code, COMELEC Resolution No. 3258, Civil Service
Memorandum Circular No. 07, s. 001, and other pertinent administrative and civil service laws, rules and
regulations.

During the pendency of her complaint before the Law Department, petitioner filed the instant petition
questioning the appointment and the right to remain in office of Benipayo, Borra and Tuason, as
Chairman and Commissioners of the COMELEC, respectively. Petitioner claims that the ad
interimappointments of Benipayo, Borra and Tuason violate the constitutional provisions on the
independence of the COMELEC, as well as on the prohibitions on temporary appointments and
reappointments of its Chairman and members. Petitioner also assails as illegal her removal as Director IV
of the EID and her reassignment to the Law Department. Simultaneously, petitioner challenges the
designation of Cinco as Officer-in-Charge of the EID. Petitioner, moreover, questions the legality of the
disbursements made by COMELEC Finance Services Department Officer-in-Charge Gideon C. De Guzman
to Benipayo, Borra and Tuason by way of salaries and other emoluments.

In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again the ad
interim appointments of Benipayo as COMELEC Chairman and Borra and Tuason as Commissioners,
respectively, for a term of seven years expiring on February 2, 2008.[18] They all took their oaths of office
anew.

The Issues

The issues for resolution of this Court are as follows:

1. Whether or not the instant petition satisfies all the requirements before this Court may exercise its
power of judicial review in constitutional cases;

2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad
interim appointments issued by the President amounts to a temporary appointment prohibited by
Section 1 (2), Article IX-C of the Constitution;

3. Assuming that the first ad interim appointments and the first assumption of office by Benipayo, Borra
and Tuason are legal, whether or not the renewal of their ad interim appointments and subsequent
assumption of office to the same positions violate the prohibition on reappointment under Section 1 (2),
Article IX-C of the Constitution;

4. Whether or not Benipayos removal of petitioner from her position as Director IV of the EID and her
reassignment to the Law Department is illegal and without authority, having been done without the
approval of the COMELEC as a collegial body;

5. Whether or not the Officer-in-Charge of the COMELECs Finance Services Department, in continuing to
make disbursements in favor of Benipayo, Borra, Tuason and Cinco, is acting in excess of jurisdiction.

First Issue: Propriety of Judicial Review

Respondents assert that the petition fails to satisfy all the four requisites before this Court may exercise
its power of judicial review in constitutional cases. Out of respect for the acts of the Executive
department, which is co-equal with this Court, respondents urge this Court to refrain from reviewing the
constitutionality of the ad interim appointments issued by the President to Benipayo, Borra and Tuason
unless all the four requisites are present. These are: (1) the existence of an actual and appropriate
controversy; (2) a personal and substantial interest of the party raising the constitutional issue; (3) the
exercise of the judicial review is pleaded at the earliest opportunity; and (4) the constitutional issue is
the lis mota of the case.[19]

Respondents argue that the second, third and fourth requisites are absent in this case. Respondents
maintain that petitioner does not have a personal and substantial interest in the case because she has
not sustained a direct injury as a result of the ad interim appointments of Benipayo, Borra and Tuason
and their assumption of office. Respondents point out that petitioner does not claim to be lawfully
entitled to any of the positions assumed by Benipayo, Borra or Tuason. Neither does petitioner claim to
be directly injured by the appointments of these three respondents.

Respondents also contend that petitioner failed to question the constitutionality of the ad
interim appointments at the earliest opportunity. Petitioner filed the petition only on August 3, 2001
despite the fact that the ad interim appointments of Benipayo, Borra and Tuason were issued as early as
March 22, 2001. Moreover, the petition was filed after the third time that these three respondents were
issued ad interim appointments.

Respondents insist that the real issue in this case is the legality of petitioners reassignment from the EID
to the Law Department. Consequently, the constitutionality of the ad interim appointments is not the lis
mota of this case.

We are not persuaded.

Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law Department,
where she was placed on detail service.[20]Respondents claim that the reassignment was pursuant to x x
x Benipayos authority as Chairman of the Commission on Elections, and as the Commissions Chief
Executive Officer.[21] Evidently, respondents anchor the legality of petitioners reassignment on
Benipayos authority as Chairman of the COMELEC. The real issue then turns on whether or not Benipayo
is the lawful Chairman of the COMELEC. Even if petitioner is only an Acting Director of the EID, her
reassignment is without legal basis if Benipayo is not the lawful COMELEC Chairman, an office created by
the Constitution.

On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in
accordance with the Constitution, then petitioners reassignment is legal and she has no cause to
complain provided the reassignment is in accordance with the Civil Service Law. Clearly, petitioner has a
personal and material stake in the resolution of the constitutionality of Benipayos assumption of
office. Petitioners personal and substantial injury, if Benipayo is not the lawful COMELEC Chairman,
clothes her with the requisite locus standi to raise the constitutional issue in this petition.

Respondents harp on petitioners belated act of questioning the constitutionality of the ad

interim appointments of Benipayo, Borra and Tuason.Petitioner filed the instant petition only on August
3, 2001, when the first ad interim appointments were issued as early as March 22, 2001. However, it is
not the date of filing of the petition that determines whether the constitutional issue was raised at the
earliest opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings
before a competent court that can resolve the same, such that, if it is not raised in the pleadings, it
cannot be considered at the trial, and, if not considered at the trial, it cannot be considered on
appeal.[22] Petitioner questioned the constitutionality of the ad interim appointments of Benipayo, Borra
and Tuason when she filed her petition before this Court, which is the earliest opportunity for pleading
the constitutional issue before a competent body. Furthermore, this Court may determine, in the
exercise of sound discretion, the time when a constitutional issue may be passed upon.[23] There is no
doubt petitioner raised the constitutional issue on time.

Moreover, the legality of petitioners reassignment hinges on the constitutionality of Benipayos ad

interim appointment and assumption of office.Unless the constitutionality of Benipayos ad
interim appointment and assumption of office is resolved, the legality of petitioners reassignment from
the EID to the Law Department cannot be determined. Clearly, the lis mota of this case is the very
constitutional issue raised by petitioner.

In any event, the issue raised by petitioner is of paramount importance to the public. The legality of the
directives and decisions made by the COMELEC in the conduct of the May 14, 2001 national elections
may be put in doubt if the constitutional issue raised by petitioner is left unresolved. In keeping with this
Courts duty to determine whether other agencies of government have remained within the limits of the
Constitution and have not abused the discretion given them, this Court may even brush aside
technicalities of procedure and resolve any constitutional issue raised.[24] Here the petitioner has
complied with all the requisite technicalities. Moreover, public interest requires the resolution of the
constitutional issue raised by petitioner.

Second Issue: The Nature of an Ad Interim Appointment

Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is
prohibited by Section 1 (2), Article IX-C of the Constitution, which provides as follows:

The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, three Members shall hold office for seven years, two Members for five years, and the last
Members for three years, without reappointment. Appointment to any vacancy shall be only for the
unexpired term of the predecessor. In no case shall any Member be appointed or designated in a
temporary or acting capacity. (Emphasis supplied)

Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President
at her pleasure, and can even be disapproved or simply by-passed by the Commission on
Appointments. For this reason, petitioner claims that an ad interim appointment is temporary in
character and consequently prohibited by the last sentence of Section 1 (2), Article IX-C of the
Constitution.

Based on petitioners theory, there can be no ad interim appointment to the COMELEC or to the other
two constitutional commissions, namely the Civil Service Commission and the Commission on Audit. The
last sentence of Section 1 (2), Article IX-C of the Constitution is also found in Article IX-B and Article IX-D
providing for the creation of the Civil Service Commission and the Commission on Audit,
respectively. Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to mean that the ad
interim appointee cannot assume office until his appointment is confirmed by the Commission on
Appointments for only then does his appointment become permanent and no longer temporary in
character.

The rationale behind petitioners theory is that only an appointee who is confirmed by the Commission
on Appointments can guarantee the independence of the COMELEC. A confirmed appointee is beyond
the influence of the President or members of the Commission on Appointments since his appointment
can no longer be recalled or disapproved. Prior to his confirmation, the appointee is at the mercy of
both the appointing and confirming powers since his appointment can be terminated at any time for any
cause. In the words of petitioner, a Sword of Damocles hangs over the head of every appointee whose
confirmation is pending with the Commission on Appointments.

We find petitioners argument without merit.

An ad interim appointment is a permanent appointment because it takes effect immediately and can no
longer be withdrawn by the President once the appointee has qualified into office. The fact that it is
subject to confirmation by the Commission on Appointments does not alter its permanent character.The
Constitution itself makes an ad interim appointment permanent in character by making it effective until
disapproved by the Commission on Appointments or until the next adjournment of Congress. The
second paragraph of Section 16, Article VII of the Constitution provides as follows:

The President shall have the power to make appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress. (Emphasis supplied)

Thus, the ad interim appointment remains effective until such disapproval or next adjournment,
signifying that it can no longer be withdrawn or revoked by the President. The fear that the President
can withdraw or revoke at any time and for any reason an ad interim appointment is utterly without
basis.

More than half a century ago, this Court had already ruled that an ad interim appointment is permanent
in character. In Summers vs. Ozaeta,[25]decided on October 25, 1948, we held that:

x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of the
Constitution, which provides that the President shall have the power to make appointments during the
recess of the Congress, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress. It is an appointment
permanent in nature, and the circumstance that it is subject to confirmation by the Commission on
Appointments does not alter its permanent character. An ad interim appointment is disapproved
certainly for a reason other than that its provisional period has expired. Said appointment is of course
distinguishable from an acting appointment which is merely temporary, good until another permanent
appointment is issued. (Emphasis supplied)

The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad
interim appointment takes effect immediately.The appointee can at once assume office and exercise, as
a de jure officer, all the powers pertaining to the office. In Pacete vs. Secretary of the Commission on
Appointments,[26] this Court elaborated on the nature of an ad interim appointment as follows:

A distinction is thus made between the exercise of such presidential prerogative requiring confirmation
by the Commission on Appointments when Congress is in session and when it is in recess. In the former,
the President nominates, and only upon the consent of the Commission on Appointments may the
person thus named assume office. It is not so with reference to ad interim appointments. It takes effect
at once. The individual chosen may thus qualify and perform his function without loss of time. His title
to such office is complete. In the language of the Constitution, the appointment is effective until
disapproval by the Commission on Appointments or until the next adjournment of the Congress.

Petitioner cites Blacks Law Dictionary which defines the term ad interim to mean in the meantime or for
the time being. Hence, petitioner argues that an ad interim appointment is undoubtedly temporary in
character. This argument is not new and was answered by this Court in Pamantasan ng Lungsod ng
Maynila vs. Intermediate Appellate Court,[27] where we explained that:

x x x From the arguments, it is easy to see why the petitioner should experience difficulty in
understanding the situation. Private respondent had been extended several ad interim appointments
which petitioner mistakenly understands as appointments temporary in nature. Perhaps, it is the literal
translation of the word ad interim which creates such belief. The term is defined by Black to mean in the
meantime or for the time being. Thus, an officer ad interim is one appointed to fill a vacancy, or to
discharge the duties of the office during the absence or temporary incapacity of its regular incumbent
(Blacks Law Dictionary, Revised Fourth Edition, 1978). But such is not the meaning nor the use intended
in the context of Philippine law. In referring to Dr. Estebans appointments, the term is not descriptive of
the nature of the appointments given to him. Rather, it is used to denote the manner in which said
appointments were made, that is, done by the President of the Pamantasan in the meantime, while
the Board of Regents, which is originally vested by the University Charter with the power of
appointment, is unable to act. x x x. (Emphasis supplied)
Thus, the term ad interim appointment, as used in letters of appointment signed by the President,
means a permanent appointment made by the President in the meantime that Congress is in recess. It
does not mean a temporary appointment that can be withdrawn or revoked at any time. The term,
although not found in the text of the Constitution, has acquired a definite legal meaning under
Philippine jurisprudence. The Court had again occasion to explain the nature of an ad
interim appointment in the more recent case of Marohombsar vs. Court of Appeals,[28] where the Court
stated:

We have already mentioned that an ad interim appointment is not descriptive of the nature of the
appointment, that is, it is not indicative of whether the appointment is temporary or in an acting
capacity, rather it denotes the manner in which the appointment was made. In the instant case, the
appointment extended to private respondent by then MSU President Alonto, Jr. was issued without
condition nor limitation as to tenure. The permanent status of private respondents appointment as
Executive Assistant II was recognized and attested to by the Civil Service Commission Regional Office No.
12.Petitioners submission that private respondents ad interim appointment is synonymous with a
temporary appointment which could be validly terminated at any time is clearly untenable. Ad interim
appointments are permanent but their terms are only until the Board disapproves them.(Emphasis
supplied)

An ad interim appointee who has qualified and assumed office becomes at that moment a government
employee and therefore part of the civil service. He enjoys the constitutional protection that [n]o officer
or employee in the civil service shall be removed or suspended except for cause provided by
law.[29] Thus, an ad interim appointment becomes complete and irrevocable once the appointee has
qualified into office. The withdrawal or revocation of an ad interim appointment is possible only if it is
communicated to the appointee before the moment he qualifies, and any withdrawal or revocation
thereafter is tantamount to removal from office.[30] Once an appointee has qualified, he acquires a legal
right to the office which is protected not only by statute but also by the Constitution. He can only be
removed for cause, after notice and hearing, consistent with the requirements of due process.

An ad interim appointment can be terminated for two causes specified in the Constitution. The first
cause is the disapproval of his ad interim appointment by the Commission on Appointments. The second
cause is the adjournment of Congress without the Commission on Appointments acting on his
appointment. These two causes are resolutory conditions expressly imposed by the Constitution on
all ad interim appointments. These resolutory conditions constitute, in effect, a Sword of Damocles over
the heads of ad interim appointees. No one, however, can complain because it is the Constitution itself
that places the Sword of Damocles over the heads of the ad interim appointees.

While an ad interim appointment is permanent and irrevocable except as provided by law, an

appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the
pleasure of the appointing power.[31] A temporary or acting appointee does not enjoy any security of
tenure, no matter how briefly. This is the kind of appointment that the Constitution prohibits the
President from making to the three independent constitutional commissions, including the
COMELEC. Thus, in Brillantes vs. Yorac,[32] this Court struck down
as unconstitutional the designation by then President Corazon Aquino of Associate Commissioner
Haydee Yorac as Acting Chairperson of the COMELEC. This Court ruled that:
A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at
will. No cause need be established to justify its revocation. Assuming its validity, the designation of the
respondent as Acting Chairman of the Commission on Elections may be withdrawn by the President of
the Philippines at any time and for whatever reason she sees fit. It is doubtful if the respondent, having
accepted such designation, will not be estopped from challenging its withdrawal.

xxx

The Constitution provides for many safeguards to the independence of the Commission on Elections,
foremost among which is the security of tenure of its members. That guarantee is not available to the
respondent as Acting Chairman of the Commission on Elections by designation of the President of the
Philippines.

Earlier, in Nacionalista Party vs. Bautista,[33] a case decided under the 1935 Constitution, which did not
have a provision prohibiting temporary or acting appointments to the COMELEC, this Court nevertheless
declared unconstitutional the designation of the Solicitor General as acting member of the
COMELEC. This Court ruled that the designation of an acting Commissioner would undermine the
independence of the COMELEC and hence violate the Constitution. We declared then: It would be more
in keeping with the intent, purpose and aim of the framers of the Constitution to appoint
a permanentCommissioner than to designate one to act temporarily. (Emphasis supplied)

In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in
the COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo, Borra and
Tuason were extended permanent appointments during the recess of Congress. They were not
appointed or designated in a temporary or acting capacity, unlike Commissioner Haydee Yorac
in Brillantes vs. Yorac[34] and Solicitor General Felix Bautista in Nacionalista Party vs. Bautista.[35] The ad
interim appointments of Benipayo, Borra and Tuason are expressly allowed by the Constitution which
authorizes the President, during the recess of Congress, to make appointments that take effect
immediately.

While the Constitution mandates that the COMELEC shall be independent[36], this provision should be
harmonized with the Presidents power to extend ad interim appointments. To hold that the
independence of the COMELEC requires the Commission on Appointments to first confirm ad
interimappointees before the appointees can assume office will negate the Presidents power to
make ad interim appointments. This is contrary to the rule on statutory construction to give meaning
and effect to every provision of the law. It will also run counter to the clear intent of the framers of the
Constitution.

The original draft of Section 16, Article VII of the Constitution - on the nomination of officers subject to
confirmation by the Commission on Appointments - did not provide for ad interim appointments. The
original intention of the framers of the Constitution was to do away with ad interimappointments
because the plan was for Congress to remain in session throughout the year except for a brief 30-day
compulsory recess. However, because of the need to avoid disruptions in essential government services,
the framers of the Constitution thought it wise to reinstate the provisions of the 1935 Constitution on ad
interim appointments. The following discussion during the deliberations of the Constitutional
Commission elucidates this:
FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such circumstances, is it
necessary to provide for ad interim appointments?Perhaps there should be a little discussion on that.

xxx

MS. AQUINO: My concern is that unless this problem is addressed, this might present problems in terms
of anticipating interruption of government business, considering that we are not certain of the length
of involuntary recess or adjournment of the Congress. We are certain, however, of the involuntary
adjournment of the Congress which is 30 days, but we cannot leave to conjecture the matter of
involuntary recess.

FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the Commissioner has a
formula x x x.

xxx

MR. BENGZON: Madam President, apropos of the matter raised by Commissioner Aquino and after
conferring with the Committee, Commissioner Aquino and I propose the following amendment as the
last paragraph of Section 16, the wordings of which are in the 1935 Constitution: THE PRESIDENT SHALL
HAVE THE POWER TO MAKE APPOINTMENTS DURING THE RECESS OF CONGRESS WHETHER IT BE
VOLUNTARY OR COMPULSORY BUT SUCH APPOINTMENTS SHALL BE EFFECTIVE ONLY UNTIL
DISAPPROVAL BY THE COMMISSION ON APPOINTMENTS OR UNTIL THE NEXT ADJOURNMENT OF THE
CONGRESS.

This is otherwise called the ad interim appointments.

xxx

THE PRESIDENT: Is there any objection to the proposed amendment of Commissioners Aquino and
Bengzon, adding a paragraph to the last paragraph of Section 16? (Silence) The Chair hears none; the
amendment is approved.[37] (Emphasis supplied)

Clearly, the reinstatement in the present Constitution of the ad interim appointing power of the
President was for the purpose of avoiding interruptions in vital government services that otherwise
would result from prolonged vacancies in government offices, including the three constitutional
commissions.In his concurring opinion in Guevara vs. Inocentes,[38] decided under the 1935 Constitution,
Justice Roberto Concepcion, Jr. explained the rationale behind ad interim appointments in this manner:

Now, why is the lifetime of ad interim appointments so limited? Because, if they expired before the
session of Congress, the evil sought to be avoided interruption in the discharge of essential
functions may take place. Because the same evil would result if the appointments ceased to be effective
during the session of Congress and before its adjournment. Upon the other hand, once Congress has
adjourned, the evil aforementioned may easily be conjured by the issuance of other ad
interim appointments or reappointments. (Emphasis supplied)

Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution barely
avoided the interruption of essential government services in the May 2001 national elections. Following
the decision of this Court in Gaminde vs. Commission on Appointments,[39]promulgated on December 13,
2000, the terms of office of constitutional officers first appointed under the Constitution would have to
be counted starting February 2, 1987, the date of ratification of the Constitution, regardless of the date
of their actual appointment. By this reckoning, the terms of office of three Commissioners of the
COMELEC, including the Chairman, would end on February 2, 2001.[40]

Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000 to serve,
pursuant to her appointment papers, until February 15, 2002,[41] the original expiry date of the term of
her predecessor, Justice Bernardo P. Pardo, who was elevated to this Court. The original expiry date of
the term of Commissioner Teresita Dy-Liacco Flores was also February 15, 2002, while that of
Commissioner Julio F. Desamito was November 3, 2001.[42] The original expiry dates of the terms of
office of Chairperson Demetriou and Commissioners Flores and Desamito were therefore supposed to
fall after the May 2001 elections. Suddenly and unexpectedly, because of the Gaminde ruling, there
were three vacancies in the seven-person COMELEC, with national elections looming less than three and
one-half months away. To their credit, Chairperson Demetriou and Commissioner Flores vacated their
offices on February 2, 2001 and did not question any more before this Court the applicability of
the Gaminde ruling to their own situation.

In a Manifestation[43] dated December 28, 2000 filed with this Court in the Gaminde case, Chairperson
Demetriou stated that she was vacating her office on February 2, 2001, as she believed any delay in
choosing her successor might create a constitutional crisis in view of the proximity of the May 2001
national elections. Commissioner Desamito chose to file a petition for intervention[44] in
the Gaminde case but this Court denied the intervention. Thus, Commissioner Desamito also vacated his
office on February 2, 2001.

During an election year, Congress normally goes on voluntary recess between February and June
considering that many of the members of the House of Representatives and the Senate run for re-
election. In 2001, the Eleventh Congress adjourned from January 9, 2001 to June 3, 2001.[45] Concededly,
there was no more time for Benipayo, Borra and Tuason, who were originally extended ad
interim appointments only on March 22, 2001, to be confirmed by the Commission on Appointments
before the May 14, 2001 elections.

If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three vacancies
in the COMELEC, there would only have been one division functioning in the COMELEC instead of two
during the May 2001 elections. Considering that the Constitution requires that all x x x election cases
shall be heard and decided in division,[46] the remaining one division would have been swamped with
election cases. Moreover, since under the Constitution motions for reconsideration shall be decided by
the Commission en banc, the mere absence of one of the four remaining members would have
prevented a quorum, a less than ideal situation considering that the Commissioners are expected to
travel around the country before, during and after the elections. There was a great probability that
disruptions in the conduct of the May 2001 elections could occur because of the three vacancies in the
COMELEC. The successful conduct of the May 2001 national elections, right after the tumultuous EDSA II
and EDSA III events, was certainly essential in safeguarding and strengthening our democracy.

Evidently, the exercise by the President in the instant case of her constitutional power to make ad
interim appointments prevented the occurrence of the very evil sought to be avoided by the second
paragraph of Section 16, Article VII of the Constitution. This power to make ad interim appointments is
lodged in the President to be exercised by her in her sound judgment. Under the second paragraph of
Section 16, Article VII of the Constitution, the President can choose either of two modes in appointing
officials who are subject to confirmation by the Commission on Appointments. First, while Congress is in
session, the President may nominate the prospective appointee, and pending consent of the
Commission on Appointments, the nominee cannot qualify and assume office. Second, during the recess
of Congress, the President may extend an ad interim appointment which allows the appointee to
immediately qualify and assume office.

Whether the President chooses to nominate the prospective appointee or extend an ad

interim appointment is a matter within the prerogative of the President because the Constitution grants
her that power. This Court cannot inquire into the propriety of the choice made by the President in the
exercise of her constitutional power, absent grave abuse of discretion amounting to lack or excess of
jurisdiction on her part, which has not been shown in the instant case.

The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing

practice. Former President Corazon Aquino issued an adinterim appointment to Commissioner Alfredo
E. Abueg.[47] Former President Fidel V. Ramos extended ad interim appointments to Commissioners Julio
F. Desamito, Japal M. Guiani, Graduacion A. Reyes-Claravall and Manolo F. Gorospe.[48] Former President
Joseph Estrada also extended ad interim appointments to Commissioners Abdul Gani M. Marohombsar,
Luzviminda Tancangco, Mehol K. Sadain and Ralph C. Lantion.[49]

The Presidents power to extend ad interim appointments may indeed briefly put the appointee at the
mercy of both the appointing and confirming powers. This situation, however, is only for a short period -
from the time of issuance of the ad interim appointment until the Commission on Appointments gives or
withholds its consent. The Constitution itself sanctions this situation, as a trade-off against the evil of
disruptions in vital government services. This is also part of the check-and-balance under the separation
of powers, as a trade-off against the evil of granting the President absolute and sole power to
appoint. The Constitution has wisely subjected the Presidents appointing power to the checking power
of the legislature.

This situation, however, does not compromise the independence of the COMELEC as a constitutional
body. The vacancies in the COMELEC are precisely staggered to insure that the majority of its members
hold confirmed appointments, and not one President will appoint all the COMELEC members.[50] In the
instant case, the Commission on Appointments had long confirmed four[51] of the incumbent COMELEC
members, comprising a majority, who could now be removed from office only by impeachment. The
special constitutional safeguards that insure the independence of the COMELEC remain in place.[52] The
COMELEC enjoys fiscal autonomy, appoints its own officials and employees, and promulgates its own
rules on pleadings and practice. Moreover, the salaries of COMELEC members cannot be decreased
during their tenure.

In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and
Tuason, as COMELEC Chairman and Commissioners, respectively, do not constitute temporary or acting
appointments prohibited by Section 1 (2), Article IX-C of the Constitution.

Third Issue: The Constitutionality of Renewals of Appointments

Petitioner also agues that assuming the first ad interim appointments and the first assumption of office
by Benipayo, Borra and Tuason are constitutional, the renewal of the their ad interim appointments and
their subsequent assumption of office to the same positions violate the prohibition on reappointment
under Section 1 (2), Article IX-C of the Constitution, which provides as follows:

The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, three Members shall hold office for seven years, two Members for five years, and the last
members for three years, without reappointment. X x x. (Emphasis supplied)

Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on

Appointments, his ad interim appointment can no longer be renewed because this will violate Section 1
(2), Article IX-C of the Constitution which prohibits reappointments. Petitioner asserts that this is
particularly true to permanent appointees who have assumed office, which is the situation of Benipayo,
Borra and Tuason if their ad interim appointments are deemed permanent in character.

There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can
no longer be extended a new appointment. The disapproval is a final decision of the Commission on
Appointments in the exercise of its checking power on the appointing authority of the President. The
disapproval is a decision on the merits, being a refusal by the Commission on Appointments to give its
consent after deliberating on the qualifications of the appointee. Since the Constitution does not
provide for any appeal from such decision, the disapproval is final and binding on the appointee as well
as on the appointing power. In this instance, the President can no longer renew the appointment not
because of the constitutional prohibition on reappointment, but because of a final decision by the
Commission on Appointments to withhold its consent to the appointment.

An ad interim appointment that is by-passed because of lack of time or failure of the Commission on
Appointments to organize is another matter. A by-passed appointment is one that has not been finally
acted upon on the merits by the Commission on Appointments at the close of the session of
Congress. There is no final decision by the Commission on Appointments to give or withhold its consent
to the appointment as required by the Constitution. Absent such decision, the President is free to renew
the ad interim appointment of a by-passed appointee. This is recognized in Section 17 of the Rules of the
Commission on Appointments, which provides as follows:

Section 17. Unacted Nominations or Appointments Returned to the President. Nominations or

appointments submitted by the President of the Philippines which are not finally acted upon at the close
of the session of Congress shall be returned to the President and, unless new nominations or
appointments are made, shall not again be considered by the Commission. (Emphasis supplied)

Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be
considered again if the President renews the appointment.

It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-
passed appointees. Justice Roberto Concepcion, Jr. lucidly explained in his concurring opinion
in Guevara vs. Inocentes[53] why by-passed ad interim appointees could be extended new appointments,
thus:

In short, an ad interim appointment ceases to be effective upon disapproval by the Commission,

because the incumbent can not continue holding office over the positive objection of the Commission. It
ceases, also, upon the next adjournment of the Congress, simply because the President may then issue
new appointments - not because of implied disapproval of the Commission deduced from its inaction
during the session of Congress, for, under the Constitution, the Commission may affect adversely the
interim appointments only by action, never by omission. If the adjournment of Congress were an
implied disapproval of ad interim appointments made prior thereto, then the President could no longer
appoint those so by-passed by the Commission.But, the fact is that the President may reappoint them,
thus clearly indicating that the reason for said termination of the ad interim appointments is not the
disapproval thereof allegedly inferred from said omission of the Commission, but the circumstance
that upon said adjournment of the Congress, the President is free to make ad interim appointments or
reappointments. (Emphasis supplied)

Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16,
Article VII of the present Constitution on ad interimappointments was lifted verbatim.[54] The
jurisprudence under the 1935 Constitution governing ad interim appointments by the President is
doubtless applicable to the present Constitution. The established practice under the present
Constitution is that the President can renew the appointments of by-passed ad interim appointees. This
is a continuation of the well-recognized practice under the 1935 Constitution, interrupted only by the
1973 Constitution which did not provide for a Commission on Appointments but vested sole appointing
power in the President.

The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to
disapproved nor by-passed ad interim appointments. A disapproved ad interim appointment cannot be
revived by another ad interim appointment because the disapproval is final under Section 16, Article VII
of the Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of
the Constitution. A by-passed ad interim appointment can be revived by a new ad interim appointment
because there is no final disapproval under Section 16, Article VII of the Constitution, and such new
appointment will not result in the appointee serving beyond the fixed term of seven years.

Section 1 (2), Article IX-C of the Constitution provides that [t]he Chairman and the Commissioners shall
be appointed x x x for a term of seven years without reappointment. (Emphasis supplied) There are four
situations where this provision will apply. The first situation is where an ad interim appointee to the
COMELEC, after confirmation by the Commission on Appointments, serves his full seven-year term. Such
person cannot be reappointed to the COMELEC, whether as a member or as a chairman, because he will
then be actually serving more than seven years. The second situation is where the appointee, after
confirmation, serves a part of his term and then resigns before his seven-year term of office ends. Such
person cannot be reappointed, whether as a member or as a chair, to a vacancy arising from retirement
because a reappointment will result in the appointee also serving more than seven years. The third
situation is where the appointee is confirmed to serve the unexpired term of someone who died or
resigned, and the appointee completes the unexpired term. Such person cannot be reappointed,
whether as a member or chair, to a vacancy arising from retirement because a reappointment will result
in the appointee also serving more than seven years.

The fourth situation is where the appointee has previously served a term of less than seven years, and a
vacancy arises from death or resignation.Even if it will not result in his serving more than seven years, a
reappointment of such person to serve an unexpired term is also prohibited because his situation will be
similar to those appointed under the second sentence of Section 1 (2), Article IX-C of the Constitution.
This provision refers to the first appointees under the Constitution whose terms of office are less than
seven years, but are barred from ever being reappointed under any situation. Not one of these four
situations applies to the case of Benipayo, Borra or Tuason.

The framers of the Constitution made it quite clear that any person who has served any term of office as
COMELEC member whether for a full term of seven years, a truncated term of five or three years, or
even for an unexpired term of any length of time can no longer be reappointed to the
COMELEC. Commissioner Foz succinctly explained this intent in this manner:

MR. FOZ. But there is the argument made in the concurring opinion of Justice Angelo Bautista in the
case of Visarra vs. Miraflor, to the effect that the prohibition on reappointment applies only when the
term or tenure is for seven years. But in cases where the appointee serves only for less than seven years,
he would be entitled to reappointment. Unless we put the qualifying words without reappointment in
the case of those appointed, then it is possible that an interpretation could be made later on their
case, they can still be reappointed to serve for a total of seven years.

Precisely, we are foreclosing that possibility by making it clear that even in the case of those first
appointed under the Constitution, no reappointment can be made.[55] (Emphasis supplied)

In Visarra vs. Miraflor,[56] Justice Angelo Bautista, in his concurring opinion, quoted Nacionalista vs. De
Vera[57] that a [r]eappointment is not prohibited when a Commissioner has held office only for, say,
three or six years, provided his term will not exceed nine years in all. This was the interpretation despite
the express provision in the 1935 Constitution that a COMELEC member shall hold office for a term of
nine years and may not be reappointed.

To foreclose this interpretation, the phrase without reappointment appears twice in Section 1 (2),
Article IX-C of the present Constitution. The first phrase prohibits reappointment of any person
previously appointed for a term of seven years. The second phrase prohibits reappointment of any
person previously appointed for a term of five or three years pursuant to the first set of appointees
under the Constitution. In either case, it does not matter if the person previously appointed completes
his term of office for the intention is to prohibit any reappointment of any kind.

However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments
does not constitute a term of office. The period from the time the ad interim appointment is made to
the time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that the
President by his unilateral action could start and complete the running of a term of office in the
COMELEC without the consent of the Commission on Appointments. This interpretation renders inutile
the confirming power of the Commission on Appointments.

The phrase without reappointment applies only to one who has been appointed by the President and
confirmed by the Commission on Appointments, whether or not such person completes his term of
office. There must be a confirmation by the Commission on Appointments of the previous appointment
before the prohibition on reappointment can apply. To hold otherwise will lead to absurdities and
negate the Presidents power to make ad interimappointments.

In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time, on
the ad interim appointments first issued to appointees. If such ad interim appointments can no longer
be renewed, the President will certainly hesitate to make ad interim appointments because most of her
appointees will effectively be disapproved by mere inaction of the Commission on Appointments. This
will nullify the constitutional power of the President to make ad interim appointments, a power
intended to avoid disruptions in vital government services. This Court cannot subscribe to a proposition
that will wreak havoc on vital government services.

The prohibition on reappointment is common to the three constitutional commissions. The framers of
the present Constitution prohibited reappointments for two reasons. The first is to prevent a second
appointment for those who have been previously appointed and confirmed even if they served for less
than seven years. The second is to insure that the members of the three constitutional commissions do
not serve beyond the fixed term of seven years. As reported in the Journal of the Constitutional
Commission, Commissioner Vicente B. Foz, who sponsored[58]the proposed articles on the three
constitutional commissions, outlined the four important features of the proposed articles, to wit:

Mr. Foz stated that the Committee had introduced basic changes in the common provision affecting the
three Constitutional Commissions, and which are: 1) fiscal autonomy which provides (that)
appropriations shall be automatically and regularly released to the Commission in the same manner (as)
provided for the Judiciary; 2) fixed term of office without reappointment on a staggered basis to ensure
continuity of functions and to minimize the opportunity of the President to appoint all the members
during his incumbency; 3) prohibition to decrease salaries of the members of the Commissions during
their term of office; and 4) appointments of members would not require confirmation.[59] (Emphasis
supplied)

There were two important amendments subsequently made by the Constitutional Commission to these
four features. First, as discussed earlier, the framers of the Constitution decided to require confirmation
by the Commission on Appointments of all appointments to the constitutional commissions.Second, the
framers decided to strengthen further the prohibition on serving beyond the fixed seven-year term, in
the light of a former chair of the Commission on Audit remaining in office for 12 years despite his fixed
term of seven years. The following exchange in the deliberations of the Constitutional Commission is
instructive:

MR. SUAREZ: These are only clarificatory questions, Madam President. May I call the sponsors attention,
first of all, to Section 2 (2) on the Civil Service Commission wherein it is stated: In no case shall any
Member be appointed in a temporary or acting capacity. I detect in the Committees proposed
resolutions a constitutional hangover, if I may use the term, from the past administration. Am I correct
in concluding that the reason the Committee introduced this particular provision is to avoid an incident
similar to the case of the Honorable Francisco Tantuico who was appointed in an acting capacity as
Chairman of the Commission on Audit for about 5 years from 1975 until 1980, and then in 1980, was
appointed as Chairman with a tenure of another 7 years. So, if we follow that appointment to (its)
logical conclusion, he occupied that position for about 12 years in violation of the Constitution?

MR. FOZ: It is only one of the considerations. Another is really to make sure that any member who is
appointed to any of the commissions does not serve beyond 7 years.[60] (Emphasis supplied)

Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner:

"MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice that there is no
reappointment of any kind and, therefore as a whole there is no way that somebody can serve for more
than seven years. The purpose of the last sentence is to make sure that this does not happen by
including in the appointment both temporary and acting capacities."[61] (Emphasis supplied)

Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of
any kind. On the other hand, the prohibition on temporary or acting appointments is intended to
prevent any circumvention of the prohibition on reappointment that may result in an appointees total
term of office exceeding seven years. The evils sought to be avoided by the twin prohibitions are very
specific - reappointment of any kind and exceeding ones term in office beyond the maximum period of
seven years.

Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even
further the screws on those who might wish to extend their terms of office. Thus, the word designated
was inserted to plug any loophole that might be exploited by violators of the Constitution, as shown in
the following discussion in the Constitutional Commission:

MR. DE LOS REYES: On line 32, between the words appointed and in, I propose to insert the words OR
DESIGNATED so that the whole sentence will read: In no case shall any Member be appointed OR
DESIGNATED in a temporary or acting capacity.

THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?

MR. FOZ: But it changes the meaning of this sentence. The sentence reads: In no case shall any Member
be appointed in a temporary or acting capacity.

MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that some lawyers make a
distinction between an appointment and a designation. The Gentleman will recall that in the case of
Commissioner on Audit Tantuico, I think his term exceeded the constitutional limit but the Minister of
Justice opined that it did not because he was only designated during the time that he acted as
Commissioner on Audit. So, in order to erase that distinction between appointment and designation, we
should specifically place the word so that there will be no more ambiguity. In no case shall any Member
be appointed OR DESIGNATED in a temporary or acting capacity.

MR. FOZ: The amendment is accepted, Mr. Presiding Officer.

MR. DE LOS REYES: Thank you.

THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair hears none; the
amendment is approved.[62]

The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason
do not violate the prohibition on reappointments because there were no previous appointments that
were confirmed by the Commission on Appointments. A reappointment presupposes a previous
confirmed appointment. The same ad interim appointments and renewals of appointments will also not
breach the seven-year term limit because all the appointments and renewals of appointments of
Benipayo, Borra and Tuason are for a fixed term expiring on February 2, 2008.[63] Any delay in their
confirmation will not extend the expiry date of their terms of office. Consequently, there is no danger
whatsoever that the renewal of the ad interim appointments of these three respondents will result in
any of the evils intended to be exorcised by the twin prohibitions in the Constitution. The continuing
renewal of the ad interim appointment of these three respondents, for so long as their terms of office
expire on February 2, 2008, does not violate the prohibition on reappointments in Section 1 (2), Article
IX-C of the Constitution.

Fourth Issue: Respondent Benipayos Authority to Reassign Petitioner

Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her
to the Law Department. Petitioner further argues that only the COMELEC, acting as a collegial body, can
authorize such reassignment. Moreover, petitioner maintains that a reassignment without her consent
amounts to removal from office without due process and therefore illegal.

Petitioners posturing will hold water if Benipayo does not possess any color of title to the office of
Chairman of the COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC Chairman,
and consequently he has full authority to exercise all the powers of that office for so long as his ad
interim appointment remains effective. Under Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised
Administrative Code, the Chairman of the COMELEC is vested with the following power:

Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who shall be the Chief
Executive Officer of the Commission, shall:

xxx

(4) Make temporary assignments, rotate and transfer personnel in accordance with the provisions of
the Civil Service Law. (Emphasis supplied)

The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to
transfer or reassign COMELEC personnel in accordance with the Civil Service Law. In the exercise of this
power, the Chairman is not required by law to secure the approval of the COMELEC en banc.

Petitioners appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001,
attached as Annexes X, Y and Z to her Petition, indisputably show that she held her Director IV position
in the EID only in an acting or temporary capacity.[64] Petitioner is not a Career Executive Service (CES)
officer, and neither does she hold Career Executive Service Eligibility, which are necessary qualifications
for holding the position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued
by the Civil Service Commission.[65] Obviously, petitioner does not enjoy security of tenure as Director
IV. In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G. Bacal,[66] this Court held that:

As respondent does not have the rank appropriate for the position of Chief Public Attorney, her
appointment to that position cannot be considered permanent, and she can claim no security of tenure
in respect of that position. As held in Achacoso v. Macaraig:

It is settled that a permanent appointment can be issued only to a person who meets all the
requirements for the position to which he is being appointed, including the appropriate eligibility
prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the appointing authority and at a moments
notice, conformably to established jurisprudence x x x.

The mere fact that a position belongs to the Career Service does not automatically confer security of
tenure on its occupant even if he does not possess the required qualifications. Such right will have to
depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person
who does not have the requisite qualifications for the position cannot be appointed to it in the first
place, or as an exception to the rule, may be appointed to it merely in an acting capacity in the absence
of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it
may be so designated x x x.

Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary
qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her
reassignment was contrary to the Civil Service Law. This time, the vigorous argument of petitioner that a
temporary or acting appointment can be withdrawn or revoked at the pleasure of the appointing power
happens to apply squarely to her situation.

Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under
Section 261 (h) of the Omnibus Election Code, which provides as follows:

Section 261. Prohibited Acts. The following shall be guilty of an election offense:

xxx

(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.

Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers
or reassignments of COMELEC personnel during the election period.[67] Moreover, petitioner insists that
the COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the
election period.

Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated
November 6, 2000,[68] exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. The
resolution states in part:

WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code provides as
follows:

xxx

Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:

xxx

(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 approval of the Commission.

WHEREAS, the aforequoted provisions are applicable to the national and local elections on May 14,
2001;

WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the Commission on
Elections during the prohibited period in order that it can carry out its constitutional duty to conduct
free, orderly, honest, peaceful and credible elections;
NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the
Constitution, the Omnibus Election Code and other election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new
positions and transfer or reassign its personnel, when necessary in the effective performance of its
mandated functions during the prohibited period, provided that the changes in the assignment of
its field personnel within the thirty-day period before election day shall be effected after due notice and
hearing. (Emphasis supplied)

The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or
reassignment can be made within thirty days prior to election day, refers only to
COMELEC field personnel and not to head office personnel like the petitioner. Under the Revised
Administrative Code,[69] the COMELEC Chairman is the sole officer specifically vested with the power to
transfer or reassign COMELEC personnel. The COMELEC Chairman will logically exercise the authority to
transfer or reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300. The COMELEC en
banc cannot arrogate unto itself this power because that will mean amending the Revised
Administrative Code, an act the COMELEC en banc cannot legally do.

COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC
personnel should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No.
3300 to require such concurrence will render the resolution meaningless since the COMELEC en
banc will have to approve every personnel transfer or reassignment, making the resolution utterly
useless. Resolution No. 3300 should be interpreted for what it is, an approval to effect transfers and
reassignments of personnel, without need of securing a second approval from the COMELEC en banc to
actually implement such transfer or reassignment.

The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC
personnel. The person holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in
COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during
the election period. Thus, Benipayos order reassigning petitioner from the EID to the Law Department
does not violate Section 261 (h) of the Omnibus Election Code. For the same reason, Benipayos order
designating Cinco Officer-in-Charge of the EID is legally unassailable.

Fifth Issue: Legality of Disbursements to Respondents

Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-Charge of the Finance
Services Department of the Commission on Elections, did not act in excess of jurisdiction in paying the
salaries and other emoluments of Benipayo, Borra, Tuason and Cinco.

WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner.

SO ORDERED.
Republic of the Philippines

SUPREME COURT

Baguio City

EN BANC

DENNIS A. B. FUNA, G.R. No. 192791

Petitioner,

Present:

CORONA, C.J.,

- versus - CARPIO,

VELASCO, JR.,

LEONARDO-DE CASTRO,

BRION,

THE CHAIRMAN, COMMISSION ON AUDIT, PERALTA,

REYNALDO A. VILLAR,
BERSAMIN,
Respondent.
DEL CASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ,

MENDOZA,

SERENO,

REYES, and

PERLAS-BERNABE, JJ.

Promulgated:

April 24, 2012

x-----------------------------------------------------------------------------------------x
DECISION

VELASCO, JR., J.:

In this Petition for Certiorari and Prohibition under Rule 65, Dennis A. B. Funa challenges the
constitutionality of the appointment of Reynaldo A. Villar as Chairman of the Commission on Audit and
accordingly prays that a judgment issue declaring the unconstitutionality of the appointment.

The facts of the case are as follows:

On February 15, 2001, President Gloria Macapagal-Arroyo (President Macapagal-Arroyo) appointed

Guillermo N. Carague (Carague) as Chairman of the Commission on Audit (COA) for a term of seven (7)
years, pursuant to the 1987 Constitution.[1]Caragues term of office started on February 2, 2001 to end
on February 2, 2008.

Meanwhile, on February 7, 2004, President Macapagal-Arroyo appointed Reynaldo A. Villar (Villar) as

the third member of the COA for a term of seven (7) years starting February 2, 2004 until February 2,
2011.

Following the retirement of Carague on February 2, 2008 and during the fourth year of Villar as COA
Commissioner, Villar was designated as Acting Chairman of COA from February 4, 2008 to April 14,
2008. Subsequently, on April 18, 2008, Villar was nominated and appointed as Chairman of the
COA. Shortly thereafter, on June 11, 2008, the Commission on Appointments confirmed his
appointment. He was to serve as Chairman of COA, as expressly indicated in the appointment papers,
until the expiration of the original term of his office as COA Commissioner or on February 2, 2011.
Challenged in this recourse, Villar, in an obvious bid to lend color of title to his hold on the chairmanship,
insists that his appointment as COA Chairman accorded him a fresh term of seven (7) years which is yet
to lapse. He would argue, in fine, that his term of office, as such chairman, is up to February 2, 2015, or
7 years reckoned from February 2, 2008 when he was appointed to that position.

Meanwhile, Evelyn R. San Buenaventura (San Buenaventura) was appointed as COA Commissioner to
serve the unexpired term of Villar as Commissioner or up to February 2, 2011.
Before the Court could resolve this petition, Villar, via a letter dated February 22, 2011 addressed to
President Benigno S. Aquino III, signified his intention to step down from office upon the appointment of
his replacement. True to his word, Villar vacated his position when President Benigno Simeon Aquino III
named Ma. Gracia Pulido-Tan (Chairman Tan) COA Chairman. This development has rendered this
petition and the main issue tendered therein moot and academic.

A case is considered moot and academic when its purpose has become stale,[2] or when it ceases to
present a justiciable controversy owing to the onset of supervening events,[3] so that a resolution of the
case or a declaration on the issue would be of no practical value or use.[4] In such instance, there is no
actual substantial relief which a petitioner would be entitled to, and which will anyway be negated by
the dismissal of the basic petition.[5] As a general rule, it is not within Our charge and function to act
upon and decide a moot case. However, in David v. Macapagal-Arroyo,[6] We acknowledged and
accepted certain exceptions to the issue of mootness, thus:

The moot and academic principle is not a magical formula that can automatically dissuade the courts in
resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave
violation of the Constitution, second, the exceptional character of the situation and the paramount
public interest is involved, third, when constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public, and fourth, the case is capable of repetition yet
evading review.

Although deemed moot due to the intervening appointment of Chairman Tan and the resignation of
Villar, We consider the instant case as falling within the requirements for review of a moot and
academic case, since it asserts at least four exceptions to the mootness rule discussed in David, namely:
there is a grave violation of the Constitution; the case involves a situation of exceptional character and is
of paramount public interest; the constitutional issue raised requires the formulation of controlling
principles to guide the bench, the bar and the public; and the case is capable of repetition yet evading
review.[7] The situation presently obtaining is definitely of such exceptional nature as to necessarily call
for the promulgation of principles that will henceforth guide the bench, the bar and the public should
like circumstance arise. Confusion in similar future situations would be smoothed out if the contentious
issues advanced in the instant case are resolved straightaway and settled definitely. There are times
when although the dispute has disappeared, as in this case, it nevertheless cries out to be addressed. To
borrow from Javier v. Pacificador,[8] Justice demands that we act then, not only for the vindication of the
outraged right, though gone, but also for the guidance of and as a restraint in the future.

Both procedural and substantive issues are raised in this proceeding. The procedural aspect comes down
to the question of whether or not the following requisites for the exercise of judicial review of an
executive act obtain in this petition, viz: (1) there must be an actual case or justiciable controversy
before the court; (2) the question before it must be ripe for adjudication; (3) the person challenging the
act must be a proper party; and (4) the issue of constitutionality must be raised at the earliest
opportunity and must be the very litis mota of the case.[9]

To Villar, all the requisites have not been met, it being alleged in particular that petitioner, suing as a
taxpayer and citizen, lacks the necessary standing to challenge his appointment.[10] On the other hand,
the Office of the Solicitor General (OSG), while recognizing the validity of Villars appointment for the
period ending February 11, 2011, has expressed the view that petitioner should have had filed a petition
for declaratory relief or quo warranto under Rule 63 or Rule 66, respectively, of the Rules of Court
instead of certiorari under Rule 65.

Villars posture on the absence of some of the mandatory requisites for the exercise by the Court of its
power of judicial review must fail. As a general rule, a petitioner must have the necessary personality or
standing (locus standi) before a court will recognize the issues presented. In Integrated Bar of the
Philippines v. Zamora, We defined locus standi as:

x x x a personal and substantial interest in the case such that the party has sustained or will sustain a
direct injury as a result of the governmental act that is being challenged. The term interest means a
material interest, an interest in issue affected by the decree, as distinguished from mere interest in the
question involved, or a mere incidental interest. The gist of the question of standing is whether a party
alleges such personal stake in the outcome of the controversy as to assure the concrete adverseness
which sharpens the presentation of issues upon which the court depends for illumination of difficult
constitutional questions.[11]

To have legal standing, therefore, a suitor must show that he has sustained or will sustain a direct injury
as a result of a government action, or have a material interest in the issue affected by the challenged
official act.[12] However, the Court has time and again acted liberally on the locus standi requirements
and has accorded certain individuals, not otherwise directly injured, or with material interest affected,
by a Government act, standing to sue provided a constitutional issue of critical significance is at
stake.[13] The rule on locus standi is after all a mere procedural technicality in relation to which the
Court, in a catena of cases involving a subject of transcendental import, has waived, or relaxed, thus
allowing non-traditional plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to sue in
the public interest, albeit they may not have been personally injured by the operation of a law or any
other government act.[14] In David, the Court laid out the bare minimum norm before the so-called non-
traditional suitors may be extended standing to sue, thusly:

1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is
unconstitutional;

2.) For voters, there must be a showing of obvious interest in the validity of the election law in question;
3.) For concerned citizens, there must be a showing that the issues raised are of transcendental
importance which must be settled early; and

4.) For legislators, there must be a claim that the official action complained of infringes their
prerogatives as legislators.

This case before Us is of transcendental importance, since it obviously has far-reaching implications, and
there is a need to promulgate rules that will guide the bench, bar, and the public in future analogous
cases. We, thus, assume a liberal stance and allow petitioner to institute the instant petition.

Anent the aforestated posture of the OSG, there is no serious disagreement as to the propriety of the
availment of certiorari as a medium to inquire on whether the assailed appointment of respondent Villar
as COA Chairman infringed the constitution or was infected with grave abuse of discretion. For under
the expanded concept of judicial review under the 1987 Constitution, the corrective hand of certiorari
may be invoked not only to settle actual controversies involving rights which are legally demandable and
enforceable, but also to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government.[15] Grave abuse of discretion denotes:

such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other
words, where the power is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual
refusal to perform the duty enjoined or to act in contemplation of law.[16]

We find the remedy of certiorari applicable to the instant case in view of the allegation that then
President Macapagal-Arroyo exercised her appointing power in a manner constituting grave abuse of
discretion.

This brings Us to the pivotal substantive issue of whether or not Villars appointment as COA Chairman,
while sitting in that body and after having served for four (4) years of his seven (7) year term as COA
commissioner, is valid in light of the term limitations imposed under, and the circumscribing concepts
tucked in, Sec. 1 (2), Art. IX(D) of the Constitution, which reads:

(2) The Chairman and Commissioners [on Audit] shall be appointed by the President with the consent
of the Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, the Chairman shall hold office for seven years, one commissioner for five years, and the
other commissioner for three years, without reappointment. Appointment to any vacancy shall be only
for the unexpired portion of the term of the predecessor. In no case shall any member be appointed or
designated in a temporary or acting capacity. (Emphasis added.)[17]

And if valid, for how long can he serve?

At once clear from a perusal of the aforequoted provision are the defined restricting features in the
matter of the composition of COA and the appointment of its members (commissioners and chairman)
designed to safeguard the independence and impartiality of the commission as a body and that of its
individual members.[18] These are, first, the rotational plan or the staggering term in the commission
membership, such that the appointment of commission members subsequent to the original set
appointed after the effectivity of the 1987 Constitution shall occur every two years; second, the
maximum but a fixed term-limit of seven (7) years for all commission members whose appointments
came about by reason of the expiration of term save the aforementioned first set of appointees and
those made to fill up vacancies resulting from certain causes; third, the prohibition against
reappointment of commission members who served the full term of seven years or of members first
appointed under the Constitution who served their respective terms of office; fourth, the limitation of
the term of a member to the unexpired portion of the term of the predecessor; and fifth, the
proscription against temporary appointment or designation.

To elucidate on the mechanics of and the adverted limitations on the matter of COA-member
appointments with fixed but staggered terms of office, the Court lays down the following postulates
deducible from pertinent constitutional provisions, as construed by the Court:

1. The terms of office and appointments of the first set of commissioners, or the seven, five and three-
year termers referred to in Sec. 1(2), Art. IX(D) of the Constitution, had already expired. Hence, their
respective terms of office find relevancy for the most part only in understanding the operation of the
rotational plan. In Gaminde v. Commission on Audit,[19] the Court described how the smooth functioning
of the rotational system contemplated in said and like provisions covering the two other independent
commissions is achieved thru the staggering of terms:

x x x [T]he terms of the first Chairmen and Commissioners of the Constitutional Commissions under the
1987 Constitution must start on a common date [February 02, 1987, when the 1987 Constitution was
ratified] irrespective of the variations in the dates of appointments and qualifications of the
appointees in order that the expiration of the first terms of seven, five and three years should lead to
the regular recurrence of the two-year interval between the expiration of the terms.
x x x In case of a belated appointment, the interval between the start of the terms and the actual
appointment shall be counted against the appointee.[20] (Italization in the original; emphasis added.)

