2010 RULES OF PROCEDURE FOR MUNICIPAL ELECTION CONTESTS

RULE I
SCOPE

Section 1. Title and coverage. – These Rules shall be known and cited as The 2010 Rules of
Procedure for Municipal Election Contests.

These Rules shall apply to election contests under the Automated Election System using the
Precinct Count Optical Scan, and shall govern the filing of pleadings, practice and procedure in
these contests.

Section 2. Application of the Rules of Court. – The Rules of Court shall apply to aspects of
pleadings, practice and procedure in election contests not specifically provided for in these Rules.

Section 3. Explanation of terms. – For purposes of and as used in these Rules:

(a) Courts – refers to the Regional Trial Court;

(b) Election – means the choice or selection of candidates for public office by popular vote
through the use of the ballot. Specifically, it covers the conduct of the polls, including the
listing of voters, the holding of the electoral campaign, the casting and counting of ballots,
the consolidation and transmission of results, and the canvassing of the returns;

(c) Automated Election System or AES – refers to an election system using the technology
designated by the Commission on Elections (COMELEC) for voting, counting, consolidating,
canvassing, transmission of election results, and the returns;

(d) Precinct Count Optical Scan or PCOS – refers to the machine as well as the technology
using an optical ballot scanner, located in every precinct, that scans or reads paper ballots
that voters mark by hand and insert into the scanner to be counted;

(e) Official ballot – refers to the paper ballot, capable of being optically scanned, with the pre-
printed names of all candidates and with ovals corresponding to each of the printed names.
The ovals are the spaces where voters express their choice through marking or shading
using a COMELEC-provided marking pen.

(f) Picture Image of the Ballot – refers to the image of the ballot captured by the PCOS
machine at the time the voter feeds his/her ballot, which image is later stored in a memory or
removable data storage device attached to the PCOS machines.

(g) Election Return – refers to the document showing the date of the election, the province,
city, municipality and the precinct where voting is held, and the number of votes in figures for
each candidate in a precinct or in clustered precincts.

(h) Electronic Election Return – refers to the copy of the election return in electronic form,
generated by the PCOS machine, that is electronically transmitted to: (1) the Municipal
Board of Canvassers for the official canvass; (2) the COMELEC Back-Up Server; (3) the
server for the dominant majority party; (4) the server for dominant minority party; (5) server
for the citizen’s arm authorized by the COMELEC to conduct a parallel count; and (6) the
Kapisanan ng mga Broadcaster sa Pilipinas or KBP.
(i) Printed Election Return – refers to the copy of the election return printed by the PCOS
machine on paper, and authenticated by the manual signatures and thumbmarks of the
Board of Election Inspectors (BEI) members.

(j) Electronic transmission – refers to the act of conveying data in electronic form from one
location to another.

(k) Canvass proceedings – refers to the proceedings that involve the consolidation of
precinct election results at the municipal level. The term also includes the formal
proclamation of the election winners at the municipal level.

(l) Consolidation machine – refers to the machine used during the canvass proceedings to
consolidate at every canvass level.

(m) Statement of Votes by Precinct, Municipality, City, District, Province, or Overseas

Absentee Voting (OAV) Station -–refers to a document in electronic and in printed form
generated by consolidation machines or by computers during the canvass proceedings. This
document records the votes obtained by candidates in each precinct, municipality, city,
district, province, or OAV Station, as the case may be.

(n) Municipal Certificate of Canvass – refers to the document in electronic and in printed
form, containing the total votes in figures obtained by each candidate in the municipality the
electronic form of which is the official canvass result in the municipality electronically-
transmitted to a higher canvass level.

(o) Certificate of Canvass and Proclamation – refers to the official document in printed form,
containing the names of all candidates who obtained the highest number of votes in a
particular municipality and certifying to these candidates’ proclamation as winners.

(p) Data Storage Device – refers to the device that stores electronic documents from where
data may be obtained when necessary to verify the accuracy and correctness of election
data. The data storage device used in a PCOS shall be under the custody and direct
responsibility of the election officer after completion of the voting process. A data storage
device includes the back-up storage device under COMELEC custody that likewise stores
authentic electronic copies of data.

(q) Audit Log – refers to the electronic document, stored in the PCOS machine’s data
storage device, containing the list of all activities the PCOS machine performs from the time
that it is powered on until it is turned off.