Early on, in Republic v. Imperial,[21] the Court wrote of two conditions, both indispensable to [the]
workability of the rotational plan. These conditions may be described as follows: (a) that the terms of
the first batch of commissioners should start on a common date; and (b) that any vacancy due to death,
resignation or disability before the expiration of the term should be filled only for the unexpired
balance of the term. Otherwise, Imperial continued, the regularity of the intervals between
appointments would be destroyed. There appears to be near unanimity as to the purpose/s of the
rotational system, as originally conceived, i.e., to place in the commission a new appointee at a fixed
interval (every two years presently), thus preventing a four-year administration appointing more than
one permanent and regular commissioner,[22] or to borrow from Commissioner Monsod of the 1986
CONCOM, to prevent one person (the President of the Philippines) from dominating the
commissions.[23] It has been declared too that the rotational plan ensures continuity in, and, as indicated
earlier, secure the independence of, the commissions as a body.[24]

2. An appointment to any vacancy in COA, which arose from an expiration of a term, after the first
chairman and commissioners appointed under the 1987 Constitution have bowed out, shall, by express
constitutional fiat, be for a term of seven (7) years, save when the appointment is to fill up a vacancy for
the corresponding unserved term of an outgoing member. In that case, the appointment shall only be
for the unexpired portion of the departing commissioners term of office. There can only be an
unexpired portion when, as a direct result of his demise, disability, resignation or impeachment, as the
case may be, a sitting member is unable to complete his term of office.[25] To repeat, should the vacancy
arise out of the expiration of the term of the incumbent, then there is technically no unexpired portion
to speak of. The vacancy is for a new and complete seven-year term and, ergo, the appointment thereto
shall in all instances be for a maximum seven (7) years.

3. Sec. 1(2), Art. IX(D) of the 1987 Constitution prohibits the reappointment of a member of COA after
his appointment for seven (7) years. Writing for the Court in Nacionalista Party v. De Vera,[26] a case
involving the promotion of then COMELEC Commissioner De Vera to the position of chairman, then
Chief Justice Manuel Moran called attention to the fact that the prohibition against reappointment
comes as a continuation of the requirement that the commissionersreferring to members of the
COMELEC under the 1935 Constitutionshall hold office for a term of nine (9) years. This sentence
formulation imports, notes Chief Justice Moran, that reappointment is not an absolute prohibition.

4. The adverted system of regular rotation or the staggering of appointments and terms in the
membership for all three constitutional commissions, namely the COA, Commission on Elections
(COMELEC) and Civil Service Commission (CSC) found in the 1987 Constitution was patterned after the
amended 1935 Constitution for the appointment of the members of COMELEC[27]with this
difference: the 1935 version entailed a regular interval of vacancy every three (3) years, instead of the
present two (2) years and there was no express provision on appointment to any vacancy being limited
to the unexpired portion of the his predecessors term. The model 1935 provision reads:
Section 1. There shall be an independent Commission on Elections composed of a Chairman and two
other members to be appointed by the President with the consent of the Commission on Appointments,
who shall hold office for a term of nine years and may not be reappointed. Of the Members of the
Commission first appointed, one shall hold office for nine years, another for six years and the third for
three years. x x x

Petitioner now asseverates the view that Sec. 1(2), Art. IX(D) of the 1987 Constitution proscribes
reappointment of any kind within the commission, the point being that a second appointment, be it for
the same position (commissioner to another position of commissioner) or upgraded position
(commissioner to chairperson) is a prohibited reappointment and is a nullity ab initio. Attention is drawn
in this regard to the Courts disposition in Matibag v. Benipayo.[28]

Villars promotional appointment, so it is argued, is void from the start, constituting as it did a
reappointment enjoined by the Constitution, since it actually needed another appointment to a
different office and requiring another confirmation by the Commission on Appointments.

Central to the adjudication of the instant petition is the correct meaning to be given to Sec. 1(2), Article
IX(D) of the Constitution on the ban against reappointment in relation to the appointment issued to
respondent Villar to the position of COA Chairman.

Without question, the parties have presented two (2) contrasting and conflicting positions. Petitioner
contends that Villars appointment is proscribed by the constitutional ban on reappointment under the
aforecited constitutional provision. On the other hand, respondent Villar initially asserted that his
appointment as COA Chairman is valid up to February 2, 2015 pursuant to the same provision.

The Court finds petitioners position bereft of merit. The flaw lies in regarding the word reappointment
as, in context, embracing any and all species of appointment.

The rule is that if a statute or constitutional provision is clear, plain and free from ambiguity, it must be
given its literal meaning and applied without attempted interpretation.[29] This is known as the plain
meaning rule enunciated by the maxim verba legis non est recedendum, or from the words of a statute
there should be no departure.[30]

The primary source whence to ascertain constitutional intent or purpose is the language of the provision
itself.[31] If possible, the words in the Constitution must be given their ordinary meaning, save where
technical terms are employed. J.M. Tuason & Co., Inc. v. Land Tenure Administration illustrates
the verbal legis rule in this wise:
We look to the language of the document itself in our search for its meaning. We do not of course stop
there, but that is where we begin. It is to be assumed that the words in which constitutional provisions
are couched express the objective sought to be attained.They are to be given their ordinary meaning
except where technical terms are employed in which case the significance thus attached to them
prevails. As the Constitution is not primarily a lawyers document, it being essential for the rule of law to
obtain that it should ever be present in the peoples consciousness, its language as much as possible
should be understood in the sense they have in common use.What it says according to the text of the
provision to be construed compels acceptance and negates the power of the courts to alter it, based on
the postulate that the framers and the people mean what they say. Thus there are cases where the need
for construction is reduced to a minimum.[32] (Emphasis supplied.)

Let us dissect and examine closely the provision in question:

(2) The Chairman and Commissioners [on Audit] shall be appointed by the President with the consent
of the Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, the Chairman shall hold office for seven years, one commissioner for five years, and the
other commissioner for three years, without reappointment. Appointment to any vacancy shall be only
for the unexpired portion of the term of the predecessor. x x x (Emphasis added.)

The first sentence is unequivocal enough. The COA Chairman shall be appointed by the President for a
term of seven years, and if he has served the full term, then he can no longer be reappointed or
extended another appointment. In the same vein, a Commissioner who was appointed for a term of
seven years who likewise served the full term is barred from being reappointed. In short, once the
Chairman or Commissioner shall have served the full term of seven years, then he can no longer be
reappointed to either the position of Chairman or Commissioner. The obvious intent of the framers is to
prevent the president from dominating the Commission by allowing him to appoint an additional or two
more commissioners.

The same purpose obtains in the second sentence of Sec. 1(2). The Constitutional Convention barred
reappointment to be extended to commissioner-members first appointed under the 1987 Constitution
to prevent the President from controlling the commission.Thus, the first Chairman appointed under the
1987 Constitution who served the full term of seven years can no longer be extended a reappointment.
Neither can the Commissioners first appointed for the terms of five years and three years be eligible for
reappointment. This is the plain meaning attached to the second sentence of Sec. 1(2), Article IX(D).
On the other hand, the provision, on its face, does not prohibit a promotional appointment from
commissioner to chairman as long as the commissioner has not served the full term of seven years,
further qualified by the third sentence of Sec. 1(2), Article IX (D) that the appointment to any vacancy
shall be only for the unexpired portion of the term of the predecessor. In addition, such promotional
appointment to the position of Chairman must conform to the rotational plan or the staggering of terms
in the commission membership such that the aggregate of the service of the Commissioner in said
position and the term to which he will be appointed to the position of Chairman must not exceed seven
years so as not to disrupt the rotational system in the commission prescribed by Sec. 1(2), Art. IX(D).

In conclusion, there is nothing in Sec. 1(2), Article IX(D) that explicitly precludes a promotional
appointment from Commissioner to Chairman, provided it is made under the aforestated circumstances
or conditions.

It may be argued that there is doubt or ambiguity on whether Sec. 1(2), Art. IX(D), as couched, allows a
promotional appointment from Commissioner to Chairman. Even if We concede the existence of an
ambiguity, the outcome will remain the same. J.M. Tuason & Co., Inc.[33] teaches that in case of doubt as
to the import and react of a constitutional provision, resort should be made to extraneous aids of
construction, such as debates and proceedings of the Constitutional Convention, to shed light on and
ascertain the intent of the framers or the purpose of the provision being construed.

The understanding of the Convention as to what was meant by the terms of the constitutional provision
which was the subject of the deliberation goes a long way toward explaining the understanding of the
people when they ratified it. The Court applied this principle in Civil Liberties Union v. Executive
Secretary:

A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the
object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of the times, and the
condition and circumstances under which the Constitution was framed. The object is to ascertain the
reason which induced the framers of the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose.[34] (Emphasis added.)

And again in Nitafan v. Commissioner on Internal Revenue:

x x x The ascertainment of that intent is but in keeping with the fundamental principle of constitutional
construction that the intent of the framers of the organic law and of the people adopting it should be
given effect. The primary task in constitutional construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the people in the adoption of the Constitution. It may
also be safely assumed that the people in ratifying the Constitution were guided mainly by the
explanation offered by the framers.[35] (Emphasis added.)

Much weight and due respect must be accorded to the intent of the framers of the Constitution in
interpreting its provisions.

Far from prohibiting reappointment of any kind, including a situation where a commissioner is upgraded
to the position of chairman, the 1987 Constitution in fact unequivocally allows promotional
appointment, but subject to defined parameters. The ensuing exchanges during the deliberations of the
1986 Constitutional Commission (CONCOM) on a draft proposal of what would eventually be Sec. 1(2),
Art. IX(D) of the present Constitution amply support the thesis that a promotional appointment is
allowed provided no one may be in the COA for an aggregate threshold period of 7 years:

MS. AQUINO: In the same paragraph, I would propose an amendment x x x. Between x x x the sentence
which begins with In no case, insert THE APPOINTEE SHALL IN NO CASE SERVE AN AGGREGATE PERIOD
OF MORE THAN SEVEN YEARS. I was thinking that this may approximate the situation wherein a
commissioner is first appointed as chairman. I am willing to withdraw that amendment if there is a
representation on the part of the Committee that there is an implicit intention to prohibit a term that
in the aggregate will exceed more than seven years. If that is the intention, I am willing to withdraw
my amendment.

MR. MONSOD: If the [Gentlewoman] will read the whole Article, she will notice that there is no
reappointment of any kind and, therefore, as a whole there is no way somebody can serve for more
than seven years. The purpose of the last sentence is to make sure that this does not happen by
including in the appointment both temporary and acting capacities.

MS. AQUINO. Yes. Reappointment is fine; that is accounted for. But I was thinking of a situation
wherein a commissioner is upgraded to a position of chairman. But if this provision is intended to cover
that kind of situation, then I am willing to withdraw my amendment.

MR. MONSOD. It is covered.

MR. FOZ. There is a provision on line 29 precisely to cover that situation. It states: Appointment to any
vacancy shall be only for the unexpired portion of the predecessor. In other words, if there is upgrading
of position from commissioner to chairman, the appointee can serve only the unexpired portion of the
term of the predecessor.
MS. AQUINO: But we have to be very specific x x x because it might shorten the term because he
serves only the unexpired portion of the term of the predecessor.

MR. FOZ: He takes it at his own risk. He knows that he will only have to serve the unexpired portion of
the term of the predecessor. (Emphasis added.)[36]

The phrase upgrading of position found in the underscored portion unmistakably shows that Sec. 1(2),
Art. IX(D) of the 1987 Constitution, for all its caveat against reappointment, does not per se preclude, in
any and all cases, the promotional appointment or upgrade of a commissioner to chairman, subject to
this proviso: the appointees tenure in office does not exceed 7 years in all. Indeed, such appointment
does not contextually come within the restricting phrase without reappointment twice written in that
section. Delegate Foz even cautioned, as a matter of fact, that a sitting commissioner accepting a
promotional appointment to fill up an unexpired portion pertaining to the higher office does so at the
risk of shortening his original term. To illustrate the Fozs concern: assume that Carague left COA for
reasons other than the expiration of his threshold 7-year term and Villar accepted an appointment to fill
up the vacancy. In this situation, the latter can only stay at the COA and served the unexpired portion of
Caragues unexpired term as departing COA Chairman, even if, in the process, his (Villars) own 7-
year term as COA commissioner has not yet come to an end. In this illustration, the inviolable regularity
of the intervals between appointments in the COA is preserved.

Moreover, jurisprudence tells us that the word reappointment means a second appointment to one and
the same office.[37] As Justice Arsenio Dizon (Justice Dizon) aptly observed in his dissent in Visarra v.
Miraflor,[38] the constitutional prohibition against the reappointment of a commissioner refers to his
second appointment to the same office after holding it for nine years.[39] As Justice Dizon observed,
[T]he occupant of an office obviously needs no such second appointment unless, for some valid cause,
such as the expiration of his term or resignation, he had ceased to be the legal occupant thereof. [40] The
inevitable implication of Justice Dizons cogent observation is that a promotion from commissioner to
chairman, albeit entailing a second appointment, involves a different office and, hence, not, in the strict
legal viewpoint, a reappointment. Stated a bit differently, reappointment refers to a movement to one
and the same office. Necessarily, a movement to a different position within the commission (from
Commissioner to Chairman) would constitute an appointment, or a second appointment, to be precise,
but not reappointment.

A similar opinion was expressed in the same Visarra case by the concurring Justice Angelo Bautista,
although he expressly alluded to a promotional appointment as not being a prohibited appointment
under Art. X of the 1935 Constitution.
Petitioners invocation of Matibag as additional argument to contest the constitutionality of Villars
elevation to the COA chairmanship is inapposite. In Matibag, then President Macapagal-Arroyo
appointed, ad interim, Alfredo Benipayo as COMELEC Chairman and Resurreccion Borra and Florentino
Tuason as Commissioners, each for a term of office of seven (7) years. All three immediately took their
oath of, and assumed, office. These appointments were twice renewed because the Commission on
Appointments failed to act on the first two ad interim appointments. Via a petition for prohibition, some
disgruntled COMELEC officials assail as infirm the appointments of Benipayo, et al.

Matibag lists (4) four situations where the prohibition on reappointment would arise, or to be specific,
where the proviso [t]he Chairman and the Commissioners shall be appointed x x x for a term of seven
years without reappointment shall apply. Justice Antonio T. Carpio declares in his dissent that Villars
appointment falls under a combination of two of the four situations.

Conceding for the nonce the correctness of the premises depicted in the situations referred to
in Matibag, that case is of doubtful applicability to the instant petition. Not only is it cast against a
different milieu, but the lis mota of the case, as expressly declared in the main opinion, is the very
constitutional issue raised by petitioner.[41] And what is/are this/these issue/s? Only two defined issues
in Matibag are relevant, viz: (1) the nature of an ad interim appointment and subsumed thereto the
effect of a by-passed ad interim appointment; and (2) the constitutionality of renewals of ad
interim appointments. The opinion defined these issues in the following wise: Petitioner [Matibag] filed
the instant petition questioning the appointment and the right to remain in office of Benipayo, Borra
and Tuason as Chairman and Commissioners of the COMELEC, respectively. Petitioner claims that the ad
interim appointments of Benipayo, et al. violate the constitutional provisions on the independence of
COMELEC, as well as on the prohibitions on temporary appointments and reappointments of its
Chairman and members. As may distinctly be noted, an upgrade or promotion was not in issue
in Matibag.

We shall briefly address the four adverted situations outlined in Matibag, in which, as there urged, the
uniform proviso on no reappointmentafter a member of any of the three constitutional commissions is
appointed for a term of seven (7) yearsshall apply. Matibag made the following formulation:

The first situation is where an ad interim appointee after confirmation by the Commission on
Appointments serves his full 7-year term. Such person cannot be reappointed whether as a member or
as chairman because he will then be actually serving more than seven (7) years.

The second situation is where the appointee, after confirmation, serves part of his term and then resigns
before his seven-year term of office ends. Such person cannot be reappointed whether as a member or
as chair to a vacancy arising from retirement because a reappointment will result in the appointee
serving more than seven years.
The third situation is where the appointee is confirmed to serve the unexpired portion of someone who
died or resigned, and the appointee completes the unexpired term. Such person cannot be reappointed
whether as a member or as chair to a vacancy arising from retirement because a reappointment will
result in the appointee also serving more than seven (7) years.

The fourth situation is where the appointee has previously served a term of less than seven (7) years,
and a vacancy arises from death or resignation. Even if it will not result in his serving more than seven
years, a reappointment of such person to serve an unexpired term is also prohibited because his
situation will be similar to those appointed under the second sentence of Sec. 1(20), Art. IX-C of the
Constitution [referring to the first set of appointees (the 5 and 3 year termers) whose term of office
are less than 7 years but are barred from being reappointed under any situation].[42] (Words in
brackets and emphasis supplied.)

The situations just described constitute an obiter dictum, hence without the force of adjudication, for
the corresponding formulation of the four situations was not in any way necessary to resolve any of the
determinative issues specifically defined in Matibag. An opinion entirely unnecessary for the decision of
the case or one expressed upon a point not necessarily involved in the determination of the case is
an obiter.[43]

There can be no serious objection to the scenarios depicted in the first, second and third situations, both
hewing with the proposition that no one can stay in any of the three independent commissions for an
aggregate period of more than seven (7) years.The fourth situation, however, does not commend itself
for concurrence inasmuch as it is basically predicated on the postulate that reappointment, as earlier
herein defined, of any kind is prohibited under any and all circumstances. To reiterate, the word
reappointment means a second appointment to one and the same office; and Sec. 1(2), Art. IX(D) of the
1987 Constitution and similar provisions do not peremptorily prohibit the promotional appointment of a
commissioner to chairman, provided the new appointees tenure in both capacities does not exceed
seven (7) years in all. The statements in Matibag enunciating the ban on reappointment in the
aforecited fourth situation, perforce, must be abandoned, for, indeed, a promotional appointment from
the position of Commissioner to that of Chairman is constitutionally permissible and not barred by Sec.
1(2), Art. IX (D) of the Constitution.

One of the aims behind the prohibition on reappointment, petitioner urges, is to ensure and preserve
the independence of COA and its members,[44] citing what the dissenting Justice J.B.L Reyes wrote
in Visarra, that once appointed and confirmed, the commissioners should be free to act as their
conscience demands, without fear of retaliation or hope or reward. Pursued to its logical conclusion,
petitioners thesis is that a COA member may no longer act with independence if he or she can be
rewarded with a promotion or appointment, for then he or she will do the bidding of the appointing
authority in the hope of being promoted or reappointed.
The unstated reason behind Justice J.B.L. Reyes counsel is that independence is really a matter of choice.
Without taking anything away from the gem imparted by the eminent jurist, what Chief Justice Moran
said on the subject of independence is just as logically sound and perhaps even more compelling, as
follows:

A Commissioner, hopeful of reappointment may strive to do good. Whereas, without that hope or other
hope of material reward, his enthusiasm may decline as the end of his term approaches and he may
even lean to abuses if there is no higher restrain in his moral character. Moral character is no doubt the
most effective safeguard of independence. With moral integrity, a commissioner will be independent
with or without the possibility of reappointment.[45]

The Court is likewise unable to sustain Villars proposition that his promotional appointment as COA
Chairman gave him a completely fresh 7-year termfrom February 2008 to February 2015given his four
(4)-year tenure as COA commissioner devalues all the past pronouncements made by this Court, starting
in De Vera, then Imperial, Visarra, and finally Matibag. While there had been divergence of opinion as to
the import of the word reappointment, there has been unanimity on the dictum that in no case can one
be a COA member, either as chairman or commissioner, or a mix of both positions, for an aggregate
term of more than 7 years. A contrary view would allow a circumvention of the aggregate 7-year service
limitation and would be constitutionally offensive as it would wreak havoc to the spirit of the rotational
system of succession. Imperial, passing upon the rotational system as it applied to the then
organizational set-up of the COMELEC, stated:

The provision that of the first three commissioners appointed one shall hold office for 9 years, another
for 6 years and the third for 3 years, when taken together with the prescribed term of office for 9 years
without reappointment, evinces a deliberate plan to have a regular rotation or cycle in the membership
of the commission, by having subsequent members appointable only once every three years.[46]

To be sure, Villars appointment as COA Chairman partakes of a promotional appointment which, under
appropriate setting, would be outside the purview of the constitutional reappointment ban in Sec 1(2),
Art. IX(D) of the Constitution. Nonetheless, such appointment, even for the term appearing in the
underlying appointment paper, ought still to be struck down as unconstitutional for the reason as shall
be explained.

Consider:
In a mandatory tone, the aforecited constitutional provision decrees that the appointment of a COA
member shall be for a fixed 7-year term if the vacancy results from the expiration of the term of the
predecessor. We reproduce in its pertinent part the provision referred to:

(2) The Chairman and Commissioners [on Audit] shall be appointed x x x for a term of seven
years without reappointment. x x x Appointment to any vacancy shall be only for the unexpired
portion of the term of the predecessor. x x x

Accordingly, the promotional appointment as COA Chairman of Villar for a stated fixed term of less than
seven (7) years is void for violating a clear, but mandatory constitutional prescription. There can be no
denying that the vacancy in the position of COA chairman when Carague stepped down in February 2,
2008 resulted from the expiration of his 7-year term. Hence, the appointment to the vacancy thus
created ought to have been one for seven (7) years in line with the verbal legis approach[47] of
interpreting the Constitution. It is to be understood, however, following Gaminde, that in case of a
belated appointment, the interval between the start of the term and the actual appointment shall be
counted against the 7-year term of the appointee. Posing, however, as an insurmountable barrier to a
full 7-year appointment for Villar is the rule against one serving the commission for an aggregate term of
more than seven (7) years.

Where the Constitution or, for that matter, a statute, has fixed the term of office of a public official, the
appointing authority is without authority to specify in the appointment a term shorter or longer than
what the law provides. If the vacancy calls for a full seven-year appointment, the President is without
discretion to extend a promotional appointment for more or for less than seven (7) years. There is no in
between. He or she cannot split terms. It is not within the power of the appointing authority to override
the positive provision of the Constitution which dictates that the term of office of members of
constitutional bodies shall be seven (7) years.[48] A contrary reasoning would make the term of office to
depend upon the pleasure or caprice of the [appointing authority] and not upon the will [of the framers
of the Constitution] of the legislature as expressed in plain and undoubted language in the law.[49]

In net effect, then President Macapagal-Arroyo could not have had, under any circumstance, validly
appointed Villar as COA Chairman, for a full 7-year appointment, as the Constitution decrees, was not
legally feasible in light of the 7-year aggregate rule. Villar had already served 4 years of his 7-year term
as COA Commissioner. A shorter term, however, to comply with said rule would also be invalid as the
corresponding appointment would effectively breach the clear purpose of the Constitution of giving to
every appointee so appointed subsequent to the first set of commissioners, a fixed term of office of 7
years. To recapitulate, a COA commissioner like respondent Villar who serves for a period less than
seven (7) years cannot be appointed as chairman when such position became vacant as a result of the
expiration of the 7-year term of the predecessor (Carague). Such appointment to a full term is not valid
and constitutional, as the appointee will be allowed to serve more than seven (7) years under the
constitutional ban.
On the other hand, a commissioner who resigned before serving his 7- year term can be extended an
appointment to the position of chairman for the unexpired period of the term of the latter, provided the
aggregate of the period he served as commissioner and the period he will serve as chairman will not
exceed seven (7) years. This situation will only obtain when the chairman leaves the office by reason of
death, disability, resignation or impeachment. Let us consider, in the concrete, the situation of then
Chairman Carague and his successor, Villar. Carague was appointed COA Chairman effective February 2,
2001 for a term of seven (7) years, or up to February 2, 2008. Villar was appointed as Commissioner on
February 2, 2004 with a 7-year term to end on February 2, 2011. If Carague for some reason vacated the
chairmanship in 2007, then Villar can resign as commissioner in the same year and later be appointed as
chairman to serve only up to February 2, 2008, the end of the unexpired portion of Caragues term. In
this hypothetical scenario, Villars appointment to the position of chairman is valid and constitutional as
the aggregate periods of his two (2) appointments will only be five (5) years which neither distorts the
rotational scheme nor violates the rule that the sum total of said appointments shall not exceed seven
(7) years. Villar would, however, forfeit two (2) years of his original seven (7)-year term as
Commissioner, since, by accepting an upgraded appointment to Caragues position, he agreed to serve
the unexpired portion of the term of the predecessor. As illustrated earlier, following Mr. Fozs line, if
there is an upgrading of position from commissioner to chairman, the appointee takes the risk of cutting
short his original term, knowing pretty well before hand that he will serve only the unexpired portion of
the term of his predecessor, the outgoing COA chairman.

In the extreme hypothetical situation that Villar vacates the position of chairman for causes other than
the expiration of the original term of Carague, the President can only appoint the successor of Villar for
the unexpired portion of the Carague term in line with Sec. 1(2), Art. IX(D) of the Constitution. Upon the
expiration of the original 7-year term of Carague, the President can appoint a new chairman for a term
of seven (7) full years.

In his separate dissent, my esteemed colleague, Mr. Justice Mendoza, takes strong exception to the view
that the promotional appointment of a sitting commissioner is plausible only when he is appointed to
the position of chairman for the unexpired portion of the term of said official who leaves the office by
reason of any the following reasons: death, disability, resignation or impeachment, not when the
vacancy arises out as a result of the expiration of the 7-year term of the past chairman. There is nothing
in the Constitution, so Justice Mendoza counters, that restricts the promotion of
an incumbent commissioner to the chairmanship only in instances where the tenure of his predecessor
was cut short by any of the four events referred to. As earlier explained, the majority view springs from
the interplay of the following premises: The explicit command of the Constitution is that the Chairman
and the Commissioners shall be appointed by the President x x x for a term of seven years [and]
appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. To
repeat, the President has two and only two options on term appointments. Either he extends an
appointment for a full 7-year term when the vacancy results from the expiration of term, or for a shorter
period corresponding to the unexpired term of the predecessor when the vacancy occurs by reason of
death, physical disability, resignation or impeachment. If the vacancy calls for a full seven-year
appointment, the Chief Executive is barred from extending a promotional appointment for less than
seven years. Else, the President can trifle with terms of office fixed by the Constitution.

Justice Mendoza likewise invites attention to an instance in history when a commissioner had been
promoted chairman after the expiration of the term of his predecessor, referring specifically to the
appointment of then COMELEC Commissioner Gaudencio Garcia to succeed Jose P. Carag after the
expiration of the latters term in 1959 as COMELEC chairman. Such appointment to the position of
chairman is not constitutionally permissible under the 1987 Constitution because of the policy and
intent of its framers that a COA member who has served his full term of seven (7) years or even for a
shorter period can no longer be extended another appointment to the position of chairman for a full
term of seven (7) years. As revealed in the deliberations of the Constitutional Commission that crafted
the 1987 Constitution, a member of COA who also served as a commissioner for less than seven (7)
years in said position cannot be appointed to the position of chairman for a full term of seven (7) years
since the aggregate will exceed seven (7) years. Thus, the adverted Garcia appointment in 1959 made
under the 1935 Constitution cannot be used as a precedent to an appointment of such nature under the
1987 Constitution. The dissent further notes that the upgrading remained uncontested. In this regard,
suffice it to state that the promotion in question was either legal or it was not. If it were not, no amount
of repetitive practices would clear it of invalidating taint.

Lastly, Villars appointment as chairman ending February 2, 2011 which Justice Mendoza considers as
valid is likewise unconstitutional, as it will destroy the rationale and policy behind the rotational system
or the staggering of appointments and terms in COA as prescribed in the Constitution. It disturbs in a
way the staggered rotational system of appointment under Sec. 1(2), Art. IX(D) of the 1987 Constitution.
Consider: If Villars term as COA chairman up to February 2, 2011 is viewed as valid and constitutional as
espoused by my esteemed colleague, then two vacancies have simultaneously occurred and two (2) COA
members going out of office at once, opening positions for two (2) appointables on that date as
Commissioner San Buenaventuras term also expired on that day. This is precisely one of the mischiefs
the staggering of terms and the regular intervals appointments seek to address. Note that San
Buenaventura was specifically appointed to succeed Villar as commissioner, meaning she merely
occupied the position vacated by her predecessor whose term as such commissioner expired on
February 2, 2011. The result is what the framers of the Constitution doubtless sought to avoid, a sitting
President with a 6-year term of office, like President Benigno C. Aquino III, appointing all or at least two
(2) members of the three-man Commission during his term. He appointed Ma. Gracia Pulido-Tan as
Chairman for the term ending February 2, 2015 upon the relinquishment of the post by respondent
Villar, and Heidi Mendoza was appointed Commissioner for a 7-year term ending February 2, 2018 to
replace San Buenaventura. If Justice Mendozas version is adopted, then situations like the one which
obtains in the Commission will definitely be replicated in gross breach of the Constitution and in clear
contravention of the intent of its framers. Presidents in the future can easily control the Commission
depriving it of its independence and impartiality.

To sum up, the Court restates its ruling on Sec. 1(2), Art. IX(D) of the Constitution, viz:
1. The appointment of members of any of the three constitutional commissions, after the
expiration of the uneven terms of office of the first set of commissioners, shall always be for a fixed
term of seven (7) years; an appointment for a lesser period is void and unconstitutional.

The appointing authority cannot validly shorten the full term of seven (7) years in case of the expiration
of the term as this will result in the distortion of the rotational system prescribed by the Constitution.

2. Appointments to vacancies resulting from certain causes (death, resignation, disability or

impeachment) shall only be for the unexpired portion of the term of the predecessor, but such
appointments cannot be less than the unexpired portion as this will likewise disrupt the staggering of
terms laid down under Sec. 1(2), Art. IX(D).

3. Members of the Commission, e.g. COA, COMELEC or CSC, who were appointed for a full term
of seven years and who served the entire period, are barred from reappointment to any position in the
Commission. Corollarily, the first appointees in the Commission under the Constitution are also covered
by the prohibition against reappointment.

4. A commissioner who resigns after serving in the Commission for less than seven years is
eligible for an appointment to the position of Chairman for the unexpired portion of the term of the
departing chairman. Such appointment is not covered by the ban on reappointment, provided that the
aggregate period of the length of service as commissioner and the unexpired period of the term of the
predecessor will not exceed seven (7) years and provided further that the vacancy in the position of
Chairman resulted from death, resignation, disability or removal by impeachment. The Court clarifies
that reappointment found in Sec. 1(2), Art. IX(D) means a movement to one and the same office
(Commissioner to Commissioner or Chairman to Chairman). On the other hand, an appointment
involving a movement to a different position or office (Commissioner to Chairman) would constitute a
new appointment and, hence, not, in the strict legal sense, a reappointment barred under the
Constitution.

5. Any member of the Commission cannot be appointed or designated in a temporary or acting

capacity.

WHEREFORE the petition is PARTLY GRANTED. The appointment of then Commissioner Reynaldo A.
Villar to the position of Chairman of the Commission on Audit to replace Guillermo N. Carague, whose
term of office as such chairman has expired, is hereby declared UNCONSTITUTIONAL for violation of
Sec. 1(2), Art. IX(D) of the Constitution.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 100113 September 3, 1991

RENATO CAYETANO, petitioner,

vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his
capacity as Secretary of Budget and Management, respondents.

Renato L. Cayetano for and in his own behalf.

Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

PARAS, J.:

We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are involved, the Court's
decision in this case would indubitably have a profound effect on the political aspect of our national existence.

The 1987 Constitution provides in Section 1 (1), Article IX-C:

There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the
Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have
been candidates for any elective position in the immediately preceding -elections. However, a majority thereof, including the
Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (Emphasis
supplied)

The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly provides:

There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who shall be natural-
born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age and holders of a college
degree. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in
the practice of law for at least ten years.' (Emphasis supplied)

Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a legal qualification to an
appointive office.

Black defines "practice of law" as:

The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of
another with his consent. It is not limited to appearing in court, or advising and assisting in the conduct of litigation, but embraces
the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal
instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice to clients and all actions taken for them
in matters connected with the law. An attorney engages in the practice of law by maintaining an office where he is held out to be-
an attorney, using a letterhead describing himself as an attorney, counseling clients in legal matters, negotiating with opposing
counsel about pending litigation, and fixing and collecting fees for services rendered by his associate. (Black's Law Dictionary, 3rd
ed.)

The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v. Dworken, 129 Ohio St. 23,
193 N.E. 650) A person is also considered to be in the practice of law when he:

... for valuable consideration engages in the business of advising person, firms, associations or corporations as to their rights under
the law, or appears in a representative capacity as an advocate in proceedings pending or prospective, before any court,
commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle controversies and there,
in such representative capacity performs any act or acts for the purpose of obtaining or defending the rights of their clients under
the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights under
the law, or while so engaged performs any act or acts either in court or outside of court for that purpose, is engaged in the practice
of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)

This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:

The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other
papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before
judges and courts, and in addition, conveying. In general, all advice to clients, and all action taken for them in matters connected
with the law incorporation services, assessment and condemnation services contemplating an appearance before a judicial body,
the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting
proceedings in attachment, and in matters of estate and guardianship have been held to constitute law practice, as do the
preparation and drafting of legal instruments, where the work done involves the determination by the trained legal mind of the
legal effect of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied)

Practice of law under modem conditions consists in no small part of work performed outside of any court and having no immediate
relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the
preparation and execution of legal instruments covering an extensive field of business and trust relations and other
affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become
involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great
capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an
intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the
order, can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves
advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary
functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times
under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953
ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service
Assoc. [R.I.] 179 A. 139,144). (Emphasis ours)

The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975) listed the dimensions
of the practice of law in even broader terms as advocacy, counselling and public service.

One may be a practicing attorney in following any line of employment in the profession. If what he does exacts knowledge of the
law and is of a kind usual for attorneys engaging in the active practice of their profession, and he follows some one or more lines of
employment such as this he is a practicing attorney at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training
and experience. "To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to
practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal
knowledge or skill." (111 ALR 23)

The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of the term "practice
of law."

MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our review of the provisions on
the Commission on Audit. May I be allowed to make a very brief statement?

THE PRESIDING OFFICER (Mr. Jamir).

The Commissioner will please proceed.

MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among others, the qualifications
provided for by Section I is that "They must be Members of the Philippine Bar" — I am quoting from the provision — "who have
been engaged in the practice of law for at least ten years".

To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in the COA or
Commission on Audit, we would like to make the clarification that this provision on qualifications regarding members of the Bar
does not necessarily refer or involve actual practice of law outside the COA We have to interpret this to mean that as long as the
lawyers who are employed in the COA are using their legal knowledge or legal talent in their respective work within COA, then they
are qualified to be considered for appointment as members or commissioners, even chairman, of the Commission on Audit.

This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it important to take it up on
the floor so that this interpretation may be made available whenever this provision on the qualifications as regards members of
the Philippine Bar engaging in the practice of law for at least ten years is taken up.

MR. OPLE. Will Commissioner Foz yield to just one question.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of a law practice that is set
forth in the Article on the Commission on Audit?

MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily involve legal work; it will involve
legal work. And, therefore, lawyers who are employed in COA now would have the necessary qualifications in accordance with the
Provision on qualifications under our provisions on the Commission on Audit. And, therefore, the answer is yes.

MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of law.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Thank you.

... ( Emphasis supplied)

Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two Commissioners of the
Commission on Audit (COA) should either be certified public accountants with not less than ten years of auditing practice, or
members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word "lawyer." Today,
although many lawyers do not engage in private practice, it is still a fact that the majority of lawyers are private practitioners.
(Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. 15).

At this point, it might be helpful to define private practice. The term, as commonly understood, means "an individual or
organization engaged in the business of delivering legal services." (Ibid.). Lawyers who practice alone are often called "sole
practitioners." Groups of lawyers are called "firms." The firm is usually a partnership and members of the firm are the partners.
Some firms may be organized as professional corporations and the members called shareholders. In either case, the members of
the firm are the experienced attorneys. In most firms, there are younger or more inexperienced salaried attorneyscalled
"associates." (Ibid.).

The test that defines law practice by looking to traditional areas of law practice is essentially tautologous, unhelpful defining the
practice of law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p.
593). The practice of law is defined as the performance of any acts . . . in or out of court, commonly understood to be the practice
of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v.
Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost every function known in the commercial and
governmental realm, such a definition would obviously be too global to be workable.(Wolfram, op. cit.).

The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers as well as an
uncommon role for the average lawyer. Most lawyers spend little time in courtrooms, and a large percentage spend their entire
practice without litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the litigating lawyer's role
colors much of both the public image and the self perception of the legal profession. (Ibid.).

In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.). Why is this so? Recall that the
late Alexander SyCip, a corporate lawyer, once articulated on the importance of a lawyer as a business counselor in this wise:
"Even today, there are still uninformed laymen whose concept of an attorney is one who principally tries cases before the courts.
The members of the bench and bar and the informed laymen such as businessmen, know that in most developed societies today,
substantially more legal work is transacted in law offices than in the courtrooms. General practitioners of law who do both
litigation and non-litigation work also know that in most cases they find themselves spending more time doing what [is] loosely
desccribe[d] as business counseling than in trying cases. The business lawyer has been described as the planner, the diagnostician
and the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine, surgery should be avoided where internal
medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In the course of a working day the average general practitioner wig engage in a number of legal tasks, each involving different legal
doctrines, legal skills, legal processes, legal institutions, clients, and other interested parties. Even the increasing numbers of
lawyers in specialized practice wig usually perform at least some legal services outside their specialty. And even within a narrow
specialty such as tax practice, a lawyer will shift from one legal task or role such as advice-giving to an importantly different one
such as representing a client before an administrative agency. (Wolfram, supra, p. 687).

By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types — a litigator who
specializes in this work to the exclusion of much else. Instead, the work will require the lawyer to have mastered the full range of
traditional lawyer skills of client counselling, advice-giving, document drafting, and negotiation. And increasingly lawyers find that
the new skills of evaluation and mediation are both effective for many clients and a source of employment. (Ibid.).

Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important ways, at least
theoretically, so as to remove from it some of the salient features of adversarial litigation. Of these special roles, the most
prominent is that of prosecutor. In some lawyers' work the constraints are imposed both by the nature of the client and by the way
in which the lawyer is organized into a social unit to perform that work. The most common of these roles are those of corporate
practice and government legal service. (Ibid.).

In several issues of the Business Star, a business daily, herein below quoted are emerging trends in corporate law practice, a
departure from the traditional concept of practice of law.

We are experiencing today what truly may be called a revolutionary transformation in corporate law practice. Lawyers and other
professional groups, in particular those members participating in various legal-policy decisional contexts, are finding that
understanding the major emerging trends in corporation law is indispensable to intelligent decision-making.

Constructive adjustment to major corporate problems of today requires an accurate understanding of the nature and implications
of the corporate law research function accompanied by an accelerating rate of information accumulation. The recognition of the
need for such improved corporate legal policy formulation, particularly "model-making" and "contingency planning," has
impressed upon us the inadequacy of traditional procedures in many decisional contexts.

In a complex legal problem the mass of information to be processed, the sorting and weighing of significant conditional factors, the
appraisal of major trends, the necessity of estimating the consequences of given courses of action, and the need for fast decision
and response in situations of acute danger have prompted the use of sophisticated concepts of information flow theory,
operational analysis, automatic data processing, and electronic computing equipment. Understandably, an improved decisional
structure must stress the predictive component of the policy-making process, wherein a "model", of the decisional context or a
segment thereof is developed to test projected alternative courses of action in terms of futuristic effects flowing therefrom.

Although members of the legal profession are regularly engaged in predicting and projecting the trends of the law, the subject of
corporate finance law has received relatively little organized and formalized attention in the philosophy of advancing corporate
legal education. Nonetheless, a cross-disciplinary approach to legal research has become a vital necessity.

Certainly, the general orientation for productive contributions by those trained primarily in the law can be improved through an
early introduction to multi-variable decisional context and the various approaches for handling such problems. Lawyers,
particularly with either a master's or doctorate degree in business administration or management, functioning at the legal policy
level of decision-making now have some appreciation for the concepts and analytical techniques of other professions which are
currently engaged in similar types of complex decision-making.

Truth to tell, many situations involving corporate finance problems would require the services of an astute attorney because of the
complex legal implications that arise from each and every necessary step in securing and maintaining the business issue raised.
(Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de campanilla." He is the "big-time"
lawyer, earning big money and with a clientele composed of the tycoons and magnates of business and industry.

Despite the growing number of corporate lawyers, many people could not explain what it is that a corporate lawyer does. For one,
the number of attorneys employed by a single corporation will vary with the size and type of the corporation. Many smaller and
some large corporations farm out all their legal problems to private law firms. Many others have in-house counsel only for certain
matters. Other corporation have a staff large enough to handle most legal problems in-house.

A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a corporation. His areas of concern or
jurisdiction may include, inter alia: corporate legal research, tax laws research, acting out as corporate secretary (in board
meetings), appearances in both courts and other adjudicatory agencies (including the Securities and Exchange Commission), and in
other capacities which require an ability to deal with the law.
At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the business of the corporation he is
representing. These include such matters as determining policy and becoming involved in management. ( Emphasis supplied.)

In a big company, for example, one may have a feeling of being isolated from the action, or not understanding how one's work
actually fits into the work of the orgarnization. This can be frustrating to someone who needs to see the results of his work first
hand. In short, a corporate lawyer is sometimes offered this fortune to be more closely involved in the running of the business.

Moreover, a corporate lawyer's services may sometimes be engaged by a multinational corporation (MNC). Some large MNCs
provide one of the few opportunities available to corporate lawyers to enter the international law field. After all, international law
is practiced in a relatively small number of companies and law firms. Because working in a foreign country is perceived by many as
glamorous, tills is an area coveted by corporate lawyers. In most cases, however, the overseas jobs go to experienced attorneys
while the younger attorneys do their "international practice" in law libraries. (Business Star, "Corporate Law Practice," May
25,1990, p. 4).

This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the lines of Harvard-educated lawyer
Bruce Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one who perceives the difficulties, and
the excellent lawyer is one who surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer are we talking of the traditional
law teaching method of confining the subject study to the Corporation Code and the Securities Code but an incursion as well into
the intertwining modern management issues.

Such corporate legal management issues deal primarily with three (3) types of learning: (1) acquisition of insights into current
advances which are of particular significance to the corporate counsel; (2) an introduction to usable disciplinary skins applicable to
a corporate counsel's management responsibilities; and (3) a devotion to the organization and management of the legal function
itself.

These three subject areas may be thought of as intersecting circles, with a shared area linking them. Otherwise known as
"intersecting managerial jurisprudence," it forms a unifying theme for the corporate counsel's total learning.

Some current advances in behavior and policy sciences affect the counsel's role. For that matter, the corporate lawyer reviews the
globalization process, including the resulting strategic repositioning that the firms he provides counsel for are required to make,
and the need to think about a corporation's; strategy at multiple levels. The salience of the nation-state is being reduced as firms
deal both with global multinational entities and simultaneously with sub-national governmental units. Firms increasingly
collaborate not only with public entities but with each other — often with those who are competitors in other arenas.

Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly changing. The modem corporate
lawyer has gained a new role as a stakeholder — in some cases participating in the organization and operations of governance
through participation on boards and other decision-making roles. Often these new patterns develop alongside existing legal
institutions and laws are perceived as barriers. These trends are complicated as corporations organize for global operations. (
Emphasis supplied)

The practising lawyer of today is familiar as well with governmental policies toward the promotion and management of
technology. New collaborative arrangements for promoting specific technologies or competitiveness more generally require
approaches from industry that differ from older, more adversarial relationships and traditional forms of seeking to influence
governmental policies. And there are lessons to be learned from other countries. In Europe, Esprit, Eureka and Race are examples
of collaborative efforts between governmental and business Japan's MITI is world famous. (Emphasis supplied)
Following the concept of boundary spanning, the office of the Corporate Counsel comprises a distinct group within the managerial
structure of all kinds of organizations. Effectiveness of both long-term and temporary groups within organizations has been found
to be related to indentifiable factors in the group-context interaction such as the groups actively revising their knowledge of the
environment coordinating work with outsiders, promoting team achievements within the organization. In general, such external
activities are better predictors of team performance than internal group processes.

In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial mettle of corporations are
challenged. Current research is seeking ways both to anticipate effective managerial procedures and to understand relationships of
financial liability and insurance considerations. (Emphasis supplied)

Regarding the skills to apply by the corporate counsel, three factors are apropos:

First System Dynamics. The field of systems dynamics has been found an effective tool for new managerial thinking regarding both
planning and pressing immediate problems. An understanding of the role of feedback loops, inventory levels, and rates of flow,
enable users to simulate all sorts of systematic problems — physical, economic, managerial, social, and psychological. New
programming techniques now make the system dynamics principles more accessible to managers — including corporate counsels.
(Emphasis supplied)

Second Decision Analysis. This enables users to make better decisions involving complexity and uncertainty. In the context of a law
department, it can be used to appraise the settlement value of litigation, aid in negotiation settlement, and minimize the cost and
risk involved in managing a portfolio of cases. (Emphasis supplied)

Third Modeling for Negotiation Management. Computer-based models can be used directly by parties and mediators in all lands of
negotiations. All integrated set of such tools provide coherent and effective negotiation support, including hands-on on instruction
in these techniques. A simulation case of an international joint venture may be used to illustrate the point.

[Be this as it may,] the organization and management of the legal function, concern three pointed areas of consideration, thus:

Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the general counsel's
responsibilities. They differ from those of remedial law. Preventive lawyering is concerned with minimizing the risks of legal
trouble and maximizing legal rights for such legal entities at that time when transactional or similar facts are being considered and
made.

Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm to which legal
consequences attach. It needs to be directly supportive of this nation's evolving economic and organizational fabric as firms change
to stay competitive in a global, interdependent environment. The practice and theory of "law" is not adequate today to facilitate
the relationships needed in trying to make a global economy work.

Organization and Functioning of the Corporate Counsel's Office. The general counsel has emerged in the last decade as one of the
most vibrant subsets of the legal profession. The corporate counsel hear responsibility for key aspects of the firm's strategic issues,
including structuring its global operations, managing improved relationships with an increasingly diversified body of employees,
managing expanded liability exposure, creating new and varied interactions with public decision-makers, coping internally with
more complex make or by decisions.

This whole exercise drives home the thesis that knowing corporate law is not enough to make one a good general corporate
counsel nor to give him a full sense of how the legal system shapes corporate activities. And even if the corporate lawyer's aim is
not the understand all of the law's effects on corporate activities, he must, at the very least, also gain a working knowledge of the
management issues if only to be able to grasp not only the basic legal "constitution' or makeup of the modem corporation.
"Business Star", "The Corporate Counsel," April 10, 1991, p. 4).

The challenge for lawyers (both of the bar and the bench) is to have more than a passing knowledge of financial law affecting each
aspect of their work. Yet, many would admit to ignorance of vast tracts of the financial law territory. What transpires next is a
dilemma of professional security: Will the lawyer admit ignorance and risk opprobrium?; or will he feign understanding and risk
exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4).

Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of the COMELEC in a
letter received by the Secretariat of the Commission on Appointments on April 25, 1991. Petitioner opposed the nomination
because allegedly Monsod does not possess the required qualification of having been engaged in the practice of law for at least ten
years.

On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of the COMELEC. On June
18, 1991, he took his oath of office. On the same day, he assumed office as Chairman of the COMELEC.

Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination, petitioner as a citizen
and taxpayer, filed the instant petition for certiorari and Prohibition praying that said confirmation and the consequent
appointment of Monsod as Chairman of the Commission on Elections be declared null and void.

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a grade of 86-55%. He
has been a dues paying member of the Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying his
professional license fees as lawyer for more than ten years. (p. 124, Rollo)

After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in the law office of his father.
During his stint in the World Bank Group (1963-1970), Monsod worked as an operations officer for about two years in Costa Rica
and Panama, which involved getting acquainted with the laws of member-countries negotiating loans and coordinating legal,
economic, and project work of the Bank. Upon returning to the Philippines in 1970, he worked with the Meralco Group, served as
chief executive officer of an investment bank and subsequently of a business conglomerate, and since 1986, has rendered services
to various companies as a legal and economic consultant or chief executive officer. As former Secretary-General (1986) and
National Chairman (1987) of NAMFREL. Monsod's work involved being knowledgeable in election law. He appeared for NAMFREL
in its accreditation hearings before the Comelec. In the field of advocacy, Monsod, in his personal capacity and as former Co-
Chairman of the Bishops Businessmen's Conference for Human Development, has worked with the under privileged sectors, such as
the farmer and urban poor groups, in initiating, lobbying for and engaging in affirmative action for the agrarian reform law and
lately the urban land reform bill. Monsod also made use of his legal knowledge as a member of the Davide Commission, a quast
judicial body, which conducted numerous hearings (1990) and as a member of the Constitutional Commission (1986-1987), and
Chairman of its Committee on Accountability of Public Officers, for which he was cited by the President of the Commission, Justice
Cecilia Muñoz-Palma for "innumerable amendments to reconcile government functions with individual freedoms and public
accountability and the party-list system for the House of Representative. (pp. 128-129 Rollo) ( Emphasis supplied)

Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.

In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately constituted to meet the various
contingencies that arise during a negotiation. Besides top officials of the Borrower concerned, there are the legal officer (such as
the legal counsel), the finance manager, and an operations officer (such as an official involved in negotiating the contracts) who
comprise the members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for Developing Country Borrowers," Staff
Paper No. 2, Central Bank of the Philippines, Manila, 1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as the loan transaction is concerned.
Thus, the meat of any Loan Agreement can be compartmentalized into five (5) fundamental parts: (1) business terms; (2)
borrower's representation; (3) conditions of closing; (4) covenants; and (5) events of default. (Ibid., p. 13).

In the same vein, lawyers play an important role in any debt restructuring program. For aside from performing the tasks of
legislative drafting and legal advising, they score national development policies as key factors in maintaining their countries'
sovereignty. (Condensed from the work paper, entitled "Wanted: Development Lawyers for Developing Nations," submitted by L.
Michael Hager, regional legal adviser of the United States Agency for International Development, during the Session on Law for the
Development of Nations at the Abidjan World Conference in Ivory Coast, sponsored by the World Peace Through Law Center on
August 26-31, 1973). ( Emphasis supplied)

Loan concessions and compromises, perhaps even more so than purely renegotiation policies, demand expertise in the law of
contracts, in legislation and agreement drafting and in renegotiation. Necessarily, a sovereign lawyer may work with an
international business specialist or an economist in the formulation of a model loan agreement. Debt restructuring contract
agreements contain such a mixture of technical language that they should be carefully drafted and signed only with the advise of
competent counsel in conjunction with the guidance of adequate technical support personnel. (See International Law Aspects of
the Philippine External Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis supplied)

A critical aspect of sovereign debt restructuring/contract construction is the set of terms and conditions which determines the
contractual remedies for a failure to perform one or more elements of the contract. A good agreement must not only define the
responsibilities of both parties, but must also state the recourse open to either party when the other fails to discharge an
obligation. For a compleat debt restructuring represents a devotion to that principle which in the ultimate analysis is sine qua
non for foreign loan agreements-an adherence to the rule of law in domestic and international affairs of whose kind U.S. Supreme
Court Justice Oliver Wendell Holmes, Jr. once said: "They carry no banners, they beat no drums; but where they are, men learn that
bustle and bush are not the equal of quiet genius and serene mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign
Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).

Interpreted in the light of the various definitions of the term Practice of law". particularly the modern concept of law practice, and
taking into consideration the liberal construction intended by the framers of the Constitution, Atty. Monsod's past work
experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a
lawyer-legislator of both the rich and the poor — verily more than satisfy the constitutional requirement — that he has been
engaged in the practice of law for at least ten years.

Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said:

Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best
lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the
appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a
political question involving considerations of wisdom which only the appointing authority can decide. (emphasis supplied)

No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171 SCRA 744) where it stated:

It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements are satisfied, the
Commission has no alternative but to attest to the appointment in accordance with the Civil Service Law. The Commission has no
authority to revoke an appointment on the ground that another person is more qualified for a particular position. It also has no
authority to direct the appointment of a substitute of its choice. To do so would be an encroachment on the discretion vested upon
the appointing authority. An appointment is essentially within the discretionary power of whomsoever it is vested, subject to the
only condition that the appointee should possess the qualifications required by law. ( Emphasis supplied)

The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1) nomination; (2) confirmation
by the Commission on Appointments; (3) issuance of a commission (in the Philippines, upon submission by the Commission on
Appointments of its certificate of confirmation, the President issues the permanent appointment; and (4) acceptance e.g., oath-
taking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)

The power of the Commission on Appointments to give its consent to the nomination of Monsod as Chairman of the Commission
on Elections is mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which provides:

The Chairman and the Commisioners shall be appointed by the President with the consent of the Commission on Appointments for
a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two
Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only
for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting
capacity.

Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the practice of law is the traditional or
stereotyped notion of law practice, as distinguished from the modern concept of the practice of law, which modern connotation
is exactly what was intended by the eminent framers of the 1987 Constitution. Moreover, Justice Padilla's definition would require
generally a habitual law practice, perhaps practised two or three times a week and would outlaw say, law practice once or twice a
year for ten consecutive years. Clearly, this is far from the constitutional intent.

Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I made use of a definition of
law practice which really means nothing because the definition says that law practice " . . . is what people ordinarily mean by the
practice of law." True I cited the definition but only by way of sarcasm as evident from my statement that the definition of law
practice by "traditional areas of law practice is essentially tautologous" or defining a phrase by means of the phrase itself that is
being defined.

Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in making use of the law,
or in advising others on what the law means, are actually practicing law. In that sense, perhaps, but we should not lose sight of the
fact that Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been practising law for over ten years. This is different
from the acts of persons practising law, without first becoming lawyers.

Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines, say, on the ground that
he lacks one or more qualifications. This matter, I greatly doubt. For one thing, how can an action or petition be brought against
the President? And even assuming that he is indeed disqualified, how can the action be entertained since he is the incumbent
President?

We now proceed:

The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation, implicitly determined
that he possessed the necessary qualifications as required by law. The judgment rendered by the Commission in the exercise of
such an acknowledged power is beyond judicial interference except only upon a clear showing of a grave abuse of discretion
amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion is clearly
shown shall the Court interfere with the Commission's judgment. In the instant case, there is no occasion for the exercise of the
Court's corrective power, since no abuse, much less a grave abuse of discretion, that would amount to lack or excess of jurisdiction
and would warrant the issuance of the writs prayed, for has been clearly shown.
Additionally, consider the following:

(1) If the Commission on Appointments rejects a nominee by the President, may the Supreme Court reverse the Commission, and
thus in effect confirm the appointment? Clearly, the answer is in the negative.