(r) Electronic document – refers to the record of information or the representation of

information, data, figures, symbols or other modes of written expression, described or
however represented, by which a fact may be proved and affirmed, which is received,
recorded, transmitted, stored, processed, retrieve or produced electronically. It includes
digitally-signed documents and any printout or output, readable by sight or other means, that
accurately reflects the electronic document.

For purposes of these Rules, an electronic document refers to either the picture image of the
ballots or the electronic copies of the election returns, the statements of votes, the
certificates of canvass, the audit log, and other electronic data processed by the PCOS and
consolidation machines.
 (s) Manual count of ballots – where voting using the AES ballots proceeded manually
because the PCOS machines could not be used, votes shall be counted manually under the
guidelines provided by the COMELEC, and the courts shall be guided accordingly.

(t) Election contests – refers to election protests or petitions for quo warranto.

(u) Election protest – refers to an election contest involving the election and returns of
municipal elective officials, grounded on fraud or irregularities committed in the conduct of
the elections, i.e., in the casting and the counting of the ballots, in the consolidation of votes
and in the canvassing of returns, not otherwise classified as a pre-proclamation controversy
cognizable by the COMELEC. The issue is who obtained the plurality of valid votes cast.

(v) Quo Warranto under the Omnibus Election Code – refers to an election contest involving
the qualifications for office of an elective municipal official, on the ground of ineligibility or
disloyalty to the Republic of the Philippines. The issue is whether the respondent possesses
all the qualifications and none of the disqualifications prescribed by law.

(w) Revision of ballots – refers ton the recount of ballots through their physical count; the
segregation of ballots for the protestant, the protestee and other candidates for the same
position and the recording of the objections and claims to these ballots.

(x) Promulgation – refers to the process of officially issuing the court’s decision or order in an
election contest.

Section 4. Inherent powers of the court. – A regional trial court acting on an election contest shall
have all the inherent powers of a court provided under Rule 135 of the Rules of Court, including the
power to issue auxiliary writs, processes, and other means necessary to carry its authority or
jurisdiction into effect and to adopt suitable processes not expressly provided by, but conformable
with, law, these Rules, or the Rules of Court.

Section 5. Construction. – The Rules shall be liberally constructed to achieve a just, expeditious,
and inexpensive determination and disposition of municipal election contests.

RULE 2
ELECTION CONTESTS

Section 1. Jurisdiction of regional trial courts. – Regional trial courts shall have exclusive original
jurisdiction over all election contests involving municipal officials.

Section 2. How initiated. – An election contest is initiated by the filing of an election protest or a
petition for quo warranto against an elective municipal official. An election protest or a petition for
quo warranto shall be filed directly with the court in three legible copies plus such number of copies
corresponding to the number of protestees or respondents.

An election protest shall not include a petition for quo warranto, nor shall a petition for quo warranto
include an election protest.

Section 3. Modes of service and filing. – Service and filing of pleadings, including the initiatory
petition and other subsequent papers, shall be done personally. Except for papers emanating from
the court, resort to other modes of service must be accompanied by a written explanation why the
service or filing was not done personally. A pleading or motion violating this Rule shall be considered
not to have been filed. 1avvphi1

Section 4. Election protest. – A petition contesting the election or returns for an elective municipal
office shall be filed with the proper Regional Trial Court by an candidate who was voted for the same
office and who received the second or third-highest number of votes or, in a multi-slot position, was
among the next four candidates following the last-ranked winner duly proclaimed, as reflected in the
official results of the election contained in the Statement of Votes by Precinct. The party filing the
protest shall be designated as the protestant; the adverse party shall be known as the protestee.

Each contest shall refer exclusively to one office; however, contests for offices of the Sangguniang
Bayan may be consolidated in one case.

Section 5. Quo warranto. – A petition for quo warranto against an elective municipal official shall be
filed with the proper Regional Trial Court by any registered voter who voted in the municipal election.
The party filing the petition shall be designated as the petitioner; the adverse party shall be known as
the respondent.

Section 6. Petition must be verified and accompanied by a certificate of non-forum shopping. – An

election protest or a petition for quo warranto shall be verified by an affidavit stating that the affiant
has read the petition and that its allegations are true and correct of the affiant’s own knowledge or
based on authentic records. A verification based on "information and belief" or upon "knowledge,
information and belief" is not sufficient.

The protestant or petitioner shall sign personally the certificate of non-forum shopping, which must
be annexed to the election protest or petition for quo warranto.

An unverified or insufficiently verified petition or one that lacks a certificate of non-forum shopping
shall be dismissed outright and shall not suspend the running of the required period for the filing of
an election protest or petition for quo warranto.