(2) In the same vein, may the Court reject the nominee, whom the Commission has confirmed? The answer is likewise clear.

(3) If the United States Senate (which is the confirming body in the U.S. Congress) decides to confirm a Presidential nominee, it
would be incredible that the U.S. Supreme Court would still reverse the U.S. Senate.

Finally, one significant legal maxim is:

We must interpret not by the letter that killeth, but by the spirit that giveth life.

Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who was Samson's beloved) for
help in capturing Samson. Delilah agreed on condition that —

No blade shall touch his skin;

No blood shall flow from his veins.

When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning white-hot two or three inches
away from in front of Samson's eyes. This blinded the man. Upon hearing of what had happened to her beloved, Delilah was
beside herself with anger, and fuming with righteous fury, accused the procurator of reneging on his word. The procurator calmly
replied: "Did any blade touch his skin? Did any blood flow from his veins?" The procurator was clearly relying on the letter, not the
spirit of the agreement.

In view of the foregoing, this petition is hereby DISMISSED.

SO ORDERED.

Fernan, C.J., Griño-Aquino and Medialdea, JJ., concur.

Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.)

Sarmiento, J., is on leave.

Regalado, and Davide, Jr., J., took no part.

Separate Opinions

NARVASA, J., concurring:

I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does not appear to me that there
has been an adequate showing that the challenged determination by the Commission on Appointments-that the appointment of
respondent Monsod as Chairman of the Commission on Elections should, on the basis of his stated qualifications and after due
assessment thereof, be confirmed-was attended by error so gross as to amount to grave abuse of discretion and consequently
merits nullification by this Court in accordance with the second paragraph of Section 1, Article VIII of the Constitution. I therefore
vote to DENY the petition.

PADILLA, J., dissenting:

The records of this case will show that when the Court first deliberated on the Petition at bar, I voted not only to require the
respondents to comment on the Petition, but I was the sole vote for the issuance of a temporary restraining order to enjoin
respondent Monsod from assuming the position of COMELEC Chairman, while the Court deliberated on his constitutional
qualification for the office. My purpose in voting for a TRO was to prevent the inconvenience and even embarrassment to all
parties concerned were the Court to finally decide for respondent Monsod's disqualification. Moreover, a reading of the Petition
then in relation to established jurisprudence already showed prima facie that respondent Monsod did not possess the needed
qualification, that is, he had not engaged in the practice of law for at least ten (10) years prior to his appointment as COMELEC
Chairman.

After considering carefully respondent Monsod's comment, I am even more convinced that the constitutional requirement of
"practice of law for at least ten (10) years" has not been met.

The procedural barriers interposed by respondents deserve scant consideration because, ultimately, the core issue to be resolved
in this petition is the proper construal of the constitutional provision requiring a majority of the membership of COMELEC,
including the Chairman thereof to "have been engaged in the practice of law for at least ten (10) years." (Art. IX(C), Section 1(1),
1987 Constitution). Questions involving the construction of constitutional provisions are best left to judicial resolution. As declared
in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn and inescapable obligation of
interpreting the Constitution and defining constitutional boundaries."

The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these are that he must have been
"engaged in the practice of law for at least ten (10) years." It is the bounden duty of this Court to ensure that such standard is met
and complied with.

What constitutes practice of law? As commonly understood, "practice" refers to the actual performance or application of
knowledge as distinguished from mere possession of knowledge; it connotes an active, habitual, repeated or customary action.1 To
"practice" law, or any profession for that matter, means, to exercise or pursue an employment or profession actively, habitually,
repeatedly or customarily.

Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide, cannot be said to be in
the "practice of medicine." A certified public accountant who works as a clerk, cannot be said to practice his profession as an
accountant. In the same way, a lawyer who is employed as a business executive or a corporate manager, other than as head or
attorney of a Legal Department of a corporation or a governmental agency, cannot be said to be in the practice of law.

As aptly held by this Court in the case of People vs. Villanueva:2

Practice is more than an isolated appearance for it consists in frequent or customary actions, a succession of acts of the same kind.
In other words, it is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall
within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public as a lawyer
and demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied).

It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared, enumerated several
factors determinative of whether a particular activity constitutes "practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or habitually holding one's self out to the public as a lawyer (People
vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the
establishment of a law office for the general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office
as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of his intention to practice law in
all courts in the country (People v. De Luna, 102 Phil. 968).

Practice is more than an isolated appearance for it consists in frequent or customary action, a succession of acts of the same kind.
In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864).

2. Compensation. Practice of law implies that one must have presented himself to be in the active and continued practice of the
legal profession and that his professional services are available to the public for compensation, as a service of his livelihood or in
consideration of his said services. (People v. Villanueva, supra). Hence, charging for services such as preparation of documents
involving the use of legal knowledge and skill is within the term "practice of law" (Ernani Paño, Bar Reviewer in Legal and Judicial
Ethics, 1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion as to the
proper interpretation of a statute, and receives pay for it, is to that extent, practicing law (Martin, supra, p. 806 citing Mendelaun
v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected, all advice to clients and all action taken for them in
matters connected with the law; are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359)

3. Application of law legal principle practice or procedure which calls for legal knowledge, training and experience is within the
term "practice of law". (Martin supra)

4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of lawyer-client relationship. Hence,
where a lawyer undertakes an activity which requires knowledge of law but involves no attorney-client relationship, such as
teaching law or writing law books or articles, he cannot be said to be engaged in the practice of his profession or a lawyer (Agpalo,
Legal Ethics, 1989 ed., p. 30).3

The above-enumerated factors would, I believe, be useful aids in determining whether or not respondent Monsod meets the
constitutional qualification of practice of law for at least ten (10) years at the time of his appointment as COMELEC Chairman.

The following relevant questions may be asked:

1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?

2. Did respondent perform such tasks customarily or habitually?

3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his
appointment as COMELEC Chairman?

Given the employment or job history of respondent Monsod as appears from the records, I am persuaded that if ever he did
perform any of the tasks which constitute the practice of law, he did not do so HABITUALLY for at least ten (10) years prior to his
appointment as COMELEC Chairman.

While it may be granted that he performed tasks and activities which could be latitudinarianly considered activities peculiar to the
practice of law, like the drafting of legal documents and the rendering of legal opinion or advice, such were isolated transactions or
activities which do not qualify his past endeavors as "practice of law." To become engaged in the practice of law, there must be
a continuity, or a succession of acts. As observed by the Solicitor General in People vs. Villanueva:4
Essentially, the word private practice of law implies that one must have presented himself to be in the activeand continued
practice of the legal profession and that his professional services are available to the public for a compensation, as a source of his
livelihood or in consideration of his said services.

ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified for the position of COMELEC
Chairman for not having engaged in the practice of law for at least ten (10) years prior to his appointment to such position.

CRUZ, J., dissenting:

I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. There are certain points on
which I must differ with him while of course respecting hisviewpoint.

To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply because his nomination
has been confirmed by the Commission on Appointments. In my view, this is not a political question that we are barred from
resolving. Determination of the appointee's credentials is made on the basis of the established facts, not the discretion of that
body. Even if it were, the exercise of that discretion would still be subject to our review.

In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing authority to choosebetween two
claimants to the same office who both possessed the required qualifications. It was that kind of discretion that we said could not
be reviewed.

If a person elected by no less than the sovereign people may be ousted by this Court for lack of the required qualifications, I see no
reason why we cannot disqualified an appointee simply because he has passed the Commission on Appointments.

Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding notwithstanding that he
has been found acceptable by no less than the enfranchised citizenry. The reason is that what we would be examining is not
the wisdom of his election but whether or not he was qualified to be elected in the first place.

Coming now to the qualifications of the private respondent, I fear that the ponencia may have been too sweeping in its definition
of the phrase "practice of law" as to render the qualification practically toothless. From the numerous activities accepted as
embraced in the term, I have the uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice
of law as long as his activities involve the application of some law, however peripherally. The stock broker and the insurance
adjuster and the realtor could come under the definition as they deal with or give advice on matters that are likely "to become
involved in litigation."

The lawyer is considered engaged in the practice of law even if his main occupation is another business and he interprets and
applies some law only as an incident of such business. That covers every company organized under the Corporation Code and
regulated by the SEC under P.D. 902-A. Considering the ramifications of the modern society, there is hardly any activity that is not
affected by some law or government regulation the businessman must know about and observe. In fact, again going by the
definition, a lawyer does not even have to be part of a business concern to be considered a practitioner. He can be so deemed
when, on his own, he rents a house or buys a car or consults a doctor as these acts involve his knowledge and application of the
laws regulating such transactions. If he operates a public utility vehicle as his main source of livelihood, he would still be deemed
engaged in the practice of law because he must obey the Public Service Act and the rules and regulations of the Energy Regulatory
Board.

The ponencia quotes an American decision defining the practice of law as the "performance of any acts ... in or out of court,
commonly understood to be the practice of law," which tells us absolutely nothing. The decision goes on to say that "because
lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be
too global to be workable."

The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the practice of law even if
he does not earn his living, or at least part of it, as a lawyer. It is enough that his activities are incidentally (even if only remotely)
connected with some law, ordinance, or regulation. The possible exception is the lawyer whose income is derived from teaching
ballroom dancing or escorting wrinkled ladies with pubescent pretensions.

The respondent's credentials are impressive, to be sure, but they do not persuade me that he has been engaged in the practice of
law for ten years as required by the Constitution. It is conceded that he has been engaged in business and finance, in which areas
he has distinguished himself, but as an executive and economist and not as a practicing lawyer. The plain fact is that he has
occupied the various positions listed in his resume by virtue of his experience and prestige as a businessman and not as an
attorney-at-law whose principal attention is focused on the law. Even if it be argued that he was acting as a lawyer when he
lobbied in Congress for agrarian and urban reform, served in the NAMFREL and the Constitutional Commission (together with non-
lawyers like farmers and priests) and was a member of the Davide Commission, he has not proved that his activities in these
capacities extended over the prescribed 10-year period of actual practice of the law. He is doubtless eminently qualified for many
other positions worthy of his abundant talents but not as Chairman of the Commission on Elections.

I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully vote to grant the petition.

GUTIERREZ, JR., J., dissenting:

When this petition was filed, there was hope that engaging in the practice of law as a qualification for public office would be
settled one way or another in fairly definitive terms. Unfortunately, this was not the result.

Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice of law (with one of these
5 leaving his vote behind while on official leave but not expressing his clear stand on the matter); 4 categorically stating that he did
not practice law; 2 voting in the result because there was no error so gross as to amount to grave abuse of discretion; one of
official leave with no instructions left behind on how he viewed the issue; and 2 not taking part in the deliberations and the
decision.

There are two key factors that make our task difficult. First is our reviewing the work of a constitutional Commission on
Appointments whose duty is precisely to look into the qualifications of persons appointed to high office. Even if the Commission
errs, we have no power to set aside error. We can look only into grave abuse of discretion or whimsically and arbitrariness. Second
is our belief that Mr. Monsod possesses superior qualifications in terms of executive ability, proficiency in management,
educational background, experience in international banking and finance, and instant recognition by the public. His integrity and
competence are not questioned by the petitioner. What is before us is compliance with a specific requirement written into the
Constitution.

Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in the practice of law for
even one year. He is a member of the bar but to say that he has practiced law is stretching the term beyond rational limits.

A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has not engaged in an activity
where membership in the bar is a requirement I fail to see how he can claim to have been engaged in the practice of law.

Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to the Supreme Court
and all lower courts. What kind of Judges or Justices will we have if there main occupation is selling real estate, managing a
business corporation, serving in fact-finding committee, working in media, or operating a farm with no active involvement in the
law, whether in Government or private practice, except that in one joyful moment in the distant past, they happened to pass the
bar examinations?

The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate choice of words shows that
the practice envisioned is active and regular, not isolated, occasional, accidental, intermittent, incidental, seasonal, or
extemporaneous. To be "engaged" in an activity for ten years requires committed participation in something which is the result of
one's decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or pledged to carry it out with
intent and attention during the ten-year period.

I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission on Appointments, the
latter has not been engaged in the practice of law for at least ten years. In fact, if appears that Mr. Monsod has never practiced law
except for an alleged one year period after passing the bar examinations when he worked in his father's law firm. Even then his
law practice must have been extremely limited because he was also working for M.A. and Ph. D. degrees in Economics at the
University of Pennsylvania during that period. How could he practice law in the United States while not a member of the Bar
there?

The professional life of the respondent follows:

1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of the following:

1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania

2. 1963-1970: World Bank Group — Economist, Industry Department; Operations, Latin American Department; Division Chief,
South Asia and Middle East, International Finance Corporation

3. 1970-1973: Meralco Group — Executive of various companies, i.e., Meralco Securities Corporation, Philippine Petroleum
Corporation, Philippine Electric Corporation

4. 1973-1976: Yujuico Group — President, Fil-Capital Development Corporation and affiliated companies

5. 1976-1978: Finaciera Manila — Chief Executive Officer

6. 1978-1986: Guevent Group of Companies — Chief Executive Officer

7. 1986-1987: Philippine Constitutional Commission — Member

8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt — Member

9. Presently: Chairman of the Board and Chief Executive Officer of the following companies:

a. ACE Container Philippines, Inc.

b. Dataprep, Philippines

c. Philippine SUNsystems Products, Inc.

d. Semirara Coal Corporation

e. CBL Timber Corporation

Member of the Board of the Following:

a. Engineering Construction Corporation of the Philippines

b. First Philippine Energy Corporation

c. First Philippine Holdings Corporation

d. First Philippine Industrial Corporation

e. Graphic Atelier

f. Manila Electric Company

g. Philippine Commercial Capital, Inc.

h. Philippine Electric Corporation

i. Tarlac Reforestation and Environment Enterprises

j. Tolong Aquaculture Corporation

k. Visayan Aquaculture Corporation

l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)

There is nothing in the above bio-data which even remotely indicates that respondent Monsod has given the lawenough attention
or a certain degree of commitment and participation as would support in all sincerity and candor the claim of having engaged in its
practice for at least ten years. Instead of working as a lawyer, he has lawyers working for him. Instead of giving receiving that legal
advice of legal services, he was the oneadvice and those services as an executive but not as a lawyer.

The deliberations before the Commission on Appointments show an effort to equate "engaged in the practice of law" with the use
of legal knowledge in various fields of endeavor such as commerce, industry, civic work, blue ribbon investigations, agrarian
reform, etc. where such knowledge would be helpful.

I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts as having a familiar and
customary well-defined meaning. Every resident of this country who has reached the age of discernment has to know, follow, or
apply the law at various times in his life. Legal knowledge is useful if not necessary for the business executive, legislator, mayor,
barangay captain, teacher, policeman, farmer, fisherman, market vendor, and student to name only a few. And yet, can these
people honestly assert that as such, they are engaged in the practice of law?

The Constitution requires having been "engaged in the practice of law for at least ten years." It is not satisfied with having been "a
member of the Philippine bar for at least ten years."

Some American courts have defined the practice of law, as follows:

The practice of law involves not only appearance in court in connection with litigation but also services rendered out of court, and
it includes the giving of advice or the rendering of any services requiring the use of legal skill or knowledge, such as preparing a
will, contract or other instrument, the legal effect of which, under the facts and conditions involved, must be carefully
determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v. People's
Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases cited.

It would be difficult, if not impossible to lay down a formula or definition of what constitutes the practice of law. "Practicing law"
has been defined as "Practicing as an attorney or counselor at law according to the laws and customs of our courts, is the giving of
advice or rendition of any sort of service by any person, firm or corporation when the giving of such advice or rendition of such
service requires the use of any degree of legal knowledge or skill." Without adopting that definition, we referred to it as being
substantially correct in People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v.
Schafer, 87 N.E. 2d 773, 776)

For one's actions to come within the purview of practice of law they should not only be activities peculiar to the work of a lawyer,
they should also be performed, habitually, frequently or customarily, to wit:

xxx xxx xxx

Respondent's answers to questions propounded to him were rather evasive. He was asked whether or not he ever prepared
contracts for the parties in real-estate transactions where he was not the procuring agent. He answered: "Very seldom." In answer
to the question as to how many times he had prepared contracts for the parties during the twenty-one years of his business, he
said: "I have no Idea." When asked if it would be more than half a dozen times his answer was I suppose. Asked if he did not recall
making the statement to several parties that he had prepared contracts in a large number of instances, he answered: "I don't recall
exactly what was said." When asked if he did not remember saying that he had made a practice of preparing deeds, mortgages and
contracts and charging a fee to the parties therefor in instances where he was not the broker in the deal, he answered: "Well, I
don't believe so, that is not a practice." Pressed further for an answer as to his practice in preparing contracts and deeds for parties
where he was not the broker, he finally answered: "I have done about everything that is on the books as far as real estate is
concerned."

xxx xxx xxx

Respondent takes the position that because he is a real-estate broker he has a lawful right to do any legal work in connection with
real-estate transactions, especially in drawing of real-estate contracts, deeds, mortgages, notes and the like. There is no doubt but
that he has engaged in these practices over the years and has charged for his services in that connection. ... (People v. Schafer, 87
N.E. 2d 773)

xxx xxx xxx

... An attorney, in the most general sense, is a person designated or employed by another to act in his stead; an agent; more
especially, one of a class of persons authorized to appear and act for suitors or defendants in legal proceedings. Strictly, these
professional persons are attorneys at law, and non-professional agents are properly styled "attorney's in fact;" but the single word
is much used as meaning an attorney at law. A person may be an attorney in facto for another, without being an attorney at law.
Abb. Law Dict. "Attorney." A public attorney, or attorney at law, says Webster, is an officer of a court of law, legally qualified to
prosecute and defend actions in such court on the retainer of clients. "The principal duties of an attorney are (1) to be true to the
court and to his client; (2) to manage the business of his client with care, skill, and integrity; (3) to keep his client informed as to
the state of his business; (4) to keep his secrets confided to him as such. ... His rights are to be justly compensated for his services."
Bouv. Law Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster, means 'to do or perform frequently,
customarily, or habitually; to perform by a succession of acts, as, to practice gaming, ... to carry on in practice, or repeated action;
to apply, as a theory, to real life; to exercise, as a profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v.
Bryan, S.E. 522, 523; Emphasis supplied)

In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts. Thus, we stated in the case of
People v. Villanueva (14 SCRA 109 [1965]):

xxx xxx xxx

... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession of acts of the same
kind. In other words, it is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall
within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public, as a lawyer
and demanding payment for such services. ... . (at p. 112)

It is to be noted that the Commission on Appointment itself recognizes habituality as a required component of the meaning of
practice of law in a Memorandum prepared and issued by it, to wit:

l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self out to the public as a lawyer (People v.
Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the
establishment of a law office for the general practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one takes the oath of office
as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of his intention to practice law in
all courts in the country (People v. De Luna, 102 Phil. 968).

Practice is more than an isolated appearance, for it consists in frequent or customary action, a succession of acts of the same kind.
In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p.
115)

xxx xxx xxx

While the career as a businessman of respondent Monsod may have profited from his legal knowledge, the use of such legal
knowledge is incidental and consists of isolated activities which do not fall under the denomination of practice of law. Admission
to the practice of law was not required for membership in the Constitutional Commission or in the Fact-Finding Commission on the
1989 Coup Attempt. Any specific legal activities which may have been assigned to Mr. Monsod while a member may be likened to
isolated transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as doing business
in the Philippines. As in the practice of law, doing business also should be active and continuous. Isolated business transactions or
occasional, incidental and casual transactions are not within the context of doing business. This was our ruling in the case of Antam
Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).

Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission may possess the
background, competence, integrity, and dedication, to qualify for such high offices as President, Vice-President, Senator,
Congressman or Governor but the Constitution in prescribing the specific qualification of having engaged in the practice of law for
at least ten (10) years for the position of COMELEC Chairman has ordered that he may not be confirmed for that office. The
Constitution charges the public respondents no less than this Court to obey its mandate.

I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in confirming the nomination of
respondent Monsod as Chairman of the COMELEC.

I vote to GRANT the petition.

Bidin, J., dissent

Separate Opinions

NARVASA, J., concurring:

I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does not appear to me that there
has been an adequate showing that the challenged determination by the Commission on Appointments-that the appointment of
respondent Monsod as Chairman of the Commission on Elections should, on the basis of his stated qualifications and after due
assessment thereof, be confirmed-was attended by error so gross as to amount to grave abuse of discretion and consequently
merits nullification by this Court in accordance with the second paragraph of Section 1, Article VIII of the Constitution. I therefore
vote to DENY the petition.

Melencio-Herrera, J., concur.

PADILLA, J., dissenting:

The records of this case will show that when the Court first deliberated on the Petition at bar, I voted not only to require the
respondents to comment on the Petition, but I was the sole vote for the issuance of a temporary restraining order to enjoin
respondent Monsod from assuming the position of COMELEC Chairman, while the Court deliberated on his constitutional
qualification for the office. My purpose in voting for a TRO was to prevent the inconvenience and even embarrassment to all
parties concerned were the Court to finally decide for respondent Monsod's disqualification. Moreover, a reading of the Petition
then in relation to established jurisprudence already showed prima facie that respondent Monsod did not possess the needed
qualification, that is, he had not engaged in the practice of law for at least ten (10) years prior to his appointment as COMELEC
Chairman.

After considering carefully respondent Monsod's comment, I am even more convinced that the constitutional requirement of
"practice of law for at least ten (10) years" has not been met.

The procedural barriers interposed by respondents deserve scant consideration because, ultimately, the core issue to be resolved
in this petition is the proper construal of the constitutional provision requiring a majority of the membership of COMELEC,
including the Chairman thereof to "have been engaged in the practice of law for at least ten (10) years." (Art. IX(C), Section 1(1),
1987 Constitution). Questions involving the construction of constitutional provisions are best left to judicial resolution. As declared
in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn and inescapable obligation of
interpreting the Constitution and defining constitutional boundaries."

The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these are that he must have been
"engaged in the practice of law for at least ten (10) years." It is the bounden duty of this Court to ensure that such standard is met
and complied with.

What constitutes practice of law? As commonly understood, "practice" refers to the actual performance or application of
knowledge as distinguished from mere possession of knowledge; it connotes an active, habitual, repeated or customary action.1 To
"practice" law, or any profession for that matter, means, to exercise or pursue an employment or profession actively, habitually,
repeatedly or customarily.

Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide, cannot be said to be in
the "practice of medicine." A certified public accountant who works as a clerk, cannot be said to practice his profession as an
accountant. In the same way, a lawyer who is employed as a business executive or a corporate manager, other than as head or
attorney of a Legal Department of a corporation or a governmental agency, cannot be said to be in the practice of law.

As aptly held by this Court in the case of People vs. Villanueva:2

Practice is more than an isolated appearance for it consists in frequent or customary actions, a succession of acts of the same kind.
In other words, it is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall
within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public as a lawyer
and demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied).

It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared, enumerated several
factors determinative of whether a particular activity constitutes "practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or habitually holding one's self out to the public as a lawyer (People
vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the
establishment of a law office for the general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office
as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of his intention to practice law in
all courts in the country (People v. De Luna, 102 Phil. 968).

Practice is more than an isolated appearance for it consists in frequent or customary action, a succession of acts of the same kind.
In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864).

2. Compensation. Practice of law implies that one must have presented himself to be in the active and continued practice of the
legal profession and that his professional services are available to the public for compensation, as a service of his livelihood or in
consideration of his said services. (People v. Villanueva, supra). Hence, charging for services such as preparation of documents
involving the use of legal knowledge and skill is within the term "practice of law" (Ernani Paño, Bar Reviewer in Legal and Judicial
Ethics, 1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion as to the
proper interpretation of a statute, and receives pay for it, is to that extent, practicing law (Martin, supra, p. 806 citing Mendelaun
v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected, all advice to clients and all action taken for them in
matters connected with the law; are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359)

3. Application of law legal principle practice or procedure which calls for legal knowledge, training and experience is within the
term "practice of law". (Martin supra)

4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of lawyer-client relationship. Hence,
where a lawyer undertakes an activity which requires knowledge of law but involves no attorney-client relationship, such as
teaching law or writing law books or articles, he cannot be said to be engaged in the practice of his profession or a lawyer (Agpalo,
Legal Ethics, 1989 ed., p. 30).3

The above-enumerated factors would, I believe, be useful aids in determining whether or not respondent Monsod meets the
constitutional qualification of practice of law for at least ten (10) years at the time of his appointment as COMELEC Chairman.

The following relevant questions may be asked:

1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?

2. Did respondent perform such tasks customarily or habitually?

3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his
appointment as COMELEC Chairman?

Given the employment or job history of respondent Monsod as appears from the records, I am persuaded that if ever he did
perform any of the tasks which constitute the practice of law, he did not do so HABITUALLY for at least ten (10) years prior to his
appointment as COMELEC Chairman.

While it may be granted that he performed tasks and activities which could be latitudinarianly considered activities peculiar to the
practice of law, like the drafting of legal documents and the rendering of legal opinion or advice, such were isolated transactions or
activities which do not qualify his past endeavors as "practice of law." To become engaged in the practice of law, there must be
a continuity, or a succession of acts. As observed by the Solicitor General in People vs. Villanueva:4
Essentially, the word private practice of law implies that one must have presented himself to be in the activeand continued
practice of the legal profession and that his professional services are available to the public for a compensation, as a source of his
livelihood or in consideration of his said services.

ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified for the position of COMELEC
Chairman for not having engaged in the practice of law for at least ten (10) years prior to his appointment to such position.

CRUZ, J., dissenting:

I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. There are certain points on
which I must differ with him while of course respecting hisviewpoint.

To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply because his nomination
has been confirmed by the Commission on Appointments. In my view, this is not a political question that we are barred from
resolving. Determination of the appointee's credentials is made on the basis of the established facts, not the discretion of that
body. Even if it were, the exercise of that discretion would still be subject to our review.

In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing authority to choosebetween two
claimants to the same office who both possessed the required qualifications. It was that kind of discretion that we said could not
be reviewed.

If a person elected by no less than the sovereign people may be ousted by this Court for lack of the required qualifications, I see no
reason why we cannot disqualified an appointee simply because he has passed the Commission on Appointments.

Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding notwithstanding that he
has been found acceptable by no less than the enfranchised citizenry. The reason is that what we would be examining is not
the wisdom of his election but whether or not he was qualified to be elected in the first place.

Coming now to the qualifications of the private respondent, I fear that the ponencia may have been too sweeping in its definition
of the phrase "practice of law" as to render the qualification practically toothless. From the numerous activities accepted as
embraced in the term, I have the uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice
of law as long as his activities involve the application of some law, however peripherally. The stock broker and the insurance
adjuster and the realtor could come under the definition as they deal with or give advice on matters that are likely "to become
involved in litigation."

The lawyer is considered engaged in the practice of law even if his main occupation is another business and he interprets and
applies some law only as an incident of such business. That covers every company organized under the Corporation Code and
regulated by the SEC under P.D. 902-A. Considering the ramifications of the modern society, there is hardly any activity that is not
affected by some law or government regulation the businessman must know about and observe. In fact, again going by the
definition, a lawyer does not even have to be part of a business concern to be considered a practitioner. He can be so deemed
when, on his own, he rents a house or buys a car or consults a doctor as these acts involve his knowledge and application of the
laws regulating such transactions. If he operates a public utility vehicle as his main source of livelihood, he would still be deemed
engaged in the practice of law because he must obey the Public Service Act and the rules and regulations of the Energy Regulatory
Board.

The ponencia quotes an American decision defining the practice of law as the "performance of any acts . . . in or out of court,
commonly understood to be the practice of law," which tells us absolutely nothing. The decision goes on to say that "because
lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be
too global to be workable."

The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the practice of law even if
he does not earn his living, or at least part of it, as a lawyer. It is enough that his activities are incidentally (even if only remotely)
connected with some law, ordinance, or regulation. The possible exception is the lawyer whose income is derived from teaching
ballroom dancing or escorting wrinkled ladies with pubescent pretensions.

The respondent's credentials are impressive, to be sure, but they do not persuade me that he has been engaged in the practice of
law for ten years as required by the Constitution. It is conceded that he has been engaged in business and finance, in which areas
he has distinguished himself, but as an executive and economist and not as a practicing lawyer. The plain fact is that he has
occupied the various positions listed in his resume by virtue of his experience and prestige as a businessman and not as an
attorney-at-law whose principal attention is focused on the law. Even if it be argued that he was acting as a lawyer when he
lobbied in Congress for agrarian and urban reform, served in the NAMFREL and the Constitutional Commission (together with non-
lawyers like farmers and priests) and was a member of the Davide Commission, he has not proved that his activities in these
capacities extended over the prescribed 10-year period of actual practice of the law. He is doubtless eminently qualified for many
other positions worthy of his abundant talents but not as Chairman of the Commission on Elections.

I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully vote to grant the petition.

GUTIERREZ, JR., J., dissenting:

When this petition was filed, there was hope that engaging in the practice of law as a qualification for public office would be
settled one way or another in fairly definitive terms. Unfortunately, this was not the result.

Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice of law (with one of these
5 leaving his vote behind while on official leave but not expressing his clear stand on the matter); 4 categorically stating that he did
not practice law; 2 voting in the result because there was no error so gross as to amount to grave abuse of discretion; one of
official leave with no instructions left behind on how he viewed the issue; and 2 not taking part in the deliberations and the
decision.

There are two key factors that make our task difficult. First is our reviewing the work of a constitutional Commission on
Appointments whose duty is precisely to look into the qualifications of persons appointed to high office. Even if the Commission
errs, we have no power to set aside error. We can look only into grave abuse of discretion or whimsically and arbitrariness. Second
is our belief that Mr. Monsod possesses superior qualifications in terms of executive ability, proficiency in management,
educational background, experience in international banking and finance, and instant recognition by the public. His integrity and
competence are not questioned by the petitioner. What is before us is compliance with a specific requirement written into the
Constitution.

Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in the practice of law for
even one year. He is a member of the bar but to say that he has practiced law is stretching the term beyond rational limits.

A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has not engaged in an activity
where membership in the bar is a requirement I fail to see how he can claim to have been engaged in the practice of law.

Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to the Supreme Court
and all lower courts. What kind of Judges or Justices will we have if there main occupation is selling real estate, managing a
business corporation, serving in fact-finding committee, working in media, or operating a farm with no active involvement in the
law, whether in Government or private practice, except that in one joyful moment in the distant past, they happened to pass the
bar examinations?

The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate choice of words shows that
the practice envisioned is active and regular, not isolated, occasional, accidental, intermittent, incidental, seasonal, or
extemporaneous. To be "engaged" in an activity for ten years requires committed participation in something which is the result of
one's decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or pledged to carry it out with
intent and attention during the ten-year period.

I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission on Appointments, the
latter has not been engaged in the practice of law for at least ten years. In fact, if appears that Mr. Monsod has never practiced law
except for an alleged one year period after passing the bar examinations when he worked in his father's law firm. Even then his
law practice must have been extremely limited because he was also working for M.A. and Ph. D. degrees in Economics at the
University of Pennsylvania during that period. How could he practice law in the United States while not a member of the Bar
there?

The professional life of the respondent follows:

1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of the following:

1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania

2. 1963-1970: World Bank Group — Economist, Industry Department; Operations, Latin American Department; Division Chief,
South Asia and Middle East, International Finance Corporation

3. 1970-1973: Meralco Group — Executive of various companies, i.e., Meralco Securities Corporation, Philippine Petroleum
Corporation, Philippine Electric Corporation

4. 1973-1976: Yujuico Group — President, Fil-Capital Development Corporation and affiliated companies

5. 1976-1978: Finaciera Manila — Chief Executive Officer

6. 1978-1986: Guevent Group of Companies — Chief Executive Officer

7. 1986-1987: Philippine Constitutional Commission — Member

8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt — Member

9. Presently: Chairman of the Board and Chief Executive Officer of the following companies:

a. ACE Container Philippines, Inc.

b. Dataprep, Philippines

c. Philippine SUNsystems Products, Inc.

d. Semirara Coal Corporation

e. CBL Timber Corporation

Member of the Board of the Following:

a. Engineering Construction Corporation of the Philippines

b. First Philippine Energy Corporation

c. First Philippine Holdings Corporation

d. First Philippine Industrial Corporation

e. Graphic Atelier

f. Manila Electric Company

g. Philippine Commercial Capital, Inc.

h. Philippine Electric Corporation

i. Tarlac Reforestation and Environment Enterprises

j. Tolong Aquaculture Corporation

k. Visayan Aquaculture Corporation

l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)

There is nothing in the above bio-data which even remotely indicates that respondent Monsod has given the lawenough attention
or a certain degree of commitment and participation as would support in all sincerity and candor the claim of having engaged in its
practice for at least ten years. Instead of working as a lawyer, he has lawyers working for him. Instead of giving receiving that legal
advice of legal services, he was the oneadvice and those services as an executive but not as a lawyer.

The deliberations before the Commission on Appointments show an effort to equate "engaged in the practice of law" with the use
of legal knowledge in various fields of endeavor such as commerce, industry, civic work, blue ribbon investigations, agrarian
reform, etc. where such knowledge would be helpful.

I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts as having a familiar and
customary well-defined meaning. Every resident of this country who has reached the age of discernment has to know, follow, or
apply the law at various times in his life. Legal knowledge is useful if not necessary for the business executive, legislator, mayor,
barangay captain, teacher, policeman, farmer, fisherman, market vendor, and student to name only a few. And yet, can these
people honestly assert that as such, they are engaged in the practice of law?

The Constitution requires having been "engaged in the practice of law for at least ten years." It is not satisfied with having been "a
member of the Philippine bar for at least ten years."

Some American courts have defined the practice of law, as follows:

The practice of law involves not only appearance in court in connection with litigation but also services rendered out of court, and
it includes the giving of advice or the rendering of any services requiring the use of legal skill or knowledge, such as preparing a
will, contract or other instrument, the legal effect of which, under the facts and conditions involved, must be carefully
determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v. People's
Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases cited.

It would be difficult, if not impossible to lay down a formula or definition of what constitutes the practice of law. "Practicing law"
has been defined as "Practicing as an attorney or counselor at law according to the laws and customs of our courts, is the giving of
advice or rendition of any sort of service by any person, firm or corporation when the giving of such advice or rendition of such
service requires the use of any degree of legal knowledge or skill." Without adopting that definition, we referred to it as being
substantially correct in People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v.
Schafer, 87 N.E. 2d 773, 776)

For one's actions to come within the purview of practice of law they should not only be activities peculiar to the work of a lawyer,
they should also be performed, habitually, frequently or customarily, to wit:

xxx xxx xxx

Respondent's answers to questions propounded to him were rather evasive. He was asked whether or not he ever prepared
contracts for the parties in real-estate transactions where he was not the procuring agent. He answered: "Very seldom." In answer
to the question as to how many times he had prepared contracts for the parties during the twenty-one years of his business, he
said: "I have no Idea." When asked if it would be more than half a dozen times his answer was I suppose. Asked if he did not recall
making the statement to several parties that he had prepared contracts in a large number of instances, he answered: "I don't recall
exactly what was said." When asked if he did not remember saying that he had made a practice of preparing deeds, mortgages and
contracts and charging a fee to the parties therefor in instances where he was not the broker in the deal, he answered: "Well, I
don't believe so, that is not a practice." Pressed further for an answer as to his practice in preparing contracts and deeds for parties
where he was not the broker, he finally answered: "I have done about everything that is on the books as far as real estate is
concerned."

xxx xxx xxx

Respondent takes the position that because he is a real-estate broker he has a lawful right to do any legal work in connection with
real-estate transactions, especially in drawing of real-estate contracts, deeds, mortgages, notes and the like. There is no doubt but
that he has engaged in these practices over the years and has charged for his services in that connection. ... (People v. Schafer, 87
N.E. 2d 773)

xxx xxx xxx

... An attorney, in the most general sense, is a person designated or employed by another to act in his stead; an agent; more
especially, one of a class of persons authorized to appear and act for suitors or defendants in legal proceedings. Strictly, these
professional persons are attorneys at law, and non-professional agents are properly styled "attorney's in fact;" but the single word
is much used as meaning an attorney at law. A person may be an attorney in facto for another, without being an attorney at law.
Abb. Law Dict. "Attorney." A public attorney, or attorney at law, says Webster, is an officer of a court of law, legally qualified to
prosecute and defend actions in such court on the retainer of clients. "The principal duties of an attorney are (1) to be true to the
court and to his client; (2) to manage the business of his client with care, skill, and integrity; (3) to keep his client informed as to
the state of his business; (4) to keep his secrets confided to him as such. ... His rights are to be justly compensated for his services."
Bouv. Law Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster, means 'to do or perform frequently,
customarily, or habitually; to perform by a succession of acts, as, to practice gaming, ... to carry on in practice, or repeated action;
to apply, as a theory, to real life; to exercise, as a profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v.
Bryan, S.E. 522, 523; Emphasis supplied)

In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts. Thus, we stated in the case of
People v. Villanueva (14 SCRA 109 [1965]):

xxx xxx xxx

... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession of acts of the same
kind. In other words, it is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall
within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public, as a lawyer
and demanding payment for such services. ... . (at p. 112)

It is to be noted that the Commission on Appointment itself recognizes habituality as a required component of the meaning of
practice of law in a Memorandum prepared and issued by it, to wit:

l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self out to the public as a lawyer (People v.
Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the
establishment of a law office for the general practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one takes the oath of office
as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of his intention to practice law in
all courts in the country (People v. De Luna, 102 Phil. 968).

Practice is more than an isolated appearance, for it consists in frequent or customary action, a succession of acts of the same kind.
In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p.
115)

xxx xxx xxx

While the career as a businessman of respondent Monsod may have profited from his legal knowledge, the use of such legal
knowledge is incidental and consists of isolated activities which do not fall under the denomination of practice of law. Admission
to the practice of law was not required for membership in the Constitutional Commission or in the Fact-Finding Commission on the
1989 Coup Attempt. Any specific legal activities which may have been assigned to Mr. Monsod while a member may be likened to
isolated transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as doing business
in the Philippines. As in the practice of law, doing business also should be active and continuous. Isolated business transactions or
occasional, incidental and casual transactions are not within the context of doing business. This was our ruling in the case of Antam
Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).

Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission may possess the
background, competence, integrity, and dedication, to qualify for such high offices as President, Vice-President, Senator,
Congressman or Governor but the Constitution in prescribing the specific qualification of having engaged in the practice of law for
at least ten (10) years for the position of COMELEC Chairman has ordered that he may not be confirmed for that office. The
Constitution charges the public respondents no less than this Court to obey its mandate.

I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in confirming the nomination of
respondent Monsod as Chairman of the COMELEC.

I vote to GRANT the petition.

Bidin, J., dissent

Unchecked Article
G.R. No. 209185 October 25, 2013

MARC DOUGLAS IV C. CAGAS, Petitioner,

vs.
COMMISSION ON ELECTIONS represented by its CHAIRMAN ATTY. SIXTO BRILLANTES JR. and the
PROVINCIAL ELECTION OFFICER OF DAVAO DEL SUR, represented by ATTY. MA. FEBES
BARLAAN,Respondents.

RESOLUTION

CARPIO, J.:

This Resolution resolves the Petition for Prohibition,1 filed by Marc Douglas IV C. Cagas (Cagas), in his
capacity as taxpayer, to prohibit the Commission on Elections (COMELEC) from conducting a plebiscite
for the creation of the province of Davao Occidental simultaneously with the 28 October 2013 Barangay
Elections within the whole province of Davao del Sur, except in Davao City.

Cagas, while he was representative of the first legislative district of Davao del Sur, filed with Hon.
Franklin Bautista, then representative of the second legislative district of the same province, House Bill
No. 4451 (H.B. No. 4451), a bill creating the province of Davao Occidental. H.B. No. 4451 was signed into
law as Republic Act No. 10360 (R.A. No. 10360), the Charter of the Province of Davao Occidental.

Sections 2 and 7 of R.A. No. 10360 provide for the composition of the new provinces of Davao
Occidental and Davao del Sur:

Sec. 2. Province of Davao Occidental. – There is hereby created a new province from the present
Province of Davao del Sur to be known as the Province of Davao Occidental, consisting of the
municipalities of Sta. Maria, Malita, Don Marcelino, Jose Abad Santos and Sarangani. The territorial
jurisdiction of the Province of Davao Occidental shall be within the present metes and bounds of all the
municipalities that comprise the Province of Davao Occidental.

xxxx

Sec. 7. Legislative District. – The Province of Davao Occidental shall have its own legislative district to
commence in the next national and local elections after the effectivity of this Charter. Henceforth, the
municipalities of Sta. Maria, Malita, Don Marcelino, Jose Abad Santos and Sarangani shall comprise the
Lone Legislative District of the Province of Davao Occidental while the City of Digos and the
municipalities of Malalag, Sulop, Kiblawan, Padada, Hagonoy, Sta. Cruz, Matanao, Bansalan and
Magsaysay shall comprise the Lone Legislative District of the Province of Davao del Sur.

xxxx

Section 46 of R.A. No. 10360 provides for the date of the holding of a plebiscite.

Sec. 46. Plebiscite. – The Province of Davao Occidental shall be created, as provided for in this Charter,
upon approval by the majority of the votes cast by the voters of the affected areas in a plebiscite to be
conducted and supervised by the Commission on Elections (COMELEC) within sixty (60) days from the
date of the effectivity of this Charter.

The amount necessary for the conduct of the plebiscite shall be borne by the COMELEC.
R.A. No. 10360 was passed by the House of Representatives on 28 November 2012, and by the Senate
on 5 December 2012. President Benigno S. Aquino III approved R.A. No. 10360 on 14 January 2013.2 R.A.
No. 10360 was published in the Philippine Star and the Manila Bulletin only on 21 January 2013.
Considering that R.A. No. 10360 shall take effect 15 days after its publication in at least two newspapers
of general and local circulation,3COMELEC, therefore, only had until 6 April 2013 to conduct the
plebiscite.4

As early as 27 November 2012, prior to the effectivity of R.A. No. 10360, the COMELEC suspended the
conduct of all plebiscites as a matter of policy and in view of the preparations for the 13 May 2013
National and Local Elections.5 On 9 July 2013, the COMELEC extended

the policy on suspension of the holding of plebiscites by resolving to defer action on the holding of all
plebiscites until after the 28 October 2013 Barangay Elections.6 During a meeting held on 31 July 2013,
the COMELEC decided to hold the plebiscite for the creation of Davao Occidental simultaneously with
the 28 October 2013 Barangay Elections to save on expenses7 . The COMELEC, in Minute Resolution No.
13-0926, approved the conduct of the Concept of Execution for the conduct of the plebiscite on 6
August 2013.8 On 14 August 2013, Bartolome J. Sinocruz, Jr., the Deputy Executive Director for
Operations of the COMELEC, issued a memorandum furnishing a copy of Minute Resolution No. 13-0926
to Atty. Remlane M. Tambuang, Regional Election Director of Region XI; Atty. Ma. Febes M. Barlaan,
Provincial Election Supervisor of Davao del Sur; and to all election officers of Davao del Sur. On 6
September 2013, the COMELEC promulgated Resolution Nos. 97719 and 9772.10Resolution No. 9771
provided for the following calendar of activities:

DATE/PERIOD ACTIVITIES PROHIBITED ACTS

SEPT. 09, 2013 Last day to constitute the Plebiscite

(MON) Board of Canvassers

SEPT. 28, 2013 PLEBISCITE PERIOD Bearing, carrying or transporting

(SAT) – NOV. 12, firearms or other deadly weapons
2013 (TUE) (30 in public places, including any
DAYS BEFORE THE building, street, park, private
DATE OF vehicle or public conveyance, or
PLEBISCITE AND 15 even if licensed to possess or carry
DAYS THEREAFTER the same, unless authorized in
writing by the Commission (Sec.
261 (p) (q) OEC, as amended by
Sec. 32, RA 7166);

Suspension of local elective officials

(Sec. 261 (x), OEC); Transfer of
officers and employees in the civil
service (Sec. 261 (h), OEC);
 Alteration of territory of a precinct
or establishment of a new precinct
(Sec. 5, R.A. 8189)

Organizing or maintaining
reaction/strike forces or similar
forces (Sec. 261, (u), OEC);

Illegal release of prisoners (Sec. 261

(n), OEC);

Use of security personnel or

bodyguards by candidates, whether
or not such bodyguards are regular
members or officers of the
Philippine National Police or Armed
Forces of the Philippines or other
law enforcement agency (Sec. 261
(t), OEC, as amended by Sec. 33, RA
7166);

Release, disbursement or
expenditures of public funds (Sec.
261 (v), OEC);Construction of public
works, delivery of materials for
public works and issuance of
treasury warrants or similar devices
for a future undertaking chargeable
against public funds (Sec. 261, (w)
OEC).

SEPTEMBER 28, INFORMATIONCAMPAIGN PERIOD Making any donation or gift in cash

2013 (SAT) to or in kind, etc. (Sec. 104, OEC);Use
OCTOBER 26, 2013 of armored/ land/ water/ air craft.
(SAT) (Sec. 261 (r), OEC);Appointing or
using special policemen, special/
confidential agents or the like. (Sec.
261 (m), OEC);

SEPTEMBER 28, Issuance of appointments,

2013 (SAT) to promotions, creation of new
OCTOBER 28, 2013
(MON)
OCTOBER 27, 2013 EVE OF PLEBISCITE DAY
(SUN)
OCTOBER 28, 2013 PLEBISCITE DAYCasting of votes- (from
(MON) 7:00 a.m. to 3:00 p.m. simultaneous
with the voting for the Barangay and
SK Elections)Counting of votes shall be
after the counting of votes for
Barangay and SK Elections)Convening
of the City Plebiscite Board of
Canvassers – (6:00 p.m.)
positions, or giving of salary
increases.
Campaigning (Sec. 3, OEC);
Giving, accepting free
transportation, foods, drinks, and
things of value (Sec. 89, OEC);
Selling, furnishing, offering, buying,
serving or taking intoxicating liquor
(Sec. 261 (dd), (1), OEC).(NOTE:
Acts mentioned in the three (3)
preceding paragraphs are
prohibited until election day.)
Vote-buying and vote selling (Sec.
261 (a), OEC);Voting more than
once or in substitution of another
(Sec. 261 (z) (2) and (3),
OEC);Campaigning (Sec. 3,
OEC);Soliciting votes or undertaking
any propaganda for or against any
candidate or any political party
within the polling place or within
thirty (30) meters thereof (Sec. 261
(cc) (6), OEC);Selling, furnishing,
offering, buying, serving or taking
intoxicating liquor, etc. (Sec. 261
(dd) (1), OEC);Opening of booths or
stalls for the sale, etc., of wares,
merchandise or refreshments,
within thirty (30) meters radius
from the polling place. (Sec. 261
(dd) (2) OEC);Giving and/or
accepting free transportation, food,
drinks and things of value (Sec. 89,
OEC);Holding of fairs, cockfights,
boxing, horse races or similar
sports. (Sec. 261 (dd) (3), OEC).
Resolution No. 9772, on the other hand, provided that copies of R.A. No. 10360 be posted11 and that
information campaigns be conducted prior to the plebiscite.12

On 9 October 2013, Cagas filed the present petition for prohibition. Cagas cites three causes of action:

1. COMELEC is without authority or legal basis to AMEND or MODIFY Section 46 of Republic Act No.
10360 by mere MINUTE RESOLUTION because it is only CONGRESS who can validly amend, repel [sic] or
modify existing laws, thus COMELEC [sic] act in suspending the holding of a plebiscite is
unconstitutional;13

2. COMELEC is without authority or legal basis to hold a plebiscite this coming October 28, 2013 for the
creation of the Province of Davao Occidental because Section 46 of Republic Act No. 10360 has already
lapsed;14 and

3. Petitioner has no other adequate remedy to prevent the COMELEC from holding the Plebiscite on
October 28, 2013 for the creation of the Province of Davao Occidental except through the issuance of
Temporary Restraining Order and Preliminary Injunction because COMELEC had already commenced the
preparation for holding of the Plebiscite for the creation of the Province of Davao Occidental
synchronizing it with that of the Barangay and SK elections this coming October 28, 2013.15

On 17 October 2013, we issued a Resolution requiring respondents COMELEC, represented by its

Chairperson, Hon. Sixto Brillantes, Jr., and the Provincial Election Officer of Davao del Sur, represented
by Atty. Ma. Febes Barlaan, to file their comment to Cagas’ petition not later than 21 October 2013.

The respondents, through the Office of the Solicitor General (OSG), filed their comment on 21 October
2013. The OSG raises the following arguments:

1. The 1987 Constitution does not fix the period to hold a plebiscite for the creation of a local
government unit;

2. There was logistical and financial impossibility for the COMELEC to hold a plebiscite at a mere two
months’ notice;

3. Legislative intent is for R.A. No. 10360 to be implemented;

4. Public interest demands that the plebiscite be conducted; and

5. The COMELEC did not abuse its discretion in issuing the questioned Resolutions.16

In this Resolution, we simplify the issues raised by the parties, thus: Did the COMELEC act without or in
excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction
when it resolved to hold the plebiscite for the creation of the Province of Davao Occidental on 28
October 2013, simultaneous with the Barangay Elections?

We answer in the negative.

The COMELEC’s power to administer elections

includes the power to conduct a plebiscite beyond the schedule

prescribed by law.
The conduct of a plebiscite is necessary for the creation of a province. Sections 10 and 11 of Article X of
the Constitution provide that:

Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its
boundary substantially altered, except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes cast in a plebiscite in the political
units directly affected.

Sec. 11. The Congress may, by law, create special metropolitan political subdivisions, subject to a
plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall retain their
basic autonomy and shall be entitled to their own local executive and legislative assemblies. The
jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services
requiring coordination. Section 10, Article X of the Constitution emphasizes the direct exercise by the
people of their sovereignty. After the legislative branch’s enactment of a law to create, divide, merge or
alter the boundaries of a local government unit or units, the people in the local government unit or units
directly affected vote in a plebiscite to register their approval or disapproval of the change.17

The Constitution does not specify a date as to when plebiscites should be held. This is in contrast with its
provisions for the election of members of the legislature in Section 8, Article VI18 and of the President
and Vice-President in Section 4, Article VII.19 The Constitution recognizes that the power to fix the date
of elections is legislative in nature, which is shown by the exceptions in previously mentioned
Constitutional provisions, as well as in the election of local government officials.20

Section 10 of R.A. No. 7160 furnishes the general rule as to when a plebiscite may be held:

Sec. 10. Plebiscite Requirement. – No creation, division, merger, abolition, or substantial alteration of
boundaries of local government units shall take effect unless approved by a majority of the votes cast in
a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be
conducted by the Commission on Elections (COMELEC) within one hundred twenty (120) days from the
date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixed
another date.

Section 46 of R.A. No. 10360, however, specifically provides that the plebiscite for the creation of the
province of Davao Occidental be held within 60 days from the effectivity of R.A. No. 10360, or until 6
April 2013.21 Cagas claims that R.A. No. 10360 "did not confer express or implied power to COMELEC to
exercise discretion when the plebiscite for the creation of the Province of Davao Occidental will be held.
On the contrary, said law provides a specific period when the COMELEC should conduct a
plebiscite."22 Cagas views the period "60 days from the effectivity" in R.A. No. 10360 as absolute and
mandatory; thus, COMELEC has no legal basis to hold a plebiscite on 28 October 2013.

The Constitution, however, grants the COMELEC the power to "enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall."23 The
COMELEC has "exclusive charge of the enforcement and administration of all laws relative to the
conduct of elections for the purpose of ensuring free, orderly and honest elections."24 The text and
intent of Section 2(1) of Article IX(C) is to give COMELEC "all the necessary and incidental powers for it to
achieve the objective of holding free, orderly, honest, peaceful and credible elections."25
Sections 5 and 6 of Batas Pambansa Blg. 881 (B.P. Blg. 881) the Omnibus Election Code, provide the
COMELEC the power to set elections to another date.

Sec. 5. Postponement of election.- When for any serious cause such as violence, terrorism, loss or
destruction of election paraphernalia or records, force majeure, and other analogous causes of such a
nature that the holding of a free, orderly and honest election should become impossible in any political
subdivision, the Commission, motu proprio or upon a verified petition by any interested party, and after
due notice and hearing, whereby all interested parties are afforded equal opportunity to be heard, shall
postpone the election therein to a date which should be reasonably close to the date of the election not
held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation
of the cause for such postponement or suspension of the election or failure to elect.

Sec. 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other
analogous causes the election in any polling place has not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of the voting, or after the voting and during the
preparation and the transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of such cases the failure or suspension of election would
affect the result of the election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or continuation of the election not
held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the
election not held, suspended or which resulted in a failure to elect but not later than thirty days after
the cessation of the cause of such postponement or suspension of the election or failure to elect.

The tight time frame in the enactment, signing into law, and effectivity of R.A. No. 10360 on 5 February
2013, coupled with the subsequent conduct of the National and Local Elections on 13 May 2013 as
mandated by the Constitution, rendered impossible the holding of a plebiscite for the creation of the
province of Davao Occidental on or before 6 April 2013 as scheduled in R.A. No. 10360. We also take
judicial notice of the COMELEC’s burden in the accreditation and registration of candidates for the Party-
List Elections.26 The logistic and financial impossibility of holding a plebiscite so close to the National and
Local Elections is unforeseen and unexpected, a cause analogous to force majeure and administrative
mishaps covered in Section 5 of B.P. Blg. 881. The COMELEC is justified, and did not act with grave abuse
of discretion, in postponing the holding of the plebiscite for the creation of the province of Davao
Occidental to 28 October 2013 to synchronize it with the Barangay Elections.

The OSG illustrated the COMELEC’s predicament in this manner:

To be sure, at the time R.A. No. 10360 was approved, the COMELEC had to deliver and accomplish the
following, among many others, for the May 2013 National and Local Elections:

1. Preparation of the Project of Precincts indicating the total number of established precincts and the
number of registered voters per precincts [sic] in a city or municipality.