Section 7. Period to file protest or petition; non-extendible. – The election protest or petition for quo
warranto shall be filed within a non-extendible period of ten (10) days counted from the date of
proclamation.

Section 8. Pendency of pre-proclamation controversy. – The pendency of a pre-proclamation

controversy, involving the validity of the proclamation as defined by law, shall suspend the running of
the period for the filing of an election protest or petition for quo warranto.

Section 9. COMELEC judgment in disqualification case. – The decision of the COMELEC, either en
banc or in division, in a disqualification case shall not be a bar to the filing of a petition for quo
warranto based on the same ground, except when the Supreme Court has affirmed the COMELEC
decision.

Section 10. Contests of the protest or petition. – (a) An election protest or petition for quo
warranto shall commonly and specifically state the following facts:

(i) the position involved;

(ii) the date of proclamation; and

 (iii) the number of votes credited to the parties per the proclamation.

(b) A quo warranto petition shall also state:

(i) if the petitioner is not a candidate for the same municipal position, the facts giving
the petitioner standing to file the petition;

(ii) the qualifications for the municipal office and the disqualifications prescribed by
law;

(iii) the petitioner’s cited ground for ineligibility or the specific acts of disloyalty to the
Republic of the Philippines.

(c) An election protest shall also state:

(i) that the protestant was a candidate who had duly filed a certificate of candidacy
and had been voted for the same office;

(ii) the total number of precincts in the municipality;

(iii) the protested precincts and votes of the parties are not specified, an explanation
why the votes are not specified; and

(iv) a detailed specification of the acts or omissions complained of showing the

electoral frauds, anomalies or irregularities in the protested precincts.

Section 11. Raffle of cases. – The Supreme Court shall designate the Regional Trial Court within a
judicial region that shall take cognizance of election protests and petitions for quo warranto. A raffle
conducted by the executive judge shall determine the assignment of cases to these courts except in
single-sala courts or courts specifically designated by the Supreme Court. No court shall assume
jurisdiction over an election contest unless the case has been properly assigned to it as provided
herein.

At least twenty-four (24) hours before the raffle, the clerk of court must serve personal notice to the
parties, stating the date and time of the raffle. Proof of service to the parties shall be submitted to the
court, and the raffle shall be open to the public. The Supreme Court shall issue the necessary
circular implementing this proviso.

The Court may order a change of venue or place or trial for compelling reasons to avoid a
miscarriage of justice.

Section 12. Summary dismissal of election contests. – The court shall summarily dismiss, motu
proporio, an election protest, counter-protest or petition for quo warranto on any of the following
grounds:

(a) The court has no jurisdiction over the subject matter;

(b) The petition is insufficient in form and content as required under Section 10;

(c) The petition is filed beyond the period prescribed in these Rules;
 (d) The filling fee is not paid within the period for filling the election protest or petition for quo
warranto; and

(e) In a protest case where cash deposit is required, the deposit is not paid within five (5)
days from the filling of the protest.

RULE 3
SUMMONS

Section 1. Summons. – Within twenty-four (24) hours from the filling of a protest or petition, the clerk
of court shall issue the corresponding summons to the protestee or to the respondent, together with
a copy of the protest or petition, requiring the filling of an answer within a non-extendible period of
five days from notice.

Section 2. Service of summons. – The summons shall be served by handing copies of the summons
and of the protest or the petition to the protestee or the respondent in person or, in case of the
protestee’s or the respondent’s refusal to receive and sign these copies, by tendering them to him or
her.

If, for justifiable causes, the protestee or the respondent cannot be served in person as provided
above, service may be effected by leaving copies of the summons and the protest or the petition at:

(a) The protestee’s or the respondent’s residence, with a person of suitable age and
discretion residing therein, or

(b) The protestee’s or the respondent’s office or regular place of business, with a competent
person in charge thereof.

Section 3. By whom served. – The summons shall be served by a sheriff, a deputy sheriff, a
process server or any other suitable person authorized by the court issuing the summons.

RULE 4
ANSWER AND COUNTER-PROTEST

Section 1. Verified answer; counter-protest. – Within five (5) days from receipt of the summons and
the copy of the protest or petition, the protestee or the respondent shall file an answer in three (3)
legible copies, with proof of service of a copy on the protestant or the petitioner.