2. Constitution of the Board of Election Inspectors including the precincts where they will be assigned
and the barangay where the precinct is located.

3. Inspection, verification and sealing of the Book of Voters containing the approved voter registration
records of registered voters in the particular precinct which must be inspected, verified, and sealed.
4. Finalization and printing of the computerized voters list for use on election day.

5. The preparation, bidding, printing and distribution of the voters’ information.

6. Configuration, testing, and demonstration of the PCOS machines and their distribution to the
different precincts.

To comply with the 60-day period to conduct the plebiscite then, as insisted, petitioner would have the
COMELEC hold off all of its above tasks. If COMELEC abandoned any of its tasks or did not strictly follow
the timetable for the accomplishment of these tasks then it could have put in serious jeopardy the
conduct of the May 2013 National and Local Elections. The COMELEC had to focus all its attention and
concentrate all its manpower and other resources on its preparation for the May 2013 National and
Local Elections, and to ensure that it would not be derailed, it had to defer the conduct of all plebiscites
including that of R.A. No. 10360.

Parenthetically, for the COMELEC to hold the plebiscite for the ratification of R.A. No. 10360 within the
fixed period, it would have to reconfigure for said purpose some of the PCOS machines that were
already configured for the May 2013 National and Local Elections; or in the alternative, conduct the
plebiscite manually.

However, conducting the plebiscite manually would require another set of ballots and other election
paraphernalia. Besides, another set of election materials would also require additional logistics for
printing, checking, packing, and deployment thereof. Lest it be forgotten, that all of these things should
undergo public bidding.

Since the plebiscite would be a separate undertaking, the COMELEC would have to appoint separate sets
of boards of election inspectors, tellers, and other personnel to canvass the result of the plebiscite – all
of which would have entailed further cost for the COMELEC whose budget had already been overly
stretched to cover the May 2013 National and Local Elections.

More importantly, it bears stressing that the COMELEC was not given a special budget to defray the cost
of the plebiscite. In fact, the COMELEC had to take ₱11 million from its savings and from the Barangay
Elections budget to finance the plebiscite to ratify R.A. No. 10360 on October 28, 2013.

The COMELEC’s questioned Resolution then directing the holding of the plebiscite for the ratification of
R.A. No. 10360 simultaneously with the Barangay Elections was not an abuse of its discretion, as alleged,
but simply an exercise of prudence, because as the COMELEC itself noted, doing so "will entail less
expense than holding it separately." [p. 9, Resolution No. 13-0926, Annex B, Petition.]

The determination of the feasibility of holding a plebiscite on a given date is within the competence and
discretion of the COMELEC. Petitioner cannot therefore simply insist that the COMELEC should have
complied with the period specified in the law when doing so would be virtually impossible under the
circumstances.27

This Court has rejected a too literal interpretation of election laws in favor of holding free, orderly,
honest, peaceful and credible elections.

In Pangandaman v. COMELEC,28 Lining Pangandaman (Pangandaman) filed a petition for certiorari and
prohibition with prayer for temporary restraining order and preliminary injunction to challenge the
Omnibus Order of the COMELEC En Banc. The COMELEC En Banc ordered the conduct of special
elections in certain municipalities in Lanao del Sur on 18 and 25 July 1998, or more than 30 days after
the failure of elections on 11 May 1998. Like Cagas, Pangandaman insisted on a strict compliance with
the schedule of the holding of special elections. Pangandaman asserted that COMELEC’s authority to call
a special election was limited by the 30-day period and that Congress had the power to call a special
election after the 30th day. We admonished Pangandaman against a too literal interpretation of the law,
and protected COMELEC’s powers against the straitjacketing by procedural rules.

It is a basic precept in statutory construction that a statute should be interpreted in harmony with the
Constitution and that the spirit, rather than the letter of the law determines its construction; for that
reason, a statute must be read according to its spirit and intent. Thus, a too literal interpretation of the
law that would lead to absurdity prompted this Court to —

x x x admonish against a too-literal reading of the law as this is apt to constrict rather than fulfill its
purpose and defeat the intention of its authors. That intention is usually found not in ‘the letter that
killeth but in the spirit that vivifieth’ x x x

Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad power to "enforce and
administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum and recall." There can hardly be any doubt that the text and intent of this constitutional
provision is to give COMELEC all the necessary and incidental powers for it to achieve the objective of
holding free, orderly, honest, peaceful and credible elections.

Pursuant to this intent, this Court has been liberal in defining the parameters of the COMELEC’s powers
in conducting elections. As stated in the old but nevertheless still very much applicable case of
Sumulong v. COMELEC:

Politics is a practical matter, and political questions must be dealt with realistically — not from the
standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts
with political strategists, and its knowledge derived from actual experience in dealing with political
controversies, is in a peculiarly advantageous position to decide complex political questions x x x. There
are no ready made formulas for solving public problems. Time and experience are necessary to evolve
patterns that will serve the ends of good government. In the matter of the administration of laws
relative to the conduct of election x x x we must not by any excessive zeal take away from the
Commission on Elections that initiative which by constitutional and legal mandates properly belongs to
it.

More pointedly, this Court recently stated in Tupay Loong v. COMELEC, et al., that "Our elections are not
conducted under laboratory conditions. In running for public offices, candidates do not follow the rules
of Emily Post. Too often, COMELEC has to make snap judgments to meet unforeseen circumstances that
threaten to subvert the will of our voters. In the process, the actions of COMELEC may not be
impeccable, indeed, may even be debatable. We cannot, however, engage in a swivel chair criticism of
these actions often taken under very difficult circumstances."

The purpose of the governing statutes on the conduct of elections —

x x x is to protect the integrity of elections to suppress all evils that may violate its purity and defeat the
will of the voters. The purity of the elections is one of the most fundamental requisites of popular
government. The Commission on Elections, by constitutional mandate, must do everything in its power
to secure a fair and honest canvass of the votes cast in the elections. In the performance of its duties,
the Commission must be given a considerable latitude in adopting means and methods that will insure
the accomplishment of the great objective for which it was created — to promote free, orderly, and
honest elections. The choice of means taken by the Commission on Elections, unless they are clearly
illegal or constitute grave abuse of discretion, should not be interfered with.

Guided by the above-quoted pronouncement, the legal compass from which the COMELEC should take
its bearings in acting upon election controversies is the principle that " clean elections control the
appropriateness of the remedy."

In fixing the date for special elections the COMELEC should see to it that: 1.] it should not be later than
thirty (30) days after the cessation of the cause of the postponement or suspension of the election or
the failure to elect; and, 2.] it should be reasonably close to the date of the election not held, suspended
or which resulted in the failure to elect.1avvphi1 The first involves a question of fact. The second must
be determined in the light of the peculiar circumstances of a case. Thus, the holding of elections within
the next few months from the cessation of the cause of the postponement, suspension or failure to
elect may still be considered "reasonably close to the date of the election not held."

In this case, the COMELEC can hardly be faulted for tardiness. The dates set for the special elections
were actually the nearest dates from the time total/partial failure of elections was determined, which
date fell on July 14, 1998, the date of promulgation of the challenged Omnibus Order. Needless to state,
July 18 and 25, the dates chosen by the COMELEC for the holding of special elections were only a few
days away from the time a total/partial failure of elections was declared and, thus, these were "dates
reasonably close" thereto, given the prevailing facts herein. Furthermore, it bears stressing that in the
exercise of the plenitude of its powers to protect the integrity of elections, the COMELEC should not and
must not be straitjacketed by procedural rules in the exercise of its discretion to resolve election
disputes.29

In Sambarani v. COMELEC,30 petitioners were candidates for punong barangay in different barangays in
Lanao del Sur. There was a failure of elections in the 15 July 2002 Synchronized Barangay and
Sangguniang Kabataan (SK) Elections, and special elections were set on 13 August 2002 in the affected
barangays. No special elections were held on 13 August 2002, so petitioners asked the COMELEC to
declare a failure of elections in their barangays and to hold another special election. The COMELEC,
however, directed the Department of Interior and Local Government to appoint the Barangay Captains,
Barangay Kagawads, SK Chairmen, and SK

Kagawads in the affected barangays. The COMELEC stated that it is no longer in a position to call for
another special election since Section 6 of the Omnibus Election Code provides that "special elections
shall be held on a date reasonably close to the date of the election not held, but not later than thirty
days after cessation of the cause of such postponement."

We directed the COMELEC to conduct special elections and stated that the deadline cannot defeat the
right of suffrage of the people.

The prohibition on conducting special elections after thirty days from the cessation of the cause of the
failure of elections is not absolute.1âwphi1 It is directory, not mandatory, and the COMELEC possesses
residual power to conduct special elections even beyond the deadline prescribed by law. The deadline in
Section 6 cannot defeat the right of suffrage of the people as guaranteed by the Constitution. The
COMELEC erroneously perceived that the deadline in Section 6 is absolute. The COMELEC has broad
power or authority to fix other dates for special elections to enable the people to exercise their right of
suffrage. The COMELEC may fix other dates for the conduct of special elections when the same cannot
be reasonably held within the period prescribed by law.31

It is thus not novel for this Court to uphold the COMELEC’s broad power or authority to fix other dates
for a plebiscite, as in special elections, to enable the people to exercise their right of suffrage. The
COMELEC thus has residual power to conduct a plebiscite even beyond the deadline prescribed by law.
The date 28 October 2013 is reasonably close to 6 April 2013, and there is no reason why the plebiscite
should not proceed as scheduled by the COMELEC. The OSG points out that public interest demands
that the plebiscite be conducted.

At this point, there is nothing more for the COMELEC to do except to hold the plebiscite as scheduled on
October 18, [sic] 2013. In fact, the COMELEC already scheduled the shipment and deployment of the
election paraphernalia to all the precincts in Davao del Sur, except Davao City.

The COMELEC had put so much work and effort in its preparation for the conduct of the plebiscite. A
substantial amount of funds have also been defrayed for the following election undertakings:

1 Bidding for election paraphernalia;

2 Cleansing of voters registration list;

3 Preparation, bidding, printing and distribution of the voters information;

4 Preparation and completion of the projects of precincts;

5 Printing of ballots;

6 Constitution of the Board of Election Inspectors;

7 Training and assignment of personnel; and

8 Information dissemination campaign.

To demand now that the COMELEC desist from holding the plebiscite would be an utter waste of time,
effort and resources, not to mention its detriment to public interest given that public funds are
involved.32

In election law, the right of suffrage should prevail over mere scheduling mishaps in holding elections or
plebiscites. Indeed, Cagas insistence that only Congress can cure the alleged legal infirmity in the date of
holding the plebiscite for the creation of the Province of Davao Occidental fails in light of the absence of
abuse of discretion of the COMELEC. Finally, this Court finds it unacceptable to utilize more of our
taxpayers time and money by preventing the COMELEC from holding the plebiscite as now scheduled.

WHEREFORE, we DISMISS the petition for lack of merit.

SO ORDERED.
EN BANC

G.R. Nos. 166388 and 166652 January 23, 2006

ALAN PETER S. CAYETANO, Petitioner,

vs.
COMMISSION ON ELECTIONS, MA. SALVACION BUAC and ANTONIO BAUTISTA, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

Before us for resolution are two (2) petitions for certiorari:1

1. G.R. No. 166388

The petition in this case, filed by Congressman Alan Peter S. Cayetano, representing the District of
Taguig-Pateros, against the Commission on Elections (COMELEC), Ma. Salvacion Buac and Antonio
Bautista, mainly assails the Resolution of the COMELEC en banc dated December 8, 2004 in EPC No. 98-
102 declaring the ratification and approval, through a plebiscite, of the conversion of the Municipality of
Taguig, Metro Manila, into a highly urbanized city. Private respondents are residents and duly registered
voters of Taguig.

2. G.R. No. 166652

The petition here, filed by the same petitioner against the same respondents, questions the (a)
COMELEC Resolution dated January 28, 2005 declaring the said Resolution of December 8, 2004 final
and executory; and (b) the recording of the said Resolution in the COMELEC’s Book of Entry of
Judgments dated January 28, 2005.

The facts are:

On April 25, 1998, the COMELEC conducted a plebiscite in Taguig, Metro Manila on the conversion of
this municipality into a highly urbanized city as mandated by Republic Act No. 8487.2 The residents of
Taguig were asked this question: "Do you approve the conversion of the Municipality of Taguig, Metro
Manila into a highly urbanized city to be known as the City of Taguig, as provided for in Republic Act No.
8487? "

On April 26, 1998, the Plebiscite Board of Canvassers (PBOC), without completing the canvass of sixty-
four (64) other election returns, declared that the "No" votes won, indicating that the people rejected
the conversion of Taguig into a city.

However, upon order of the COMELEC en banc, the PBOC reconvened and completed the canvass of the
plebiscite returns, eventually proclaiming that the negative votes still prevailed.

Alleging that fraud and irregularities attended the casting and counting of votes, private respondents,
filed with the COMELEC a petition seeking the annulment of the announced results of the plebiscite with
a prayer for revision and recount of the ballots. The COMELEC treated the petition as an election protest,
docketed as EPC No. 98-102. It was raffled to the Second Division.
Petitioner intervened in the case. He then filed a motion to dismiss the petition on the ground that the
COMELEC has no jurisdiction over an action involving the conduct of a plebiscite. He alleged that a
plebiscite cannot be the subject of an election protest.

The COMELEC Second Division issued a Resolution granting petitioner’s motion and dismissing the
petition to annul the results of the Taguig plebiscite for lack of jurisdiction. The COMELEC en
banc affirmed this Resolution.

Aggrieved, private respondents filed with this Court a petition for certiorari and mandamus, docketed as
G.R. No. 155855, entitled Ma. Salvacion Buac and Antonio Bautista vs. COMELEC and Alan Peter S.
Cayetano. On January 26, 2004, we rendered a Decision reversing the COMELEC’s Resolution. We held
that the controversy on the conduct of the Taguig plebiscite "is a matter that involves the enforcement
and administration of a law relative to a plebiscite. It falls under the jurisdiction of the COMELEC under
Section 2 (1), Article IX (C) of the Constitution authorizing it ‘to enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.’" Thus,
we directed the COMELEC "to reinstate the petition to annul the results of the 1998 Taguig plebiscite
and to decide it without delay." Petitioner filed a motion for reconsideration but we denied the same in
a Resolution dated February 24, 2004.

Accordingly, on April 19, 2004, the COMELEC Second Division issued an Order in EPC No. 98-102
constituting the committees for the revision/recount of the plebiscite ballots.

On April 28, 2004, the revision/recount proceedings commenced and upon its termination, the
Committees on Revision submitted their complete and final reports.

Thereafter, the COMELEC Second Division set the case for hearing. As no witnesses were presented by
petitioner, the parties were directed to submit their respective memoranda, which they did.

However, the COMELEC Second Division failed to render a decision as the required number of votes
among its members could not be obtained. Consequently, pursuant to Section 5 (b),3 Rule 3 of the
COMELEC Rules of Procedure, the case was elevated to the Commission en banc for resolution.4

On November 24, 2004, the COMELEC en banc issued an Order considering the case submitted for
resolution. On December 8, 2004, it issued the assailed Resolution declaring and confirming the
ratification and approval of the conversion of the Municipality of Taguig into a highly urbanized city,
thus:

"WHEREFORE, premises considered, the instant petition is hereby GRANTED.

"Considering that 21,105 affirmative votes represent the majority and the highest votes obtained during
the 1998 Taguig Plebiscite, this Commission
hereby DECLARES and CONFIRMS the RATIFICATION and APPROVAL of the conversion of the
municipality of Taguig into a highly urbanized city.

"Let the Election Officer of Taguig and the Department of Interior and Local Government (DILG)
implement this Resolution.

"SO ORDERED."
Hence, petitioner filed the instant petition for certiorari in G.R. No. 166388, alleging that in rendering
the said Resolution, the COMELEC acted with grave abuse of discretion.

On January 28, 2005, the COMELEC en banc, upon motion of private respondents, issued an Order
declaring its Resolution of December 8, 2004 final and executory as of January 9, 2005 in conformity
with Section 13 (a),5 Rule 18 of the COMELEC Rules of Procedure. On the same date, the Resolution of
December 8, 2004 was recorded in its Book of Entry of Judgments.

On January 31, 2005, petitioner again filed with this Court a petition for certiorari, docketed as G.R. No.
166652, challenging the COMELEC en banc Order of January 28, 2005 and the corresponding Entry of
Judgment. Subsequently, we directed that the case be consolidated with G.R. No. 166388.6

At the outset, petitioner himself makes it clear that "for the record, – as the representative of Taguig
and Pateros – he is for the cityhood of Taguig. Conversion of a municipality into a highly urbanized
city per se is not appalling; in fact, efforts towards its realization should be welcomed. But (he) firmly
believes that Taguig must become a city the right way, by a fair count of votes and not by twisting the
electoral will."7

Petitioner contends that "the revision of the plebiscite ballots cannot be relied upon for the
determination of the will of the electorate" because "the revision is incomplete."8 He claims that:

"Based on the Final Report of the Committee on Revision for each of the eight (8) Revision Committees,
the revision of ballots yielded a total of 15,802 votes for ‘Yes’ and a total of 12,602 votes for ‘No.’ The
revision committee thus canvassed only a total of 28,404 ballots."9

Besides, "many irregularities, frauds and anomalies attended the revision proceedings."10 He maintains
that the COMELEC "acted with grave abuse of discretion amounting to lack or in excess of jurisdiction" in
confirming the ratification and approval of the conversion of Taguig into a highly urbanized city.

In their respective comments, the Solicitor General, on behalf of the COMELEC, and the private
respondents vehemently disputed petitioner’s allegations and prayed that the instant petitions be
dismissed for lack of merit.

Both petitions must fail.

It is clear from petitioner’s allegations that the matters being raised – the alleged incomplete canvass of
plebiscite votes during the revision proceedings and the irregularities, frauds, and anomalies
purportedly committed therein – are factual in nature. They involve an examination of the admissibility
and sufficiency of the evidence presented during the revision proceedings before the COMELEC.
Certainly, this we cannot do in the present special civil actions for certiorari under Rule 65 of the 1987
Rules of Civil Procedure, as amended. Section 1 of the same Rule confines the power of this Court to
resolve issues mainly involving jurisdiction, including grave abuse of discretion amounting to lack or in
excess of jurisdiction attributed to the public respondent.11

Nonetheless, in the interest of substantial justice and considering likewise the interest of the residents
and voters of the City of Taguig, we still reviewed the evidence and found that petitioner erred when he
alleged that the revision of ballots yielded a total of "15,802 votes for ‘Yes’ and a total of 12,602 votes
for ‘No.’"
As shown by the records, the COMELEC considered not only the total number of votes reflected in the
Final Canvassing Report of the Taguig PBOC, but also the voting results based on (1) the physical count
of the ballots; (2) the returns of the uncontested precincts; and (3) the appreciation of the contested
ballots, all summed up and tallied as follows:12

Affirmative Negative

Total Number of Votes Per PBOC

19,413 21,890
Canvassing Report

Minus: Number of Invalid Votes 253 419

Minus: Number of Votes Deducted from

the Plebiscite Returns After Physical 0 2,024
Count (Table D)

Plus: Number of Votes Added After

1,936 0
Physical Count (Table D)

Plus: Credited Claimed Ballots 9 13

Total 21,105 19,460

The above factual findings of the COMELEC supported by evidence, are accorded, not only respect, but
finality.13This is so because "the conduct of plebiscite and determination of its result have always been
the business of the COMELEC and not the regular courts. Such a case involves the appreciation of ballots
which is best left to the COMELEC. As an independent constitutional body exclusively charged with the
power of enforcement and administration of all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum and recall, the COMELEC has the indisputable expertise in the
field of election and related laws."14 Its acts, therefore, enjoy the presumption of regularity in the
performance of official duties.15

In fine, we hold that in issuing the challenged Resolution and Order in these twin petitions, the
COMELEC did not gravely abuse its discretion.

WHEREFORE, the instant petitions are DISMISSED for lack of merit. Costs against petitioner.

SO ORDERED.
EN BANC

MIKE A. FERMIN, G.R. No. 172563

Petitioner,

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,

CARPIO,

- versus - AUSTRIA-MARTINEZ,

CORONA,

CARPIO MORALES,

CALLEJO, SR.,

AZCUNA,

TINGA,

CHICO-NAZARIO,

COMMISSION ON ELECTIONS GARCIA,

and ALIMUDIN A. MACACUA, VELASCO, JR., and

Respondents. NACHURA, JJ.

Promulgated:

April 27, 2007

x-----------------------------------------------------------------------------------------x

DECISION

AZCUNA, J.:
This is a petition for certiorari alleging that the Commission on Elections (COMELEC) en banc acted with
grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Orders dated May 9,
2006 and May 16, 2006.

The facts are:

Petitioner Mike A. Fermin and private respondent Alimudin A. Macacua were candidates for Mayor in
the May 2004 local elections in the Municipality of Kabuntalan, Maguindanao. The Municipal Board of
Canvassers of Kabuntalan proclaimed petitioner as the duly elected mayor of Kabuntalan. The COMELEC,
however, annulled the proclamation due to the failure of clustered polling Precinct No. 25A/26A to
function in Barangay Guiawa, Kabuntalan, Maguindanao. The existence of 264 registered voters in the
clustered precinct would affect the results of the election. Thus, the COMELEC scheduled a special
election in clustered Precinct No. 25A/26A on July 28, 2004.

In the special election of July 28, 2004, private respondent was proclaimed as the winning candidate for
Mayor. Petitioner challenged the special election due to alleged procedural infirmities. In a Resolution
dated June 2, 2005, the COMELEC nullified the special election. Private respondents proclamation was
set aside and the vice mayor-elect temporarily assumed the mayoralty post.

The COMELEC scheduled another special election for clustered Precinct No. 25A/26A on May 6, 2006. It
constituted a Special Municipal Board of Canvassers (SMBOC) for this purpose. One Hundred Seventy-
Eight (178) out of the 264 registered voters cast their votes.

Per SMBOC canvass, petitioner garnered 39 votes, while private respondent obtained 136 votes. When
the election results were added, petitioner and private respondent got 2,208 votes each, ending in a tie.

Pursuant to Sec. 240[1] of the Omnibus Election Code, SMBOC issued a notice suspending its proceedings
and setting a Special Public Hearing on May 14, 2006.

In a Memorandum dated May 8, 2006, the SMBOC Chairman submitted to COMELEC a report on the
conduct of the second special elections.

On May 9, 2006, private respondent filed with the COMELEC en banc an Extremely Urgent Omnibus
Motion:
A. To investigate why the May 6, 2006 Special Election was stopped at 2:15 p.m. with 30 to 40
voters still lined-up to vote;

B. To require the SMBOC of Kabuntalan headed by Atty. Radam and the PNP Contingent
headed by a certain Supt. Gunting to show cause why they should not be held liable for an election
offense under paragraphs (e) and (f), Sec. 261 and Sec. 262 of the Omnibus Election Code; and

C. To hold in abeyance the Special Public Hearing set by the Board on May 14, 2006 for
purposes of Sec. 240 of the Omnibus Election Code until after the Commission shall have ruled on the
incidents.[2]

On even date, the COMELEC issued the first assailed Order dated May 9, 2006, the dispositive portion of
which reads:

The Commission, after due deliberation, hereby orders as follows:

1. to require the petitioner and the Special Municipal Board of Canvassers of Kabuntalan,
Maguindanao to file their respective comments within five (5) days from receipt hereof;

2. to hold in abeyance the Special Public Hearing set by the Special Municipal Board of
Canvassers on May 14, 2006; and

3. to set this Extremely Urgent Omnibus Motion for hearing on May 18, 2006 at 10:00 a.m.,
Comelec Session Hall, 8th Floor, Palacio del Gobernador, Intramuros, Manila.

SO ORDERED. [3]
Despite the Order dated May 9, 2006, the Special Public Hearing pushed through on May 14, 2006, and
the SMBOC proclaimed petitioner as the duly elected Mayor of Kabuntalan. Private respondent alleged
in his Comment[4] that he was absent during the Special Public Hearing.

On May 16, 2006, the COMELEC en banc issued the second assailed Order,[5] which annulled the
proceedings of the Special Public Hearing conducted on May 14, 2006 and set aside the proclamation of
petitioner.

Hence, this petition.

The issue is whether or not the COMELEC en banc gravely abused its discretion amounting to lack of
jurisdiction in issuing the Orders dated May 9, 2006 and May 16, 2006.

Petitioner claims that the COMELEC acted with grave abuse of discretion when it ruled on private
respondents Extremely Urgent Motion despite the alleged lack of sufficient notice to the parties.

The Court is not persuaded.

Sections 3 and 4, Rule 1 of the COMELEC Rules of Procedure provide:

Sec. 3. Construction.These rules shall be liberally construed in order to promote the effective and
efficient implementation of the objectives of ensuring the holding of free, orderly, honest, peaceful and
credible elections and to achieve just expeditious and inexpensive determination and disposition of
every action and proceeding brought before the Commission.

Sec. 4. Suspension of the Rules. -- In the interest of justice and in order to obtain speedy disposition of all
matters pending before the Commission, these rules or any portion thereof may be suspended by the
Commission.

Moreover, Pangandaman v. Commission on Elections[6] held:

Section 2 (1) of Article IX (C) of the Constitution gives the COMELEC the broad power to enforce and
administer all laws and regulations relative to the conduct of an election, plebiscite, initiative
referendum and recall. There can hardly be any doubt that the text and intent of this constitutional
provision is to give COMELEC all the necessary and incidental powers for it to achieve the objective of
holding free, orderly, honest, peaceful and credible elections.

xxx

More pointedly, this Court recently stated in Tupay Loong v. COMELEC, et al., that [O]ur elections are not
conducted under laboratory conditions. x x x Too often, COMELEC has to make snap judgments to meet
unforeseen circumstances that threaten to subvert the will of our voters. In the process, the actions of
COMELEC may not be impeccable, indeed, may even be debatable. We cannot, however, engage in
swivel chair criticism of these actions often taken under very difficult circumstances.

The purpose of the governing statutes on the conduct of elections

. . . [i]s to protect the integrity of elections to suppress all evils that may violate its purity and defeat the
will of the voters. The purity of the elections is one of the most fundamental requisites of popular
government. The Commission on Elections, by constitutional mandate, must do everything in its power
to secure a fair and honest canvass of votes cast in the elections. In the performance of its duties, the
Commission must be given considerable latitude in adopting means and methods that will insure the
accomplishment of the great objective for which it was created to promote free, orderly, and honest
elections. The choice of means taken by the Commission of Elections, unless they are clearly illegal or
constitute grave abuse of discretion, should not be interfered with.[7]

In this case, the assailed Orders were issued by the COMELEC in the performance of its duty to promote
free, orderly and honest elections. Private respondents Extremely Urgent Omnibus Motion invoked
COMELECS authority to investigate why the May 6, 2006 Special Election was stopped at 2:15 p.m. with
30 to 40 voters still lined-up to vote and determine the accountability of the SMBOC of Kabuntalan on
the matter.

According to private respondent, a scripted scenario of violence initiated by persons identified with
petitioner and abetted by the PNP contingent marred the second special elections on May 6,
2006. Further, the Chairman of the SMBOC allegedly stopped the election at 2:15 p.m. although there
were still voters lined up to vote in the precinct.
Hence, the COMELEC issued the first Order dated May 9, 2006 requiring petitioner and the SMBOC to
file their respective Comments on the omnibus motion, and to hold in abeyance the Special Public
Hearing set on May 14, 2006.

However, despite notice to both parties and the SMBOC, the Special Public Hearing proceeded on May
14, 2006. In its Order dated May 16, 2006, the COMELEC annulled the proceedings of the Special Public
Hearing and set aside the proclamation of petitioner therein as the duly elected mayor of Kabuntalan,
evidently for failure to heed its Order dated May 9, 2006.

Under the circumstances, COMELECs action is not tainted with grave abuse of discretion.

Petitioner also assails the COMELEC for taking cognizance of private respondents omnibus motion
although the matters raised therein did not constitute that of a pre-proclamation controversy,
but should have been the subject of a separate criminal prosecution for election offenses.

The argument is without merit.

Under Section 227[8] of the Omnibus Election Code, the COMELEC is vested with the power of direct
control and supervision over the board of canvassers; hence, it took cognizance of the complaint in the
omnibus motion which questioned the conduct of the special elections by the SMBOC.

The Solicitor General aptly stated that the COMELEC cannot just cast a blind eye and concede to be
powerless in the midst of allegations of electoral fraud and violence in the second special elections held
in Precinct 25A/26A in Kabuntalan, Maguindanao by the mere expedient of an alleged procedural flaw
on the part of the party aggrieved. To do so would be an abandonment ofCOMELECs constitutionally
enshrined duty of ensuring an honest and clean election.

Petitioners allegation of grave abuse of discretion by the COMELEC in issuing the assailed Orders implies
capricious and whimsical exercise of judgment amounting to lack of jurisdiction, or arbitrary and
despotic exercise of power because of passion or personal hostility.[9] It is absent in this case.

WHEREFORE, the petition for certiorari is DISMISSED. The Orders of the COMELEC dated May 9,
2006 and May 16, 2006 are AFFIRMED.
Costs against petitioner.

SO ORDERED.
EN BANC

[G.R. No. 108399. July 31, 1997]

RAFAEL M. ALUNAN III, in his capacity as Secretary of the Department of Interior and Local
Government (DILG), the BOARD OF ELECTION SUPERVISORS composed of Atty. RUBEN M. RAMIREZ,
Atty. RAFAELITO GARAYBLAS, and Atty. ENRIQUE C. ROA, GUILLERMINA RUSTIA, in her capacity as
Director of the Barangay Bureau, City Treasurer Atty. ANTONIO ACEBEDO, Budget Officer EUFEMIA
DOMINGUEZ, all of the City Government of Manila, petitioners, vs. ROBERT MIRASOL, NORMAN T.
SANGUYA, ROBERT DE JOYA, ARNEL R. LORENZO, MARY GRACE ARIAS, RAQUEL L. DOMINGUEZ,
LOURDES ASENCIO, FERDINAND ROXAS, MA. ALBERTINA RICAFORT,and BALAIS M. LOURICH, and the
HONORABLE WILFREDO D. REYES,Presiding Judge of the Regional Trial Court, Branch 36, Metro
Manila, respondents.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari of the decision dated January 19, 1993 of the Regional Trial
Court of Manila (Branch 36),[1]nullifying an order of the Department of Interior and Local Government
(DILG), which in effect cancelled the general elections for the Sangguniang Kabataan (SK) slated on
December 4, 1992 in the City of Manila, on the ground that the elections previously held on May 26,
1990 served the purpose of the first elections for the SK under the Local Government Code of 1991 (R.A.
No. 7160).

Section 423 of the Code provides for a SK in every barangay, to be composed of a chairman, seven (7)
members, a secretary, and a treasurer. Section 532(a) provides that the first elections for the SK shall be
held thirty (30) days after the next local elections. The Code took effect on January 1, 1992.

The first local elections under the Code were held on May 11, 1992. Accordingly, on August 27, 1992,
the Commission on Elections issued Resolution No. 2499, providing guidelines for the holding of the
general elections for the SK on September 30, 1992. The guidelines placed the SK elections under the
direct control and supervision of the DILG, with the technical assistance of the COMELEC.[2] After two
postponements, the elections were finally scheduled on December 4, 1992.

Accordingly, registration in the six districts of Manila was conducted. A total of 152,363 youngsters, aged
15 to 21 years old, registered, 15,749 of them filing certificates of candidacies. The City Council passed
the necessary appropriations for the elections.

On September 18, 1992, however, the DILG, through then Secretary Rafael M. Alunan III, issued a letter-
resolution exempting the City of Manila from holding elections for the SK on the ground that the
elections previously held on May 26, 1990 were to be considered the first under the newly-enacted
Local Government Code. The DILG acted on a letter of Joshue R. Santiago, acting president of the KB City
Federation of Manila and a member of City Council of Manila, which called attention to the fact that in
the City of Manila elections for the Kabataang Barangay (the precursor of the Sangguniang Kabataan)
had previously been held on May 26, 1990. In its resolution, the DILG stated:

[A] close examination of . . . RA 7160 would readily reveal the intention of the legislature to exempt
from the forthcoming Sangguniang Kabataan elections those kabataang barangay chapters which may
have conducted their elections within the period of January 1, 1988 and January 1, 1992 under BP
337. Manifestly the term of office of those elected KB officials have been correspondingly extended to
coincide with the term of office of those who may be elected under RA 7160.

On November 27, 1992 private respondents, claiming to represent the 24,000 members of the
Katipunan ng Kabataan, filed a petition for certiorari and mandamus in the RTC of Manila to set aside
the resolution of the DILG. They argued that petitioner Secretary of Interior and Local Government had
no power to amend the resolutions of the COMELEC calling for general elections for SKs and that the
DILG resolution in question denied them the equal protection of the laws.

On November 27, 1992, the trial court, through Executive Judge, now COMELEC Chairman, Bernardo P.
Pardo, issued an injunction, ordering petitioners to desist from implementing the order of the
respondent Secretary dated September 18, 1992, . . . until further orders of the Court. On the same day,
he ordered petitioners to perform the specified pre-election activities in order to implement Resolution
No. 2499 dated August 27, 1992 of the Commission on Elections providing for the holding of a general
election of the Sangguniang Kabataan on December 4, 1992 simultaneously in every barangay
throughout the country.

The case was subsequently reraffled to Branch 36 of the same court. On January 19, 1993, the new
judge, Hon. Wilfredo D. Reyes, rendered a decision, holding that (1) the DILG had no power to exempt
the City of Manila from holding SK elections on December 4, 1992 because under Art. IX, C, 2(1) of the
Constitution the power to enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall is vested solely in the COMELEC; (2) the COMELEC
had already in effect determined that there had been no previous elections for KB by calling for general
elections for SK officers in every barangay without exception; and (3) the exemption of the City of
Manila was violative of the equal protection clause of the Constitution because, according to the DILGs
records, in 5,000 barangays KB elections were held between January 1, 1988 and January 1, 1992 but
only in the City of Manila, where there were 897 barangays, was there no elections held on December 4,
1992.

Petitioners sought this review on certiorari. They insist that the City of Manila, having already conducted
elections for the KB on May 26, 1990, was exempted from holding elections on December 4, 1992. In
support of their contention, they cite 532(d) of the Local Government Code of 1991, which provides
that:

All seats reserved for the pederasyon ng mga sangguniang kabataan in the different sanggunians shall
be deemed vacant until such time that the sangguniang kabataan chairmen shall have been elected and
the respective pederasyon presidents have been selected: Provided, That, elections for the kabataang
barangay conducted under Batas Pambansa Blg. 337 at any time between January 1, 1988 and January
1, 1992 shall be considered as the first elections provided for in this Code. The term of office of the
kabataang barangay officials elected within the said period shall be extended correspondingly to
coincide with the term of office of those elected under this Code. (emphasis added)

They maintain that the Secretary of the DILG had authority to determine whether the City of Manila
came within the exception clause of 532(d) so as to be exempt from holding the elections on December
4, 1992.
The preliminary question is whether the holding of the second elections on May 13, 1996[3] rendered
this case moot and academic.There are two questions raised in this case. The first is whether the
Secretary of Interior and Local Government can exempt a local government unit from holding elections
for SK officers on December 4, 1992 and the second is whether the COMELEC can provide that the
Department of Interior and Local Government shall have direct control and supervision over the election
of sangguniang kabataan with the technical assistance by the Commission on Elections.

We hold that this case is not moot and that it is in fact necessary to decide the issues raised by the
parties. For one thing, doubt may be cast on the validity of the acts of those elected in the May 26, 1990
KB elections in Manila because this Court enjoined the enforcement of the decision of the trial court and
these officers continued in office until May 13, 1996. For another, this case comes within the rule that
courts will decide a question otherwise moot and academic if it is capable of repetition, yet evading
review.[4] For the question whether the COMELEC can validly vest in the DILG the control and supervision
of SK elections is likely to arise in connection with every SK election and yet the question may not be
decided before the date of such elections.

In the Southern Pacific Terminal case, where the rule was first articulated, appellants were ordered by
the Interstate Commerce Commission to cease and desist from granting a shipper what the ICC
perceived to be preferences and advantages with respect to wharfage charges. The cease and desist
order was for a period of about two years, from September 1, 1908 (subsequently extended to
November 15), but the U.S. Supreme Court had not been able to hand down its decision by the time the
cease and desist order expired.The case was decided only on February 20, 1911, more than two years
after the order had expired. Hence, it was contended that the case had thereby become moot and the
appeal should be dismissed. In rejecting this contention, the Court held:

The question involved in the orders of the Interstate Commerce Commission are usually continuing (as
are manifestly those in the case at bar), and these considerations ought not to be, as they might be,
defeated, by short-term orders, capable of repetition, yet evading review, and at one time the
government, and at another time the carriers, have their rights determined by the Commission without
a chance of redress.[5]

In Roe v. Wade,[6] petitioner, a pregnant woman, brought suit in 1970 challenging anti-abortion statutes
of Texas and Georgia on the ground that she had a constitutional right to terminate her pregnancy at
least within the first trimester. The case was not decided until 1973 when she was no longer
pregnant. But the U.S. Supreme Court refused to dismiss the case as moot. It was explained: [W]hen, as
here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so
short that the pregnancy will come to term before the usual appellate process is complete. If that
termination makes a case moot, pregnancy litigation seldom will survive. Our laws should not be that
rigid. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be capable
of repetition, yet evading review.[7]

We thus reach the merits of the questions raised in this case. The first question is whether then DILG
Secretary Rafael M. Alunan III had authority to determine whether under 532(d) of the Local
Government Code, the City of Manila was required to hold its first elections for SK. As already stated,
petitioners sustain the affirmative side of the proposition. On the other hand, respondents argue that
this is a power which Art.IX,C, 2(1) of the Constitution vests in the COMELEC. Respondents further argue
that, by mandating that elections for the SK be held on December 4, 1992 in every barangay, the
COMELEC in effect determined that there had been no elections for the KB previously held in the City of
Manila.

We find the petition to be meritorious.

First. As already stated, by 4 of Resolution No. 2499, the COMELEC placed the SK elections under the
direct control and supervision of the DILG. Contrary to respondents contention, this did not contravene
Art. IX, C, 2(1) of the Constitution which provides that the COMELEC shall have the power to enforce and
administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall. Elections for SK officers are not subject to the supervision of the COMELEC in
the same way that, as we have recently held, contests involving elections of SK officials do not fall within
the jurisdiction of the COMELEC. In Mercado v. Board of Election Supervisors,[8] it was contended that

COMELEC Resolution No. 2499 is null and void because: (a) it prescribes a separate set of rules for the
election of the SK Chairman different from and inconsistent with that set forth in the Omnibus Election
Code, thereby contravening Section 2, Article 1 of the said Code which explicitly provides that it shall
govern all elections of public officers; and, (b) it constitutes a total, absolute, and complete abdication
by the COMELEC of its constitutionally and statutorily mandated duty to enforce and administer all
election laws as provided for in Section 2(1), Article IX-C of the Constitution; Section 52, Article VIII of
the Omnibus Election Code; and Section 2, Chapter 1, Subtitle C, Title 1, Book V of the 1987
Administrative Code.[9]

Rejecting this contention, this Court, through Justice Davide, held:

Section 252 of the Omnibus Election Code and that portion of paragraph (2), Section 2, Article IX-C of
the Constitution on the COMELECs exclusive appellate jurisdiction over contests involving elective
barangay officials refer to the elective barangay officials under the pertinent laws in force at the time
the Omnibus Election Code was enacted and upon the ratification of the Constitution. That law was B.P.
Blg. 337, otherwise known as the Local Government Code, and the elective barangay officials referred to
were the punong barangay and the six sangguniang bayan members. They were to be elected by those
qualified to exercise the right of suffrage. They are also the same officers referred to by the provisions of
the Omnibus Election Code of the Philippines on election of barangay officials. Metropolitan and
municipal trial courts had exclusive original jurisdiction over contests relating to their election. The
decisions of these courts were appealable to the Regional Trial Courts.

....

In the light of the foregoing, it is indisputable that contests involving elections of SK (formerly KB)
officials do not fall within Section 252 of the Omnibus Election Code and paragraph 2, Section 2, Article
IX-C of the Constitution and that no law in effect prior to the ratification of the Constitution had made
the SK chairman an elective barangay official. His being an ex-officio member of the sangguniang
barangay does not make him one for the law specifically provides who are its elective members, viz., the
punong barangay and the seven regular sangguniang barangay members who are elected at large by
those who are qualified to exercise the right of suffrage under Article V of the Constitution and who are
duly registered voters of the barangay.[10]

The choice of the DILG for the task in question was appropriate and was in line with the legislative policy
evident in several statutes.Thus, P.D. No. 684 (April 15, 1975), in creating Kabataang Barangays in every
barangay throughout the country, provided in 6 that the Secretary of Local Government and Community
Development shall promulgate such rules and regulations as may be deemed necessary to effectively
implement the provisions of this Decree. Again, in 1985 Proclamation No. 2421 of the President of the
Philippines, in calling for the general elections of the Kabataang Barangay on July 13-14, 1985, tasked
the then Ministry of Local Government, the Ministry of Education, Culture and Sports, and the
Commission on Elections to assist the Kabataang Barangay in the conduct of the elections. On the other
hand, in a Memorandum Circular dated March 7, 1988, President Corazon C. Aquino directed the
Secretary of Local Government to issue the necessary rules and regulations for effecting the
representation of the Kabataang Barangay, among other sectors, in the legislative bodies of the local
government units.

The role of the COMELEC in the 1992 elections for SK officers was by no means inconsequential. DILG
supervision was to be exercised within the framework of detailed and comprehensive rules embodied in
Resolution No. 2499 of the COMELEC. What was left to the DILG to perform was the enforcement of the
rules.

Second. It is contended that, in its resolution in question, the COMELEC did not name the barangays
which, because they had conducted kabataang barangay elections between January 1, 1988 and January
1, 1992, were not included in the SK elections to be held on December 4, 1992. That these barangays
were precisely to be determined by the DILG is, however, fairly inferable from the authority given to the
DILG to supervise the conduct of the elections. Since 532(d) provided for kabataang barangay officials
whose term of office was extended beyond 1992, the authority to supervise the conduct of elections in
that year must necessarily be deemed to include the authority to determine which kabataang barangay
would not be included in the 1992 elections.

The authority granted was nothing more than the ascertainment of a fact, namely, whether between
January 1, 1988 and January 1, 1992 elections had been held in a given kabataang barangay. If elections
had been conducted, then no new elections had to be held on December 4, 1992 since by virtue of
532(d) the term of office of the kabataang barangay officials so elected was extended correspondingly
to coincide with the term of office of those elected under [the Local Government Code of 1991]. In
doing this, the Secretary of Interior and Local Government was to act merely as the agent of the
legislative department, to determine and declare the event upon which its expressed will was to take
effect.[11] There was no undue delegation of legislative power but only of the discretion as to the
execution of a law. That this is constitutionally permissible is the teaching of our cases.[12]

Third. Respondents claim, however, that the May 26, 1990 KB elections in Manila were void because (a)
they were called at the instance of then Mayor Gemiliano C. Lopez who did not have authority to do so
and (b) it was not held under COMELEC supervision.

The 1990 elections for the Kabataang Barangay were called by then Manila Mayor Gemiliano C. Lopez,
Jr., who in his Executive Order No. 21 dated April 25, 1990 stated:

WHEREAS, the Kabataang Barangay as an organization provided for under Batas Pambansa Bilang 337,
has been practically dormant since the advent of the present national administration;

WHEREAS, there is an urgent need to involve the youth in the affairs and undertakings of the
government to ensure the participation of all sectors of our population in the task of nation building;
WHEREAS, the last elections for the Kabataang Barangay officers were held in November 1985 yet,
which is over their three years term of office;

WHEREAS, most of the present crop of KB officers are way past the age limit provided for under the law;

....

The elections were actually held on May 26, 1990 in the 897 barangays of Manila. Later, on June 30,
1990, KB City Federation elections were conducted.

It was precisely to foreclose any question regarding the validity of KB elections held in the aftermath of
the EDSA revolution and upon the effectivity of the new Local Government Code that the exception
clause of 532(d) was inserted. The proceedings of the Bicameral Conference Committee which drafted
the Code show the following:[13]

CHAIRMAN DE PEDRO: Isa-cite na lang ko ano iyong title o chapter o section, ha!

HON. LINA: . . .

Page 436, lines 13 to 14 delete within eighteen months prior to December 31, 1990, and in lieu thereof,
insert from 1988 up to the effectivity of the Code. The rationale. . . .

CHAIRMAN DE PEDRO: How should it be read?

HON. LINA: It will read as follows: Provided however, that the Local Government Units which have
conducted elections for the Kabataang Barangay as provided for, in Batas Pambansa Bilang 337, up
to the effectivity. . . .

CHAIRMAN DE PEDRO: So, any deletion from the word within, ha, up to. . . .

HON. LINA: Remove the words, the phrase, within eighteen months prior to December 31, 1990, and
insert from 1988 up to the effectivity of this Code.

CHAIRMAN DE PEDRO: From?

HON. LINA: From 1988 up to the effectivity of this Code. Kasi meron nang mga election, eh, na ginawa,
eh. There are five thousand barangays, based on the record of the DILG, out of forty thousand, imagine
that, na nag-conduct na ng election nila based on the KB Constitution and By-Laws, and theyre sitting
already, now if we do not recognize that, mag[ka]karoon sila ng question.

CHAIRMAN DE PEDRO: Accepted, Mr. Chairman.

Section 532(d) may thus be deemed to be a curative law. Curative laws, which in essence are
retrospective in effect, are enacted to validate acts done which otherwise would be invalid under
existing laws, by considering them as having complied with the existing laws. Such laws are recognized in
this jurisdiction.[14]

Fourth. It is finally contended that the exemption of the barangays of the City of Manila from the
requirement to hold elections for SK officers on December 4, 1992 would deny the youth voters in those
barangays of the equal protection of laws. Respondents claim that only in the barangays in the City of
Manila, which then numbered 897, were elections for SK not held in 1992 on the ground that between
January 1, 1988 and January 1, 1992 there had already been SK elections held, when, according to
petitioners own evidence, during that period, SK elections had actually been conducted in 5,000
barangays.

Whether this claim is true cannot be ascertained from the records of this case. Merely showing that
there were 5,000 barangays which similarly held KB elections between January 1, 1988 and January 1,
1992 does not prove that despite that fact these same barangays were permitted to hold elections on
December 4, 1992. For one thing, according to the Manila Bulletin issue of November 18, 1992 (p. 9),
568 barangays in the Province of Bulacan did not have SK elections on December 4, 1992 either, because
they already had elections between January 1, 1988 and January 1, 1992. For another, even assuming
that only barangays in Manila were not permitted to hold SK elections on December 4, 1992 while the
rest of the 5,000 barangays were allowed even if KB elections had already been held there before, this
fact does not give the youth voters in the 897 Manila barangays ground for complaint because what the
other barangays did was contrary to law.There is no discrimination here.

In People v. Vera[15] this Court struck down the Probation Law because it permitted unequal application
of its benefits by making its applicability depend on the decision of provincial governments to
appropriate or not to appropriate funds for the salaries of probation officers, with the result that those
not disposed to allow the benefits of probations to be enjoyed by their inhabitants could simply omit to
provide for the salaries of probation officers. The difference between that case and the one at bar lies in
the fact that what youth voters in the other barangays might have been allowed was not a right which
was denied to youth voters in Manila. If those barangays were not entitled to have SK elections on
December 4, 1992 but nevertheless were allowed to have such elections, that fact did not mean those in
Manila should similarly have been allowed to conduct elections on December 4, 1992 because the fact
was that they already had their own, just two years before on May 26, 1990. Respondents equal
protection argument violates the dictum that one wrong does not make another wrong right.

WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 36 is REVERSED and the case
filed against petitioner by private respondents is DISMISSED.

SO ORDERED.
EN BANC

May 31, 2016

G.R. No. 217725

GLENN A CHIONG and ANG KAPATIRAN PARTY, represented by NORMAN V. CABRERA, Petitioners,
vs.
SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT FRANKLIN M. DRILON; HOUSE OF
REPRESENTATIVES, represented by SPEAKER FELICIANO S. BELMOTE, JR.; COMMISSION ON
ELECTIONS, represented by ACTING CHAIRPERSON CHRISTIAN ROBERT S. LIM; ADVISORY COUNCIL,
represented by UNDERSECRETARY LOUIS NAPOLEON C. CASAMBRE; TECHNICAL EVALUATION
COMMITTEE, represented by DOST SECRETARY MARIO G. MONTEJO; DEPARTMENT OF BUDGET AND
MANAGEMENT, headed by SECRETARY FLORENCIO B. ABAD, Respondents.

DECISION

REYES, J.:

This petition for certiorari1 and/or prohibition with prayer for the issuance of a writ of preliminary
injunction and/or a temporary restraining order, assails the constitutionality of Sections 8, 9, 10 and
11 of Republic Act (R.A.) No. 8436,2as amended by Section 93 of R.A. No. 9369,4 providing for the
creation of an Advisory Council (AC) and a Technical Evaluation Committee (TEC), on the ground that it
encroaches on the Commission on Elections' (COMELEC) mandate to administer and enforce all laws
relating to the elections as provided for in Section 2( 1),5 Article IX-C of the 1987 Constitution.

The Facts

The factual background of this case dates back to the enactment of R.A. No. 8436 on December 22,
1997 authorizing the adoption of an automated election system (AES) in the May 11, 1998 national
and local elections and onwards. On January 23, 2007, R.A. No. 9369 was signed into law, amending
R.A. No. 8436. Of particular relevance in R.A. No. 9369 are Sections 8, 9, 10 and 11 which calls for the
creation of the AC and the TEC.

In Roque, Jr., et al. v. COMELEC, et al.,6 the Court stated that the AC is to recommend, among other
functions, the most appropriate, secure, applicable and cost-effective technology to be applied to the
AES; while the TEC is tasked to certify, through an established international certification committee,
not later than three months before the elections, by categorically stating that the AES, inclusive of its
hardware and software components, is operating properly and accurately based on defined and
documented standards.7

Nevertheless, almost eight years after the passage of R.A. No. 9369, and almost six years after the
conclusion of the 2010 elections, and just several months before the 2016 elections, Glenn Chong and
Ang Kapatiran Party (petitioners) came to this Court to assail the constitutionality of the creation of
the AC and the TEC. According to the petitioners: (1) the AC and the TEC are so patently incompatible
with a functioning COMELEC; (2) a mere AC should not be allowed to dictate upon the COMELEC in
regard with the technology to be applied in the AES; and (3) the recommendation of the AC for the
COMELEC to re-use the Precinct Count Optical Scan machines, Consolidation and Canvassing System,
peripherals, laptops, equipment, software, etcetera, in the 2016 elections, as well as its past actions,
are patent nullities. In compliance with the Court's Resolution8 dated June 16, 2015, the respondents
submitted its Comment.9 Summing up the arguments of the respondents, they essentially stated that:
(1) the existence of the AC and the TEC does not limit or prevent the exercise of the COMELEC's
constitutional mandate to enforce election laws; (2) the AC and the TEC merely ensure that the
COMELEC will put in place an effective AES that will clearly and accurately reflect the will of the
sovereign people; (3) the power to provide these safeguards is within the authority of the Congress,
whose power includes the power to ensure the faithful execution of its policies; and (4) the assailed
provisions of R.A. No. 8436, as amended by Section 9 of R.A. No. 9369 enjoys the presumption of
constitutionality.

The Issue

The crux of this petition is whether Sections 8, 9, 10 and 11 of R.A. No. 8436, as amended by Section 9
of R.A. No. 9369, insofar as they provide for the creation of the AC and the TEC, are unconstitutional
for allegedly being violative of Section 2(1), Article IX-C of the 1987 Constitution.

Ruling of the Court

The petition has no merit.

The petitioners conclude that with the creation of the AC and the TEC, pursuant to Sections 8, 9, 10
and 11 of R.A. No. 8436, the Congress undermine the independence of the COMELEC and infringe
upon its power.

The Court, however, finds that the petitioners' thesis finds no support in the evidence presented. A
careful examination of the assailed provisions would reveal that the AC and the TEC's functions are
merely advisory and recommendatory in nature. The AC' s primordial task is to recommend the most
appropriate technology to the AES, while the TEC's sole function is to certify that the AES, including its
hardware and software components, is operating properly, securely and accurately, in accordance
with the provisions of law.

The functions of the AC are recommendatory, as can be gleaned from the assailed provision itself in
Section 9 of R.A. No. 8436 which provides that the functions of the AC are merely to recommend, to
provide advice and/or assistance, and to participate as nonvoting members with respect to the
COMELEC's fulfillment of its mandate and authority to use the AES, and which in all instances, is
subject to the approval and final decision of the COMELEC. On the other hand, the TEC's exclusive
function is to certify, through an established international certification entity to be chosen by the
COMELEC from the recommendations of the AC that the AES, including its hardware and software
components, is operating properly, securely, and accurately, in accordance with the provisions of law.

The Court has conspicuously observed that the petitioners expediently removed in their petition the
following paragraph when they quoted Section 9 of R.A. No. 9369 which amended Section 9 of R.A.
No. 8436, which recognizes the authority of the COMELEC to enforce the said laws:

Nothing in the role of the Council or any outside intervention or influence shall be construed as an
abdication or diminution of the Commission's authority and responsibility for the effective
development, management and implementation of the AES and this Act.
Evidently, the AC and the TEC were created to aid the COMELEC in fulfilling its mandate and authority
to use an effective AES for free, orderly, honest, peaceful, credible and informed elections. The
actions of the AC and the TEC neither bind nor prohibit the COMELEC from enforcing and
administering election laws.