The answer shall be verified and may set forth admissions and denials, special and affirmative
defenses, and a compulsory counterclaim. The protestee may incorporate a counter-protest in the
answer.

The counter-protest shall specify the counter-protested precincts and the parties’ votes per the
Statement of Votes by Precinct and, in the proper case, a detailed specification of the acts or
omissions complained of as electoral fraud, anomalies or irregularities in the counter-protested
precincts; if the votes are not so specified, an explanation should be made for the omission. 1avvphi1

Section 2. Answer to counterclaim or counter-protest. – The protestant or petitioner shall answer the
counterclaim or counter-protest within a non-extendible period of five (5) days from notice.

Section 3. Allegations in the answer. –

 (a) Specific denial. – A protestee or respondent must specify each material allegation of fact
whose truth he or she does not admit; whenever practicable, he or she shall set forth the
substance of the matters upon to support the denial. The protestee or respondent shall
specify the averments that are true and material, and shall deny the rest.

(b) Allegations not specify denied deemed admitted. – Material averments in the protest or
petition, other than the amount of unliquidated damages and issues on the appreciation of
ballots, shall be deemed admitted when not specifically denied.

Section 4. Effect of failure to plead. –

(a) Defenses and objections not pleaded. – Defenses and objections not pleaded are
deemed waived. The court shall dismiss the claim when it appears from the pleadings or the
evidence on record that (1) the court has no jurisdiction over the subject matter; or (2) there
is another action pending between the same parties for the same cause; or (3) the action is
barred by a prior judgement or by the statute of limitations.

(b) Compulsory counterclaim or cross-claim not set up barred. – A compulsory counterclaim

or a cross-claim not set up shall be barred.

(c) Effect of failure to answer. – If the protestee or the respondent fails to answer within the
time allowed in an election protest that does not involve ballot revision or in a petition for quo
warranto, the court – upon motion of the Protestant or the petitioner, with notice to the
protestee or the respondent, and upon proof of such failure – shall proceed to render
judgment granting the relief prayed for on the basis of the allegations of the verified protest
or petition, unless the court in its discretion opts to require the protestant or the petitioner to
submit evidence ex parte.

Where the election protest involves revision or examination of ballots or the verification or re-
tabulation of the election returns, the court shall issue the appropriate order and shall proceed to
render judgment based on the results of the revision, examination, verification or re-tabulation.
During these proceedings, only the protestant’s revisors may participate. The protestee, or his or her
duly authorized representative, has the right to be present and to observe the proceedings, without
the right to object and to lay claim to ballots and election returns.

Section 5. How to compute time. – In computing any period of time prescribed or allowed by these
Rules, by order of the court or by any applicable statute, the day of the act or the event marking the
start when time begins to run is to be excluded and the date of performance included. If the last day
of the period, as so computed, falls on a Saturday, a Sunday, or a legal holiday in the place where
the court sits, time shall not run until the next working day.

Section 6. Amendments; limitations. – After the expiration of the period for the filling of an election
protest, counter-protest or petition for quo warranto, substantial amendments that broaden the scope
of the action or introduce an additional cause of action may be allowed only upon leave of court.
Leave of court may be refused if the motion for leave appears to the court to be intended for delay.
Any amendment in matters of form – such as a defect in the designation of the parties and other
clearly clerical or typographical errors – may summarily corrected by the court at any stage of the
proceedings, at its initiative or on motion, provided the correction does not prejudice the adverse
party.

RULE 5
MOTIONS
Section 1. Motions must be in writing. – All motions shall be in writing, except for those made in
open court.

Section 2. Proof of service necessary. – The court shall not act on any written motion, except upon
submitted proof of service on the adverse party.

Section 3. No hearings on motions. – No motion shall be set for hearing, and no oral argument shall
be allowed in support of any motion, except upon the court’s express. A motion shall be deemed
submitted for resolution unless the adverse party files his or her written objections within five (5)
days from service. The court shall resolve a motion within (5) days from the time it is deemed
submitted for resolution.

RULE 6
PROHIBITED PLEADINGS

Section 1. Prohibited pleadings and motions. – The following pleadings, motions or petitions shall
not be allowed in the cases covered by these Rules:

(a) Motion to dismiss the petition, except on the ground of lack of jurisdiction over the subject
matter;

(b) Motion for a bill of particulars;

(c) Demurrer to evidence;

(d) Motion for new trial, or for the reconsideration of a judgment, or for reopening of trial;

(e) Petition for relief from judgment;

(f) Motion for extension of time to file pleadings, affidavits or other papers;

(g) Memoranda, except as provided under Section 7, Rile 13 of these Rules;

(h) Motion to declare the protestee or the respondent in default;

(i) Dilatory motion for postponements;

(j) Motion for the inhibition of the presiding judge, except on clearly valid grounds;

(k) Reply or rejoinder; and

(l) Third-party complaint.

Section 2. Grounds to dismiss be set up in the answer. – All grounds to dismiss an election protest
or petition for quo warranto must be set up or pleased as affirmative or special defenses. Defenses
not raised are deemed waived. The court may, at its discretion, hold a preliminary hearing on the
grounds so pleaded.

RULE 7
FILING FEES AND CASH DEPOSITS
Section 1. Filling fees. – No protest, counter-protest or petition for quo warranto shall be accepted
for filling without the payment of a filling fee in the amount of Three Thousand Pesos (P3,000.00) for
every protest, counter-protest or petition for quo warranto filed.

If claims for damages and attorney’s fees are set forth in a protest or counter-protest, additional
filling fees shall be paid in accordance with the schedule under Rule 141 of the Rules of Court, as
amended.

Section 2. Cash deposit. –

(a) In addition to the fees prescribed in the preceding section, the protestant in an election
protest requiring revision or examination of ballots, or the verification or re-tabulation of
election returns, or which may require bringing copies of other election documents and
paraphernalia to court, shall make a cash deposit with the court in the following amounts:

i. One Thousand Pesos (P1,000.00) for each precinct covered by the protest or
counter-protest, provided that the deposit shall in no case be less than Twenty-five
Thousand Pesos (P25,000.00) to be paid upon the filling of the election protest or
counter-protest;

ii. Twenty-five Thousand Pesos (P25,000.00) for the cost of bringing to court and of
storing and maintaining the PCOS, the consolidation machines and other automated
election paraphernalia brought to court as evidence or as necessary equipment in
considering the protested or counter-protested ballots;

iii. If the amount to be deposit does not exceed One Hundred Thousand Pesos
(P100,000.00), the required sum shall be paid in full within ten (10) days from the
filling of the protest or counter-protest; and

iv. If the required deposit shall exceed One Hundred Thousand Pesos
(P100,000.00), a cash deposit in the amount of One Hundred Thousand Pesos
(P100,000.00) shall be made within ten (10) days from the filling of the protest or
counter-protest. The balance shall be paid in installments under the schedule the
court may require after hearing the Protestant or counter-Protestant on the matter.

The cash deposit shall be applied by the court to the payment of the compensation of
revisors as provided under Section 3, Rule 10 of these Rules, and of all the expenses
incidental to revision, including but not limited to the cost of supplies and miscellaneous
expenses of the revision committee, the cost of the production in court and the storage and
maintenance of automated election equipment and paraphernalia.

When circumstances so demand (such as when the deposit has been or is about to be
depleted), the court may require the payment of additional cash deposits. Any unused cash
deposit shall be returned to the depositing party after the complete termination of the protest
or counter-protest.

The same amount of cash deposit shall be required from the protestee (counter-protestant),
should continuation of revision be ordered pursuant to paragraph 2, Section 10, Rule 10 of
these Rules. Once required, the protestee (counter-protestant) shall pay the cash deposit
within a non-extendible period of three days from receipt of the court’s order.
 (b) Failure to make the cash deposits required within the prescribed time limit shall result in
the automatic dismissal of the protest or counter-protest.

RULE 8
PRODUCTION AND CUSTODY OF BALLOT BOXES, ELECTION DOCUMENTS,
DATA STORAGE DEVICES AND PCOS MACHINES USED IN THE ELECTIONS (A)

Section 1. Issuance of precautionary protection order. – Where the allegations in a protest so

warrant, the court shall order – simultaneously with the issuance of summons – the municipal
treasurer and election officer concerned to take immediate and appropriate measures to safeguard
the integrity of all the ballot boxes and the ballots, the lists of voters and voting records, the books of
voters and other documents or paraphernalia used in the election, as well as the automated election
equipment and records such as the data storage devices containing electronic data evidencing the
conduct and results of elections in the contested precincts.

Section 2. When ballot boxes and election documents are brought before the court. – Within forty-
eight (48) hours from receipt of an answer with counter-protest, when the allegations in an protest or
counter-protest so warrant, the court shall order the ballot boxes with their keys, the PCOS and
consolidation machines, the electronic data storage devices, the lists of voters and voting records,
the books of voters, and other documents or paraphernalia involved in the protest or counter-protest,
to be brought before it.