Moreso, the AC and the TEC are not permanent in nature. This is evident in Sections 8 and 11 of R.A.
No. 8436, as amended.1awp++i1 The AC shall be convened not later than 18 months prior to the next
scheduled electoral exercise, and deactivated six months after completion of canvassing, while the
TEC shall be immediately convened within 10 days after the effectivity of R.A. No. 9369; however, the
TEC shall make the certification not later than three months before the date of the electoral exercises.

Lastly, the petitioners have failed to discharge the burden of overcoming the presumption that the
assailed provisions are valid and constitutional since they failed to present substantial evidence to
support their claim.

Besides, the constitutionality of R.A. No. 9369 has already been upheld by this Court in Barangay
Association for National Advancement and Transparency (BANAT) Party-List v. COMELEC. 10 In the said
case, therein petitioners alleged that R.A. No. 9369 violates Section 26(1), Article VI of the 1987
Constitution, claiming that the title of R.A. No. 9369 is misleading because it speaks of poll
automation but contains substantial provisions dealing with the manual canvassing of election
returns. They further alleged that Sections 34, 37, 38, and 43 are neither embraced in the title nor
germane to the subject matter of R.A. No. 9369. The Court then sustained the constitutionality of R.A.
No. 9369 holding that a title which declares a statute to be an act to amend a specified code is
sufficient and the precise nature of the amendatory act need not be further stated. Moreso, the
assailed provisions dealing with the amendments to specific provisions of R.A. No. 7166 11 and Batas
Pambansa Bilang 88112 are likewise germane to the subject matter of R.A. No. 9369.

Settled is the rule that every law is presumed valid.13 Courts are to adopt a liberal interpretation in
favor of the constitutionality of legislation, as Congress is deemed to have enacted a valid, sensible,
and just law.14 To strike down a law as unconstitutional, the petitioners have the burden to prove a
clear and unequivocal breach of the Constitution. In case of doubt in the sufficiency of proof
establishing unconstitutionality, the Court must sustain legislation because to invalidate a law based
on baseless supposition is an affront to the wisdom not only of the legislature that passed it but also
of the executive which approved it.15

All told, the Court finds no clear violation of the Constitution which would warrant a pronouncement
that Sections 8, 9, 10 and 11 of R.A. No. 8436, as amended by Section 9 of R.A. No. 9369, are
unconstitutional and void. The power to enforce and administer R.A. No. 8436, as amended by R.A.
No. 9369, is still exclusively lodged in the COMELEC, and the AC and the TEC may not substitute its
own opinion for the judgment of the COMELEC, thus:

In sum, the Congress created the [AC] and the TEC not to encroach upon the exclusive power of the
COMELEC to enforce and administer laws relating to the conduct of the elections, but to (1) ensure
that the COMELEC is guided and assisted by experts in the field of technology in adopting the most
effective and efficient [AES]; and (2) to ensure clean elections by having disinterested parties closely
monitor the COMELEC in procuring systems that operate properly, securely, and accurately. As such, it
is apparent that, through the [AC] and the TEC, the Congress merely checks and balances the power of
the COMELEC to enforce and administer R.A. No. 8436, as amended by R.A. No. 9369. It does not,
however, substitute its own wisdom for that of the COMELEC.16

WHEREFORE, the instant petition is hereby DISMISSED.

SO ORDERED.
EN BANC

G.R. No. 104848 January 29, 1993

ANTONIO GALLARDO, ANTONIO AREVALO, CRESENCIO ECHAVES, EMMANUEL ARANAS, PALERMO SIA,
RONNIE RAMBUYON, PRIMO NAVARRO, and NOEL NAVARRO, petitioners,
vs.
HON. SINFOROSO V. TABAMO, JR., in his capacity as Presiding Judge of Branch 28 of the Regional Trial
Court of Mambajao, Camiguin, and PEDRO P. ROMUALDO, respondents.

Villarama & Cruz for petitioners.

Marciano LL. Aparte, Jr. for private respondents.

DAVIDE, JR., J.:

This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court. Petitioners
would have Us prohibit, restrain and enjoin public respondent Sinforoso V. Tabamo, Jr., Presiding
Judge of Branch 28 of the Regional Trial Court (RTC) of Mambajao, Camiguin, from continuing with the
proceedings in a petition for injunction, prohibition and mandamus with a prayer for a writ of
preliminary injunction and restraining order filed as a taxpayer's suit, docketed therein as Special Civil
Action No. 465 and entitled "Pedro P. Romualdo, Jr. versus Gov. Antonio Gallardo, et al." Petitioners
likewise seek to prohibit the enforcement of the Temporary Restraining Order (TRO), issued by the
respondent Judge on 10 April 1992, on the ground that the latter acted whimsically, capriciously and
without jurisdiction when he took cognizance of the case and issued the said order. It is the
petitioners' thesis that the said case principally involves an alleged violation of the provisions of the
Omnibus Election Code the jurisdiction over which is exclusively vested in the Commission on
Elections (COMELEC). It is additionally averred that the action is completely baseless, that the private
respondent is not a real party in interest and that the public respondent acted with undue haste,
manifest partiality and evident bias in favor of the private respondent in issuing the TRO.

In Our Resolution of 20 April 1992, We required the respondents to comment on the petition and
issued a Temporary Restraining Order directing the respondent Judge to cease and desist from
implementing and enforcing the challenged Order of 10 April 1922, and from continuing with the
proceedings in Special Civil Action No. 465.

At the time of the filing of both the special civil action and the instant petition, petitioner Antonio
Gallardo was the incumbent Governor of the Province of Camiguin and was seeking re-election in the
11 May 1992 synchronized elections. Petitioners Antonio Arevalo, Cresencio Echaves, Emmanuel
Aranas and Palermo Sia are the provincial treasurer, provincial auditor, provincial engineer and
provincial budget officer of Camiguin, respectively. Their co-petitioners Ronnie Rambuyon, Primo
Navarro and Noel Navarro are all government project laborers. On the other hand, the private
respondent was the incumbent Congressman of the lone Congressional District of Camiguin, a
candidate for the same office in the said synchronized elections and the Regional Chairman of the
Laban ng Demokratikong Pilipino (LDP) in Region X.
The antecedents of this case are not complicated.

On 10 April 1992, private respondent filed his Petition 1 (Special Civil Action No. 465) before the
court a quo against petitioners Gallardo, Arevalo, Echaves, Aranas and Sia to prohibit and restrain
them from pursuing or prosecuting certain public works projects; from releasing, disbursing and/or
spending any public funds for such projects; and from issuing, using or availing of treasury warrants or
any device for the future delivery of money, goods and other things of value chargeable against public
funds in connection with the said projects as (1) said projects were undertaken in violation of the 45-
day ban on public works imposed by the Omnibus Election Code (Batas Pambansa Blg. 881) because
although they were initiated a few days before 27 March 1992, the date the ban took effect, they
were not covered by detailed engineering plans, specifications or a program of work which are
preconditions for the commencement of any public works project; hence, they could not have been
lawfully and validly undertaken; (2) the hiring of hundreds of laborers in the different projects
continues unabated in flagrant violation of paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus
Election Code; (3) the projects were undertaken in violation of the provisions of the Local Government
Code2 governing the use and expenditure of the twenty percent (20%) development fund of the
Province of Camiguin; (4) these projects, which are "Locally-Funded", were pursued without the
requisite approval of the provincial budget by the Regional Office of Budget and Management as
required by Section 326 of the Local Government Code; (5) some of the projects which are "Foreign-
Assisted" and funded by the Spanish Assistance for Integrated Livelihood Program (SAIL) lack the
required building permits and are without any relevance to those livelihood projects envisioned by
the SAIL; and (6) more importantly, as alleged in paragraph VII of his Petition:3

. . . the illegal prosecution of these public work projects requiring massive outlay of public funds
during this election period has been and is being done maliciously and intentionally for the purpose of
corrupting the voters and inducing them to support the candidacy of Respondent Gallardo and his
candidates in the coming May 11, 1992 election.

In support of his prayer for a restraining order to be issued upon the filing of the petition and a writ of
preliminary injunction immediately thereafter, herein private respondent alleges in paragraph XV of
his Petition:

That unless the illegal acts of Respondents are enjoined or restrained immediately first by the
issuance of the restraining order upon the filing of this Petition and immediately after that a Writ of
Preliminary Injunction, great or irreparable loss and injury shall be caused not only to Petitioner
himself, as a candidate and as a taxpayer, but also to the entire LDP slate of candidates, whose
supporters are being corrupted and illegally induced to vote for Respondent Antonio A. Gallardo and
his candidates in consideration of their employment in these projects, but (sic) most of all the greatest
and most irreparable loss, damage and injury, in terms of wanton, irresponsible, excessive, abusive
and flagrant waste of public money, is now being caused and shall continue to be caused, primarily
and principally to the sixty-thousand or more taxpayers of the Province of Camiguin, whom Petitioner
represents as Congressman and whose interests Petitioner is sworn to uphold, promote and protect.4

The questioned projects are classified into two (2) categories: (a ) those that are Locally-Funded,
consisting of twenty-nine (29) different projects for the maintenance or concreting of various roads,
the rehabilitation of the Katibawasan Falls and the construction of the Capitol Building, and (b) those
designated as Foreign-Assisted, consisting of fifteen (15) projects which include the construction of
the Human Resource Development Center, various Day Care cum Production Centers and waterworks
systems; the extension and renovation of various buildings; the acquisition of hospital and laboratory
equipment; and the rehabilitation of office and equipment.5

On the same day that the private respondent filed his petition, public respondent Judge issued the
questioned TRO,6 the pertinent portion of which reads:

It appearing from the verified petition in this case that great and irreparable damage and/or
injury shall be caused to the petitioner as candidate and taxpayer, such damage and injury taking the
form and shape occasioned by the alleged wanton, excessive, abusive and flagrant waste of public
money, before the matter can be heard on notice, the respondents are hereby Temporarily Restrained
from pursuing or prosecuting the projects itemized in Annexes "A" and "A-1" of the petition; from
releasing, disbursing and/or spending any public funds for such projects; from issuing, using or
availing of treasury warrants or any device undertaking future delivery of money, goods or other
things of value chargeable against public funds in connection with said projects. (Emphasis supplied).

In the same order, the public respondent directed the petitioners to file their Answer within ten (10)
days from receipt of notice and set the hearing on the application for the issuance of the writ of
preliminary injunction for 24 April 1992. Instead of filing the Answer, the petitioners filed the instant
special civil action for certiorari and prohibition, with a prayer for a writ of preliminary injunction
and/or temporary restraining order, alleging as grounds therefor the following:

PUBLIC RESPONDENT HAS NO JURISDICTION OVER SPECIAL CIVIL ACTION NO. 465, BEING (sic) A SUIT
INTENDED TO ENJOIN AN ALLEGED VIOLATION OF THE OMNIBUS ELECTION CODE.

II

REGIONAL TRIAL COURT'S JURISDICTION IS LIMITED TO CRIMINAL ACTIONS FOR VIOLATION OF THE
OMNIBUS ELECTION CODE.

III

THE REGIONAL TRIAL COURT HAS NO JURISDICTION TO TAKE COGNIZANCE OF COMPLAINTS/PETITION

BASED ON ELECTION OFFENSES PRIOR TO THE CONDUCT OF PRELIMINARY INVESTIGATION BY THE
COMMISSION ON ELECTIONS; FURTHER, PRIVATE RESPONDENT HAS NO RIGHT TO FILE SPECIAL CIVIL
ACTION NO. 465 SINCE THE AUTHORITY TO PROSECUTE ELECTION OFFENSES BELONGS TO THE
COMMISSION ON ELECTIONS.

IV

PRIVATE RESPONDENT FAILED TO EXHAUST ALL HIS ADMINISTRATIVE REMEDIES

THE PETITION DATED 09 APRIL 1992 FILED WITH PUBLIC RESPONDENT IS COMPLETELY BASELESS
SINCE:

A. THE PUBLIC WORKS PROJECTS BEING UNDERTAKEN BY PETITIONERS ARE EXEMPTED FROM THE
PUBLIC WORKS BAN ENFORCED BY THE COMELEC.
B. THE PUBLIC WORKS PROJECTS WERE COMMENCED ONLY AFTER APPROVAL OF THE DETAILED
ENGINEERING PLANS AND SPECIFICATIONS AND PROGRAM OF WORK.

C. THE PUBLIC WORKS PROJECTS WERE PROPERLY SUPPORTED BY A BUDGET DULY PASSED AND
APPROVED BY THE SANGGUNIANG PANLALAWIGAN.

D. THE DEVELOPMENT FUND MAY VALIDLY BE USED TO FINANCE THE MAINTENANCE OF PROVINCIAL
ROADS.

VI

THE TAXPAYER'S SUIT FILED BY PRIVATE RESPONDENT IS IMPROPER SINCE HE IS NOT A REAL PARTY IN
INTEREST.

VII

THE PUBLIC RESPONDENT ACTED WITH UNDUE HASTE, MANIFEST PARTIALITY AND EVIDENT BIAS IN
FAVOR OF PRIVATE RESPONDENT AND AGAINST PETITIONERS IN ISSUING THE TEMPORARY
RESTRAINING ORDER.7

As adverted to earlier, We issued a Temporary Restraining Order on 20 April 1992.

After considering the allegations, issues and arguments adduced in the Petition, the Comment thereto
and the Reply to the Comment, We gave due course8 to this Petition and required the parties to
submit their respective Memoranda which they complied with.

The main issue in this case is whether or not the trial court has jurisdiction over the subject matter of
Special Civil Action No. 465. The material operative facts alleged in the petition therein inexorably link
the private respondent's principal grievance to alleged violations of paragraphs (a), (b), (v) and (w),
Section 261 of the Omnibus Election Code (Batas Pambansa Blg. 881). There is particular emphasis on
the last two (2) paragraphs which read:

Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense:

(a) Vote-buying and vote-selling. —

xxx xxx xxx

(b) Conspiracy to bribe voters. —

xxx xxx xxx

(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:

xxx xxx xxx

(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.

Private respondent likewise focuses on Resolution No. 2332 (not 2322 as erroneously stated in page
10 of his Petition) of the COMELEC, promulgated on 2 January 1992, implementing the aforesaid
paragraphs (v) and (w) of Section 261 and fixing the duration of the 45-day ban for purposes of the
synchronized elections from 27 March 1992 to 11 May 1922.

Essentially, therefore, Civil Case No. 465 before the trial court is for the enforcement of laws involving
the conduct of elections; corollarily, the issue that is logically provoked is whether or not the trial
court has jurisdiction over the same. If the respondent Judge had only hearkened to this Court's
teaching about a quarter of a century earlier, this case would not have reached Us and taken away
from more deserving cases so much precious time.

Zaldivar vs. Estenzo,9 decided by this Court on 3 May 1968, had squarely resolved the issue above
posed. Speaking through then Associate Justice Enrique Fernando (who later became Chief Justice),
this Court explicitly ruled that considering that the Commission on Elections is vested by the
Constitution with exclusive charge of the enforcement and administration of all laws relative to the
conduct of elections, the assumption of jurisdiction by the trial court over a case involving the
enforcement of the Election Code "is at war with the plain constitutional command, the implementing
statutory provisions, and the hospitable scope afforded such grant of authority so clear and
unmistakable in recent decisions."10

Said case was decided under the aegis of the 1935 Constitution and R.A. No. 180, otherwise known as
the Revised Election Code, which took effect on 21 June 1947. The present Constitution and extant
election laws have further strengthened the foundation for the above doctrine; there can be no doubt
that the present COMELEC has broader powers than its predecessors. While under the 1935
Constitution it had "exclusive charge of the enforcement and administration of all laws relative to the
conduct of elections," exercised "all other functions . . . conferred upon it by law"11 and had the
power to deputize all law enforcement agencies and instrumentalities of the Government for the
purpose of insuring free, orderly and honest elections,12 and under the 1973 Constitution it had, inter
alia, the power (a) "[E]nforce and administer all laws relative to the conduct of elections"13 (b)
"[D]eputize, with the consent or at the instance of the Prime Minister, law enforcement agencies and
instrumentalities of the Government, including the Armed Forces of the Philippines, for the purpose
of ensuring free, orderly, and honest elections,"14 and (c) "[P]erform such other functions as may be
provided by law,"15 it was not expressly vested with the power to promulgate regulations relative to
the conduct of an election. That power could only originate from a special law enacted by Congress;
this is the necessary implication of the above constitutional provision authorizing the Commission to
"[P]erform such other functions as may be provided by law."

The present Constitution, however, implicitly grants the Commission the power to promulgate such
rules and regulations. The pertinent portion of Section 2 of Article IX-C thereof reads as follows:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall. (Emphasis supplied).

xxx xxx xxx

The word regulations is not found in either the 1935 or 1973 Constitutions. It is thus clear that its
incorporation into the present Constitution took into account the Commission's power under the
Omnibus Election Code (Batas Pambansa Blg. 881), which was already in force when the said
Constitution was drafted and ratified, to:

xxx xxx xxx

Promulgate rules and regulations implementing the provisions of this Code or other laws which the
Commission is required to enforce and administer, . . . .16

Hence, the present Constitution upgraded to a constitutional status the aforesaid statutory authority
to grant the Commission broader and more flexible powers to effectively perform its duties and to
insulate it further from legislative intrusions. Doubtless, if its rule-making power is made to depend
on statutes, Congress may withdraw the same at any time. Indeed, the present Constitution envisions
a truly independent Commission on Elections committed to ensure free, orderly, honest, peaceful and
credible elections,17 and to serve as the guardian of the people's sacred right of suffrage — the
citizenry's vital weapon in effecting a peaceful change of government and in achieving and promoting
political stability.

Additionally, by statutory mandate, the present Commission on Elections possesses, inter alia, the
following powers:

l) Exercise direct and immediate supervision and control over national and local officials or
employees, including members of any national or local law enforcement agency and instrumentality
of the government required by law to perform duties relative to the conduct of elections. In addition,
it may authorize CMT cadets eighteen years of age and above to act as its deputies for the purpose of
enforcing its orders.

The Commission may relieve any officer or employee referred to in the preceding paragraph from the
performance of his duties relating to electoral processes who violates the election law or fails to
comply with its instructions, orders, decisions or rulings, and appoint his substitute. Upon
recommendation of the Commission, the corresponding proper authority shall suspend or remove
from office any or all of such officers or employees who may, after due process, be found guilty of
such violation or failure.18

2) To stop any illegal election activity, or confiscate, tear down, and stop any unlawful, libelous,
misleading or false election propaganda, after due notice and hearing.19

Needless to say, the acts sought to be restrained in Special Civil Action No. 465 before the court a
quo are matters falling within the exclusive jurisdiction of the Commission. As a matter of fact, the
specific allegations in the petition therein of violations of paragraphs (a), (b), (v) and (w), Section 261
of the Omnibus Election Code provide a stronger basis and reason for the application of
the Zaldivar doctrine. At most, the facts in the latter case do not illustrate as clearly the announced
doctrine as the facts in this case do. In Zaldivar, no specific provision of the Revised Election Code
then in force was alleged to have been violated. What was sought to be enjoined was the alleged
wielding by Zaldivar, then a municipal mayor, of the power, by virtue of his office, to appoint special
policemen or agents to terrorize voters into supporting the congressional candidate of his choice. In
holding that the then Court of First Instance did not have jurisdiction over the case, this Court
considered the constitutional power of the Commission on Elections to have exclusive charge of the
enforcement and administration of all laws relative to the conduct of elections and to exercise all
other functions which may be conferred by law. We likewise relied on the provisions of the Revised
Election Code vesting upon the COMELEC (a) direct and immediate supervision over municipal, city
and provincial officials designated by law to perform duties relative to the conduct of elections and (b)
authority to suspend them from the performance of such duties for failure to comply with its
instructions, orders, decisions or rulings and recommend to the President their removal if found guilty
of non-feasance, malfeasance or misfeasance in connection with the performance of their duties
relative to the conduct of elections.20

Under the present law, however, except in case of urgent need, the appointment or hiring of new
employees or the creation or filling up of new positions in any government office, agency or
instrumentality, whether national or local, including government-owned or controlled corporations, is
banned during the period of forty-five (45) days before a regular election and thirty (30) days before a
special election if made without the prior authority of the Commission on Elections. A violation
thereof constitutes an election offense.21 Then too, no less than the present Constitution — and not
just the Election Law as was the case at the time of Zaldivar — expressly provides that the
Commission may "[R]ecommend to the President the removal of any officer or employee it has
deputized, or the imposition of any other disciplinary action, for violation or disregard of, or
disobedience to its directive, order, or decision."22

Moreover, the present Constitution also invests the Commission with the power to "investigate and,
where appropriate, prosecute cases of violations of election laws, including acts or omissions
constituting election frauds, offenses, and malpractices."23

It may thus be said without fear of contradiction that this vast array of powers and functions now
enjoyed by the Commission under the present Constitution provides a stronger foundation for, and
adds vigor and vitality to, the Zaldivar doctrine.

The rationale of the said doctrine needs to be stressed here so that henceforth, no judge will lose his
bearings when confronted with the same issue. Otherwise, he should be held to account for either the
sheer ignorance of the law or the callous disregard of pronouncements by this Court to accommodate
partisan political feelings. We declared in the said case:

The question may be asked: Why should not the judiciary be a

co-participant in this particular instance of enforcing the Election Code as its authority was invoked?
The obvious answer is the literal language of the Constitution which empowers the Commission on
Elections to "have exclusive charge of the enforcement and administration of all laws relative to the
conduct of the elections." Moreover, as was so aptly observed by the then Justice Frankfurter,
although the situation confronting the United States Supreme Court was of a different character:
"Nothing is clearer than that this controversy concerns matters that brings courts into immediate and
active relations with party contests. From the determination of such issues this Court has traditionally
held aloof. It is hostile to a democratic system to involve the judiciary in the politics of the people.
And it is not less pernicious if such judicial intervention in an essentially political contest be dressed
up in the abstract phrases of the law."24 Then, too, reference by analogy may be made to the principle
that sustains Albano v. Arranz. For even without the express constitutional prescription that only this
Court may review the decisions, orders and rulings of the Commission on Elections, it is easy to
understand why no inference whatsoever with the performance of the Commission on Elections of its
functions should be allowed unless emanating from this Court. The observation of Acting Chief Justice
J.B.L. Reyes in Albano v. Arranz,25 while not precisely in point, indicates the proper approach. Thus: "It
is easy to realize the chaos that would ensue if the Court of First Instance of each and every province
were to arrogate unto itself the power to disregard, suspend, or contradict any order of the
Commission on Elections; that constitutional body would be speedily reduced to impotence."

This conclusion finds' support from a consideration of weight and influence. What happened in this
case could be repeated elsewhere. It is not improbable that courts of first instance would be resorted
to by leaders of candidates or political factions entertaining the belief whether rightly or wrongly that
local officials would employ all the power at their command to assure the victory of their candidates.
Even if greater care and circumspection, than did exist in this case, would be employed by judges thus
appealed to, it is not unlikely that the shadow of suspicion as to alleged partisanship would fall on
their actuations, whichever way the matter before them is decided. It is imperative that the faith in
the impartiality of the judiciary be preserved unimpaired. Whenever, therefore, the fear may be
plausibly entertained that an assumption of jurisdiction would lead to a lessening of the undiminished
trust that should be reposed in the courts and the absence of authority discernible the from the
wording of applicable statutory provisions and the trend of judicial decisions, even if no constitutional
mandate as that present in this case could be relied upon, there should be no hesitancy in declining to
act.26

The foregoing disquisitions should have rendered unnecessary the resolution of the remaining
collateral issues raised in this petition. In view, however, of their importance, they will be dealt with
in a general way.

It is not true that, as contended by the petitioners, the jurisdiction of the Regional Trial Court under
the election laws is limited to criminal actions for violations of the Omnibus Election Code. The
Constitution itself grants to it exclusive original jurisdiction over contests involving elective municipal
officials.27 Neither can We agree with the petitioners' assertion that the Special Civil Action filed in the
court below involves the prosecution of election offenses; the said action seeks some reliefs incident
to or in connection with alleged election offenses; specifically, what is sought is the prevention of the
further commission of these offenses which, by their alleged nature, are continuing.

There is as well no merit in the petitioners' claim that the private respondent has no legal standing to
initiate the filing of a complaint for a violation of the Omnibus Election Code. There is nothing in the
law to prevent any citizen from exposing the commission of an election offense and from filing a
complaint in connection therewith. On the contrary, under the COMELEC Rules of Procedure,
initiation of complaints for election offenses may be done motu propio by the Commission on
Elections or upon written complaint by any citizen, candidate or registered political party or
organization under the party-list system or any of the accredited citizens arms of the
Commission.28However, such written complaints should be filed with the "Law Department of the
Commission; or with the offices of the Election Registrars, Provincial Election Supervisors or Regional
Election Directors, or the State Prosecutor, Provincial Fiscal or City Fiscal."29 As earlier intimated, the
private respondent was not seriously concerned with the criminal aspect of his alleged grievances. He
merely sought a stoppage of the public works projects because of their alleged adverse effect on his
candidacy. Indeed, while he may have had reason to fear and may have even done the right thing, he
committed a serious procedural misstep and invoked the wrong authority.

We have, therefore, no alternative but to grant this petition on the basis Our resolution of the
principal issue. Nevertheless, it must be strongly emphasized that in so holding that the trial court has
no jurisdiction over the subject matter of Special Civil Action No. 465, We are not to be understood as
approving of the acts complained of by the private respondent. If his charges for the violation of
paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus Election Code are true, then no one should
be spared from the full force of the law. No government official should flout laws designed to ensure
the holding of free, orderly, honest, peaceful and credible elections or make a mockery of our
electoral processes. The bitter lessons of the past have shown that only elections of that nature or
character can guarantee a peaceful and orderly change. It is then his duty to respect, preserve and
enhance an institution which is vital in any democratic society.

WHEREFORE, the instant Petition is hereby GRANTED. The challenged order of respondent Judge of 10
April 1992 in Special Civil Action No. 465 is SET ASIDE and said Civil Case is hereby ordered DISMISSED,
without prejudice on the part of the private respondent to file, if he is so minded, the appropriate
complaint for an election offense pursuant to the COMELEC Rules of Procedure.

Costs against the private respondent.

SO ORDERED.

Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Campos, Jr., JJ.,
concur.

Separate Opinions

CRUZ, J., concurring and dissenting:

I concur but, regretfully, not with the statement that the Commission on Elections now derives the
power to promulgate resolutions directly from Article IX-C, Section 2(l) of the Constitution, to wit:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall. (Emphasis supplied)
xxx xxx xxx

With all due respect, I submit that what the COMELEC is authorized to do under that provision is only
to "enforce and administer" such laws and regulations, not to promulgate them. The addition of the
word "regulations" in the new subsection does not empower it now to promulgate regulations any
more than it can promulgate laws. As I read it, all that the change imports is that the scope of the
measures the COMELEC may enforce and administer has been expressly widened, to include
"regulations."

Regulations are mainly intended to implement or supplement a law and may be generally issued only
pursuant to a valid delegation of legislative power. That is why they are known as "subordinate
legislation." In the case of the COMELEC, I see no constitutional vesture in it of the power to
promulgate regulations, much less laws. There does not seem to be even an "implicit" grant of that
authority, as the ponencia suggests.

Narvasa, C.J., and Gutierrez, Jr., J., concur.

# Separate Opinions

CRUZ, J., concurring and dissenting:

I concur but, regretfully, not with the statement that the Commission on Elections now derives the
power to promulgate resolutions directly from Article IX-C, Section 2(l) of the Constitution, to wit:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall. (Emphasis supplied)

xxx xxx xxx

With all due respect, I submit that what the COMELEC is authorized to do under that provision is only
to "enforce and administer" such laws and regulations, not to promulgate them. The addition of the
word "regulations" in the new subsection does not empower it now to promulgate regulations any
more than it can promulgate laws. As I read it, all that the change imports is that the scope of the
measures the COMELEC may enforce and administer has been expressly widened, to include
"regulations."

Regulations are mainly intended to implement or supplement a law and may be generally issued only
pursuant to a valid delegation of legislative power. That is why they are known as "subordinate
legislation." In the case of the COMELEC, I see no constitutional vesture in it of the power to
promulgate regulations, much less laws. There does not seem to be even an "implicit" grant of that
authority, as the ponencia suggests.

Narvasa, C. J., and Gutierrez, Jr., J., concur.

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 97108-09 March 4, 1992

DANIEL GARCIA and TEODORO O' HARA, petitioners,

vs.

ERNESTO DE JESUS and CECILIA DAVID, and THE COMMISSION ON ELECTIONS, respondents.

G.R. Nos. 97108-09 March 4, 1992

TOMAS TOBON UY, petitioners,

vs.

COMMISSION ON ELECTIONS and JOSE C. NEYRA, respondents.

MELENCIO-HERRERA, J.:

The jurisdiction of the Commission on Elections (COMELEC) to issue Writs of Certiorari, Prohibition
and Mandamusin electoral contests involving municipal and barangay officials is the common
question addressed in these election cases, hence, their consolidation.

The antecedent facts follow:

(1) G.R. No. 88158 (The Antipolo Case)

In the 18 January 1988 local elections. Petitioners Daniel GARCIA and Teodoro O' HARA were the
winning candidates for Mayor and Vice Mayor, respectively, of Antipolo, Rizal. They were proclaimed
as such on 22 January 1988.

On 1 February 1988, Private Respondents Ernesto DE JESUS and Cecilia DAVID instituted an election
protest before the Regional Trial Court of Antipolo, Rizal, Branch 72 (RTC), docketed as Election Case
No. 02-A, where the results in twenty-five (25) precincts were put in issue.

On 25 July 1988, the RTC issued an Order directing the delivery to it of all ballot boxes and other
election paraphernalia used in the 25 protested precincts so that the ballots could be examined and
the votes recounted.

After five (5) ballot boxes were already examined and revised, Petitioners' newly-hired counsel moved
for the suspension of the hearing being conducted on 18 September 1988 alleging that an error was
committed in the proceedings because there was no basis for the opening of the ballot boxes. He
contended that the irregularities alleged in the election protest do not relate to the appreciation of
ballots and thus, the opening of those boxes would not effect the result of the election.
On 26 September 1988, Petitioners GARCIA and O' HARA filed before the RTC a "Motion To Dismiss
Opening of Ballot Boxes And/Or To Dismiss The Protest" which was premised on the ground that the
allegations in the election protest were merely self-serving.

Acting on the aforesaid Motion, the RTC issued an Order dated 28 October 1988, amending its Order
Dated 25 July 1988, limiting the opening of ballot boxes to only nine (9) precincts out of the 25
protested ones, and limiting the examination of the ballot boxes only to those anomalies specified in
the annexes attached to the election protest by Respondents DE JESUS and DAVID.

The latter moved for reconsideration thereof which was denied by the RTC, in an Order dated 27
December 1988. On 9 January 1989, Respondents DE JESUS and DAVID filed a Petition for certiorari
and mandamus before the COMELEC, docketed as SPR No. 2-89, which sought to nullify the RTC Order
limiting the examination of ballot boxes to only 9 precincts.

On 13 January 1989, respondent COMELEC temporarily restrained the proceedings before the RTC and
set for hearing Respondents DAVID and DE JESUS' application for Preliminary Injunction on 29 January
1989.

Petitioners GARCIA and O' HARA, meanwhile, registered their objection to the assumption of
jurisdiction by the COMELEC over the Petition for certiorari and mandamus through their
"Manifestation With Motion To Dismiss." It was their contention that the COMELEC was not
empowered to take cognizance of Petitions for Certiorari, Prohibition and Mandamus.

After the parties had filed their respective pleadings, the COMELEC issued the questioned Decision,
dated 27 April 1989, which directed the RTC to open all the ballot boxes in the 25 protested precincts.

(2) G.R. Nos. 97108-09 (The Isabela Case)

After the canvass of election returns was made in the same local elections, Respondent Jose C. NEYRA
was proclaimed Mayor of Gamu, Isabela over Petitioner Tomas TOBON UY, with a plurality of 28
votes.

Petitioner TOBON UY filed an election protest before the Regional Trial Court of Ilagan, isabela,
Branch 16 (RTC), docketed as Election Case No. 369. On 7 January 1991, the RTC declared TOBON UY
the winner "by a majority of five (5) votes" over (RTC Decision, p. 24). On the same date that said RTC
Decision was promulgated, NEYRA filed a "Notice of Appeal," and TOBON UY, a "Motion for Execution
Pending Appeal," with the latter pleading set for hearing on 10 January 1991.

The day before, or on 9 January 1991, NEYRA filed before the COMELEC a Petition
for Certiorari and/or Prohibition, docketed as SPR No. 1-91, seeking to enjoin the RTC from further
acting on TOBON UY's aforesaid "Motion for Execution Pending Appeal."

On 10 January 1991, the RTC, after due hearing, gave due course to NEYRA's appeal, granted
execution pending appeal stating the special reasons therefor, and required TOBON UY to post a bond
in the amount of P300,000.00. On the same date, the COMELEC issued a Temporary Restraining Order
enjoining the RTC from further proceeding with the case. NEYRA's application for a Writ of Preliminary
Injunction was likewise set for hearing by the COMELEC on 24 January 1991.
On 15 January 1991, NEYRA filed a second Petition for Certiorari and/or Prohibition before the
COMELEC, docketed as SPR No. 2-91. This time, he sought to set aside the RTC Order, dated 10
January 1991, which granted TOBON UY's "Motion for Execution Pending Appeal.

The COMELEC took cognizance of both Certiorari Petitions and, on 15 February 1991, issued the
questioned Resolution (in SPR Nos. 1-91 & 2-91), declaring as null and void and Writ of Execution
Pending Appeal granted by the RTC, premised on Rule 35, Section 18, of its Rules of Procedure, and
enjoining TOBON UY from "assuming the office and performing in whatever and however manner the
duties of Mayor of Gamu, Isabela, until the final disposition of the appeal.

Principally, Petitioners GARCIA and O'HARA in G.R. No. 88156, and Petitioner TOBON UY in G.R. Nos.
97108-09, question the arrogation unto itself by the COMELEC of the power of issue Writs
of Certiorari, Prohibition andMandamus. They invoke the previous ruling of this Court in Pimentel v.
COMELEC (G.R. Nos. 53581-83, 19 December 1980, 101 SCRA 769), which maintained that no such
jurisdiction was ever conferred on respondent Commission by the 1973 Constitution or by law.

On the other hand, all Respondents in the Antipolo Case (G.R. No. 88185) and in the Isabela Case (G.R.
Nos. 97108-09) contend that since the 1987 Constitution now expressly empowers the COMELEC to
exercise "appellate jurisdiction over all contests involving elective municipal officials decided by trial
courts of general jurisdiction" (Section 2[2], Article IX-C), and to "promulgate its own rules concerning
pleadings and practice before it" provided they do "not diminish, increase, or modify substantive
rights" (Section 6, Article IX-A and Section 3, Article IX-C), the COMELEC validly promulgated the rule
which empowers it to issue the special Writs.

As a subsidiary issue, Petitioners GARCIA and O'HARA maintain that the COMELEC denied them due
process in the Antipolo Case (G.R. No. 88158) when it rendered its questioned Decision without
benefit of hearing. For his part, TOBON UY, in the Isabela Case (G.R. Nos. 97108-09), raises the
question of whether or not Regional Trial Courts have the authority to order execution pending
appeal in election contests decided by it. His view is that said Courts possess that authority.
Respondent NEYRA contends otherwise.

In the absence of any specific conferment upon the COMELEC, either by the Constitution or by
legislative fiat, the COMELEC is bereft of jurisdiction to issue said Writs.

It is the COMELEC alone, invoking its Constitutionally invested appellate jurisdiction and rule-making
power, that arrogated unto itself the authority to issue Writs of Certiorari, Prohibition and
Mandamus in Rule 28, Section 1, of its Rules of Procedure, thus:

SECTION 1. When available. — In aid of its appellate jurisdiction in election cases before courts of
general jurisdiction relating to the elections, returns and qualifications of elective municipal officials,
and before courts of limited jurisdiction in cases relating to the elections, returns and qualifications of
elective barangay officials, the Commission en banc may hear and decide petitions for certiorari,
prohibition and mandamus."

However, neither the appellate jurisdiction of the COMELEC nor its rule-making power justifies such
self-conferment of authority.
Jurisdiction, or the legal power to hear and determine a cause or causes of action, must exist as a
matter of law. It may be classified into original jurisdiction and appellate jurisdiction. Original
jurisdiction is the power of the Court to take judicial cognizance of a case instituted for judicial action
for the first time under conditions provided by law. Appellate jurisdiction is the authority of a Court
higher in rank to re-examine the final order or judgment of a lower Court which tried the case now
elevated for judicial review (Remedial Law Compendium, Regalado, Florenz D., Fifth Revised Edition,
Vol. I, p. 3). Since the two jurisdiction are exclusive of each other, each must be expressly conferred by
law. One does not flow from, nor is inferred from, the other.

In the Philippine setting, the authority to issue Writs of Certiorari, Prohibition and Mandamus involves
the exercise of original jurisdiction. Thus, such authority has always been expressly conferred, either
by the Constitution or by law. As a mater of fact, the well-settled rule is that jurisdiction is conferred
only by the Constitution or by law (Orosa, Jr. v. Court of Appeals, G.R. No. L-22488, 26 October 1967,
21 SCRA 519). It is never derived by implication. Indeed, "(w)hile the power to issue the writ
of certiorari is in some instance conferred on all courts by constitutional or statutory provisions,
ordinarily, the particular courts which have such power are expressly designated" (J. Aquino's
Concurring Opinion in Pimentel, supra, citing 14 C.J.S. 202; Underscoring ours).

Thus, our Courts exercise the power to issue Writs of Certiorari, Prohibition and Mandamus by virtue
of express constitutional grant or legislative enactment. To enumerate:

(1) Section 5[1], Article VII of the 1987 Constitution conferred upon this Court such jurisdiction;

(2) Section 9[1] of Batas Pambansa Blg. 129, or the Judiciary Reorganization Act of 1980, to the Court
of Appeals (then Intermediate Appellate Court);

(3) Section 21[1] of the said Act, to Regional Trial Courts;

(4) Section 5[1] of Republic Act No. 6734, or the Organic Act for the Autonomous Region in Muslim
Mindanao, to the newly created Shari'ah Appellate Court; and

(5) Article 143[e], Chapter I, Title I, Book IV of Presidential Decree No. 1083, or the Code of Muslim
Personal Law, to Shari'a District Courts.

Significantly, what the Constitution granted the COMELEC was appellate jurisdiction. The Constitution
makes no mention of any power given the COMELEC to exercise original jurisdiction over Petitioners
for Certiorari, Prohibition and Mandamus unlike in the case of the Supreme Court which was
specifically conferred such authority (Art. VIII, Sec. 5[1]). The immutable doctrine being that
jurisdiction is fixed by law, the power to issue such Writs can not be implied from the mere existence
of appellate jurisdiction. Just as implied repeal of statutes are frowned upon, so also should the grant
of original jurisdiction by mere implication to a quasi-judicial body tabooed. If appellate jurisdiction
has to be statutorily granted, how much more the original jurisdiction to issue the prerogative Writs?

Apparently, the COMELEC Rule on its certiorari jurisdiction is patterned after the previous
authorization to the Court of Appeals to issue Writs of Certiorari, Prohibition and Mandamus in aid of
its appellate jurisdiction. That authority, however, was not inherent in the Court of Appeals but was
specifically conferred by Section 30 of the Judiciary Act (Rep. Act No. 296) and Section 9(1) of the
Judiciary Reorganization Act of 1980 (B.P. Blg. 129). It does not follow that just because the 1987
Constitution, without more, it can issue such Writs in aid of that appellate jurisdiction.

The view that the subject Writs are but common-law Writs not owing their existence to any
constitutional provision or statutory enactment may be true in foreign jurisdictions but not in the
Philippine judicial system where such Writs are specifically characterized as original Special Civil
Actions (Rule 65, Rules of court). It is original jurisdiction, that is exercised in the issuance of said
Writs. And although there may be authorities in other jurisdictions which maintain that such Writs are
inherent in the power of higher Courts exercising appellate jurisdiction, the same refers to judicial
tribunals, which the COMELEC is not. What this agency exercises are administrative and quasi-judicial
powers (Filipinas Engineering and Machine Shop vs. Ferrer, G.R. No. L-31455, 28 February 1985, 135
SCRA 25).

As defined, Certiorari "is a writ from a superior court to an inferior court or tribunal commanding the
later to send up the record of a particular case" (Pimentel v. COMELEC, supra). The function of a Writ
of Certiorari is to keep an inferior court Within the bounds of its jurisdiction or to prevent it from
committing such a grave abuse of discretion amounting to excess of jurisdiction (Central Bank of the
Philippines v. Court of Appeals, G.R. No. 41859, 8 March 1989, 171 SCRA 49). The grant of appellate
jurisdiction to the COMELEC does not necessarily make it a "superior Court" vs-a-vis Regional Trial
Courts. In fact, in People v. Delgado (G.R. Nos. 93419-32 18 September 1990, 189 SCRA 715), we ruled
that Regional Trial Courts have jurisdiction to review the actions taken by the COMELEC in criminal
prosecutions for violations of election laws. This, notwithstanding the grant to the COMELEC of
"exclusive power" to conduct preliminary investigations of all election offenses punishable under
Section 265 of the Omnibus Election Code.

The power vested in the COMELEC to promulgate its Rules of procedure neither confers upon itself
the jurisdiction to issue the prerogative Writs. Procedure, as distinguished from jurisdiction, is the
means by which the power or authority of a Court to hear and decide a class of cases is put into action
(Manila Railroad Co. v. Attorney General, 20 Phil. 523). Rules of procedure are remedial in nature and
not substative. They cover only rules on pleadings and practice. And in respect of the COMELEC, the
authority to promulgate its rules of procedure was specifically "in order to expedite disposition of
cases" (Section 3, Article IX-C). That limited purpose can not be expanded to include the conferment
upon itself of jurisdiction which is substantive in nature and can only be fixed by law.

The doctrine laid down in Pimentel, supra, holding that the COMELEC has not been invested with
jurisdiction to issue the Writs in question, therefore, still finds application under the 1987
Constitution. Said case also involved an elective municipal official except that it was decided under
the regime of the 1973 Constitution and the 1978 Election Code (Pres. Decree No. 1296).

There is no gainsaying that, unlike the 1987 Constitution, the 1973 Constitution, the 1973 Constitution
did not grant appellate jurisdiction to the COMELEC over election contests involving elective municipal
officials decided by trial court of general jurisdiction. Nonetheless, such appellate jurisdiction was
conferred upon it by Section 196 of the 1978 Election Code (Pre. Decree No. 1296), reading:

Section 196. Appeal. — From any decision rendered by the Court of First Instance in the cases stated
in Section 190 hereof, the aggrieved party may appeal to the Commission within five days after
receipt of a copy of the decision; Provided, That no motion for reconsideration shall be entertained by
the court (Underscoring ours)

The appeal shall proceed as in a criminal case and shall be decided within sixty days after the case has
been submitted for decision.

Section 190 referred to in the first paragraph deals with election contests for municipal and municipal
district offices.

Again, while the 1973 Constitution did not empower the COMELEC to promulgate its own rules of
procedure, Section 192 of the same 1978 Election Code granted it such powers. Thus:

Section 192. 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, city municipal and barangay offices. Such rules shall provide a simple and inexpensive
procedure for the expeditious disposition of election contests (Underscoring ours).

It would appear, therefore, that what were merely statutory provisions under the 1978 Election Code
became constitutional grants under the 1987 Constitution. Significantly, however, neither the 1973
Constitution nor the 1987 Constitution expressly confers upon the COMELEC the jurisdiction to issue
Writs of Certiorari, Prohibition andMandamus. In essence, therefore, the statutory set-up in the
present Petition and in Pimentel, insofar as the COMELEC power to issue those WRITS is concerned, is
on all fours.

Then, as now, there is no specific grant to the COMELEC, either in the Constitution or by legislative fiat
of jurisdiction over said petitions.

It may be that, as pointed out by the Solicitor General, division of authority between the courts and
the COMELEC could affect the expenditious settlement of election contests. That is no justification,
however, for conferring a quasi-judicial body with original certiorari jurisdiction. That would place the
COMELEC in a class by itself apart from similar administrative and quasi-judicial agencies. Neither
would there be "sharing of appellate jurisdiction" thereby, since the issuance of the special Writs
involves the exercise of original jurisdiction.

In the last analysis, the remedy lies with the legislature and not with this Court. It is Congress that has
the power to define prescribe and apportion the jurisdiction of the various Courts (Arts. VIII, sec. 2,
1987 Constitution). That should include quasi-judicial bodies.

Considering that the COMELEC does not have jurisdiction over Petitions for Certiorari, Prohibition
and Mandamus, it would thus be moot and academic to still pass upon GARCIA and O' HARA's
contention that they were denied due process when the respondent Commission issued the
questioned Decision in the Antipolo Case. Suffice it to state that absence of hearing per se, does not
necessarily imply denial of due process. The fact that they were afforded reasonable opportunity to
explain their side of the controversy through their pleadings, destroys the validity of their argument.
As long as the parties were given the opportunity to be heard before judgment was rendered, the
demands of due process are sufficiently met (Lindo v. COMELEC, G,R. No. 95016, 11 january 1991, 194
SCRA 25).
We now come to the subsidiary issue raised by Petitioner TOBON UY in G.R. Nos. 97108-09 of whether
or not Regional Trial Courts can order execution pending appeal in election contests decided by it
involving elective municipal officials.

The COMELEC Rules of procedure would also deprive Regional Trial Courts of the prerogative to order
execution pending appeal in Rule 35, section 18, reading:

SEC. 18. Decision on the contest. — The Court shall decide the election contest within thirty (30) days
from the date it is submitted for decision, but in every case within six (6) months after its filing and
shall declare who among the parties has been elected, or in a proper case, that none of them has been
legally elected, or in proper case, that none of them has been legally elected. The party who in the
judgment has been declared elected shall have the right to assume the office as soon as the judgment
becomes final. (underscoring ours).

The COMELEC, however, is bereft of authority to deprive Regional Trial Courts of the competence to
order execution pending appeal. For one, it is essentially a judicial prerogative. For another, it is a
pronouncement of the COMELEC alone in its procedural rules, without benefit of statute, unlike in the
past where it was specifically provided for in section 177 of the Revised Election Code (Rep. Act No. as
amended) 1 and Section 224 of the Election code of 1971 (Rep. Act No. 6388) 2 from whence the rule
was lifted verbatim. Significantly, however, when the Election Code of 1971 (Rep. Act No. 6388) was
superseded by the 1978 Election Code (Pres. decree No. 1296), said clause was deleted therefrom. It is
likewise absent in the Electoral Reforms Law of 1987 (Rep. Act No. 6646) and in the Omnibus Election
Code (B.P. Blg.881), which were the election laws in effect during the 18 january 1988 local elections.

There is no express provision of law, therefore, disauthorizing executions pending appeal, and the
COMELEC, in its procedural rules alone, should not be allowed to divest Regional Trial Courts of that
authority. It deprives the prevailing party of a substantive right to move for such relief contrary to the
constitutional mandate that those Rules can not diminish nor modify substantive rights (Section 6,
Articles IX-A, 1987 Constitution).

At any rate, the clause "as soon as the judgment becomes final" had already been interpreted by this
Court as a general one defining the effect of a final judgment on the right of the winner to assume the
contested office as the right of the winner to assume the contested office as the de jure elected
official to serve up to the end of the term (Gahol v. hon. Riodique, G.R. No. L-40415, 27 June 1975, 64
SCRA 494 at p. 514). It does not disallow Regional Trial Courts from ordering execution pending
appeal.

Admittedly, unlike in Section 218 of the Election Code of 1971, applied in Gahol v. Hon. Riodique,
supra, there is no express provision in the Electoral Reforms Law (Rep. Act No. 6646) nor in the
Omnibus Election Code (B.P. Blg. 881) that would allow execution pending appeal. Said Section 218
reads:

Sec. 218. Assumption of office notwithstanding an election contest. — Every candidate for a
provincial, city, municipal or municipal district office duly proclaimed elected by the corresponding
board of canvassers shall assume office, notwithstanding the pendency in the courts of any contest
against his election, without prejudice to the final decision thereon and applicable provisions of the
Rules of court regarding execution of judgment pending appeal.
Nonetheless, Section 2, Rule 39 of the Rules of Court, which allows Regional Trial Courts to order
executions pending appeal upon good reasons stated in a special order, may be made to apply by
analogy or suppletorily to election contests decided by them (Rule 43, Section 1, COMELEC Rules of
Procedure). Indeed, as much recognition should be given to the decision of judicial body as a basis for
the right to assume office as that given by law to the proclamation made by the Board of Canvassers.
In the words of Gahol v. Hon. Riodique, supra:

... Why should the proclamation by the board of canvassers suffice as a basis of the right to assume
office, subject to future contigencies attendant to a protest, and not the decision of a court of justice?
Indeed, when it is considered that the board of canvassers is composed of persons who are less
technically prepared to make an accurate appreciation of the ballots, apart from their being more apt
to yield to external considerations, and that the board must act summarily, practically racing against
time, while on the other hand, the judge has the benefit of all the evidence the parties can offer and
of admittedly better technical preparation and background, apart from his being allowed ample time
for conscientious study and mature deliberation before rendering judgment, one cannot but perceive
the wisdom of allowing the immediate execution of decisions in election cases adverse to the
protestees, notwithstanding the perfection and pendency of appeals therefrom, as long as there are,
in the sound discretion of the court, good reasons therefor.

To construe otherwise would be to bring back the ghost of the "grab-the-proclamation-prolong-the-

protest" techniques so often resorted to by devious politicians in the past in their efforts to
perpetuate their hold to an elective office. This would, as a consequence, lay to waste the will of the
electorate (See Estrada v. Sto. Domingo, G.R. No. L-30570, 29 July 1969; Lagumbay v. COMELEC, G.R.
No. L-25444, 31 january 1966, 16 SCRA 175).

In retrospect, good reasons did, in fact, exist which justified the RTC Order dated 10 January 1991,
granting execution pending appeal. Among others mentioned by the RTC are the combined
considerations of the near expiration of the term of office, public interest, the pendency of the
election contest for more than three (3) years, and that TOBON UY had filed a bond in the amount of
P300,000.00 (Rollo, p. 46).

To recapitulate, in the absence of an express Constitutional or legislative authorization, the COMELEC

is devoid of competence to issue special Writs simply on the basis of its appellate jurisdiction and its
rule-making power. Neither is the COMELEC empowered, through its procedural rules alone, to
deprive Regional Trial Courts of authority, in the exercise of their discretion, to order execution
pending appeal upon good reasons stated in special order.

It must be noted that the term of office of the contested positions is nearing expiration. There is need,
then for this Decision to be immediately executory.

WHEREFORE, these consolidated Petitions for Certiorari and prohibition are hereby GRANTED.

In G.R. No. 88158, the COMELEC Decision, dated 27 April 1989, in SPR No 2-89 is hereby SET ASIDE,
and the Order of the Regional Trial Court of Antipolo, Rizal, Branch 72, dated 28 October 1988 in
Election Case No. 02-A, limiting the opening of ballot boxes to only nine (9) precincts, is hereby
REINSTATED, the case to proceed until final disposition.
In G.R. Nos. 97108-09, the COMELEC Resolution dated 15 February 1991, in SPR Nos. 1-91 and 2-91, is
likewise SET ASIDE, and the Order of the Regional Trial Court of Ilagan, Isabela, Branch 16, dated 10
January 1991, in Election Case No. 369 granting execution pending appeal, is hereby REINSTATED,
without prejudice to the disposition of respondent Jose Neyra's appeal before the COMELEC.

This Decision shall be immediately executory.

No costs.

Padilla, Griño-Aquino, Regalado, Romero, and Nocon, JJ., concur

Paras, J., took no part.

Narvasa, C.J, Feliciano, Medialdea, and Davide, Jr., concur.

Separate Opinions

CRUZ, J., concurring:

I concur, and would add only the following brief observations.

It is argued that the competence of the Commission on Elections to issue writs of certiorari is derived
from its appellate jurisdiction over cases involving elective barangay officials. I do not believe that this
power can be that simply and easily implied nor am I persuaded by the cases cited, which are of
American origin and have no application here. in our country, the controlling rule is found in the
Constitution, which clearly says that it is only Congress that has the power to "define prescribe and
apportion the jurisdiction of the various courts, " subject only to certain specified limitations. (Article
VIII, Section 2). Conformably, every judicial tribunal must trace its power to issue writs of certiorari to
an express authorization from the legislature and not to mere inference. I know of no such tribunal
that exercises this power on the sole justification that it is an appellate court. The Supreme itself
derives its power to issue writs of certiorari not by implication only from its action. Furthermore, it
may exercise this power only "as the law or rules of Court may provide" under paragraph 2 of that
section, which means that the conferment is not automatic or self-executing. Without such
implementation, this Court is powerless to issue writs of certiorari in the appealed cases mentioned in
that provision even if it is the highest court in the land.

We cannot be less strict with the Commission on Elections, which is essentially only an administrative
body. If even the Supreme Court itself can be so inhibited by no less than the Constitution. I see no
logic in allowing the Commission on Elections a wider latitude in the exercise of what is clearly a
judicial power. And on such a fragile ground. While I may concede that this agency can exercise the
power if expressly allowed by the legislature, I reject the notion that it can claim such jurisdiction by
mere implication.
BIDIN, J., dissenting:

With all due respect to the arguments advanced in the majority opinion penned by my esteemed
colleague, Madame Justice Ameurfina Melencio-Herrera, it is my humble submission that the
Commission on Elections is empowered to issue the assailed prerogative writs, hence, this dissent.

The majority opinion that in the absence of any specific conferment upon the COMELEC, either by the
Constitution or by legislative fiat, the COMELEC, either by the Constitution or by legislative fiat, the
COMELEC is bereft of jurisdiction to issue writs of certiorari, prohibition and mandamus.

The ponencia further maintains the proposition that "(i)n the Philippine setting, the authority to issue
Writs of Certiorari, Prohibition and Mandamus involves the exercise of original jurisdiction" (Decision,
p. 8) and that it is original jurisdiction that is exercised in the issuance of said writs (Ibid., p. 10).

The foregoing postulations overlook the fact that the subject writs may also be issued not only in the
exercise of original jurisdiction but also in aid of appellate jurisdiction as now conferred upon the
Court of Appeals (Sec. 9 [1], BP 129). Inasmuch as the Court of Appeals had been issuing writs
of certiorari in aid of its appellate jurisdiction pursuant to Sec. 9 [1], BP 129, and before that Sec. 4,
Rule 65, it cannot be said that certiorari is limited to the exercise of original jurisdiction only.

The ponencia states that the COMELEC Rule cannot pattern its certiorari jurisdiction after that of the
Court of Appeals because the latter's jurisdiction to issue the prerogative writs is specifically provided
by law, while on the other hand, no statutory provision grants the COMELEC with similar powers.
Relying on the case of Pimentel v. Comelec (101 SCRA 769 [1980]), the main ponencia is likewise of the
view that in the absence of an expressstatutory provision granting the COMELEC the power to issue
the special writs, such authority cannot be deduced by mere implication.

In Pimentel, this court ruled that the COMELEC did not have jurisdiction over petitions
for certiorari, prohibition or mandamus in election contests cognizable by the then Court of First
Instance and appealable to the Commission on the ground that such jurisdiction was not conferred to
it by constitutional or statutory enactment. It must be noted, however, that the Pimentel case was
decided under the 1973 Constitution which limited the Commission's jurisdiction over election
contests relating to the members of the Batasang Pambansa, elective provincial and city officials, and
excluded therefrom election contests involving municipal and barangay officials. Such limitation no
longer holds true under the present state of the law. Neither is this a case where the COMELEC
justifies its assumption of jurisdiction by applying, by analogy, Sec. 4, Rule 65 of the Rules of Court as
it did in the case of Pimentel.

In entertaining the petition for certiorari and mandamus filed by private respondents, the COMELEC
now does not trace its authority to the provisions of the Rules of Court but rather to the constitution
itself. This constitutional grant of power to the COMELEC, which, in my considered view, authorizes
the latter to issue the prerogative writs, marks the point of departure from the majority opinion.

Section 2 (2) Art. IX-C of the 1987 Contitution now grants the COMELEC appellate jurisdiction over all
contests involving elective municipal official decide by trial courts of general jurisdiction or involving
elective barangay officials decided by trial courts of limited jurisdiction, as follows:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:
xxx xxx xxx

(2) Exercise exclusive original jurisdiction over all contests relating to elections, returns and
qualifications of all elective regional, provincial and city officials, and appellate jurisdiction over all
contests involving elective municipal officials decided by trial courts of general jurisdiction or involving
elective barangay officials decided by trial courts of limited jurisdiction. (Underscoring supplied)

Taken in conjunction with Sec. 3, Art. IX-C, * which empowers the Commission to promulgate its rules
of procedure, the above constitutional grant of appellate jurisdiction to the COMELEC over limited
jurisdiction is broad enough to cover petitions for certiorari, prohibition and mandamus in aid of its
appellate jurisdiction.

It is significant to note that no similar provision granting respondent COMELEC with rule-making
power as provided in the present Constitution is found in the 1973 Constitution, the fundamental law
in force when the Pimentel case was decided. Such constitutional conferment of rule-making power in
favor of the COMELEC necessarily implies, if not in itself inherent, the authority of the Commission to
issue writs of certiorari, prohibition and mandamus in aid of its appellate jurisdiction expressly
conferred by the constitution. For one thing, it is elementary that the function of the writ is to keep an
inferior court within its jurisdiction or to prevent it from committing such a grave abuse of discretion
amounting to excess of jurisdiction (Central Bank v. Court of Appeals, 171 SCRA 429 [1989]; Calagui v.
Court of Appeals, 186 SCRA 564 [1990]; Brillo v. Buklatan, 87 phil. 519 [1950]). How can the COMELEC
effectively exercise its appellate jurisdiction over election cases cognizable by trial courts if it could
not issue auxilliary writs necessary to keep them within their jurisdictional confines? It would be
highly incongruous, if not outright illogical, to split the jurisdiction of respondent COMELEC by
depriving it of appellate jurisdiction over certiorari proceedings involving election cases decided by
trial courts while at the same time vesting it with jurisdiction over the ultimate appeal thereon from
decisions rendered in the same case and by the same trial courts.

As aforesaid, the 1987 Constitution grants the respondent Commission not only appellate jurisdiction
over election contests cognizable by the trial courts but also, broad rule-making power to expedite the
disposition of election cases. The COMELEC's assumption of certiorari jurisdiction is consistent with
the constitutional mandate to expedite the disposition of election cases.

The power to issue special writs also flows from the existence of appellate jurisdiction is a doctrinal
pronouncement and settled jurisprudence. It has been held that "grant of jurisdiction implies that
there is included in it the power necessary to its effective exercise and to make all orders that will
preserve the subject of the action and give effect to the final determination of the appeal" (Kjellander
v. Kjellander 132 P 1170 [1913]). Premises considered, the COMELEC may issue writs of certiorari in
aid of its appellate jurisdiction over all contests involving elective municipal officials decided by trial
courts of general jurisdiction or involving elective barangay officials decided by trial courts of limited
jurisdiction.

The Court must not lose sight of the fact of the origin and historical development of the special writs
as it was understood in common law jurisdiction from where it evolved and carried over to the
Philippine court system (i.e., from Act 190 through RA to 296 to BP 129) that "(t)he writ
of certiorari does not owe its existence to constitutional provision or statutory enactment. It is a
common law writ, of ancient origin, and one of the most valuable and efficient remedies which came
to us with that admirable system of jurisprudence" (Tennessee Cent. R. Co. v. Campbell, 75 SW 1012
[1903]):

More importantly, "(i)t is an established doctrine that one of the essential attributes of appellate
jurisdiction, and one of the inherent powers of the appellate court, is the right to make use of all writs
known to the common law, and, if necessary, to invent new writs or proceedings in order to suitably
exercise the jurisdiction conferred (Wheeler v. Northern Colorado Irrigation Co., 11 P 103 [1886];
citing Attorney General v. Railroad Cos., 35 Wis. 425; Marbury v. Madison, 1 Cranch 137; U.S. v.
Commissioners, 1 Morris, (Iowa,) 42; Attorney General v. Blossom, 1 Wis. 277).

The ponencia posits that such a view obtaining in foreign jurisdiction cannot apply in the country's
judicial system since the subject writs are specifically characterized as original special civil action
under Rule 65 of the Rules of Court. if the subject writs are original in character, why then can the
Court of Appeals exercise the same in aid of its appellate jurisdiction? Concededly because of BP 129.
But then again, doesn't the constitution itself grants such appellate jurisdiction to the COMELEC? Do
we still need a statutory enactment for such conferment of certiorari jurisdiction? Is the constitutional
grant of appellate jurisdiction not enough? The ponencia stresses that the grant of power to the
COMELEC must be express. I believe, however, that the constitutional provision investing the
COMELEC with appellate jurisdiction is clear and broad enough to comprehend the issuance of the
questioned writ.

The power to be the "judge ... of ... contests relating to the elections, returns and qualifications of any
public official is essentially judicial. As such, ... it belongs exclusively to the judicial department, except
only insofar as the Constitution provides otherwise. (Lopez v. Roxas, 17 SCRA 756 [1966]; citing
Matthews, American Constitutional System; Cooley, Thomas M., A Treatise on Constitutional
Limitations, Vol. 1, pp. 270-271, 1972 ed.; 23 W & P 147 [1965 Pocket Part]; State ex rel. Tanner v.
Duncan, 10 So 2d 507, 511, 23 W & P 148 1927 ed.; 23 W & P 147 [1965 Pocket Part]; State ex rel.
Tanner v. Duncan, 10 So. 2d 507,511,23 W & P 148, supra). In granting the COMELEC with the powers
and functions to "exrcise exclusive original jurisdiction over all contests relating to the elections,
returns and qualifications of all elective regional, provincial and city officials, and appellate
jurisdiction over all contests involving all elective municipal officials decided by trial courts of general
jurisdiction, or involving elective barangay officials decided by the trial courts of limited jurisdiction"
(Sec. 2 [2], Art. IX-C, Constitution), the Constitution vested upon the COMELEC judicial powers to
decide all contests relating to elective local officials as therein provided.

As defined in the Constitution, (j)udicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and to determine
whether or not there has been agrave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the government" (Sec. 1, par. 2, Art. VIII). Since the
COMELEC, in discharging its appellate jurisdiction pursuant to SEc. 2 (2), Art. IX-C, acts a court of
justice performing judicial power and said power includes the determination of whether or not there
has been grave abuse of discretion amounting to lack or excess of jurisdiction, it necessarily follows
that the COMELEC, by constitutional mandate, is vested with jurisdiction to issue writs of certiorari in
aid of its appellate jurisdiction. This I believe, is the Constitutional intent although not spelled out in
black and white.
On this score, the classic pronouncement of Justice Holmes in his landmark dissent should serve as
timely reminder:

The great ordinances of the Constitution do not establish and divide fields of black and white. Even
the more specific of them are found to terminate in a penumbra shading gradually from one extreme
to the other. ... When we come to the fundamental distinctions it is still more obvious that they must
be received with a certain lattitude or our government could not go on. (Springer v. Government of
the philippines islands, 277 US 189 [1927])

In upholding the authority of the COMELEC to issue the subject writs, I do not wish to imply that as a
general Proposition, the COMELEC is superior over the Regional Trial Courts. (The case of People v.
Delgado cited in the ponencia involves criminal prosecutions which are undoubtedly, within the
province of the regional trial courts.) However, a criminal case instituted by the People is one thing;
an electoral contest involving private litigants is another. As a general rule, Regional Trial Courts have
jurisdiction over criminal cases. The COMELEC has none. In other words, what is at issue here is not a
criminal prosecution, or a civil action for that matter, but rather an election contest involving as it
does public interest calling for a proper resolution before an appropriate body. As to which forum is
superior in litigations relating to election contests involving local public officials, as in the case at bar,
there is no doubt the COMELEC has jurisdiction ascendency since it has appellate jurisdiction over all
contests involving elective municipal officials decided by trial courts of general jurisdiction or involving
elective barabgay officials decided by trial courts of limited jurisdiction (Sec. 2 [2], Art. IX-C,
Constituion; underscoring supplied).

In Angara v. Electoral Commission (63) Phil. 139 [1936]), the Court held:

The creation of the Electoral Commission carried with it ex necesitate rei the power regulative in
character to limit the time within which protests intrusted to its cognizance should be filed. It is a
settled rule of construction that where a general power necessary for the exercise of the one or the
performance of the other is also conferred. In the absence of any further constitutional provision
relating to the procedure to be followed in filing protests before the Electoral Commission, therefore,
the incidental power to promulgate such rules necessary for the proper exercise of its exclusive power
to judge all contests relating to the election, returns and qualifications of members of the national
Assembly, must be deemed by necessary implication to have been lodged also in the Electoral
Commission. (citing Cooley, Constitutional Limitations, 8th ed., Vol I pp. 138-139; underscoring
supplied).

The above doctrine was reiterated by this Court in the case of Lazatin v. House Electoral Tribunal (168
SCRA 391 [1988]) and should find application to the similar power conferred upon the COMELEC in aid
of its appellate jurisdiction in the exercise of its judicial function. In the absence of a constitutional
proscription, I submit that this court should not narrow down the appellate and incidental powers
which the constitution confers upon the respondent COMELEC.

And finally, in the 1941 case of Sumulong v. COMELEC (73 Phil. 288), this Court had occasion to note
that:

The Commission on Elections is a constitutional body. It is intended to play a distinct and important
part in our scheme of government. In the discharge of its functions it should not be hampered with
restriction that would be fully warranted in the case of a less responsible organization. The
Commission may err, so may this court also. It should be allowed considerable latitude in devising
means and methods that will insure the accomplishment of the great objective for which it was
created — free orderly and honest elections.We may not agree fully with its choice of means, but
unless these are clearly illegal or constitute gross abuse of discretion, this court should not interfere.
Politics is a practical matter ...

xxx xxx xxx

There are no ready-made formulas for solving public problems. Time and experience are necessary to
evolve patterns that will serve the ends of good government. In the matter of the administration of
the laws relative to the conduct of elections ... we must not by any excessive zeal take away from the
Commission on Elections the initiative which by constitutional and legal mandates properly belongs to
it. Due regard to the mandates properly belongs to it. Due regard to the independent character of the
Commission, as ordained in the Constitution, requires that the power of this Court to review the acts of
that body should as general proposition be used sparingly but firmly in appropriate cases. We are not
satisfied that the present suit is one of such cases. (underscoring supplied)

In issuing the assailed writs, in aid of its appellate jurisdiction, the COMELEC did not overstep its
authority nor did it act in a capricious, whimsical or despotic manner amounting to grave abuse of
discretion equivalent to lack or excess of jurisdiction.

Accordingly, I vote to DISMISS the instant petitions.

Separate Opinions

CRUZ, J., concurring:

I concur, and would add only the following brief observations.

It is argued that the competence of the Commission on Elections to issue writs of certiorari is derived
from its appellate jurisdiction over cases involving elective barangay officials. I do not believe that this
power can be that simply and easily implied nor am I persuaded by the cases cited, which are of
American origin and have no application here. in our country, the controlling rule is found in the
Constitution, which clearly says that it is only Congress that has the power to "define prescribe and
apportion the jurisdiction of the various courts, " subject only to certain specified limitations. (Article
VIII, Section 2). Conformably, every judicial tribunal must trace its power to issue writs of certiorari to
an express authorization from the legislature and not to mere inference. I know of no such tribunal
that exercises this power on the sole justification that it is an appellate court. The Supreme itself
derives its power to issue writs of certiorari not by implication only from its action. Furthermore, it
may exercise this power only "as the law or rules of Court may provide" under paragraph 2 of that
section, which means that the conferment is not automatic or self-executing. Without such
implementation, this Court is powerless to issue writs of certiorari in the appealed cases mentioned in
that provision even if it is the highest court in the land.
We cannot be less strict with the Commission on Elections, which is essentially only an administrative
body. If even the Supreme Court itself can be so inhibited by no less than the Constitution. I see no
logic in allowing the Commission on Elections a wider latitude in the exercise of what is clearly a
judicial power. And on such a fragile ground. While I may concede that this agency can exercise the
power if expressly allowed by the legislature, I reject the notion that it can claim such jurisdiction by
mere implication.

BIDIN, J., dissenting:

With all due respect to the arguments advanced in the majority opinion penned by my esteemed
colleague, Madame Justice Ameurfina Melencio-Herrera, it is my humble submission that the
Commission on Elections is empowered to issue the assailed prerogative writs, hence, this dissent.

The majority opinion that in the absence of any specific conferment upon the COMELEC, either by the
Constitution or by legislative fiat, the COMELEC, either by the Constitution or by legislative fiat, the
COMELEC is bereft of jurisdiction to issue writs of certiorari, prohibition and mandamus.

The ponencia further maintains the proposition that "(i)n the Philippine setting, the authority to issue
Writs of Certiorari, Prohibition and Mandamus involves the exercise of original jurisdiction" (Decision,
p. 8) and that it is original jurisdiction that is exercised in the issuance of said writs (Ibid., p. 10).

The foregoing postulations overlook the fact that the subject writs may also be issued not only in the
exercise of original jurisdiction but also in aid of appellate jurisdiction as now conferred upon the
Court of Appeals (Sec. 9 [1], BP 129). Inasmuch as the Court of Appeals had been issuing writs
of certiorari in aid of its appellate jurisdiction pursuant to Sec. 9 [1], BP 129, and before that Sec. 4,
Rule 65, it cannot be said that certiorari is limited to the exercise of original jurisdiction only.

The ponencia states that the COMELEC Rule cannot pattern its certiorari jurisdiction after that of the
Court of Appeals because the latter's jurisdiction to issue the prerogative writs is specifically provided
by law, while on the other hand, no statutory provision grants the COMELEC with similar powers.
Relying on the case of Pimentel v. Comelec (101 SCRA 769 [1980]), the main ponencia is likewise of the
view that in the absence of an expressstatutory provision granting the COMELEC the power to issue
the special writs, such authority cannot be deduced by mere implication.

In Pimentel, this court ruled that the COMELEC did not have jurisdiction over petitions
for certiorari, prohibition or mandamus in election contests cognizable by the then Court of First
Instance and appealable to the Commission on the ground that such jurisdiction was not conferred to
it by constitutional or statutory enactment. It must be noted, however, that the Pimentel case was
decided under the 1973 Constitution which limited the Commission's jurisdiction over election
contests relating to the members of the Batasang Pambansa, elective provincial and city officials, and
excluded therefrom election contests involving municipal and barangay officials. Such limitation no
longer holds true under the present state of the law. Neither is this a case where the COMELEC
justifies its assumption of jurisdiction by applying, by analogy, Sec. 4, Rule 65 of the Rules of Court as
it did in the case of Pimentel.
In entertaining the petition for certiorari and mandamus filed by private respondents, the COMELEC
now does not trace its authority to the provisions of the Rules of Court but rather to the constitution
itself. This constitutional grant of power to the COMELEC, which, in my considered view, authorizes
the latter to issue the prerogative writs, marks the point of departure from the majority opinion.

Section 2 (2) Art. IX-C of the 1987 Contitution now grants the COMELEC appellate jurisdiction over all
contests involving elective municipal official decide by trial courts of general jurisdiction or involving
elective barangay officials decided by trial courts of limited jurisdiction, as follows:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

xxx xxx xxx

(2) Exercise exclusive original jurisdiction over all contests relating to elections, returns and
qualifications of all elective regional, provincial and city officials, and appellate jurisdiction over all
contests involving elective municipal officials decided by trial courts of general jurisdiction or involving
elective barangay officials decided by trial courts of limited jurisdiction. (Underscoring supplied)

Taken in conjunction with Sec. 3, Art. IX-C, * which empowers the Commission to promulgate its rules
of procedure, the above constitutional grant of appellate jurisdiction to the COMELEC over limited
jurisdiction is broad enough to cover petitions for certiorari, prohibition and mandamus in aid of its
appellate jurisdiction.

It is significant to note that no similar provision granting respondent COMELEC with rule-making
power as provided in the present Constitution is found in the 1973 Constitution, the fundamental law
in force when the Pimentel case was decided. Such constitutional conferment of rule-making power in
favor of the COMELEC necessarily implies, if not in itself inherent, the authority of the Commission to
issue writs of certiorari, prohibition and mandamus in aid of its appellate jurisdiction expressly
conferred by the constitution. For one thing, it is elementary that the function of the writ is to keep an
inferior court within its jurisdiction or to prevent it from committing such a grave abuse of discretion
amounting to excess of jurisdiction (Central Bank v. Court of Appeals, 171 SCRA 429 [1989]; Calagui v.
Court of Appeals, 186 SCRA 564 [1990]; Brillo v. Buklatan, 87 phil. 519 [1950]). How can the COMELEC
effectively exercise its appellate jurisdiction over election cases cognizable by trial courts if it could
not issue auxilliary writs necessary to keep them within their jurisdictional confines? It would be
highly incongruous, if not outright illogical, to split the jurisdiction of respondent COMELEC by
depriving it of appellate jurisdiction over certiorari proceedings involving election cases decided by
trial courts while at the same time vesting it with jurisdiction over the ultimate appeal thereon from
decisions rendered in the same case and by the same trial courts.

As aforesaid, the 1987 Constitution grants the respondent Commission not only appellate jurisdiction
over election contests cognizable by the trial courts but also, broad rule-making power to expedite the
disposition of election cases. The COMELEC's assumption of certiorari jurisdiction is consistent with
the constitutional mandate to expedite the disposition of election cases.

The power to issue special writs also flows from the existence of appellate jurisdiction is a doctrinal
pronouncement and settled jurisprudence. It has been held that "grant of jurisdiction implies that
there is included in it the power necessary to its effective exercise and to make all orders that will
preserve the subject of the action and give effect to the final determination of the appeal" (Kjellander
v. Kjellander 132 P 1170 [1913]). Premises considered, the COMELEC may issue writs of certiorari in
aid of its appellate jurisdiction over all contests involving elective municipal officials decided by trial
courts of general jurisdiction or involving elective barangay officials decided by trial courts of limited
jurisdiction.

The Court must not lose sight of the fact of the origin and historical development of the special writs
as it was understood in common law jurisdiction from where it evolved and carried over to the
Philippine court system (i.e., from Act 190 through RA to 296 to BP 129) that "(t)he writ
of certiorari does not owe its existence to constitutional provision or statutory enactment. It is a
common law writ, of ancient origin, and one of the most valuable and efficient remedies which came
to us with that admirable system of jurisprudence" (Tennessee Cent. R. Co. v. Campbell, 75 SW 1012
[1903]):

More importantly, "(i)t is an established doctrine that one of the essential attributes of appellate
jurisdiction, and one of the inherent powers of the appellate court, is the right to make use of all writs
known to the common law, and, if necessary, to invent new writs or proceedings in order to suitably
exercise the jurisdiction conferred (Wheeler v. Northern Colorado Irrigation Co., 11 P 103 [1886];
citing Attorney General v. Railroad Cos., 35 Wis. 425; Marbury v. Madison, 1 Cranch 137; U.S. v.
Commissioners, 1 Morris, (Iowa,) 42; Attorney General v. Blossom, 1 Wis. 277).

The ponencia posits that such a view obtaining in foreign jurisdiction cannot apply in the country's
judicial system since the subject writs are specifically characterized as original special civil action
under Rule 65 of the Rules of Court. if the subject writs are original in character, why then can the
Court of Appeals exercise the same in aid of its appellate jurisdiction? Concededly because of BP 129.
But then again, doesn't the constitution itself grants such appellate jurisdiction to the COMELEC? Do
we still need a statutory enactment for such conferment of certiorari jurisdiction? Is the constitutional
grant of appellate jurisdiction not enough? The ponencia stresses that the grant of power to the
COMELEC must be express. I believe, however, that the constitutional provision investing the
COMELEC with appellate jurisdiction is clear and broad enough to comprehend the issuance of the
questioned writ.

The power to be the "judge ... of ... contests relating to the elections, returns and qualifications of any
public official is essentially judicial. As such, ... it belongs exclusively to the judicial department, except
only insofar as the Constitution provides otherwise. (Lopez v. Roxas, 17 SCRA 756 [1966]; citing
Matthews, American Constitutional System; Cooley, Thomas M., A Treatise on Constitutional
Limitations, Vol. 1, pp. 270-271, 1972 ed.; 23 W & P 147 [1965 Pocket Part]; State ex rel. Tanner v.
Duncan, 10 So 2d 507, 511, 23 W & P 148 1927 ed.; 23 W & P 147 [1965 Pocket Part]; State ex rel.
Tanner v. Duncan, 10 So. 2d 507,511,23 W & P 148, supra). In granting the COMELEC with the powers
and functions to "exrcise exclusive original jurisdiction over all contests relating to the elections,
returns and qualifications of all elective regional, provincial and city officials, and appellate
jurisdiction over all contests involving all elective municipal officials decided by trial courts of general
jurisdiction, or involving elective barangay officials decided by the trial courts of limited jurisdiction"
(Sec. 2 [2], Art. IX-C, Constitution), the Constitution vested upon the COMELEC judicial powers to
decide all contests relating to elective local officials as therein provided.

As defined in the Constitution, (j)udicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and to determine
whether or not there has been agrave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the government" (Sec. 1, par. 2, Art. VIII). Since the
COMELEC, in discharging its appellate jurisdiction pursuant to SEc. 2 (2), Art. IX-C, acts a court of
justice performing judicial power and said power includes the determination of whether or not there
has been grave abuse of discretion amounting to lack or excess of jurisdiction, it necessarily follows
that the COMELEC, by constitutional mandate, is vested with jurisdiction to issue writs of certiorari in
aid of its appellate jurisdiction. This I believe, is the Constitutional intent although not spelled out in
black and white.

On this score, the classic pronouncement of Justice Holmes in his landmark dissent should serve as
timely reminder:

The great ordinances of the Constitution do not establish and divide fields of black and white. Even
the more specific of them are found to terminate in a penumbra shading gradually from one extreme
to the other. ... When we come to the fundamental distinctions it is still more obvious that they must
be received with a certain lattitude or our government could not go on. (Springer v. Government of
the philippines islands, 277 US 189 [1927])

In upholding the authority of the COMELEC to issue the subject writs, I do not wish to imply that as a
general Proposition, the COMELEC is superior over the Regional Trial Courts. (The case of People v.
Delgado cited in the ponencia involves criminal prosecutions which are undoubtedly, within the
province of the regional trial courts.) However, a criminal case instituted by the People is one thing;
an electoral contest involving private litigants is another. As a general rule, Regional Trial Courts have
jurisdiction over criminal cases. The COMELEC has none. In other words, what is at issue here is not a
criminal prosecution, or a civil action for that matter, but rather an election contest involving as it
does public interest calling for a proper resolution before an appropriate body. As to which forum is
superior in litigations relating to election contests involving local public officials, as in the case at bar,
there is no doubt the COMELEC has jurisdiction ascendency since it has appellate jurisdiction over all
contests involving elective municipal officials decided by trial courts of general jurisdiction or involving
elective barabgay officials decided by trial courts of limited jurisdiction (Sec. 2 [2], Art. IX-C,
Constituion; underscoring supplied).

In Angara v. Electoral Commission (63) Phil. 139 [1936]), the Court held:

The creation of the Electoral Commission carried with it ex necesitate rei the power regulative in
character to limit the time within which protests intrusted to its cognizance should be filed. It is a
settled rule of construction that where a general power necessary for the exercise of the one or the
performance of the other is also conferred. In the absence of any further constitutional provision
relating to the procedure to be followed in filing protests before the Electoral Commission, therefore,
the incidental power to promulgate such rules necessary for the proper exercise of its exclusive power
to judge all contests relating to the election, returns and qualifications of members of the national
Assembly, must be deemed by necessary implication to have been lodged also in the Electoral
Commission. (citing Cooley, Constitutional Limitations, 8th ed., Vol I pp. 138-139; underscoring
supplied).

The above doctrine was reiterated by this Court in the case of Lazatin v. House Electoral Tribunal (168
SCRA 391 [1988]) and should find application to the similar power conferred upon the COMELEC in aid
of its appellate jurisdiction in the exercise of its judicial function. In the absence of a constitutional
proscription, I submit that this court should not narrow down the appellate and incidental powers
which the constitution confers upon the respondent COMELEC.

And finally, in the 1941 case of Sumulong v. COMELEC (73 Phil. 288), this Court had occasion to note
that:

The Commission on Elections is a constitutional body. It is intended to play a distinct and important
part in our scheme of government. In the discharge of its functions it should not be hampered with
restriction that would be fully warranted in the case of a less responsible organization. The
Commission may err, so may this court also. It should be allowed considerable latitude in devising
means and methods that will insure the accomplishment of the great objective for which it was
created — free orderly and honest elections.We may not agree fully with its choice of means, but
unless these are clearly illegal or constitute gross abuse of discretion, this court should not interfere.
Politics is a practical matter ...

xxx xxx xxx

There are no ready-made formulas for solving public problems. Time and experience are necessary to
evolve patterns that will serve the ends of good government. In the matter of the administration of
the laws relative to the conduct of elections ... we must not by any excessive zeal take away from the
Commission on Elections the initiative which by constitutional and legal mandates properly belongs to
it. Due regard to the mandates properly belongs to it. Due regard to the independent character of the
Commission, as ordained in the Constitution, requires that the power of this Court to review the acts of
that body should as general proposition be used sparingly but firmly in appropriate cases. We are not
satisfied that the present suit is one of such cases. (underscoring supplied)

In issuing the assailed writs, in aid of its appellate jurisdiction, the COMELEC did not overstep its
authority nor did it act in a capricious, whimsical or despotic manner amounting to grave abuse of
discretion equivalent to lack or excess of jurisdiction.

Accordingly, I vote to DISMISS the instant petitions.

EN BANC

G.R. No. 95346 January 18, 1991

PERFECTO V. GALIDO, petitioner,

vs.
COMMISSION ON ELECTIONS and SATURNINO R. GALEON, respondents.

Paulino G. Clarin and Giselo Galido for petitioner.

De Castro & Cagampang Law Offices for private respondent.

RESOLUTION

PADILLA, J.:

This is a special civil action for certiorari and preliminary injunction with prayer for a temporary
restraining order, to prohibit respondent Commission on Elections from implementing its questioned
decision dated 14 December 1989 and resolution dated 20 September 1990, and private respondent
Saturnino R. Galeon from assuming office as Mayor of Garcia-Hernandez, Province of Bohol.

Petitioner and private respondent were candidates during the 18 January 1988 local elections for the
position of mayor in the Municipality of Garcia-Hernandez, Province of Bohol. Petitioner was
proclaimed duly-elected Mayor of Garcia-Hernandez, by the Municipal Board of Canvassers.

On 25 January 1988, private respondent Saturnino R. Galeon filed an election protest before the
Regional Trial Court of Bohol, 7th Judicial Region, Branch I, Tagbilaran City. After hearing, the said
court upheld the proclamation of petitioner as the duly-elected Mayor of Garcia-Hernandez, by a
majority of eleven (11) votes.

Private respondent appealed the RTC decision to the Commission on Elections (COMELEC). Through its
First Division, the COMELEC reversed the trial court's decision and declared private respondent the
duly-elected mayor by a plurality of five (5) votes. Petitioner's motion for reconsideration was denied
by the COMELEC in its en bancresolution of 20 September 1990 which affirmed the decision of its First
Division. The COMELEC held that the fifteen (15) ballots in the same precinct containing the initial "C"
after the name "Galido" were marked ballots and, therefore, invalid. The COMELEC said:

On the argument relied upon by the appellee that the case of Inguito vs. Court of Appeals is not the
case in point but the cases of Bisnar vs. Lapasa and Katigbak vs. Mendoza, supra should be the
applicable jurisprudence, the settled rule and which is controlling is where a word or a letter recurs in
a pattern or system to mark and identify ballots, the ballots containing the same should be rejected as
marked ballots (Silverio vs. Castro, supra; Inguito vs. Court of Appeals, 21 SCRA 1015), and the
introduction of evidence aliunde is not necessary when the repetition of a word or letter in several
ballots in the same precinct constitutes a clear and convincing proof of a design to indentify the
voters. (P. 38, Rollo of G.R. No. 95346)

On 25 September 1990, petitioner filed before this Court a petition for certiorari and injunction, which
was docketed as G.R. No. 95135.
On 27 September 1990, we resolved to dismiss the said petition for failure of petitioner to comply
with paragraph 4 of the Court's Circular No. 1-88 which requires that a petition shall contain a verified
statement of the date when notice of the questioned judgment, order or resolution was received and
the date of receipt of the denial of the motion for reconsideration, if any was filed. Petitioner filed a
motion for reconsideration which we denied with finality in the resolution of 4 October 1990.

Undaunted, petitioner filed on 6 October 1990 the present petition for certiorari and injunction with
prayer for a restraining order (G.R. No. 95346) which contains the same allegations and legal issues
contained in G.R. No. 95135.

On 11 October 1990, we issued the temporary restraining order prayed for by petitioner and required
respondents to file comment on the petition.

In his Comment, private respondent Saturnino R. Galeon moves for the dismissal of the present
petition, for the following three (3) main reasons:

1. Final decisions, orders or rulings of the Commission on Elections (COMELEC) in election contests
involving elective municipal offices are final and executory, and not appealable. Private respondent
cites Article IX (C), Section 2(2), paragraph 2 of the 1987 Constitution, which reads as follows:

Decisions, final orders, or ruling of the Commission on election contests involving elective municipal
and barangay offices shall be final, executory, and not appealable.

The above constitutional provision is implemented in the Rules of Procedure promulgated by the
COMELEC, particularly Part VII Rule 39, Section 2 thereof, which reads:

Sec. 2. Non-reviewable decisions. — Decisions in appeals from courts of general or limited jurisdiction
in election cases relating to the elections, returns, and qualifications of municipal and barangay
official are not appealable.

According to private respondent, since appeals of COMELEC decisions in election contests involving
municipal and barangay officials are not allowed by the Constitution, it follows that the COMELEC
decision in the case at bar should be executed or implemented.

2. The petition involves pure questions of fact as they relate to appreciation of evidence (ballots)
which is beyond the power of review of this Court. The COMELEC found that the writing of the letter
"C" after the word "Galido" in the fifteen (15) ballots of Precinct 14 is a clear and convincing proof of a
pattern or design to identify the ballots and/or voters. This finding should be conclusive on the Court.

3. Exactly the same petition — involving identical allegations, grounds and legal issues — was
dismissed with finality by this Court in G.R. No. 95135. The inadvertent issuance of a temporary
restraining order by the Court in this case has wreaked havoc and chaos in the municipality of Garcia-
Hernandez where private respondent has already assumed his position as the duly-elected mayor.

In his Reply to the Comment, petitioner avers —

1 Article IX (A), Section 7 of the 1987 Constitution provides:

Sec. 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought
before it within sixty days from the date of its submission for decision or resolution. A case or matter
is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or
memorandum required by the rules of the Commission or by the Commission itself Unless otherwise
provided by this Constitution or by law, any decision, order, or ruling of each Commission may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a
copy thereof.

Since under the same Constitution (Article VIII, Section 1), judicial power is vested in one Supreme
Court, the present petition can still be brought to the Supreme Court by certiorari. Petitioner contends
that this petition is not an ordinary appeal contemplated by the Rules of Court or by provision of the
Constitution.

2. The petition involves pure questions of law. The correct interpretation of Section 211. No. 10 of
Batas Pambansa Blg. 881 is definitely a question of law. It states:

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 the candidate, or the
erroneous middle initial of the candidate shall not annul the vote in favor of the latter.

In several cases decided by this Court, according to petitioner, it was held that in the appreciation of
ballots where there is no evidence aliunde of a purpose to identify the ballots, the same should not be
invalidated as marked ballots. The COMELEC thus committed grave abuse of discretion when it
disregarded the cited decisions of this Court and declared that the suffix "C" after the name Galido
was in reality a countersign and not a mere erroneous initial.

3. The dismissal with finality of G.R. No. 95135 (the first petition) did not refer to the merits of the
petition. The said dismissal was due to the failure of petitioner to submit requisite papers duly
certified. That is why upon petitioner's submission of the requirements in his second (the present)
petition, this Court granted the request for the issuance of a temporary restraining order.

The Court finds the petition to be without sufficient merit.

The Commission on Elections (COMELEC) has exclusive original jurisdiction over all contests relating to
the elections, returns, and qualifications of all elective regional, provincial, and city officials and has
appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of
general jurisdiction or involving elective barangay officials decided by trial courts of limited
jurisdiction. (Article IX (C), Section 2 (2), paragraph 1 of the 1987 Constitution).

In the present case, after a review of the trial court's decision, the respondent COMELEC found that
fifteen (15) ballots in the same precinct containing the letter "C" after the name Galido are clearly
marked ballots. May this COMELEC decision be brought to this court by a petition for certiorari by the
aggrieved party (the herein petitioner)?

Under Article IX (A) Section 7 of the Constitution, which petitioner cites in support of this petition, it is
stated: "(U)nless otherwise provided by this Constitution or by law, any decision, order, or ruling of
each (Constitutional) Commission may be brought to the Supreme Court on certiorari by the aggrieved
party within thirty days from receipt of a copy thereof."

On the other hand, private respondent relies on Article IX, (C), Section 2(2), paragraph 2 of the
Constitution which provides that decisions, final orders, or rulings of the Commission on Elections in
contests involving elective municipal and barangay offices shall be final, executory, and not
appealable. (Emphasis supplied)

We resolve this issue in favor of the petitioner. The fact that decisions, final orders or rulings of the
Commission on Elections in contests involving elective municipal and barangay offices are final,
executory and not appealable, does not preclude a recourse to this Court by way of a special civil
action of certiorari. The proceedings in the Constitutional Commission on this matter are enlightening.
Thus —

MR. FOZ. So, the amendment is to delete the word "inappealable."

MR. REGALADO. Before that, on page 26, line 26, we should have a transposition because decisions
are always final, as distinguished from interlocutory orders. So, it should read: "However, decisions,
final orders or rulings," to distinguish them from intercolutory orders, ". . . of the Commission on
Elections on municipal and barangay officials shall be final and IMMEDIATELY executory."

That would be my proposed amendment.

MR. FOZ. Accepted, Mr. Presiding Officer.

MR. REGALADO. It is understood, however, that while these decisions with respect to barangay and
municipal officials are final and immediately executory and, therefore, not appealable, that does not
rule out the possibility of an original special civil action for certiorari, prohibition, or mandamus, as
the case may be, under Rule 65 of the Rules of Court.

MR. FOZ. That is understood, Mr. Presiding Officer.

MR. REGALADO. At least it is on record.

Thank you, Mr. Presiding Officer.1

We do not, however, believe that the respondent COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in rendering the questioned decision. It is settled that the
function of a writ of certiorari is to keep an inferior court or tribunal within the bounds of its
jurisdiction or to prevent it from committing a grave abuse of discretion amounting to lack or excess
of jurisdiction.

As correctly argued by public respondent COMELEC, it has the inherent power to decide an election
contest on physical evidence, equity, law and justice, and apply established jurisprudence in support
of its findings and conclusions; and that the extent to which such precedents apply rests on its
discretion, the exercise of which should not be controlled unless such discretion has been abused to
the prejudice of either party. (Rollo, p. 107)

Finally, the records disclose that private respondent had already assumed the position of Mayor of
Garcia-Hernandez as the duly-elected mayor of the municipality by virtue of the COMELEC decision.
The main purpose of prohibition is to suspend all action and prevent the further performance of the
act complained of. In this light, the petition at bar has become moot and academic. (G.R. No. 81383.
Atty. Felimon et al. vs. Atty. Belena et al. Apr. 5, 1988 resolution.)
ACCORDINGLY, the petition is DISMISSSED. The temporary restraining order earlier issued by the
Court is LIFTED.

SO ORDERED.
EN BANC

DR. MAHID M. MUTILAN, G.R. No. 171248

Petitioner,

Present:

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,

CARPIO,

AUSTRIA-MARTINEZ,

- versus - CORONA,

CARPIO MORALES,

CALLEJO, SR.,

AZCUNA,

TINGA,

CHICO-NAZARIO,

GARCIA,

VELASCO, JR., and

NACHURA, JJ.

COMMISSION ON ELECTIONS Promulgated:

and ZALDY UY AMPATUAN,

Respondents. April 2, 2007

x--------------------------------------------------x

DECISION
CARPIO, J.:

The Case

Before the Court is a petition for certiorari[1]assailing the 28 December 2005 Order[2]of the
Commission on Elections (COMELEC) En Banc.

The Antecedent Facts

Dr. Mahid M. Mutilan (petitioner) and Zaldy Uy Ampatuan (private respondent) were candidates for
Governor during the election of regional officials held on 8 August 2005 in the Autonomous Region of
Muslim Mindanao (ARMM). On 11 August 2005, private respondent was proclaimed as the duly
elected Governor of the ARMM.

On 19 August 2005, petitioner filed an Electoral Protest and/or Petition to Annul the Elections. The
case was docketed as EPC No. 2005-3. Petitioner contested the results of the elections
in Maguindanao, Basilan, Tawi-Tawi, and Sulu on the ground that no actual election was conducted in
the precincts in these four provinces. Petitioner alleged that the voters did not actually vote and that
the ballots were filled up by non-registered voters in the four provinces. Petitioner also contested the
results in the municipalities of Butig, Sultan Gumander, Calanogas, Tagoloan, Kapai, Masiu,
and Maguing in Lanao del Sur where massive substitute voting allegedly took place.

The Ruling of the COMELEC Second Division

In its 21 November 2005 Order,[3]the COMELEC Second Division dismissed the petition.

The COMELEC Second Division stated that during the initial hearing of the case, petitioners counsel
admitted that the petition was not an election protest but one for annulment of elections. Petitioners
counsel prayed that the case be elevated to the COMELEC En Banc. Petitioner argued that jurisdiction
over the x x x petition is vested by law in the entire Honorable Commission both in banc and in
division, such that this Honorable Commission (Second Division) can legally elevate the case to the
Honorable Commission En Banc pursuant to its rules of procedure to expedite disposition of election
case.[4]
The COMELEC Second Division ruled that jurisdiction over petitions for annulment of elections is
vested in the COMELEC En Banc. However, the elevation of the case to the COMELEC En Banc is not
sanctioned by the rules or by jurisprudence. Thus, the COMELEC Second Division dismissed the
petition for lack of jurisdiction. The dispositive portion of the 21 November 2005 Order reads:

IN VIEW OF THE FOREGOING, and considering the categorical admission of the [petitioner] that the
instant petition is not an election protest but one for annulment of elections, the Commission (Second
Division) hereby DISMISSES the same for lack of jurisdiction. Sec. 4 of Republic Act 7166 confers upon
the Commission sitting en banc the exclusive jurisdiction over petition for annulment of election.

Anent the prayer to elevate the petition to annul the elections to the Commission en banc, the
Commission (Second Division) hereby DENIES the same for want of requisite authority therefor under
the Rules.

SO ORDERED.[5](Emphasis in the original)

On 29 November 2005, petitioner filed a Motion for Reconsideration of the 21 November 2005 Order
of the COMELEC Second Division. On 29 December 2005, petitioner filed a Motion to Admit Verified
Copies of Motion for Reconsideration. Petitioners counsel alleged that at the time of the filing of the
motion for reconsideration, petitioner was in Marawi City and his verification arrived in Manila only
after the filing of the motion for reconsideration. Petitioners counsel alleged that he had to file the
unverified motion for reconsideration because he had only five days from receipt of the 21 November
2005 Order to file the motion.

The Ruling of the COMELEC En Banc

In its Order dated 28 December 2005, the COMELEC En Banc denied the motion for reconsideration for
petitioners failure to verify it in accordance with Section 3, Rule 19 of the COMELEC Rules of
Procedure. The COMELEC En Banc ruled that the 21 November 2005 Order of the COMELEC Second
Division had become final and executory on 8 December 2005. Thus:

ACCORDINGLY, the Clerk of the Commission, Electoral Contests Adjudication Department (ECAD)[,]
this Commission, is hereby directed to immediately issue an Entry of Judgment.
Let copies of this Order, the Entry of Judgment and Order of 21 November 2005 be furnished Her
Excellency, Hon. Gloria Macapagal-Arroyo, President of the Republic of the Philippines, the Hon.
Secretary. Department of Interior and Local Government, the Hon. Chairman, Commission on Audit
and the Secretary, Regional Assembly, Autonomous Region in Muslim Mindanao (ARMM).

SO ORDERED.[6] (Emphasis in the original)

Hence, the petition before this Court.

The Issues

Petitioner raises the following issues before this Court:

1. Whether the COMELEC Second Division acted in excess of its jurisdiction and with grave abuse of
discretion amounting to lack or excess of jurisdiction in dismissing the petition to annul elections and
in not elevating the petition to the COMELEC En Banc.

2. Whether the COMELEC En Banc acted in excess of its jurisdiction and with grave abuse of
discretion amounting to lack or excess of jurisdiction in denying petitioners motion for
reconsideration for lack of verification.[7]

The Ruling of this Court

The petition is partly meritorious

The COMELEC Second Division is Not Prohibited from

Elevating the Petition to the COMELEC En Banc

Petitioner alleges that the COMELEC Second Division gravely abused its discretion in dismissing the
petition for annulment of elections. Citing Section 3, Article IX-C of the 1987 Constitution, petitioner
alleges that [p]ublic respondent en banc or in division possesses the jurisdiction conferred by the
Constitution in the entire public respondent as one whole collegial body or unit and such jurisdiction
continues to exist when the public respondent sits either en banc or in a division.[8] As such, the
COMELEC Second Division has the jurisdiction and authority to take action on the petition x x x [and]
to legally elevate the petition to public respondent sitting en banc.[9]

Section 3, Article IX-C of the 1987 Constitution provides:

The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of
procedure in order to expedite disposition of election cases, including pre-proclamation
controversies. All such election cases shall be heard and decided in division, provided that motions for
reconsideration of decisions shall be decided by the Commission en banc.

Under Section 3, Article IX-C of the 1987 Constitution, all election cases, including pre-proclamation
controversies, must be heard and decided by a division of the COMELEC.

In his Electoral Protest and/or Petition to Annul the Elections, petitioner seeks for a declaration of
failure of elections in the contested areas. Petitioners counsel readily admitted during the initial
hearing that the petition was for annulment of elections.

Under Section 4 of Republic Act No. 7166 (RA 7166),[10]jurisdiction over postponements, failure of
elections and special elections vests in the COMELEC En Banc.[11] The jurisdiction of the COMELEC En
Banc over a petition to declare a failure of elections has been affirmed by this Court which ruled that a
petition to declare a failure of elections is neither a pre-proclamation controversy nor an election
case.[12] A prayer to annul election results and a prayer to declare failure of elections based on
allegations of fraud, terrorism, violence or analogous causes are actually of the same nature and are
denominated similarly in the Omnibus Election Code.[13] Thus, the COMELEC Second Division has
no jurisdiction over the petition to annul the elections.

Petitioner alleges that the docketing of the case as an election protest case was based on the
determination of the administrative docket staff. Petitioner argues that the internal docketing should
not prejudice his rights and should not divest the COMELEC, sitting either En Banc or in Division, of its
jurisdiction over the petition.

The argument has no merit. Petitioner filed an Electoral Protest and/or Petition to Annul the
Elections. Petitioner cannot put the blame on the docketing clerk because he clearly tried to avail of
two different remedies, each one falling under separate jurisdictions.

The COMELEC Second Division ruled that automatic elevation of the case to the En Banc is not
sanctioned by the rules or by jurisprudence. Petitioner argues that the COMELEC Second Division
should have elevated the petition to the COMELEC En Bancinstead of dismissing the petition for lack
of jurisdiction.

We agree with petitioner. While automatic elevation of a case erroneously filed with the Division
to En Banc is not provided in the COMELEC Rules of Procedure, such action is not prohibited. Section
4, Rule 2 of the COMELEC Rules of Procedure provides:

Means to Effect Jurisdiction. - All auxiliary writs, processes and other means necessary to carry into
effect its powers or jurisdiction may be employed by the Commission; and if the procedure to be
followed in the exercise of such power or jurisdiction is not specifically provided for by law or these
rules, any suitable process or proceeding may be adopted. (Emphasis supplied)

Hence, there is nothing in the COMELEC Rules of Procedure to prevent the COMELEC Second Division
from referring the petition to annul the elections to the COMELEC En Banc.

Nevertheless, the petition must still fail.

In his Electoral Protest and/or Petition to Annul the Elections, petitioner alleged that no actual
election was conducted in the contested areas. Petitioner further alleged that the voters did not
actually vote and the ballots were filled up by non-registered voters.Petitioner also alleged massive
disenfranchisement and substitute voting. Petitioner argued that the irregularities warrant the
annulment and setting aside of the elections in the contested areas.

There are three instances where a failure of elections may be declared, thus:
(a) the election in any polling place has not been held on the date fixed on account of force majeure,
violence, terrorism, fraud or other analogous causes;

(b) the election in any polling place has been suspended before the hour fixed by law for the closing of
the voting on account of force majeure, violence, terrorism, fraud or other analogous causes; or

(c) after the voting and during the preparation and transmission of the election returns or in the
custody or canvass thereof, such election results in a failure to elect on account of force majeure,
violence, terrorism, fraud or other analogous causes.[14]

In all three instances, there is a resulting failure to elect.[15] In the first instance, the election has not
been held. In the second instance, the election has been suspended. In the third instance, the
preparation and the transmission of the election returns give rise to the consequent failure to elect;
the third instance is interpreted to mean that nobody emerged as a winner.[16]

None of the three instances is present in this case. In this case, the elections took place. In fact,
private respondent was proclaimed the winner. Petitioner contests the results of the elections on the
grounds of massive disenfranchisement, substitute voting, and farcical and statistically improbable
results. Petitioner alleges that no actual election was conducted because the voters did not actually
vote and the ballots were filled up by non-registered voters.

Petitioner alleges that [i]n some instances, the ballots were forcibly grabbed by armed persons
and the same were filled-up even before election day.[17] However, petitioner did not cite the
particulars of his allegations. Petitioner further alleges that election returns were already filled up
even before the counting started;[18]votes credited to candidates even exceeded the number of
registered voters of the precincts;[19]and in one of the counting areas, the tally boards were filled up in
the presence of some Comelec officials even before the ballots were counted.[20] Again, petitioner
failed to state the particulars of these incidents except that [s]ome of these anomalies were
committed in the municipalities of Butig,
Sultan Gumander, Calanogas, Tagoloan, Kapai and Maguing of Lanao del Sur.[21]

The other allegations of petitioner, particularly the transfer of venue of the canvass without previous
notice to the candidates, the proclamation of private respondent without canvassing the results of the
farcical election in Tawi-Tawi, the erasures in the certificate of canvass, the lack of initials by the
Provincial Board of Canvassers, the use of different inks and handwritings, and the act of the
Provincial Board of Canvassers in simply noting his objections to the canvass of the returns, are not
grounds that would warrant the annulment of the elections.

In Pasandalan v. Commission on Elections, the Court explained:

To warrant a declaration of failure of election on the ground of fraud, the fraud must prevent or
suspend the holding of an election, or mar fatally the preparation, transmission, custody and canvass
of the election returns. The conditions for the declaration of failure of election are
stringent. Otherwise, elections will never end for losers will always cry fraud and terrorism.

The allegations of massive substitution of voters, multiple voting, and other electoral anomalies
should be resolved in a proper election protest in the absence of any of three instances justifying a
declaration of failure of election. In an election protest, the election is not set aside, and there is only
a revision or recount of the ballots cast to determine the real winner.

The nullification of elections or declaration of failure of elections is an extraordinary remedy. The

party who seeks the nullification of an election has the burden of proving entitlement to this
remedy. It is not enough that a verified petition is filed. The allegations in the petition must make out
a prima facie case for declaration of failure of election, and convincing evidence must substantiate the
allegations.[22]

Here, the allegations of petitioner in his petition to annul the elections fail to make out a prima
facie case to warrant the declaration of failure of elections.

Motion for Reconsideration Must Be Verified

Section 3, Rule 19 of the COMELEC Rules of Procedure requires that the motion for reconsideration be
verified.[23] The COMELEC En Banc ruled that there was no valid motion for reconsideration because
petitioner failed to comply with Section 3, Rule 19 of the COMELEC Rules of Procedure. The
COMELEC En Banc ruled that the Order of the COMELEC Second Division had become final
and executory.

Petitioner alleges that the absence of verification in his motion for reconsideration constitutes a slight
or minor lapse and defect.Petitioner further alleges that the absence of verification is merely a formal
defect and does not affect the validity and efficacy of the pleading.
Petitioner alleges that the motion for reconsideration was filed within five days from receipt of the
COMELEC Second Divisions Decision in accordance with Section 2, Rule 19 of the COMELEC Rules of
Procedure. Petitioner alleges that the motion for reconsideration was not verified because he was
then in Marawi City. Petitioners verification did not arrive in Manila until after the filing of the motion
for reconsideration. Petitioner alleges that upon the arrival of the verification in Manila, his counsel
filed a Motion to Admit Verified Copies of Motion for Reconsideration and explained the reason for
the delayed submission of petitioners verification.

Petitioners motion for reconsideration was filed on 29 November 2005. The COMELEC En Banc denied
the motion for reconsideration in its Order dated 28 December 2005. Petitioner filed the Motion to
Admit Verified Copies of Motion for Reconsideration only on 29 December 2005, one day after the
COMELEC En Bancs denial of his motion for reconsideration and one month after the filing of the
original motion for reconsideration.

Grave abuse of discretion implies capricious and whimsical exercise of judgment amounting to lack of
jurisdiction, or arbitrary and despotic exercise of power because of passion or personal hostility.[24] It
is not sufficient that a tribunal, in the exercise of its power, abused its discretion; such abuse must be
grave.[25] The grave abuse of discretion must be so patent and gross as to amount to an evasion or
refusal to perform a duty enjoined by law.[26] In this case, we see no grave abuse of discretion on the
part of the COMELEC En Banc in denying petitioners motion for reconsideration. The Motion to Admit
Verified Copies of Motion for Reconsideration was filed only after the denial by the COMELEC En
Banc of the original and unverified motion for reconsideration.

WHEREFORE, we DISMISS the petition. We AFFIRM the 28 December 2005 Order of the COMELEC En
Banc.

SO ORDERED.
THIRD DIVISION

G.R. Nos. 83938-40 November 6, 1989

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. HENRY B. BASILLA, SALVACION COLAMBOT, SPOUSES JAIME AND ADORACION TAYONG and
MELCHOR YANSON, respondents.

The Office of the Solicitor General for petitioner.

Ruben A. Songco for respondents.

FELICIANO, J.:

As an aftermath of the May 1987 congressional elections in Masbate, complaints for violations of
Section 261 of the Omnibus Election Code (BP Blg. 881) were filed with the Office of the Provincial
Fiscal of Masbate against the private respondents as follows:

1) by Jolly Fernandez, then Officer-in-Charge of the Office of the Governor, against the spouses Jaime
and Adoracion Tayong — for violation of Section 261, paragraph a-1, for vote-buying;

2) by Ladislao Bataliran against Salvacion Colambot — for violation of Section 261, paragraph a-1, also
for vote buying; and

3) by PC/Sgt Arturo Rebaya against Melchor Yanson — for violation of Section 261, paragraph p, for
carrying of deadly weapon.

After preliminary investigation of the foregoing complaints, the Provincial Fiscal of Masbate filed in
the Regional Trial Court, Branch 49, Cataingan, Masbate,. the following criminal complaints: (1,)
Criminal Case No. 324 against the spouses Tayong; (2) Criminal Case No. 326 against Salvacion
Colambot and (3) Criminal Case No. 375 against Melchor Yanson.

In three (3) separate orders, all dated 6 October 1987, and Identical in tenor save for the names of the
accused respondent Judge Henry Basilla motu proprio dismissed the three (3) informations filed by the
Provincial Fiscal, giving the following justification:

xxx xxx xxx

The record shows that the complainant filed the complaint with the fiscal and not with the COMELEC.
The COMELEC did not investigate the case.

The Constitution of the Republic of the Philippines says:

"Sec. 2(6) of Art. IX (C) The Commission on Election shall exercise the following powers and functions:

xxx xxx xxx

... ; investigate and, when appropriate prosecute cases of violation of election laws, including acts or
omissions, constituting election frauds offenses, malpractices."
The Omnibus Election Election Code of the Philippines (BP Blg, 881) says:

Sec. 265. Prosecution. — The Commission shall, through its duly authorized legal officers, have
the exclusive power to conduct preliminary investigation of all election offenses punishable under this
Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting
arms of the government; Provided, however, that in the event that the Commission fails to act on any
complaint within four months from his filing, the complaint may file the complaint with the office of
the fiscal or with the Ministry of Justice. for proper investigation and prosecution, if warranted. (Sec.
182, 1978, EC; and Sec. 66. BP 697)

In the landmark case of De Jesus vs. People, L-60998, February 120 SCRA 760, the the Supreme Court
ruled:

The grant to the COMELEC of the power. among others, to enforce and administer all laws relative to
the conduct of election and the concomitant authority to investigate and prosecute election offenses
is not without compelling reason. The evident constitutional intendment in bestowing this power to
the COMELEC is to ensure the free, and honest conduct of elections, failure of which would result i ii
the frustration of the true will of the people and make a mere Idle ceremony of the sacred right and
duty of every qualified citizen to vote. To divest the COMELEC of the authority to investigate and
prosecute election offenses committed by public officials in relation to their office would thus
seriously impair its effectiveness in achieving this clear constitutional mandate.

Consistently, and lately, in Corpu[s], et al. vs. Tanodbayan of the Philippines', et al., L-62075, April 15,
1987, our Supreme Court rules:

An examination of the provisions of the Constitution and the Election Code of 1978 reveals the clear
intention to place in the COMELEC exclusive jurisdiction to investigateand prosecute election offenses
committed by any person, whether private individual or public officer or employee, and in the latter
instance, irrespective of whether the offense is committed in relation to his official duties or not. In
other words, it is the nature of the offense and not the personality of the offender that matters. As
long as the offense is an election offense jurisdiction over the same rests exclusively with the
COMELEC, in view of its all embracing power over the conduct of election.

IN THE LIGHT OF ALL THE FOREGOING, inasmuch as the election offense was not investigated and
prosecuted by the COMELEC. the case is motu proprio dismissed. 1

The People moved for reconsideration of respondent Judge's orders, without success.

The instant Petition for Review assails the three (3) orders dismissing the three (3 ) criminal
informations against the private respondents, as constituting grave abuse of discretion amounting to
lack of jurisdiction. The Petition argues principally that the Commission on Elections ("Comelec") has
authority to deputize the chief state prosecutors, provincial and city fiscals and their assistants, under
Sections 2 (4) and (8 ), Article IX-C of the 1987 Constitution, and that the Comelec did deputize such
prosecution officers to conduct preliminary investigation of complaints for alleged violation of
election laws and to institute criminal informations therefor.

The Petition must be granted.

There is no dispute that the Comelec is vested with power and authority to conduct preliminary
investigation of all election offenses punishable under the Omnibus Election Code and to prosecute
such offenses in court. Section 265 of this Code reads as follows:

See. 265. Prosecution. — The Commission shall, through its duly authorized legal officers, have the
exclusive power to conduct preliminary investigation of all election offenses punishable under this
Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting
arms of the government: Provided, however, That in the event that the Commission fails to act on any
complaint within four months from his filing, the complainant may file the complaint with the office
of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted.
(Sec. 182, 1973 EC; and Sec. 66, BP 697) (Emphasis supplied)

We note that while Section 265 of the Code vests "exclusive power" to conduct preliminary
investigation of election offenses and to prosecute the same upon the Comelec, it at the same time
authorizes the Comelec to avail itself of the assistance of other prosecuting arms of the Government.
Section 2 of Article IX-C of the 1 987 Constitution clearly envisage that the Comelec would not be
compelled to carry out all its functions directly and by itself alone:

Section 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall.

xxx xxx xxx

(4) Deputize, with the concurrence of the President, law enforcementi agencies and instrumantalities
of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of
ensuring free orderly, honest, peaceful, and credible elections.

xxx xxx xxx

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion
of voters; investigate and, where appropriate, prosecute cases of violation of election laws, including
acts or omissions constituting election frauds, offenses, and malpractices.

xxx xxx xxx

(8) Recommend to the President the removal of any officer or employee it has deputized, or the
imposition of any other disciplinary action, for violation or disregard of, or disobedience to its
directive, order, or decision.

xxx xxx xxx

(Emphasis supplied)

The concurrence of the President with the deputation by Comelec of the prosecuting arms of the
Government, was expressed in general terms and in advance in Executive Order No. 134. dated 27
February 1987, entitled "Enabling Act for the Elections for members of Congress on May 11, 1987, and
for other purposes." Executive Order No. 134 provided in pertinent portion as follows:

xxx xxx xxx

See. 11. Prosecution. — Commission shall, through its duly authorized legal officers, have exclusive
power to conduct preliminary investigation of all election offenses punishable as provided for in the
preceding section, and to prosecute the same: Provided, That in the event that the Commission fails to
act on any complaint within two (2) months from filing, the complainant may file the complaint with
the Office the Fiscal or with the Department for Justice for proper investigation and prosecution, if
warranted.

The Commission may avail of the assistance of other prosecuting arms of the government.

(Emphasis supplied)

On 9 March 1987, the Comelec enacted its Resolution No. 1862. The pertinant operative portions of
this resolution are the following:

xxx xxx xxx

NOW, THEREFORE, the Commission on Elections, by virtue of the powers vested in it by the
Constitution of the Republic of the, Philippines, the Omnibus Election Code and Executive Orders Nos.
50, 94, 134 and 144, has RESOLVED to designate, as it hereby designates the Chief State Prosecutor, all
Provincial and City Fiscalss and their respective Assistants as its deputies in connection with the
elections for Members of Congress on May 11, 1987, to perform the following duties and functions:

1. Conduct prelimiry investigation of complaints involving election offenses under the Omnibus
Election Code which may be filed directly with them, or which may be endorsed to them by the
Commission or its authorized representatives; and

2. Whenever a prima facie case exists, file the proper information in court and prosecute the same.

Preliminary investigation of cases filed directly with, or endorsed to, Provincial and City Fiscals, and/or
their respective Assistants shall be conducted immediately and shall be finished within thirty (30) days
from the filing thereof and, for this purpose, they are enjoined to hold office on a twenty-four (24)
hour basis during the registration of voters on April 11 and 12, 1987, on Election Day on May 11, 1987,
and until midnight on Revision Day on May 2, 1987.

Provincial and City Fiscals and their respective Assistants shall submit to the Commission a report on
every case directly filed with them and thereafter, monthly progress reports on the status of the cases
handled by them, including those endorsed by the Commission or its authorized representatives.

This Resolution shall take effect immediately. 2 (Emphasis supplied)

The contention of private respondents that the deputation by the Comelec of the prosecuting arms of
the Government would be warranted only before the elections and only to ensure tree, honest,
orderly, peaceful and credible elections, that is, to perform the peace-keeping functions of policemen,
lack substance. There is nothing in Section 2 (4) of Article IX-C of the Constitution which requires such
a pinched niggardly interpretation of the authority of the Comelec to appoint as its deputies, officials
or employees of other agencies and instrumentalities of the government. The prompt investigation
and prosecution and disposition of election offenses constitute an indispensable part of the task of
securing free, orderly, honest, peaceful and credible elections. The investigation and prosecution of
election offenses are, in an important sense, more important than the maintenance of physical order
in election precinct. 'without the assistance of provincial and city fiscals and their assistants and staff
members, and of the state prosecutors of the Department of Justice, the prompt and fair investigation
and prosecution of election offenses committed before or in the course of nationwide elections would
simply not be possible, unless, perhaps, the Comelec had a bureaucracy many times larger than what
it actually has. Moreover, the prosecution officers designated by the Comelec become deputies or
agents of the Comelec and pro tantosubject to the authority, control and supervision of the Comelec
in respect of the particular functions covered by such deputation. The acts of such deputies within the
lawful scope of their delegated authority are, in legal contemplation, the acts of the Comelec itself.
The only limitation the Constitution itself places upon the Comelec's authority over its deputies
relates to the enforcement of such authority through administrative sanctions. Such sanctions-e.g.,
suspension or removal-may be recommended by the Comelec to the President (Sec. 2 [8], Article IX-C,
1987 Constitution) rather than directly imposed by the Comelec, evidently, to pre-empt and avoid
potential difficulties with the executive department of the Government where the prosecution and
other officers deputized are ordinarily located.

All this the respondent Judge disregarded when he motu proprio dismissed the criminal informations
filed in this case. The cases he cited in his identical orders — De Jesus v. People, 120 SCRA 760 (1983)
and Corpus, et al. v. Tanodbayan, 149 SCRA 281 (1987) can offer him no comfort at all; for these cases
do not relate to the authority of the Comelec to deputize the regular prosecution arms of the
Government for the investigation and prosecution of election offenses and those cases are not in
conflict with our ruling here.

WHEREFORE, the Petition for Review on certiorari is hereby GRANTED due course and the Orders of
the trial court all dated October 6, 1987 in Criminal Cases Nos. 324, 326 and 375 and the Order dated
December 7, 1987 in the same cases denying the People's Motion for Reconsideration, are hereby SET
ASIDE and ANNULLED. The trial court is ORDERED to proceed forthwith with the continuation of
Criminal Cases Nos. 324, 326 and 375 and until termination thereof. Costs against private
respondents.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Bidin and Cortes, JJ., concur.

EN BANC

[G.R. No. 161265. February 24, 2004]

LABAN NG DEMOKRATIKONG PILIPINO, represented by its Chairman EDGARDO J. ANGARA VS. THE
COMMISION ON ELECTIONS and AGAPITO A. AQUINO

DECISION

TINGA, J.:

The Bible tells the story of how two women came to King Solomon to decide who among them is the
babys true mother. King Solomon, in his legendary wisdom, awarded the baby to the woman who
gave up her claim after he threatened to split the baby into two.

It is fortunate that the two women did not ask the Commission on Elections (COMELEC) to decide the
babys fate; otherwise, it would have cut the baby in half. For that is what the COMELEC exactly did in
this case.

On December 8, 2003, the General Counsel of the Laban ng Demokratikong Pilipino (LDP), a registered
political party, informed the COMELEC by way of Manifestation that only the Party Chairman, Senator
Edgardo J. Angara, or his authorized representative may endorse the certificate of candidacy of the
partys official candidates. The same Manifestation stated that Sen. Angara had placed the LDP
Secretary General, Representative Agapito A. Aquino, on indefinite forced leave. In the meantime,
Ambassador Enrique A. Zaldivar was designated Acting Secretary
General. The Manifestation concluded with this prayer:

A. The Honorable Commission recognizes [sic] only those Certificates of Candidacy to which are
attached Certificates of Nomination executed by LDP Party Chairman Edgardo J. Angara or by such
other officers of the LDP whom he may authorize in writing, and whose written authorizations shall
be deposited with the Honorable Commission by the LDP General Counsel.

B. The Honorable Commission declares [sic] as a nullity, denies [sic] due course or cancels [sic] all
Certificates of Candidacy not endorsed by LDP Party Chairman Angara or by such other LDP officials as
may be authorized by him.

C. The Honorable Commission takes [sic] note of the designation of Ambassador Enrique Ike A.
Zaldivar as Acting Secretary General of the LDP, and for the Honorable Commission to honor and
recognize the official acts, to the exclusion of everyone, of Ambassador Zaldivar for and in behalf of
the LDP as Secretary General.[1]

On December 16, 2003, Rep. Aquino filed his Comment, contending that the Party Chairman does not
have the authority to impose disciplinary sanctions on the Secretary General. As
the Manifestation filed by the LDP General Counsel has no basis, Rep. Aquino asked the COMELEC to
disregard the same.

On December 17, 2003, the parties agreed to file a joint manifestation pending which the proceedings
were deemed suspended. On December 22, 2003, however, only the LDP General Counsel filed
an Urgent Manifestation reiterating the contents of the December 8, 2003 Manifestation. The
COMELEC also received a Letter from Rep. Aquino stating that the parties were unable to arrive at a
joint manifestation.

The next day, the LDP General Counsel filed a Second Urgent Manifestation disputing newspaper
accounts that Rep. Aquino had suspended Sen. Angara as Party Chairman.

On December 26, 2003, the COMELEC issued an Order requiring the parties to file a verified petition. It
turned out that, two days before, Sen. Angara had submitted a verified Petition, in
essence, reiterating the contents of its previous Manifestations. Attached to the Petition was a
Resolution[2] adopted by the LDP National Executive Council, stating:

WHEREAS, on September 25, 2003, the National Executive Council of the Laban ng Demokratikong
Pilipino (LDP) convened and unanimously passed a resolution granting full authority to Party
Chairman Edgardo J. Angara to enter, negotiate and conclude a coalition agreement with other like-
minded opposition parties, aggrupations and interest groups with the sole purpose of uniting the
political opposition and fielding a unity ticket for the May 10, 2004 elections;

WHEREAS, on December 3, 2003, the LDP, together with the Puwersa ng Masang Pilipino (PMP) and
the Partido Demokratiko ng Pilipinas - LABAN (PDP-LABAN) forged a coalition to form the Koalisyon
ng Nagkakaisang Pilipino (KNP);

WHEREAS, the Executive Committee of the KNP subsequently adopted its resolution entitled:
Resolution Choosing Mr. Fernando Poe, Jr. as the Standard Bearer of the Koalisyon ng Nagkakaisang
Pilipino (KNP) for President of the Republic of the Philippines in the May 10, 2004 National Elections;

....

WHEREAS, the process of unification of the political opposition and the actions taken in connection
therewith by Chairman Angara and by other governing bodies of the LDP required the taking of
immediate and forceful action by them to preserve and protect the integrity, credibility, unity and
solidarity of the LDP, and ensure the attainment of unification of the political opposition;

WHEREAS, such immediate and forceful action include those that have to do with pre-emptive efforts
to diffuse the chaos, confusion and disunity projected by the pronouncements and acts of some
officers and members to the general membership of the LDP and the electorate, such as the one taken
by the Regional Committee for Region VI (Western Visayas) on December 6, 2003; the enforcement of
order in the LDP through the voice of a central leadership in command in an otherwise extraordinary
and emergency situation, such as the one taken by Party Chairman Angara on December 6, 2003; the
filing of the Manifestation with the COMELEC on the matter of the authorized signatories for the
nominations and, the adoption of resolutions by the regional committees affirming their trust and
confidence in Chairman Angara, and authorizing him to choose the presidential standard bearer for
the May 10, 2004 elections; NOW THEREFORE, BE IT

RESOLVED, AS IT IS HEREBY RESOLVED, By the National Executive Council, to ratify and confirm the
Covenant of National Unity, the Declaration of Unity entered into by Party Chairman Edgardo J.
Angara, and all acts and decisions taken by him to enforce and implement the same;

RESOLVED, FURTHER, To ratify and confirm all other acts and decisions of Chairman Angara and other
governing bodies to preserve the integrity, credibility, unity and solidarity of the LDP; and,
RESOLVED, FINALLY, To reiterate the vote of confidence of the National Executive Council in, and
support to, the continued efforts of Chairman Angara to unite the political opposition.[3]

Rep. Aquino filed his Answer to the Petition on December 30, 2003. The COMELEC heard the parties
on oral arguments on the same day, after which the case was submitted for resolution.

Pending resolution, a Certificate of Nomination of Sen. Panfilo Lacson as LDP candidate for President
was filed with the COMELEC.The Certificate of Nomination was signed by Rep. Aquino as LDP
Secretary General.

On January 6, 2004, the COMELEC came to a decision.

The Commission identified the sole issue as who among the [LDP] officers [are] authorized to
authenticate before the Commission that the person filing the certificate of candidacy as party
nominee for a certain position is the official candidate of the party chosen in accordance with its
Constitution.[4]

The COMELEC recognized that it has the authority to act on matters pertaining to the ascertainment of
the identity of [a] political party and its legitimate officers.[5] In the same breath, however, it held that
internal party matters and wranglings [sic] are purely for the party members to settle among
themselves and any unsettled controversy should be brought to the proper forum with jurisdiction.
The question of who was suspended by whom was thus left for such proper forum to resolve.[6] Noting
that the intramurals in the LDP as an internal party matter seems to be irreconcilable for the present
when the filing of Certificate of Candidacy and Certificate of Nomination are about to reach the
deadline, the COMELEC disposed of the Petition in the following fashion:

WHEREFORE, premises considered, the petition is GRANTED with LEGAL EQUITY for both Petitioner
and Oppositor. The candidates for President down to the last Sangguniang Bayan Kagawad nominated
and endorsed by LDP Chairman Edgardo J. Angara are recognized by the Commission as official
candidates of LDP Angara Wing. The candidates from President down to the last Sangguniang Bayan
Kagawad as nominated and endorsed by LDP Secretary General Agapito Butz Aquino are recognized as
official candidates of LDP Aquino Wing.

Consequently, each faction or Wing is entitled to a representative to any election committee to which
it may be entitled as created by the Commission for the May 10, 2004 elections. For the copies of the
election returns, the Angara Wing will be entitled to the copies corresponding to odd number of
precincts, that is, Precinct Nos. 1, 3, 5, etc., and for the Aquino Wing to the even number of precincts,
that is Precinct Nos. 2, 4, 6, etc. This is on the assumption that the LDP or as a party within a
registered Political Coalition becomes a recognized and denominated as a Dormant [sic] Minority
Party under the Election Laws. The two LDP Wings are further entitled to and be accorded the rights
and privileges with corresponding legal obligations under Election Laws. [7]

Commissioners Luzviminda G. Tancangco, Ralph C. Lantion, Resurreccion Z. Borra and Florentino A.

Tuason, Jr. concurred in the Resolution authored by Commissioner Rufino S.B. Javier. Chair Benjamin
S. Abalos, Sr., joined by Commissioner Mehol K. Sadain, submitted dissenting opinions.

Sen. Angara thus filed the present petition for Certiorari[8] assailing the COMELEC Resolution for
having been issued with grave abuse of discretion.
Thereafter, Rep. Aquino filed his Comment.

The Office of the Solicitor General submitted a Manifestation and Motion praying for the granting of
the Petition. The COMELEC thus filed a separate Comment to the Petition.

The COMELEC correctly stated that the ascertainment of the identity of [a] political party and its
legitimate officers is a matter that is well within its authority. The source of this authority is no other
than the fundamental law itself, which vests upon the COMELEC the power and function to enforce
and administer all laws and regulations relative to the conduct of an election.[9] In the exercise of such
power and in the discharge of such function, the Commission is endowed with ample wherewithal and
considerable latitude in adopting means and methods that will ensure the accomplishment of the
great objectives for which it was created to promote free, orderly and honest elections. [10]

Thus, in Kalaw v. Commission on Elections which involved the leadership fight in the Liberal
Party, [11] this Court held:

that the respondent [COMELEC] has jurisdiction to hear and decide SP Case No. 85-021 [involving a
petition to prohibit Eva Estrada Kalaw from usurping or using the title or position of President of the
Liberal Party] in view of its powers under Article IX-C, Section 2, of the Constitution to, among others,
enforce and administer all laws relative to the conduct of elections, decide all questions affecting
elections, register and regulate political parties, and insure orderly elections. These powers include
the determination of the conflicting claims made in SP Case No. 85-021, which are likely to cause
confusion among the electorate if not resolved. Additionally, the COMELEC is mandated by the
Election Code to inter alia require candidates to specify their political party affiliation in their
certificates of candidacy, allow political parties to appoint watchers, limit the expenditures of each
political party, determine whether or not a political party shall retain its registration on the basis of its
showing in the preceding elections, etc. These matters include the ascertainment of the identity of the
political party and its legitimate officers responsible for its acts and the resolution of such
controversies as the one now before it where one party appears to be divided into two wings under
separate leaders each claiming to be the president of the entire party. [Emphasis supplied.]

Likewise in Palmares v. Commission on Elections,[12] to which the assailed Resolution made reference
and which involved the Nacionalista Party,[13] this Court ruled

that the COMELEC has jurisdiction over the issue of leadership in a political party. Under the
Constitution, the COMELEC is empowered to register political parties [Sec. 2(5), Article IX-
C.] Necessarily, the power to act on behalf of a party and the responsibility for the acts of such
political party must be fixed in certain persons acting as its officers. In the exercise of the power to
register political parties, the COMELEC must determine who these officers are. Consequently, if there
is any controversy as to leadership, the COMELEC may, in a proper case brought before it, resolve the
issue incidental to its power to register political parties.

This Court then proceeded to quote from Kalaw, supra.

The two cited decisions find support in Sumulong v. Commission on Elections[14] and Sotto v.
Commission on Elections,[15] where this Court, in resolving the issue as to who between the factions of
a political party was entitled to nominate election inspectors, necessarily settled claims to the partys
leadership. Both cases were decided without question on the COMELECs power to determine such
claims. In conformity with jurisprudence, this Court did not identify the COMELECs jurisdiction as an
issue when this case was heard on oral argument.

There is no inconsistency between the above cases on the one hand and this Courts more recent
ruling in Sinaca v. Mula[16] on the other. In the latter case, this Court held:

A political party has the right to identify the people who constitute the association and to select a
standard bearer who best represents the partys ideologies and preference. Political parties are
generally free to conduct their internal affairs free from judicial supervision; this common-law
principle of judicial restraint, rooted in the constitutionally protected right of free association, serves
the public interest by allowing the political processes to operate without undue interference. Thus,
the rule is that the determination of disputes as to party nominations rests with the party, in the
absence of statutes giving the courts [sic] jurisdiction.

Quintessentially, where there is no controlling statute or clear legal right involved, the court will not
assume jurisdiction to determine factional controversies within a political party, but will leave the
matter for determination by the proper tribunals of the party itself or by the electors at the
polls.Similarly, in the absence of specific constitutional or legislative regulations defining how
nominations are to be made, or prohibiting nominations from being made in certain ways, political
parties may handle such affairs, including nominations, in such manner as party rules may
establish. [Emphasis supplied.]

Sinaca, unlike previous cases, did not involve the question of party identity or leadership; hence, it
was not necessary for the COMELEC to delve therein. None of the candidates involved in that case
were claiming to be the political partys sole candidate.

In the case at bar, the Party Chairman, purporting to represent the LDP, contends that under the Party
Constitution only he or his representative, to the exclusion of the Secretary General, has the authority
to endorse and sign party nominations. The Secretary General vigorously disputes this claim and
maintains his own authority. Clearly, the question of party identity or leadership has to be resolved if
the COMELEC is to ascertain whether the candidates are legitimate party standard bearers or not.

The repercussions of the question of party identity and leadership do not end at the validity of the
endorsement of the certificates of candidacy of persons claiming to be the partys standard
bearer. The law grants a registered political party certain rights and privileges,[17]which, naturally,
redound to the benefit of its candidates. It is also for this significant dimension that Sinaca is not
applicable in this case. As conceded in Sinaca itself, the Court will have to assume jurisdiction to
determine factional controversies within a political party where a controlling statute or clear legal
right is involved.[18] Verily, there is more than one law, as well as a number of clear legal rights, that
are at stake in the case at bar.

The law accords special treatment to political parties. The dominant majority party, the dominant
minority party as determined by the COMELEC, for instance, is entitled to a copy of the election
returns.[19] The six (6) accredited major political parties may nominate the principal watchers to be
designated by the Commission.[20] The two principal watchers representing the ruling coalition and the
dominant opposition coalition in a precinct shall, if available, affix their signatures and thumbmarks
on the election returns for that precinct.[21] Three (3) of the six accredited major political parties are
entitled to receive copies of the certificate of canvass.[22] Registered political parties whose candidates
obtained at least ten percent (10%) of the total votes cast in the next preceding senatorial election
shall each have a watcher and/or representative in the procurement and watermarking of papers to
be used in the printing of election returns and official ballots and in the printing, numbering, storage,
and distribution thereof.[23] Finally, a candidate and his political party are authorized to spend more
per voter than a candidate without a political party.[24]

It is, therefore, in the interest of every political party not to allow persons it had not chosen to hold
themselves out as representatives of the party. Corollary to the right of a political party to identify the
people who constitute the association and to select a standard bearer who best represents the partys
ideologies and preference[25] is the right to exclude persons in its association and to not lend its name
and prestige to those which it deems undeserving to represent its ideals. A certificate of candidacy
makes known to the COMELEC that the person therein mentioned has been nominated by a duly
authorized political group empowered to act and that it reflects accurately the sentiment of the
nominating body.[26] A candidates political party affiliation is also printed followed by his or her name
in the certified list of candidates.[27] A candidate misrepresenting himself or herself to be a partys
candidate, therefore, not only misappropriates the partys name and prestige but foists a deception
upon the electorate, who may unwittingly cast its ballot for him or her on the mistaken belief that he
or she stands for the partys principles. To prevent this occurrence, the COMELEC has the power and
the duty to step in and enforce the law not only to protect the party but, more importantly, the
electorate, in line with the Commissions broad constitutional mandate to ensure orderly elections.

Having revisited and clarified the jurisdiction of COMELEC to rule upon questions of party identity and
leadership as an incident to its enforcement powers, this Court cannot help but be baffled by the
COMELECs ruling declining to inquire into which party officer has the authority to sign and endorse
certificates of candidacy of the partys nominees.

The only issue in this case, as defined by the COMELEC itself, is who as between the Party Chairman
and the Secretary General has the authority to sign certificates of candidacy of the official candidates
of the party. Indeed, the petitioners Manifestation and Petition before the COMELEC merely asked the
Commission to recognize only those certificates of candidacy signed by petitioner Sen. Angara or his
authorized representative, and no other.

To resolve this simple issue, the COMELEC need only to turn to the Party Constitution. It need not go
so far as to resolve the root of the conflict between the party officials. It need only resolve such
questions as may be necessary in the exercise of its enforcement powers.

The LDP has a set of national officers composed of, among others, the Party Chairman and the
Secretary General.[28] The Party Chairman is the Chief Executive Officer of the Party, whose powers
and functions include:

(1) To represent the Party in all external affairs and concerns, sign documents for and on its behalf,
and call the meetings and be the presiding officer of the National Congress and the National Executive
Council.[29]

The Secretary General, on the other hand, assists the Party Chairman in overseeing the day-to-day
operations of the Party. Among his powers and functions is:
(1) When empowered by the Party Chairman, to sign documents for and on behalf of the Party. [30]

The Secretary Generals authority to sign documents, therefore, is only a delegated power, which
originally pertains to the Party Chairman.

Rep. Aquino claims that he was authorized to exercise to sign the party candidates certificates of
candidacy in the previous elections.Indeed, the COMELEC found that:

In fact, during the May 14, 2001 elections, oppositor Agapito Butz Aquino, as LDP Secretary General,
was authorized by the LDP to sign for the Certificates of Nomination of the LDP Senatorial Candidates,
including the Certificate of Nomination for Senatorial Candidate Edgardo J. Angara, a copy of said
Certificate of Nomination and a copy of the Certificate for Senator Edgardo J. Angara are attached as
Annexes A and B, respectively. This action by Secretary General Aquino is in accordance with the
Constitution and By-laws of LDP, not questioned by the LDP signed by its Secretary General. This
revocation has not been revoked or recalled by the National Congress of the LDP which is the one
authorized to nominate candidates for President and Vice-President, respectively.[31]

Assuming that Rep. Aquino previously had such authority, this Court cannot share the COMELECs
finding that the same has not been revoked or recalled. No revocation of such authority can be more
explicit than the totality of Sen. Angaras Manifestations and Petition before the COMELEC, through
which he informed the Commission that Rep. Aquinos had been placed on indefinite forced leave and
that Ambassador Zaldivar has been designated Acting Secretary General, who shall henceforth
exercise all the powers and functions of the Secretary General under the Constitution and By-Laws of
the LDP.[32] As the prerogative to empower Rep. Aquino to sign documents devolves upon Sen.
Angara, so he may choose, at his discretion, to withhold or revoke such power.

Both respondents Rep. Aquino and COMELEC also cited Section 6 of COMELEC Resolution No.
6453[33] as basis for the Party Secretary Generals authority to sign certificates of candidacy. Said
Section 6 states:

SEC. 6. Certificate of nomination of official candidates by political party. The certificate of nomination
of registered political parties or coalitions of political parties of their official candidates shall be filed
not later than the last day for filing of certificates of candidacy, which is January 2, 2004 duly signed
and attested under oath by the party president, chairman, secretary-general or any other duly
authorized officer and shall bear the acceptance of the nominee by affixing his signature in the space
provided therein. [Emphasis and underscoring supplied.]

Clearly, however, the above provision presupposes that the party president, chairman or secretary-
general has been duly authorized by the party to sign the certificate of candidacy. COMELEC
Resolution No. 6453 cannot grant a party official greater authority than what the party itself grants,
lest such Resolution amount to a violation of the partys freedom of association.

Neither does the Party Secretary General have the power to nominate the official candidates of the
LDP. That power resides in the governing bodies of the Party.[34] In particular, the National Congress,
which is the highest policy-making and governing body of the Party, has the power

(6) To nominate the official candidates of the Party for President, Vice President, and Senators, and,
whenever the corresponding conventions fail to meet or to make the requisite nominations, to
nominate the official candidates for municipal city, congressional district, provincial and regional
elective offices.[35]

Not only does Rep. Aquino insist on his power to sign Certificates of Candidacy on behalf of the LDP
but he would also deny Sen. Angara that power on account of the latters preventive suspension. It
seems, however, that respondent has abandoned this tack by the silence of his Memorandum on the
matter.

In any case, it appears that on November 28, 2003, Representative Rolex Suplico, LDP Region VI
Regional Chairman, filed a complaint with Rep. Aquino against Party Chairman Sen. Angara for
disloyalty to the Party, gross violation of the Party Constitution, and other divisive acts inimical to the
interest of the party and its members. Rep. Aquino, as Secretary General, created a committee
composed of three (3) members of the LDP National Executive Council to investigate the complaint
and recommend appropriate action thereon. On December 12, 2003, the investigating committee
issued a resolution placing Sen. Angara under preventive suspension effective immediately and
directing him to refrain from performing acts in behalf of the party until the committee finishes its
investigation and submits its final recommendations.

The authority to create the investigating committee supposedly rests on Section 9 (4), Article VI of the
LDP Constitution, which enumerates the powers and functions of the Secretary General:

(4) With the concurrence of the Party Chairman, to enforce Party discipline. {Emphasis supplied.]

Evidently, just as Rep. Aquino has no power to sign and nominate candidates in behalf of the LDP,
neither does he have the power to enforce Party discipline or, as an incident thereto, to create an
investigating committee, without the Party Chairmans concurrence. Much less does the investigating
committee so created have the power to place the Party Chairman under preventive suspension since
its authority stems from a nullity. Simply put, the spring has no source.

The lack of Rep. Aquinos authority to sign documents or to nominate candidates for the LDP would
not result in the denial of due course to or the cancellation of the certificates of candidacy he may
have signed on behalf of the LDP.[36] The exclusive ground for the denial of due course to or the
cancellation of a certificate of candidacy for any elective office is that any material representation
contained therein as required by law is false.[37] Since the signature of Rep. Aquino was affixed either
prior to, or on the basis of, the challenged Resolutionrecognizing his authority to sign on behalf of the
LDP, the same would not constitute material representation that is false. In such case, the candidates
are simply deemed as not nominated by the LDP and are considered independent candidates pursuant
to Section 7 of COMELEC Resolution No. 6453:

SEC. 7. Effect of filing certificate of nomination. A candidate who has not been nominated by a
registered political party or its duly authorized representative, or whose nomination has not been
submitted by a registered political party shall be considered as an independent candidate.

COMELEC Commissioner Sadain referred to the above provision in his Dissenting Opinion, and this
Court finds refreshing wisdom so sorely wanting in the majority opinion in his suggestion that:

All other party members representing themselves to be candidates of the party shall not be deprived
of their right to file their respective certificates of candidacy and run for office, if so qualified, but that
they shall not be accorded the rights and privileges reserved by election laws for official nominees of
registered political parties. Instead, they shall be treated as independent candidates.[38]

From the foregoing, it is plain that the COMELEC misapplied equity in the present case. For all its
conceded merits, equity is available only in the absence of law and not as its replacement. [39] Equity is
described as justice without legality, which simply means that it cannot supplant, although it may, as
often happens, supplement the law.[40] The COMELEC should have decided the case on the basis of the
party constitution and election laws. It chose not to because of its irrational fear of treading, as
respondent Aquino put it, on unchartered territories.[41] But, as shown above, these territories have
long been charted by jurisprudence and, in any case, the COMELEC need not have sailed far from the
shore to arrive at the correct conclusion. In truth, the COMELEC Resolution is indecision in the guise of
equity.

Worse, the COMELEC divided the LDP into wings, each of which may nominate candidates for every
elective position. Both wings are also entitled to representatives in the election committees that the
Commission may create. In the event that the LDP is accorded dominant minority party election
status, election returns of odd-numbered precincts shall be furnished the Angara wing and those of
even-numbered precincts, the Aquino wing.

By creating the two wings, the COMELEC effectively diffused the LDPs strength and undeniably
emasculated its chance of obtaining the Commissions nod as the dominant minority party.

By allowing each wing to nominate different candidates, the COMELEC planted the seeds of confusion
among the electorate, who are apt to be confounded by two candidates from a single political
party. In Recabo, Jr. v. Commission on Elections,[42] this Court declared that the electoral process
envisions one candidate from a political party for each position, and disunity and discord amongst
members of a political party should not be allowed to create a mockery thereof. The admonition
against mocking the electoral process not only applies to political parties but with greater force to the
COMELEC.

By according both wings representatives in the election committees, the COMELEC has eroded the
significance of political parties and effectively divided the opposition. The COMELEC has lost sight of
the unique political situation of the Philippines where, to paraphrase Justice Perfectos concurring
opinion in Sotto, supra, the administration party has always been unnecessarily and dangerously too
big and the opposition party too small to be an effective check on the administration. The purpose of
according dominant status and representation to a minority party is precisely to serve as an effective
check on the majority. The COMELEC performed a disservice to the opposition and, ultimately, to the
voting public, as its Resolution facilitated, rather than forestalled, the division of the minority party.

By splitting copies of the election returns between the two factions, the COMELEC has fractured both
wings. The practical purpose of furnishing a party with a copy of the election returns is to allow it to
tally the results of the elections at the precinct level. Ultimately, it is a guard against fraud. Thus,
resort to copies thereof may be had when the election returns are delayed, lost or destroyed,[43] or
when they appear to be tampered or falsified.[44] A split party without a complete set of election
returns cannot successfully help preserve the sanctity of the ballot.
It bears reminding respondent Commission of this Courts pronouncement in Peralta v. Commission on
Elections,[45] which, while made in the backdrop of a parliamentary form of government, holds equally
true under the present government structure:

political parties constitute a basic element of the democratic institutional apparatus. Government
derives its strength from the support, active or passive, of a coalition of elements of society. In
modern times the political party has become the instrument for the organization of societies. This is
predicated on the doctrine that government exists with the consent of the governed. Political parties
perform an essential function in the management of succession to power, as well as in the process of
obtaining popular consent to the course of public policy. They amass sufficient support to buttress the
authority of governments; or, on the contrary, they attract or organize discontent and dissatisfaction
sufficient to oust the government. In either case they perform the function of the articulation of the
interests and aspirations of a substantial segment of the citizenry, usually in ways contended to be
promotive of the national weal.

The assailed COMELEC Resolution does not advance, but subverts, this philosophy behind political
parties.

As if to rationalize its folly, the COMELEC invokes the constitutional policy towards a free and open
party system.[46] This policy, however, envisions a system that shall evolve according to the free choice
of the people,[47] not one molded and whittled by the COMELEC.When the Constitution speaks of a
multi-party system, it does not contemplate the COMELEC splitting parties into two. For doing just
that, this pretender to the throne of King Solomon acted whimsically and capriciously. Certiorari lies
against it, indeed.

WHEREFORE, the assailed COMELEC Resolution is ANNULLED and the Petition is GRANTED IN
PART. Respondent Commission on Elections is directed to recognize as official candidates of the Laban
ng Demokratikong Pilipino only those whose Certificates of Candidacy are signed by LDP Party
Chairman Senator Edgardo J. Angara or his duly authorized representative/s.

SO ORDERED.
EN BANC

JOSE L. ATIENZA, JR., MATIAS G.R. No. 188920

V. DEFENSOR, JR., RODOLFO G.

VALENCIA, DANILO E. SUAREZ,

SOLOMON R. CHUNGALAO,

SALVACION ZALDIVAR-PEREZ,

HARLIN CAST-ABAYON, MELVIN G.

MACUSI and ELEAZAR P. QUINTO,

Petitioners, Present:

Puno, C.J.,

Carpio,

Corona,

Carpio Morales,

Velasco, Jr.,

Nachura,

- versus - Leonardo-De Castro,

Brion,

Peralta,

Bersamin,

Del Castillo,

Abad,

Villarama, Jr.,

Perez, and

Mendoza, JJ.

COMMISSION ON ELECTIONS,

MANUEL A. ROXAS II,

FRANKLIN M. DRILON and Promulgated:

J.R. NEREUS O. ACOSTA,

Respondents. February 16, 2010

x ---------------------------------------------------------------------------------------- x

DECISION

ABAD, J.:

This petition is an offshoot of two earlier cases already resolved by the Court involving a leadership
dispute within a political party. In this case, the petitioners question their expulsion from that party
and assail the validity of the election of new party leaders conducted by the respondents.

Statement of the Facts and the Case

For a better understanding of the controversy, a brief recall of the preceding events is in order.

On July 5, 2005 respondent Franklin M. Drilon (Drilon), as erstwhile president of the Liberal Party (LP),
announced his partys withdrawal of support for the administration of President Gloria Macapagal-
Arroyo. But petitioner Jose L. Atienza, Jr. (Atienza), LP Chairman, and a number of party members
denounced Drilons move, claiming that he made the announcement without consulting his party.

On March 2, 2006 petitioner Atienza hosted a party conference to supposedly discuss local autonomy
and party matters but, when convened, the assembly proceeded to declare all positions in the LPs
ruling body vacant and elected new officers, with Atienza as LP president. Respondent Drilon
immediately filed a petition[1] with the Commission on Elections (COMELEC) to nullify the elections. He
claimed that it was illegal considering that the partys electing bodies, the National Executive Council
(NECO) and the National Political Council (NAPOLCO), were not properly convened. Drilon also
claimed that under the amended LP Constitution,[2] party officers were elected to a fixed three-year
term that was yet to end on November 30, 2007.

On the other hand, petitioner Atienza claimed that the majority of the LPs NECO and NAPOLCO
attended the March 2, 2006 assembly. The election of new officers on that occasion could be likened
to people power, wherein the LP majority removed respondent Drilon as president by direct
action. Atienza also said that the amendments[3] to the original LP Constitution, or the Salonga
Constitution, giving LP officers a fixed three-year term, had not been properly ratified. Consequently,
the term of Drilon and the other officers already ended on July 24, 2006.

On October 13, 2006, the COMELEC issued a resolution,[4] partially granting respondent Drilons
petition. It annulled the March 2, 2006 elections and ordered the holding of a new election under
COMELEC supervision. It held that the election of petitioner Atienza and the others with him was
invalid since the electing assembly did not convene in accordance with the Salonga Constitution. But,
since the amendments to the Salonga Constitution had not been properly ratified, Drilons term may
be deemed to have ended. Thus, he held the position of LP president in a holdover capacity until new
officers were elected.

Both sides of the dispute came to this Court to challenge the COMELEC rulings. On April 17, 2007 a
divided Court issued a resolution,[5] granting respondent Drilons petition and denying that of
petitioner Atienza. The Court held, through the majority, that the COMELEC had jurisdiction over the
intra-party leadership dispute; that the Salonga Constitution had been validly amended; and that, as a
consequence, respondent Drilons term as LP president was to end only on November 30, 2007.

Subsequently, the LP held a NECO meeting to elect new party leaders before respondent Drilons term
expired. Fifty-nine NECO members out of the 87 who were supposedly qualified to vote
attended. Before the election, however, several persons associated with petitioner Atienza sought to
clarify their membership status and raised issues regarding the composition of the NECO. Eventually,
that meeting installed respondent Manuel A. Roxas II (Roxas) as the new LP president.

On January 11, 2008 petitioners Atienza, Matias V. Defensor, Jr., Rodolfo G. Valencia, Danilo E. Suarez,
Solomon R. Chungalao, Salvacion Zaldivar-Perez, Harlin Cast-Abayon, Melvin G. Macusi, and Eleazar P.
Quinto, filed a petition for mandatory and prohibitory injunction[6] before the COMELEC against
respondents Roxas, Drilon and J.R. Nereus O. Acosta, the party secretary general. Atienza, et al.
sought to enjoin Roxas from assuming the presidency of the LP, claiming that the NECO assembly
which elected him was invalidly convened. They questioned the existence of a quorum and claimed
that the NECO composition ought to have been based on a list appearing in the partys 60th
Anniversary Souvenir Program. Both Atienza and Drilon adopted that list as common exhibit in the
earlier cases and it showed that the NECO had 103 members.

Petitioners Atienza, et al. also complained that Atienza, the incumbent party chairman, was not
invited to the NECO meeting and that some members, like petitioner Defensor, were given the status
of guests during the meeting. Atienzas allies allegedly raised these issues but respondent Drilon
arbitrarily thumbed them down and railroaded the proceedings. He suspended the meeting and
moved it to another room, where Roxas was elected without notice to Atienzas allies.
On the other hand, respondents Roxas, et al. claimed that Roxas election as LP president faithfully
complied with the provisions of the amended LP Constitution. The partys 60th Anniversary Souvenir
Program could not be used for determining the NECO members because supervening events changed
the bodys number and composition. Some NECO members had died, voluntarily resigned, or had gone
on leave after accepting positions in the government. Others had lost their re-election bid or did not
run in the May 2007 elections, making them ineligible to serve as NECO members. LP members who
got elected to public office also became part of the NECO. Certain persons of national stature also
became NECO members upon respondent Drilons nomination, a privilege granted the LP president
under the amended LP Constitution. In other words, the NECO membership was not fixed or static; it
changed due to supervening circumstances.

Respondents Roxas, et al. also claimed that the party deemed petitioners Atienza, Zaldivar-Perez, and
Cast-Abayon resigned for holding the illegal election of LP officers on March 2, 2006. This was
pursuant to a March 14, 2006 NAPOLCO resolution that NECO subsequently ratified. Meanwhile,
certain NECO members, like petitioners Defensor, Valencia, and Suarez, forfeited their party
membership when they ran under other political parties during the May 2007 elections. They were
dropped from the roster of LP members.

On June 18, 2009 the COMELEC issued the assailed resolution denying petitioners Atienza, et al.s
petition. It noted that the May 2007 elections necessarily changed the composition of the NECO since
the amended LP Constitution explicitly made incumbent senators, members of the House of
Representatives, governors and mayors members of that body. That some lost or won these positions
in the May 2007 elections affected the NECO membership. Petitioners failed to prove that the NECO
which elected Roxas as LP president was not properly convened.

As for the validity of petitioners Atienza, et al.s expulsion as LP members, the COMELEC observed that
this was a membership issue that related to disciplinary action within the political party. The
COMELEC treated it as an internal party matter that was beyond its jurisdiction to resolve.

Without filing a motion for reconsideration of the COMELEC resolution, petitioners Atienza, et al. filed
this petition for certiorariunder Rule 65.

The Issues Presented

Respondents Roxas, et al. raise the following threshold issues:

1. Whether or not the LP, which was not impleaded in the case, is an indispensable party; and
2. Whether or not petitioners Atienza, et al., as ousted LP members, have the requisite legal standing
to question Roxas election.

Petitioners Atienza, et al., on the other hand, raise the following issues:

3. Whether or not the COMELEC gravely abused its discretion when it upheld the NECO membership
that elected respondent Roxas as LP president;

4. Whether or not the COMELEC gravely abused its discretion when it resolved the issue concerning
the validity of the NECO meeting without first resolving the issue concerning the expulsion of
Atienza, et al. from the party; and

5. Whether or not respondents Roxas, et al. violated petitioners Atienza, et al.s constitutional right to
due process by the latters expulsion from the party.

The Courts Ruling

One. Respondents Roxas, et al. assert that the Court should dismiss the petition for failure of
petitioners Atienza, et al. to implead the LP as an indispensable party. Roxas, et al. point out that,
since the petition seeks the issuance of a writ of mandatory injunction against the NECO, the
controversy could not be adjudicated with finality without making the LP a party to the case. [7]

But petitioners Atienza, et al.s causes of action in this case consist in respondents Roxas, et al.s
disenfranchisement of Atienza, et al. from the election of party leaders and in the illegal election of
Roxas as party president. Atienza, et al. were supposedly excluded from the elections by a series of
despotic acts of Roxas, et al., who controlled the proceedings. Among these acts are Atienza, et al.s
expulsion from the party, their exclusion from the NECO, and respondent Drilons railroading of
election proceedings. Atienza, et al. attributed all these illegal and prejudicial acts to Roxas, et al.

Since no wrong had been imputed to the LP nor had some affirmative relief been sought from it, the
LP is not an indispensable party. Petitioners Atienza, et al.s prayer for the undoing of respondents
Roxas, et al.s acts and the reconvening of the NECO are directed against Roxas, et al.
Two. Respondents Roxas, et al. also claim that petitioners Atienza, et al. have no legal standing to
question the election of Roxas as LP president because they are no longer LP members, having been
validly expelled from the party or having joined other political parties.[8] As non-members, they have
no stake in the outcome of the action.

But, as the Court held in David v. Macapagal-Arroyo,[9] legal standing in suits is governed by the real
parties-in-interest rule under Section 2, Rule 3 of the Rules of Court. This states that every action must
be prosecuted or defended in the name of the real party-in-interest. And real party-in-interest is one
who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of
the suit. In other words, the plaintiffs standing is based on his own right to the relief sought. In raising
petitioners Atienza, et al.s lack of standing as a threshold issue, respondents Roxas, et al. would have
the Court hypothetically assume the truth of the allegations in the petition.

Here, it is precisely petitioners Atienza, et al.s allegations that respondents Roxas, et al. deprived
them of their rights as LP members by summarily excluding them from the LP roster and not allowing
them to take part in the election of its officers and that not all who sat in the NECO were in the
correct list of NECO members. If Atienza, et al.s allegations were correct, they would have been
irregularly expelled from the party and the election of officers, void. Further, they would be entitled
to recognition as members of good standing and to the holding of a new election of officers using the
correct list of NECO members. To this extent, therefore, Atienza, et al. who want to take part in
another election would stand to be benefited or prejudiced by the Courts decision in this case.
Consequently, they have legal standing to pursue this petition.

Three. In assailing respondent Roxas election as LP president, petitioners Atienza, et al. claim that the
NECO members allowed to take part in that election should have been limited to those in the list of
NECO members appearing in the partys 60thAnniversary Souvenir Program. Atienza, et al. allege that
respondent Drilon, as holdover LP president, adopted that list in the earlier cases before the COMELEC
and it should thus bind respondents Roxas, et al. The Courts decision in the earlier cases, said
Atienza, et al., anointed that list for the next party election. Thus, Roxas, et al. in effect defied the
Courts ruling when they removed Atienza as party chairman and changed the NECOs composition. [10]

But the list of NECO members appearing in the partys 60th Anniversary Souvenir Program was drawn
before the May 2007 elections. After the 2007 elections, changes in the NECO membership had to be
redrawn to comply with what the amended LP Constitution required. Respondent Drilon adopted the
souvenir program as common exhibit in the earlier cases only to prove that the NECO, which
supposedly elected Atienza as new LP president on March 2, 2006, had been improperly convened. It
cannot be regarded as an immutable list, given the nature and character of the NECO membership.
Nothing in the Courts resolution in the earlier cases implies that the NECO membership should be
pegged to the partys 60thAnniversary Souvenir Program. There would have been no basis for such a
position. The amended LP Constitution did not intend the NECO membership to be permanent. Its
Section 27[11] provides that the NECO shall include all incumbent senators, members of the House of
Representatives, governors, and mayors who were LP members in good standing for at least six
months. It follows from this that with the national and local elections taking place in May 2007, the
number and composition of the NECO would have to yield to changes brought about by the elections.

Former NECO members who lost the offices that entitled them to membership had to be
dropped. Newly elected ones who gained the privilege because of their offices had to come
in. Furthermore, former NECO members who passed away, resigned from the party, or went on leave
could not be expected to remain part of the NECO that convened and held elections on November 26,
2007. In addition, Section 27 of the amended LP Constitution expressly authorized the party president
to nominate persons of national stature to the NECO. Thus, petitioners Atienza, et al. cannot validly
object to the admission of 12 NECO members nominated by respondent Drilon when he was LP
president. Even if this move could be regarded as respondents Roxas, et al.s way of ensuring their
election as party officers, there was certainly nothing irregular about the act under the amended LP
Constitution.

The NECO was validly convened in accordance with the amended LP Constitution. Respondents
Roxas, et al. explained in details how they arrived at the NECO composition for the purpose of
electing the party leaders.[12] The explanation is logical and consistent with party rules. Consequently,
the COMELEC did not gravely abuse its discretion when it upheld the composition of the NECO that
elected Roxas as LP president.

Petitioner Atienza claims that the Courts resolution in the earlier cases recognized his right as party
chairman with a term, like respondent Drilon, that would last up to November 30, 2007 and that,
therefore, his ouster from that position violated the Courts resolution. But the Courts resolution in the
earlier cases did not preclude the party from disciplining Atienza under Sections 29 [13]and 46[14] of the
amended LP Constitution. The party could very well remove him or any officer for cause as it saw fit.

Four. Petitioners Atienza, et al. lament that the COMELEC selectively exercised its jurisdiction when it
ruled on the composition of the NECO but refused to delve into the legality of their expulsion from the
party. The two issues, they said, weigh heavily on the leadership controversy involved in the case. The
previous rulings of the Court, they claim, categorically upheld the jurisdiction of the COMELEC over
intra-party leadership disputes.[15]

But, as respondents Roxas, et al. point out, the key issue in this case is not the validity of the
expulsion of petitioners Atienza, et al. from the party, but the legitimacy of the NECO assembly that
elected respondent Roxas as LP president. Given the COMELECs finding as upheld by this Court that
the membership of the NECO in question complied with the LP Constitution, the resolution of the
issue of whether or not the party validly expelled petitioners cannot affect the election of officers that
the NECO held.

While petitioners Atienza, et al. claim that the majority of LP members belong to their faction, they
did not specify who these members were and how their numbers could possibly affect the
composition of the NECO and the outcome of its election of party leaders. Atienza, et al. has not
bothered to assail the individual qualifications of the NECO members who voted for Roxas. Nor did
Atienza, et al. present proof that the NECO had no quorum when it then assembled. In other words,
the claims of Atienza, et al. were totally unsupported by evidence.

Consequently, petitioners Atienza, et al. cannot claim that their expulsion from the party impacts on
the party leadership issue or on the election of respondent Roxas as president so that it was
indispensable for the COMELEC to adjudicate such claim. Under the circumstances, the validity or
invalidity of Atienza, et al.s expulsion was purely a membership issue that had to be settled within the
party. It is an internal party matter over which the COMELEC has no jurisdiction.

What is more, some of petitioner Atienzas allies raised objections before the NECO assembly
regarding the status of members from their faction. Still, the NECO proceeded with the election,
implying that its membership, whose composition has been upheld, voted out those objections.

The COMELECs jurisdiction over intra-party disputes is limited. It does not have blanket authority to
resolve any and all controversies involving political parties. Political parties are generally free to
conduct their activities without interference from the state. The COMELEC may intervene in disputes
internal to a party only when necessary to the discharge of its constitutional functions.

The COMELECs jurisdiction over intra-party leadership disputes has already been settled by the
Court. The Court ruled in Kalaw v. Commission on Elections[16] that the COMELECs powers and
functions under Section 2, Article IX-C of the Constitution, include the ascertainment of the identity of
the political party and its legitimate officers responsible for its acts. The Court also declared in another
case[17] that the COMELECs power to register political parties necessarily involved the determination
of the persons who must act on its behalf. Thus, the COMELEC may resolve an intra-party leadership
dispute, in a proper case brought before it, as an incident of its power to register political parties.

The validity of respondent Roxas election as LP president is a leadership issue that the COMELEC had
to settle. Under the amended LP Constitution, the LP president is the issuing authority for certificates
of nomination of party candidates for all national elective positions. It is also the LP president who can
authorize other LP officers to issue certificates of nomination for candidates to local elective
posts.[18] In simple terms, it is the LP president who certifies the official standard bearer of the party.

The law also grants a registered political party certain rights and privileges that will redound to the
benefit of its official candidates. It imposes, too, legal obligations upon registered political parties that
have to be carried out through their leaders. The resolution of the leadership issue is thus particularly
significant in ensuring the peaceful and orderly conduct of the elections.[19]

Five. Petitioners Atienza, et al. argue that their expulsion from the party is not a simple issue of party
membership or discipline; it involves a violation of their constitutionally-protected right to due
process of law. They claim that the NAPOLCO and the NECO should have first summoned them to a
hearing before summarily expelling them from the party. According to Atienza, et al., proceedings on
party discipline are the equivalent of administrative proceedings[20] and are, therefore, covered by the
due process requirements laid down in Ang Tibay v. Court of Industrial Relations.[21]

But the requirements of administrative due process do not apply to the internal affairs of political
parties. The due process standards set in Ang Tibay cover only administrative bodies created by the
state and through which certain governmental acts or functions are performed. An administrative
agency or instrumentality contemplates an authority to which the state delegates governmental
power for the performance of a state function.[22] The constitutional limitations that generally apply to
the exercise of the states powers thus, apply too, to administrative bodies.

The constitutional limitations on the exercise of the states powers are found in Article III of the
Constitution or the Bill of Rights. The Bill of Rights, which guarantees against the taking of life,
property, or liberty without due process under Section 1 is generally a limitation on the states powers
in relation to the rights of its citizens. The right to due process is meant to protect ordinary citizens
against arbitrary government action, but not from acts committed by private individuals or entities. In
the latter case, the specific statutes that provide reliefs from such private acts apply. The right to due
process guards against unwarranted encroachment by the state into the fundamental rights of its
citizens and cannot be invoked in private controversies involving private parties.[23]

Although political parties play an important role in our democratic set-up as an intermediary between
the state and its citizens, it is still a private organization, not a state instrument. The discipline of
members by a political party does not involve the right to life, liberty or property within the meaning
of the due process clause. An individual has no vested right, as against the state, to be accepted or to
prevent his removal by a political party. The only rights, if any, that party members may have, in
relation to other party members, correspond to those that may have been freely agreed upon among
themselves through their charter, which is a contract among the party members. Members whose
rights under their charter may have been violated have recourse to courts of law for the enforcement
of those rights, but not as a due process issue against the government or any of its agencies.
But even when recourse to courts of law may be made, courts will ordinarily not interfere in
membership and disciplinary matters within a political party. A political party is free to conduct its
internal affairs, pursuant to its constitutionally-protected right to free association. In Sinaca v.
Mula,[24] the Court said that judicial restraint in internal party matters serves the public interest by
allowing the political processes to operate without undue interference. It is also consistent with the
state policy of allowing a free and open party system to evolve, according to the free choice of the
people.[25]

To conclude, the COMELEC did not gravely abuse its discretion when it upheld Roxas election as LP
president but refused to rule on the validity of Atienza, et al.s expulsion from the party. While the
question of party leadership has implications on the COMELECs performance of its functions under
Section 2, Article IX-C of the Constitution, the same cannot be said of the issue pertaining to
Atienza, et al.s expulsion from the LP. Such expulsion is for the moment an issue of party membership
and discipline, in which the COMELEC cannot intervene, given the limited scope of its power over
political parties.

WHEREFORE, the Court DISMISSES the petition and UPHOLDS the Resolution of the Commission on
Elections dated June 18, 2009 in COMELEC Case SPP 08-001.

SO ORDERED.
EN BANC

G.R. No. 199082 July 23, 2013

JOSE MIGUEL T. ARROYO, Petitioner,

vs.
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE LIMA, in her capacity as
Secretary of the Department of Justice; HON. SIXTO BRILLANTES, JR., in his capacity as Chairperson of
the Commission on Elections; and the JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION
COMMITTEE and FACT-FINDING TEAM, Respondents.

x-----------------------x

G.R. No. 199085

BENJAMIN S. ABALOS, SR., Petitioner,

vs.
HON. LEILA DE LIMA, in capacity as Secretary of Justice; HON. SIXTO S. BRILLANTES, JR., in his capacity
as COMELEC Chairperson; RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO V. VELASCO, ELIAS R.
YUSOPH, CHRISTIAN ROBERT S. LIM AND AUGUSTO C. LAGMAN, in their capacity as COMELEC
COMMISSIONERS; CLARO A. ARELLANO, GEORGE C. DEE, JACINTO G. ANG, ROMEO B. FORTES AND
MICHAEL D. VILLARET, in their capacity as CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE
JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE ON THE 2004 AND 2007 ELECTION
FRAUD,Respondents.

x-----------------------x

G.R. No. 199118

GLORIA MACAPAGAL-ARROYO, Petitioner,

vs.
COMMISSION ON ELECTIONS, represented by Chairperson Sixto S. Brillantes, Jr., DEPARTMENT OF
JUSTICE, represented by Secretary Leila M. De Lima, JOINT DOJ-COMELEC PRELIMINARY
INVESTIGATION COMMITTEE, SENATOR AQUILINO M. PIMENTEL III, and DOJ-COMELEC FACT FINDING
TEAM,Respondents.

RESOLUTION

PERALTA, J.:

For resolution are the separate motions for reconsideration filed by movants Gloria Macapagal Arroyo
(GMA)1 in G.R. No. 199118 and Jose Miguel T. Arroyo (Mike Arroyo )2 in G.R. No. 199082 praying that
the Court take a second look at our September 18, 2012 Decision3 dismissing their petitions and
supplemental petitions against respondents Commission on Elections (Comelec), the Department of
Justice (DOJ), Senator Aquilino M. Pimentel III (Senator Pimentel), Joint DOJ-Comelec Preliminary
Investigation Committee (Joint Committee) and DOJ-Comelec Fact-Finding Team (Fact-Finding Team),
et al.

For a better perspective, we briefly state the relevant factual and procedural antecedents as found by
the Court in the assailed decision, to wit:
On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011 creating and
constituting a Joint Committee and Fact-Finding Team (referred to as Joint Panel) on the 2004 and
2007 National Elections electoral fraud and manipulation cases. The Joint Committee was mandated
to conduct the necessary preliminary investigation on the basis of the evidence gathered and the
charges recommended by the Fact-Finding Team. The Fact-Finding Team, on the other hand, was
created for the purpose of gathering real, documentary, and testimonial evidence which can be
utilized in the preliminary investigation to be conducted by the Joint Committee. Pursuant to Section
74 of the Joint Order, on August 23, 2011, the Joint Committee promulgated its Rules of Procedure.

In its Initial Report5 dated October 20, 2011, the Fact-Finding Team concluded that manipulation of
the results in the May 14, 2007 senatorial elections in the provinces of North and South Cotabato, and
Maguindanao was indeed perpetrated.6 The Fact-Finding Team recommended, among others, that
petitioner Benjamin S. Abalos, Sr. (Abalos) be subjected to preliminary investigation for electoral
sabotage for conspiring to manipulate the election results in North and South Cotabato; that GMA and
Abalos be subjected to another preliminary investigation for manipulating the election results in
Maguindanao;7 and, that Mike Arroyo be subjected to further investigation.8 The case was docketed
as DOJ-Comelec Case No. 001-2011.

Meanwhile, on October 17, 2011, Senator Pimentel filed a ComplaintAffidavit9 for Electoral Sabotage
against petitioners and twelve others, and several John Does and Jane Does. The case was docketed
as DOJ-Comelec Case No. 002-2011.

On October 24, 2011, the Joint Committee issued two subpoenas against petitioners in DOJ-Comelec
Case Nos. 001-2011 and 002-2011.10 On November 3, 2011, petitioners, through counsel, appeared
before the Joint Committee11 and respondents therein were ordered to submit their Counter-
Affidavits by November 14, 2011.12

Thereafter, petitioners filed before the Court separate Petitions for Certiorari and Prohibition with
Prayer for the Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction
assailing the creation of the Joint Panel.13 The petitions were eventually consolidated.

On November 14, 2011, Mike Arroyo filed a Motion to Defer Proceedings14 before the Joint
Committee, in view of the pendency of his petition before the Court. On the same day, GMA filed
before the Joint Committee an Omnibus Motion Ad Cautelam15 to require Senator Pimentel to furnish
her with documents referred to in his complaint-affidavit and for the production of election
documents as basis for the charge of electoral sabotage. GMA prayed that she be allowed to file her
counter-affidavit within ten (10) days from receipt of the requested documents.16Petitioner Abalos,
for his part, filed a Motion to Suspend Proceedings (Ex Abundante Ad Cautelam),17 in view of the
pendency of his petition brought before the Court.

In an Order18 dated November 15, 2011, the Joint Committee denied the aforesaid motions of
petitioners. GMA, subsequently, filed a motion for reconsideration.19

On November 16, 2011, the Joint Committee promulgated a Joint Resolution which was later indorsed
to the Comelec.20 On November 18, 2011, the Comelec en banc issued a Resolution21 approving and
adopting the Joint Resolution subject to modifications. The Comelec resolved, among others, that an
information for electoral sabotage be filed against GMA and Abalos, while the charges against Mike
Arroyo be dismissed for insufficiency of evidence.

On even date, pursuant to the above Resolution, the Comelec’s Law Department filed with the
Regional Trial Court (RTC), Pasay City, an Information against petitioner GMA, Governor Andal
Ampatuan, Sr., and Atty. Lintang H. Bedol, for violation of Section 42(b)(3) of Republic Act (RA) No.
9369, amending Section 27 (b) of RA 6646, docketed as Criminal Case No. RPSY-11-04432-CR.22 The
case was raffled to Branch 112 and the corresponding Warrant of Arrest was issued which was served
on GMA on the same day.23

On November 18, 2011, GMA filed with the RTC an Urgent Omnibus Motion Ad Cautelam24 with leave
to allow the Joint Committee to resolve the motion for reconsideration filed by GMA, to defer
issuance of a warrant of arrest and a hold departure order, and to proceed to judicial determination
of probable cause. She, likewise, filed with the Comelec a Motion to Vacate Ad Cautelam25 praying
that its Resolution be vacated for being null and void. The RTC, nonetheless, issued a Warrant for her
arrest which was duly served. GMA was later arraigned and she entered a plea of "not guilty." She
was, for some time, on hospital arrest but was able to obtain temporary liberty when her motion for
bail was granted. At present, she is again on hospital arrest by virtue of a warrant issued in another
criminal case.

On September 18, 2012, the Court rendered the assailed Decision, the dispositive portion of which
reads:

WHEREFORE, premises considered, the petitions and supplemental petitions are DISMISSED. Comelec
Resolution No. 9266 dated August 2, 2011, Joint Order No. 001-2011 dated August 15, 2011, and the
Fact- Finding Team’s Initial Report dated October 20, 2011, are declared VALID. However, the Rules of
Procedure on the Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and
2007 National Elections is declared INEFFECTIVE for lack of publication.

In view of the constitutionality of the Joint Panel and the proceedings having been conducted in
accordance with Rule 112 of the Rules on Criminal Procedure and Rule 34 of the Comelec Rules of
Procedure, the conduct of the preliminary investigation is hereby declared VALID.

Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where the criminal cases for
electoral sabotage against petitioners GMA and Abalos are pending, proceed with dispatch.

SO ORDERED.26

Hence, these motions for reconsideration.

Issues

Mike Arroyo reiterates his arguments on the independence of the Comelec as basis in nullifying the
subject joint DOJ-Comelec resolutions. Echoing Justice Arturo Brion in his Dissenting and Concurring
Opinion,27 Mike Arroyo insists that the creation of the Joint Panel undermines the decisional
independence of the Comelec.28

Mike Arroyo also maintains that the DOJ should conduct preliminary investigation only when
deputized by the Comelec but not exercise concurrent jurisdiction.29 Finally, as has been repeatedly
pointed out in his earlier pleadings before the Court, Mike Arroyo claims that the proceedings
involving the electoral sabotage case were rushed because of pressures from the executive branch of
the government.30

For her part, GMA claims that in availing of the procedural remedies available, she merely exercised
her earnest efforts to defend herself and should not have been deemed by the Court as acts which
purportedly tend to demonstrate that she either waived or forfeited her right to submit her counter-
affidavit and countervailing evidence.31 Citing several cases decided by the Court, she likewise faults
the Court in not upholding her right to ask for additional time within which to submit her counter-
affidavit and countervailing evidence.32 GMA highlights that the subject Comelec Resolution creating
the Joint Panel is different from the previous Comelec resolutions requesting the DOJ Secretary to
assign prosecutors to assist the Comelec, as the latter emphasize the role of the DOJ as deputized
agency in the conduct of preliminary investigation. She maintains that it is the Comelec and not the
Joint Committee that has the primary, if not exclusive, authority to conduct preliminary investigation
of election cases.33

In their Consolidated Comment,34 respondents defend the creation of the Joint Committee and argue
that it does not undermine the independence of the Comelec as a constitutional body because it is
still the Comelec that ultimately determines probable cause.35 As to the conduct of the preliminary
investigation, respondents maintain that no rights were violated as GMA was afforded the
opportunity to defend herself, submit her counter-affidavit and other countervailing evidence.36 They,
thus, consider GMA’s claim of availing of the remedial measures as "delaying tactics" employed to
thwart the investigation of charges against her by the Joint Committee.37

The Court’s Ruling

Clearly from the above discussion, movants raise issues that have been thoroughly explained by the
Court in the assailed decision. The issues were all addressed and the explanation was exhaustive,
thus, we find no reason to disturb the Court’s conclusions.

At any rate, if only to address the motions of the movants herein and to put an end to the questions
attached to the creation of the Joint Panel and, consequently, to the performance of their assigned
tasks, we hereby reiterate our findings and conclusions made in the assailed decision.

This is not the first time that the Court is confronted with the issue of whether the Comelec has the
exclusive power to investigate and prosecute cases of violations of election laws. In Barangay
Association for National Advancement and Transparency (BANAT) Party-List v. Commission on
Elections,38 the constitutionality of Section 4339 of RA 936940 had already been raised by petitioners
therein and addressed by the Court. While recognizing the Comelec’s exclusive power to investigate
and prosecute cases under Batas Pambansa Bilang 881 or the Omnibus Election Code, the Court
pointed out that the framers of the 1987 Constitution did not have such intention. This exclusivity is
thus a legislative enactment that can very well be amended by Section 43 of RA 9369. Therefore,
under the present law, the Comelec and other prosecuting arms of the government, such as the DOJ,
now exercise concurrent jurisdiction in the investigation and prosecution of election offenses.

Indeed, as aptly pointed out by GMA, there is a discrepancy between Comelec Resolution No.
346741 dated January 12, 2001 and Joint Order No. 001-2011, dated August 15, 2011, creating and
constituting a Joint Committee and Fact-Finding Team on the 2004 and 2007 National Elections
electoral fraud and manipulation cases. However, GMA seemed to miss the date when these two
resolutions were promulgated by the Comelec. It is noteworthy that Comelec Resolution No. 3467 was
issued when Section 265 of the Omnibus Election Code was still effective, while Joint Order No. 001-
2011 as well as Comelec Resolution Nos. 873342 and 905743 mentioned in the assailed decision but
missed out by GMA in her motion, were issued during the effectivity of Section 43 of RA 9369, giving
the Comelec and other prosecuting arms of the government the concurrent jurisdiction to investigate
and prosecute election offenses. This amendment paved the way for the discrepancy. In Comelec
Resolution No. 3467, the Comelec maintained the continuing deputation of prosecutors and the
Comelec Law Department was tasked to supervise the investigatory and prosecutory functions of the
task force pursuant to the mandate of the Omnibus Election Code. However, with the amendment,
the Comelec likewise changed the tenor of the later resolutions to reflect the new mandate of the
Comelec and other prosecuting arms of the government now exercising concurrent jurisdiction. Thus,
the Comelec Law Department and the Office of the Chief State Prosecutor of the DOJ were tasked to
jointly supervise the investigatory and prosecutory functions of the Comelec-DOJ Task Force.
Considering, therefore, that the later resolutions, including Joint Order No. 001-2011, were issued
pursuant to Section 43 of RA 9369 amending Section 265 of BP 881 which was declared
"constitutional" in Banat, there is no reason for us to declare otherwise. To maintain the previous role
of other prosecuting arms of the government as mere deputies despite the amendment would mean
challenging Section 43 of RA 9369 anew which has already been settled in Banat.

To be sure, the creation of a Joint Committee is not repugnant to the concept of "concurrent
jurisdiction" authorized by the amendatory law. As we explained in our September 18, 2012 Decision:

x x x The doctrine of concurrent jurisdiction means equal jurisdiction to deal with the same subject
matter. Contrary to the contention of the petitioners, there is no prohibition on simultaneous exercise
of power between two coordinate bodies. What is prohibited is the situation where one files a
complaint against a respondent initially with one office (such as the Comelec) for preliminary
investigation which was immediately acted upon by said office and the re-filing of substantially the
same complaint with another office (such as the DOJ). The subsequent assumption of jurisdiction by
the second office over the cases filed will not be allowed. Indeed, it is a settled rule that the body or
agency that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the
others.

xxxx

None of these problems would likely arise in the present case. The Comelec and the DOJ themselves
agreed that they would exercise their concurrent jurisdiction jointly. Although the preliminary
investigation was conducted on the basis of two complaints – the initial report of the Fact-Finding
Team and the complaint of Senator Pimentel – both complaints were filed with the Joint Committee.
Consequently, the complaints were filed with and the preliminary investigation was conducted by
only one investigative body. Thus, we find no reason to disallow the exercise of concurrent
jurisdiction jointly by those given such authority. This is especially true in this case given the
magnitude of the crimes allegedly committed by petitioners. The joint preliminary investigation also
serves to maximize the resources and manpower of both the Comelec and the DOJ for the prompt
disposition of the cases.44
Notwithstanding the grant of concurrent jurisdiction, the Comelec and the DOJ nevertheless included
a provision in the assailed Joint Order whereby the resolutions of the Joint Committee finding
probable cause for election offenses shall still be approved by the Comelec in accordance with the
Comelec Rules of Procedure.45 With more reason, therefore, that we cannot consider the creation of
the Joint Committee as an abdication of the Comelec’s independence enshrined in the 1987
Constitution.

Finally, we focus on the validity of the preliminary investigation conducted by the Joint Committee.

The procedure in conducting the preliminary investigation is governed by Rule 112 of the Revised
Rules on Criminal Procedure and Rule 34 of the Comelec Rules of Procedure. Under both Rules,46 the
respondent shall submit his counter-affidavit and that of his witnesses and other supporting
documents relied upon for his defense, within ten (10) days from receipt of the subpoena, with the
complaint and supporting affidavits and documents.47 Also in both Rules, respondent is given the right
to examine evidence, but such right of examination is limited only to the documents or evidence
submitted by complainants which she may not have been furnished and to copy them at her
expense.48

As to the alleged denial of GMA’s right to examine documents, we maintain that no right was violated
in view of the limitation of such right as set forth above. We reiterate our explanation in the assailed
decision, to wit:

While it is true that Senator Pimentel referred to certain election documents which served as bases in
the allegations of significant findings specific to the protested municipalities involved, there were no
annexes or attachments to the complaint filed. As stated in the Joint Committee’s Order dated
November 15, 2011 denying GMA’s Omnibus Motion Ad Cautelam, Senator Pimentel was ordered to
furnish petitioners with all the supporting evidence. However, Senator Pimentel manifested that he
was adopting all the affidavits attached to the Fact-Finding Team’s Initial Report. Therefore, when
GMA was furnished with the documents attached to the Initial Report, she was already granted the
right to examine as guaranteed by the Comelec Rules of Procedure and the Rules on Criminal
Procedure. Those were the only documents submitted by the complainants to the Committee. If there
are other documents that were referred to in Senator Pimentel’s complaint but were not submitted to
the Joint Committee, the latter considered those documents unnecessary at that point (without
foreclosing the relevance of other evidence that may later be presented during the trial) as the
evidence submitted before it were considered adequate to find probable cause against her. x x
x491âwphi1

Neither was GMA’s right violated when her motion for extension of time within which to submit her
counter-affidavit and countervailing evidence was consequently denied. The Rules use the term
"shall" in requiring the respondent to submit counter-affidavit and other countervailing evidence
within ten (10) days from receipt of the subpoena. It is settled that the use of the word "shall" which
is a word of command, underscores the mandatory character of the rule.50 As in any other rule,
though, liberality in the application may be allowed provided that the party is able to present a
compelling justification for the non-observance of the mandatory rules. In the 2008 Revised Manual
for Prosecutors, investigating prosecutors allow or grant motions or requests for extension of time to
submit counter-affidavits when the interest of justice demands that respondent be given reasonable
time or sufficient opportunity to engage the services of counsel; examine voluminous records
submitted in support of the complaint or undertake research on novel, complicated or technical
questions or issues of law and facts of the case.51

In this case, GMA claimed that she could not submit her counteraffidavit within the prescribed period
because she needed to examine documents mentioned in Senator Pimentel’s complaint-affidavit. It
appeared, however, that said documents were not submitted to the Joint Committee and the only
supporting documents available were those attached to the Initial Report of the Fact-Finding Team.
Admittedly, GMA was furnished those documents. Thus, at the time she asked for the extension of
time within which to file her counter-affidavit, she very well knew that the documents she was asking
were not in the record of the case. Obviously, she was not furnished those documents because they
were not submitted to the Joint Committee. Logically, she has no right to examine said documents.
We cannot, therefore, fault the Joint Committee in consequently denying her motion for extension to
file counter-affidavit as there was no compelling justification for the non-observance of the period she
was earlier required to follow.

And as we held in the assailed decision:

There might have been overzealousness on the part of the Joint Committee in terminating the
investigation, endorsing the Joint Resolution to the Comelec for approval, and in filing the information
in court.

However, speed in the conduct of proceedings by a judicial or quasijudicial officer cannot per se be
instantly attributed to an injudicious performance of functions. The orderly administration of justice
remains the paramount consideration with particular regard to the peculiar circumstances of each
case. To be sure, petitioners were given the opportunity to present countervailing evidence. Instead
of complying with the Joint Committee’s directive, several motions were filed but were denied by the
Joint Committee. Consequently, petitioners’ right to submit counter-affidavit and countervailing
evidence was forfeited. Taking into account the constitutional right to speedy disposition of cases and
following the procedures set forth in the Rules on Criminal Procedure and the Comelec Rules of
Procedure, the Joint Committee finally reached its conclusion and referred the case to the Comelec.
The latter, in turn, performed its task and filed the information in court. Indeed, petitioners were
given the opportunity to be heard. They even actively participated in the proceedings and in fact filed
several motions before the Joint Committee. Consistent with the constitutional mandate of speedy
disposition of cases, unnecessary delays should be avoided.52

Finally, in our assailed decision, we already took judicial notice that not only did GMA enter a plea of
"not guilty," she also filed a Motion for Bail and after due hearing, it was granted. Apparently, she
benefited from the RTC Order giving her temporary liberty. In filing the motion before the RTC and
actively participating therein, she has chosen to seek judicial remedy before the RTC where the
electoral sabotage case is pending instead of the executive remedy of going back to the Joint
Committee for the submission of her counter-affidavit and countervailing evidence. Besides, as
thoroughly discussed in the assailed decision, the irregularity or even the absence of preliminary
investigation does not impair the validity of the information filed against her.

WHEREFORE, premises considered, the Motions for Reconsideration are DENIED for lack of merit.

SO ORDERED.
EN BANC

G.R. No. 112093 October 4, 1994

ANTONIO V.A. TAN, petitioner,

vs.
COMMISSION ON ELECTIONS, RUSTICO T. ILAGAN, Regional Election Director, Commission on
Elections, Region XI, Davao City, and SENFORIANO B. ALTERADO, respondents.

Leonido C. Delante for petitioner.

Eduardo C. de Vera for Atty. S.B. Alterado.

VITUG, J.:

On 10 May 1992, petitioner, as incumbent city Prosecutor of Davao City, was designated by the
Commission on Elections ("COMELEC") as
Vice-Chairman of the City Board of Canvassers of Davao City for the 11th May 1992 synchronized
national and local elections conformably with the provisions of Section 20(a) of Republic Act No. 6646
and Section 221(b) of the Omnibus Election Code (B.P. Blg. 881).

On the basis of the votes canvassed by the Board of Canvassers, Manuel Garcia was proclaimed the
winning candidate for a congressional seat to represent the Second District of Davao City in the House
of Representatives.

Private respondent Alterado, himself a candidate for the position, filed a number of cases questioning
the validity of the proclamation of Manuel Garcia and accusing the members of the City Board of
Canvassers of "unlawful, erroneous, incomplete and irregular canvass." Meanwhile, the electoral
protest of private respondent Alterado was dismissed by the House of Representatives Electoral
Tribunal ("HRET"). The criminal complaint for "Falsification of Public Documents and Violation of the
Anti-Graft and Corrupt Practices Act" before the Office of the Ombudsman was likewise dismissed on
the ground of lack of criminal intent on the part of therein respondents. Still pending is an
administrative charge, the case now before us, instituted in the COMELEC against the City Board of
Canvassers, including herein petitioner, for "Misconduct, Neglect of Duty, Gross Incompetence and
Acts Inimical to the Service."

Petitioner moved to dismiss the administrative complaint against him for alleged lack of jurisdiction of
the COMELEC thereover, he being under the Executive Department of the government. The COMELEC
denied petitioner's motion to dismiss.

Hence, the instant petition.

Petitioner contends that the COMELEC has committed grave abuse of discretion and acted without
jurisdiction in continuing to take action on the administrative case. He argues that —
1) Petitioner is the City Prosecutor of Davao City. His office belongs to the executive branch of the
government, more particularly to the Department of Justice. As such, he is under the administrative
jurisdiction of the said department and not of respondent COMELEC.

2) The Civil Service Law provides that department heads "shall have jurisdiction to investigate and
decide matters involving disciplinary action against officers under their jurisdiction" (Section 47[b],
P.D. 807).

3) Section 2, Article IX of the 1987 Constitution which authorizes respondent COMELEC to deputize
public officers belonging to the executive department is for the purpose of insuring free, orderly and
honest elections. It does not include and comprehend administrative disciplinary jurisdiction over
officials belonging to the executive branch of government. That jurisdiction over deputized executive
officers cannot be deemed to include such powers as would allow encroachment into the domain of
the executive branch under guise of administering laws relative to elections.

4) Section 38 of P.D. 807 cited by respondents COMELEC and Ilagan as basis for their authority to
investigate petitioner (Annex G) offers no help to said respondents. The said provision merely lays
down the procedure for administrative cases against non-presidential appointees. Petitioner here, the
city prosecutor for Davao City is a presidential appointee.1

We find ourselves being unable to sustain the petition.

The COMELEC's authority under Section 2(6-8), Article IX, of the Constitution is virtually all-
encompassing when it comes to election matters. In respect particularly to sanctions against election
offenses, we quote:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

xxx xxx xxx

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion
of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including
acts or omission constituting election frauds, offenses, and malpractices.

xxx xxx xxx

(8) Recommend to the President the removal of any officer or employee it has deputized or the
imposition of any other disciplinary action, for violation or disregard of, or disobedience to its
directive, order, or decision.

Additionally, Section 52, Article VII, of the Omnibus Election Code, provides:

Sec. 52. Powers and functions of the Commission on Elections. — In addition to the powers and
functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the
enforcement and administration of all laws relative to the conduct of elections for the purpose of
insuring free, orderly and honest elections, and shall:

a. Exercise direct and immediate supervision and control over national and local officials or
employees, including members of any national or local law enforcement agency and instrumentality
of the government required by law to perform duties relative to the conduct of elections. In addition,
it may authorize CMP Cadets eighteen years of age and above to act as its deputies for the purpose of
enforcing its orders.

The Commission may relieve any officer or employee referred to in the preceding paragraph from the
performance of his duties relating to electoral processes who violates the election law or fails to
comply with its instructions, orders, decisions or rulings, and appoint his substitute. Upon
recommendation of the Commission, the corresponding proper authority shall suspend or remove
from office any or all of such officers or employees who may, after due process, be found guilty of
such violation or failure.

It should be stressed that the administrative case against petitioner, taken cognizance of by, and still
pending with, the COMELEC, is in relation to the performance of his duties as an election canvasser
and not as a city prosecutor. The COMELEC's mandate includes its authority to exercise direct and
immediate supervision and control over national and local officials or employees, including members
of any national or local law enforcement agency and instrumentality of the government, required by
law to perform duties relative to the conduct of elections. In order to help ensure that such duly
deputized officials and employees of government carry out their respective assigned tasks, the law
has also provided than upon the COMELEC's recommendation, the corresponding proper authority
(the Secretary of the Department of Justice in the case at bar) shall take appropriate action, either to
suspend or remove from office the officer or employee who may, after due process, be found guilty of
violation of election laws or failure to comply with instructions, orders, decision or rulings of the
COMELEC.

Unavoidably, the COMELEC, prior to making its recommendation, must first satisfy itself that there
indeed has been an infraction of the law, or of its directives issued conformably therewith, by the
person administratively charged. It also stands to reason that it is the COMELEC, being in the best
position to assess how its deputized officials and employees perform or have performed in their
duties, that should conduct the administrative inquiry. To say that the COMELEC is without
jurisdiction to look into charges of election offenses committed by officials and employees of
government outside the regular employ of the COMELEC would be to unduly deny to it the proper and
sound exercise of such recommendatory power and, perhaps more than that, even a possible denial
of due process to the official or employee concerned.

Observe, nevertheless, that the COMELEC merely may issue a recommendation for disciplinary action
but that it is the executive department to which the charged official or employee belongs which has
the ultimate authority to impose the disciplinary penalty. The law then does not detract from, but is
congruent with, the general administrative authority of the department of government concerned
over its own personnel.

Petitioner's assertion that private respondent Alterado has resorted to forum-shopping is

unacceptable. The investigation then being conducted by the Ombudsman on the criminal case for
falsification and violation of the Anti-Graft and Corrupt Practices Act, on the one hand, and the inquiry
into the administrative charges by the COMELEC, on the other hand, are entirely independent
proceedings. Neither would the results in one conclude the other. Thus, an absolution from a criminal
charge is not a bar to an administrative prosecution (Office of the Court Administrator vs. Enriquez,
218
SCRA 1), or vice versa. So, also, the dismissal by the COMELEC of SPC Case No. 92-232 on the ground
that the case constituted an electoral protest within the jurisdiction of the HRET and not of the
COMELEC (affirmed by this Court in G.R. No. 106452) does not necessarily foreclosure the matter of
possible liability, if warranted, of those who might have improperly acted in the canvass of votes.

There are other issues, mainly factual, that are raised and averred to show petitioner's innocence
from the administrative charges. Petitioner's allegations may well be true but this petition at bench
may not preempt the determination of those factual matters yet to be passed upon in the pending
administrative proceedings.

WHEREFORE, the instant petition is DISMISSED. No costs.

SO ORDERED.
EN BANC

G.R. No. 118702 March 16, 1995

CIRILO ROY G. MONTEJO, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

SERGIO A.F. APOSTOL, intervenor.

PUNO, J.:

More than political fortunes are at stake in the case at bench. Petitioner Cirilo Roy G. Montejo,
representing the First District of Leyte, pleads for the annulment of section 1 of Resolution No. 2736 of
the COMELEC, redistricting certain municipalities in Leyte, on the ground that it violates the principle
of equality of representation. To remedy the alleged inequity, petitioner seeks to transfer the
municipality of Tolosa from his district to the Second District of the province. Intervenor Sergio A.F.
Apostol, representing the Second District, vigorously opposed the inclusion of Tolosa in his district.
We gave due course to the petition considering that, at bottom, it involves the validity of the
unprecedented exercise by the COMELEC of the legislative power of redistricting and
reapportionment.

The province of Leyte with the cities of Tacloban and Ormoc is composed of five (5) legislative
districts.1

The first district2 covers Tacloban City and the municipalities of Alangalang, Babatngon, Palo, San
Miguel, Sta. Fe, Tanauan and Tolosa.

The second district3 is composed of the municipalities of Barugo, Barauen, Capoocan, Carigara,
Dagami, Dulag, Jaro, Julita, La Pat, Mayorga, MacArthur, Pastrana, Tabontabon, and Tunga.

The third district4 is composed of the municipalities of Almeria, Biliran, Cabucgayan, Caibiran,
Calubian, Culaba, Kawayan, Leyte, Maripipi, Naval, San Isidro, Tabango, and Villaba.

The fourth district5 is composed of Ormoc City and the municipalities of Albuera, Isabel, Kananga,
Matagob, Merida, and Palompon.

The fifth district6 is composed of the municipalities of Abuyog, Bate, Baybay, Hilongos, Hindang,
Inopacan, Javier, Mahaplag, and Matalom.

Biliran, located in the third district of Leyte , was made its sub-province by virtue of Republic Act No.
2141 Section 1 of the law spelled out enacted on April 8, 1959.7

Section 1 of the law spelled out the municipalities comprising the sub-province, viz.: "Almeria, Biliran,
Cabucgayan, Caibiran, Culaba, Kawayan, Maripipi and Naval and all the territories comprised therein."
On January 1, 1992, the Local Government Code took effect. Pursuant to its Section 462, the sub-
province of Biliran became a regular province. It provides:

Existing sub-provinces are hereby converted into regular provinces upon approval by a majority of the
votes cast in a plebiscite to be held in the sub-provinces and the original provinces directly affected.
The plebiscite shall be conducted by the COMELEC simultaneously with the national elections
following the effectivity of this code. The new legislative districts created as a result of such
conversion shall continue to be represented in Congress by the duly-elected representatives of the
original districts out of which said new provinces or districts were created until their own
representatives shall have been elected in the next regular congressional elections and qualified.

The conversion of Biliran into a regular province was approved by a majority of the votes cast in a
plebiscite held on May 11, 1992. As a consequence of the conversion, eight (8) municipalities of the
Third District composed the new province of Biliran, i.e., Almeria, Biliran, Cabucgayan, Caibiran,
Culaba, Kawayan, Maripipi, and Naval. A further consequence was to reduce the Third District to five
(5) municipalities with a total population of 145,067 as per the 1990 census.

To remedy the resulting inequality in the distribution of inhabitants, voters and municipalities in the
province of Leyte, respondent COMELEC held consultation meetings with the incumbent
representatives of the province and other interested parties. On December 29, 1994, it promulgated
Resolution No. 2736 where, among others, it transferred the municipality of Capoocan of the Second
District and the municipality of Palompon of the Fourth District to the Third District of Leyte. The
composition of the First District which includes the municipality of Tolosa and the composition of the
Fifth District were not disturbed. After the movement of municipalities, the composition of the five (5)
legislative districts appeared as follows:

First District: Population Registered

Voters
(1990) (1994)

1. Tacloban City, 137,190 81,679

2. Alangalang, 33,375 20,543
3. Babatngon, 17,795 9,929
4. Palo, 38,100 20,816
5. San Miguel, 13,438 8,167
6. Sta. Fe, 12,119 7,497
7. Tanauan and, 38,033 22,357
8. Tolosa; 13,299 7,700
———— ————
TOTAL 303,349 178,688

Second District: Population Registered

Voters
(1990) (1994)

1. Barugo, 23,817 13,237

2. Barauen, 46,029 23,307
3. Carigara 38,863 22,036
4. Dagami, 25,606 16,519
5. Dulag, 33,020 19,375
6. Jaro, 31,727 17,139
7. Julita, 9,944 6,196
8. La Paz, 14,311 9,003
9. Mayorga, 10,530 5,868
10. Mac Arthur, 13,159 8,628
11. Pastrana, 12,565 7,348
12. Tabontabon, and 7,183 4,419
13. Tunga; 5,413 3,387
———— ————
TOTAL 272,167 156,462

Third District: Population Registered

Voters
(1990) (1994)

1. Calubian, 25,968 16,649

2. Leyte, 32,575 16,415
3. San Isidro, 24,442 14,916
4. Tabango, 29,743 15,48
5. Villaba, 32,339 21,227
6. Capoocan, and 23,687 13,595
7. Palompon; 45,745 27,474
———— ————
TOTAL 214,499 125,763

Fourth District: Population Registered

Voters
(1990) (1994)

1. Ormoc City, 129,456 75,140

2. Albuera, 32,395 17,493
3. Isabel, 33,389 21,889
4. Kananga, 36,288 19,873
5. Matagob, 15,474 9,407
6. Merida, and 22,345 12,474
———— ————
TOTAL 269,347 155,995

Fifth District: Population Registered

Voters
(1990) (1994)

1. Abuyog, 47,265 28,682

2. Bato, 28,197 116,13
3. Baybay, 82,281 47,923
4. Hilongos, 48,617 26,871
5. Hindang, 16,272 9,659
6. Inopacan, 16,894 10,401
7. Javier, 18,658 11,713
8. Mahaplag, and 22,673 13,616
9. Matalom 28,291 16,247
———— ————
TOTAL 309,148 181,242

Petitioner Montejo filed a motion for reconsideration calling the attention of respondent COMELEC,
among others, to the inequitable distribution of inhabitants and voters between the First and Second
Districts. He alleged that the First District has 178,688 registered voters while the Second District has
156,462 registered voters or a difference of 22,226 registered voters. To diminish the difference, he
proposed that the municipality of Tolosa with 7,7000 registered voters be transferred from the First to
the Second District. The motion was opposed by intervenor, Sergio A.F. Apostol. Respondent
Commission denied the motion ruling that: (1) its adjustment of municipalities involved the least
disruption of the territorial composition of each district; and (2) said adjustment complied with the
constitutional requirement that each legislative district shall comprise, as far as practicable,
contiguous, compact and adjacent territory.

In this petition, petitioner insists that Section I of Resolution No. 2736 violates the principle of
equality of representation ordained in the Constitution. Citing Wesberry v. Sanders,8 he argues that
respondent COMELEC violated "the constitutional precept that as much as practicable one man's vote
in a congressional election is to be worth as much as another's." The Solicitor General, in his
Comment, concurred with the views of the petitioner. The intervenor, however, opposed the petition
on two (2) grounds: (1) COMELEC has no jurisdiction to promulgate Resolution No. 2736; and (2)
assuming it has jurisdiction, said Resolution is in accord with the Constitution. Respondent COMELEC
filed its own Comment alleging that it acted within the parameters of the Constitution.

We find section 1 of Resolution No. 2736 void.

While the petition at bench presents a significant issue, our first inquiry will relate to the
constitutional power of the respondent COMELEC9 to transfer municipalities from one legislative
district to another legislative district in the province of Leyte. The basic powers of respondent
COMELEC, as enforcer and administrator of our election laws, are spelled out in black and white in
section 2(c), Article IX of the Constitution. Rightly, respondent COMELEC does not invoke this
provision but relies on the Ordinance appended to the 1987 Constitution as the source of its power of
redistricting which is traditionally regarded as part of the power to make laws. The Ordinance is
entitled "Apportioning the Seats of the House of Representatives of the Congress of the Philippines to
the Different Legislative Districts in Provinces and Cities and the Metropolitan Manila Area." Its
substantive sections state:

Sec. 1. For purposes of the election of Members of the House of Representatives of the First Congress
of the Philippines under the Constitution proposed by the 1986 Constitutional Commission and
subsequent elections, and until otherwise provided by law, the Members thereof shall be elected
from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila Area
as follows:

xxx xxx xxx

Sec. 2. The Commission on Elections is hereby empowered to make minor adjustments of the
reapportionment herein made.

Sec. 3. Any province that may hereafter be created, or any city whose population may hereafter
increase to more than two hundred fifty thousand shall be entitled in the immediately following
election to at least one Member or such number of Members as it may be entitled to on the basis of
the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of
Article VI of the Constitution. The number of Members apportioned to the province out of which such
new province was created or where the city, whose population has so increased, is geographically
located shall be correspondingly adjusted by the Commission on Elections but such adjustment shall
not be made within one hundred and twenty days before the election. (Emphasis supplied)

The Ordinance was made necessary because Proclamation No. 3 10 of President Corazon C. Aquino,
ordaining the Provisional Constitution of the Republic of the Philippines, abolished the Batasang
Pambansa. 11 She then exercised legislative powers under the Provisional Constitution.12

The Ordinance was the principal handiwork of then Commissioner Hilario G. Davide, Jr., 13 now a
distinguished member of this Court. The records reveal that the Constitutional Commission had to
resolve several prejudicial issues before authorizing the first congressional elections under the 1987
Constitution. Among the vital issues were: whether the members of the House of Representatives
would be elected by district or by province; who shall undertake the apportionment of the legislative
districts; and, how the apportionment should be made.14Commissioner Davide, Jr. offered three (3)
options for the Commission to consider: (1) allow President Aquino to do the apportionment by law;
(2) empower the COMELEC to make the apportionment; or (3) let the Commission exercise the power
by way of an Ordinance appended to the Constitution. 15 The different dimensions of the options were
discussed by Commissioners Davide, Felicitas S. Aquino and Blas F. Ople. We quote the debates
in extenso, viz.:16

xxx xxx xxx

MR. PADILLA. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Padilla is recognized.

MR. PADILLA. I think I have filed a very simple motion by way of amendment by substitution and this
was, I believe, a prior or a proposed amendment. Also, the chairman of the Committee on the
Legislative said that he was proposing a vote first by the Chamber on the concept of whether the
election is by province and cities on the one hand, or by legislative districts on the other. So I propose
this simple formulation which reads: "FOR THE FIRST ELECTION UNDER THIS CONSTITUTION THE
LEGISLATIVE DISTRICTS SHALL BE APPORTIONED BY THE COMMISSION ON ELECTIONS." I hope the
chairman will accept the proposed amendment.

SUSPENSION OF SESSION
MR. DAVIDE. The effect is, more or less, the same insofar as the apportionment is concerned, but the
Bernas-Sarmiento et al. proposal would also provide for a mandate for the apportionment later,
meaning after the first election, which will in effect embody what the Commission had approved,
reading as follows: "Within three years following the return of every census, the Congress shall make
a reapportionment of legislative districts based on the standards provided in this section."

So, Mr. Presiding Officer, may I request for a suspension of the session, so that all the proponents can
work together.

THE PRESIDING OFFICER (Mr. Jamir). The session is suspended.

It was 3:33 p.m.

RESUMPTION OF SESSION

At 3:40 p.m., the session was resumed.

THE PRESIDING OFFICER (Mr. Jamir). The session is resumed.

Commissioner Davide is recognized.

MR. DAVIDE. Mr. Presiding Officer, as a compromise, I wonder if the Commission will allow this. We
will just delete the proposed subparagraph (4) and all the capitalized words in paragraph (5). So that
in paragraph (5), what would be left would only be the following: "Within three years following the
return of every census, the Congress shall make a reapportionment of legislative districts based on the
standards provided in this section."

But we shall have an ordinance appended to the new Constitution indicating specifically the following:
"FOR PURPOSES OF THE ELECTION OF MEMBERS OF THE HOUSE OF REPRESENTATIVES IN THE FIRST
CONGRESSIONAL ELECTION IMMEDIATELY FOLLOWING THE RATIFICATION OF THIS CONSTITUTION
PROPOSED BY THE 1986 CONSTITUTIONAL COMMISSION AND SUBSEQUENT ELECTIONS AND UNTIL
OTHERWISE PROVIDED BY LAW, THE MEMBERS OF THE HOUSE OF REPRESENTATIVES SHALL BE
ELECTED FROM LEGISLATIVE DISTRICTS APPORTIONED AMONG THE PROVINCES, CITIES AND THE
METROPOLITAN MANILA AREA AS FOLLOWS."

And what will follow will be the allocation of seats to Metropolitan Manila Area, to the provinces and
to the cities, without indicating the municipalities comprising each of the districts. Then, under
Section 2, we will mandate the COMELEC to make the actual apportionment on the basis of the
number of seats provided for and allocated to each province by us.

MS. AQUINO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Aquino is recognized.

MS. AQUINO. I have to object to the provision which will give mandate to COMELEC to do the
redistricting. Redistricting is vitally linked to the baneful practices of cutting up areas or spheres of
influence; in other words, gerrymandering. This Commission, being a nonpartisan, a nonpolitical
deliberative body, is in the best possible situation under the circumstances to undertake that
responsibility. We are not wanting in expertise and in time because in the first place, the Committee
on the Legislative has prepared the report on the basis of the recommendation of the COMELEC.
MR. OPLE. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Ople is recognized.

MR. OPLE. I would like to support the position taken by Commissioner Aquino in this respect. We
know that the reapportionment of provinces and cities for the purpose of redistricting is generally
inherent in the constituent power or in the legislative power. And I would feel very uncertain about
delegating this to a quasi-judicial body even if it is one of the constitutional offices created under this
Constitution. We have the assurance of Commissioner Davide, as chairman of the Committee on the
Legislative, that even given the very short time remaining in the life of this Commission, there is no
reason why we cannot complete the work of reapportionment on the basis of the COMELEC plan
which the committee has already thoroughly studied and which remains available to the
Constitutional Commission.

So, I support the position taken by Commissioner Aquino, Mr. Presiding Officer. I think, it is the safest,
the most reasonable, and the most workable approach that is available to this Commission.

THE PRESIDING OFFICER (Mr. Jamir). What does Commissioner Davide say:

MR. DAVIDE. The issue now is whether this body will make the apportionment itself or whether we
will leave it to the COMELEC. So, there arises, therefore, a prejudicial question for the body to decide.
I would propose that the Commission should now decide what body should make the apportionment.
Should it be the Commission or should it be the COMELEC? And the Committee on the Legislative will
act accordingly on the basis of the decision.

MR. BENGZON. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Bengzon is recognized.

MR. BENGZON. Apropos of that, I would like to inform the body that I believe the Committee on the
Legislative has precisely worked on this matter and they are ready with a list of apportionment. They
have, in fact, apportioned the whole country into various districts based on the recommendation of
the COMELEC. So they are ready with the list and if this body would wish to apportion the whole
country by district itself, then I believe we have the time to do it because the Committee on the
Legislative is ready with that particular report which need only to be appended to the Constitution. So
if this body is ready to accept the work of the Committee on the Legislative we would have no
problem. I just would like to give that information so that the people here would be guided
accordingly when they vote.

MR. RODRIGO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir) Commissioner Rodrigo is recognized.

MR. RODRIGO. I just would like to ask Commissioner Davide some questions.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide may yield if he so desires.

MR. DAVIDE. Gladly.

MR. RODRIGO. Will this apportionment which we are considering apply only to the first election after
the enactment of the Constitution?
MR. DAVIDE. On the basis of the Padilla proposal, it will be for the first election; on the basis of the
Sarmiento proposal, it will only apply to the first election.

MR. RODRIGO. And after that, Congress will have the power to reapportion.

MR. DAVIDE. Yes.

MR. RODRIGO. So, if we attach this to the Constitution — the reapportionment based on the
COMELEC study and between the approval of the Constitution and the first election — the COMELEC
no longer has the power to change that even a bit.

xxx xxx xxx

THE PRESIDING OFFICER (Mr. Jamir) Commissioner Regalado is recognized.

MR. REGALADO. May I address a clarificatory question to Commissioner Davide?

THE PRESIDING OFFICER (Mr. Jamir). Gentleman will please proceed.

MR. REGALADO. On the basis of the Commissioner's proposed apportionment and considering the
fact that there will be a corresponding reduction to 183 seats, would there be instances
representation of under non-representation?

MR. DAVIDE. None at all, Mr. Presiding Officer. I can assure the Commission that there will be no case
of inequitable distribution. It will come out to be one for every 350 to 400,000 inhabitants.

MR. REGALADO. And that would be within the standard that we refer.

MR. DAVIDE. Yes, Mr. Presiding Officer.

MR. REGALADO. Thank you.

MR. RAMA. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). The Floor Leader is recognized.

MR. RAMA. The parliamentary situation is that there was a motion by Commissioner Sarmiento to
mandate COMELEC to do the redistricting. This was also almost the same motion by Commissioner
Padilla and I think we have had some kind of meeting of minds. On the other hand, there seems to be
a prejudicial question, an amendment to the amendment as suggested by Commissioner Aquino, that
instead of the COMELEC, it should be this Commission that shall make the redistricting. So may I ask
Commissioner Aquino, if she insists on that idea, to please formulate it into a motion so we can vote
on that first as an amendment to the amendment.

THE PRESIDING OFFICER (Mr. Jamir).Commissioner Aquino is recognized.

MS . AQUINO. The motion is for this Commission to undertake the apportionment of the legislative
districts instead of the proposal that COMELEC be given the mandate to undertake the responsibility.

xxx xxx xxx

MR. SARMIENTO. May I be clarified, Mr. Presiding Officer. Is it the motion or the proposed
amendment?
THE PRESIDING OFFICER (Mr. Jamir). The proposed amendment.

MR. SARMIENTO. May we move for the approval of this proposed amendment which we substitute
for paragraphs 4 and 5.

MR. DAVIDE. May I request that it should be treated merely as a motion to be followed by a deletion
of paragraph 4 because that should not really appear as a paragraph in Section 5; otherwise, it will
appear very ugly in the Constitution where we mandate a Commission that will become functus
officio to have the authority. As a matter of fact, we cannot exercise that authority until after the
ratification of the new Constitution.

THE PRESIDING OFFICER (Mr. Jamir). What does Commissioner Sarmiento say?

MR. SARMIENTO. It is accepted, Mr. Presiding Officer. So, may I move for the approval of this
proposed amendment.

MS. AQUINO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Aquino is recognized.

MS. AQUINO. Would that require a two-thirds vote or a simple plurality to adopt that motion?

THE PRESIDING OFFICER (Mr. Jamir). That will require a two-thirds vote.

MS. AQUINO. Thank you. Mr. Presiding Officer.

MR. SARMIENTO. May I restate the motion, Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir) The Gentleman may proceed.

MR. SARMIENTO. May I move that this Commission do the reapportionment legislative districts.

MS. AQUINO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). What is the pleasure of Commissioner Aquino?

MS. AQUINO. May I be clarified again on the motion. Is Commissioner Sarmiento, therefore, adopting
my motion? Would it not be right for him to move that the COMELEC be mandated?

MR. SARMIENTO. No, we accepted the amendment. It is already the Commission that will be
mandated.

MS. AQUINO. So, the Gentlemen has accepted the amendment the amendment.

Thank you.

MR. SARMIENTO. I am voting that this Commission do the reapportionment.

VOTING

THE PRESIDING OFFICER (Mr. Jamir). Let us proceed to vote.

As many as are in favor, please raise their hand. (Several Members raised their hand.)

As many as are against, please raise their hand. (No Member raised his hand.)
The results show 30 votes in favor and none against; the motion is approved.

Clearly then, the Constitutional Commission denied to the COMELEC the major power of legislative
apportionment as it itself exercised the power. Section 2 of the Ordinance only empowered the
COMELEC "to make minoradjustments of the reapportionment herein made." The meaning of the
phrase "minor adjustments was again clarified in the debates 17 of the Commission, viz.:

xxx xxx xxx

MR. GUINGONA. This is just clarificatory, Mr. Presiding Officer. In Section 2, the Commission on
Elections is empowered to make minor adjustments on the apportionment made here.

MR. DAVIDE. Yes, Mr. Presiding Officer.

MR. GUINGONA. We have not set any time limit for this.

MR. DAVIDE. We should not set a time limit unless during the period of amendments a proposal is
made. The authority conferred would be on minor corrections or amendments, meaning to say, for
instance, that we may have forgotten an intervening municipality in the enumeration, which ought to
be included in one district. That we shall consider a minor amendment.

MR. GUINGONA. Thank you.

xxx xxx xxx

THE PRESIDING OFFICER (Mr. Romulo). Commissioner de Castro is recognized.

MR. DE CASTRO. Thank you.

I was about to ask the committee the meaning of minor adjustment. Can it be possible that one
municipality in a district be transferred to another district and call it a minor adjustment?

MR. DAVIDE. That cannot be done, Mr. Presiding Officer. Minor, meaning, that there should be no
change in the allocations per district. However, it may happen that we have forgotten a
municipality in between which is still in the territory of one assigned district, or there may be an error
in the correct name of a particular municipality because of changes made by the interim Batasang
Pambansa and the Regular Batasang Pambansa. There were many batas pambansa enacted by both
the interim and the Regular Batasang Pambansa changing the names of municipalities.

MR. DE CASTRO. So, the minor adjustment may be made only if one of the municipalities is not
mentioned in the ordinance appended to, and it will be up for the COMELEC now to adjust or to put
such municipality to a certain district.

MR. DAVIDE. Yes, Mr. Presiding Officer. For instance, we may not have the data regarding a division of
a municipality by the interim Batasang Pambansa or the Regular Batasang Pambansa into two
municipalities, meaning, a mother municipality and the new municipality, but still actually these are
within the geographical district area.

MR. DE CASTRO. So the minor adjustment which the COMELEC cannot do is that, if, for example, my
municipality is in the First District of Laguna, they cannot put that in any other district.
MR. DAVIDE. That is not even a minor correction. It is a substantive one.

MR. DE CASTRO. Thank you.

Consistent with the limits of its power to make minor adjustments, Section 3 of the Ordinance did not
also give the respondent COMELEC any authority to transfer municipalities from one legislative district
to another district. The power granted by Section 3 to the respondent COMELEC is to adjust the
number of members (not municipalities) "apportioned to the province out of which such new province
was created. . . ."

Prescinding from these premises, we hold that respondent COMELEC committed grave abuse of
discretion amounting to lack of jurisdiction when it promulgated section 1 of its Resolution No. 2736
transferring the municipality of Capoocan of the Second District and the municipality of Palompon of
the Fourth District to the Third District of Leyte.

It may well be that the conversion of Biliran from a sub-province to a regular province brought about
an imbalance in the distribution of voters and inhabitants in the five (5) legislative districts of the
province of Leyte. This imbalance, depending on its degree, could devalue a citizen's vote in violation
of the equal protection clause of the Constitution. Be that as it may, it is not proper at this time for
petitioner to raise this issue using the case at bench as his legal vehicle. The issue involves a problem
of reapportionment of legislative districts and petitioner's remedy lies with Congress. Section 5(4),
Article VI of the Constitution categorically gives Congress the power to reapportion, thus: "Within
three (3) years following the return of every census, the Congress shall make a reapportionment of
legislative districts based on the standards provided in this section." In Macias v. COMELEC, 18 we
ruled that the validity of a legislative apportionment is a justiciable question. But while this Court can
strike down an unconstitutional reapportionment, it cannot itself make the reapportionment as
petitioner would want us to do by directing respondent COMELEC to transfer the municipality of
Tolosa from the First District to the Second District of the province of Leyte.

IN VIEW WHEREOF, section 1 of Resolution No. 2736 insofar as it transferred the municipality of
Capoocan of the Second District and the municipality of Palompon of the Fourth District to the Third
District of the province of Leyte, is annulled and set aside. We also deny the Petition praying for the
transfer of the municipality of Tolosa from the First District to the Second District of the province of
Leyte. No costs.

SO ORDERED.