The court shall notify the parties of the date and time of retrieval and transfer from their respective
custodians of the ballot boxes, the PCOS and consolidation machines (if necessary), the electronics
data storage devices and all other automated election documents and paraphernalia. The parties
may send representatives to witness the retrieval and transfer. The absence, however, of a
representative of a party shall not be reason to postpone or delay the retrieval or transfer of the
above-mentioned equipment, devices and election documents.

The court, at its discretion, may seek the assistance of the Philippine National Police (PNP) or the
Armed Forces of the Philippines in ensuring the safe delivery of the ballot boxes and the election
equipment, devices and documents to its custody.

Where any of the ballot boxes, ballots, PCOS machines, data storage devices, election returns,
election documents or paraphernalia mentioned above are also involved in election contests before
other for a (such as the Presidential Electoral Tribunal, the Senate Electoral Tribunal, the House of
Representatives Electoral Tribunal or the Commission on Elections) with preferential rights of
custody and revision in simultaneous protests under COMELEC Resolution No. 2812 dated 17
October 1995, the court shall coordinate with and make the appropriate request with the higher
tribunals for the temporary prior custody of ballot boxes, PCOS machines, electronic data storage
devices and other election documents and paraphernalia, or for the synchronization of revision
activities.

The expenses necessary and incidental to the production in court of the ballot boxes and election
documents and the production, storage and maintenance of PCOS machines, data storage devices,
and automated election paraphernalia and documents shall be shouldered and promptly paid by the
protestant and counter-protestant in proportion to the precincts covered by their protects or counter-
protests. The expenses necessary and incidental to the return of the materials and documents
produced in court to their original custodians or to the proper tribunal after the termination of the
case shall likewise be shared proportionately by the protestant and the protestee based on the
number of precincts they respectively contest.
Section 3. Access to electronic data in the COMELEC back-up server. – Upon motion duly made
based on demonstrated need, the court may order the COMELEC to provide the moving party
access to, or to recover and use, electronic data from the COMELEC back-up server under
conditions and safeguards required by COMELEC.

RULE 9
PRELIMINARY CONFERENCE

Section 1. Preliminary conference; mandatory. – Within three (3) days after the filling of the last
responsive pleading allowed by these Rules, or on the expiration of this period without any
responsive pleading having been filed, the court shall conduct a mandatory preliminary conference
among the parties to consider:

(a) The simplification of issue;

(b) The necessary or desirability of amendments to the pleadings;

(c) The possibility of obtaining stipulations or admission of facts and of documents to avoid
unnecessary proof;

(d) The limitation of the number of witnesses;

(e) The nature of the testimonies of the witnesses and whether they relate to evidence that
do not involve the ballots, or otherwise;

(f) The withdrawal of certain protested or counter-protested precincts, especially those where
the ballot boxes or ballots are unavailable or are missing, cannot be located, have been
destroyed due to natural disasters or calamities, or where the PCOS and other electronic
data are missing;

(g) The number of revision committees to be constituted;

(h) The procedure to be followed in case the election protest or counter-protest seeks, wholly
or partially, the examination of ballots, or the verification or re-tabulation of election returns;

(i) The procedure in handling the PCOS and the other electronic machines and data; and

(j) Other matters that may contribute to prompt disposition of the case.

Section 2. Notice through counsel. – The notice of preliminary conference shall be served on
counsel or on counsel on the party himself or herself who is not presented by counsel. Notice to
counsel is to notice to the party, as counsel is charged with the duty to notify the party represented.

Section 3. Appearances of parties. - The parties have the duty to appear the person before the court
at the preliminary conference. Counsels appearing without their clients should be specifically
authorized to appear for and to bind their clients on the matters covered by the preliminary
conference.

Section 4. Preliminary conference brief. – The parties shall file with the court their respective
preliminary conference briefs and serve these on the adverse party in a manner that shall ensure the
other party’s receipt of the brief at least one day before the date of the preliminary conference. The
briefs shall contain the following:

(a) A summary of admitted facts and proposed stipulations;

(b) The issues is to be tried and resolved (i.e., for election protests, the alleged frauds or
irregularities committed in the conduct of the election; for quo warranto proceedings, the
ground for ineligibility or acts of disloyalty);

(c) The documents or exhibits to be presented;

(d) A manifestation indicating the use of the intent to use discovery procedures or referral to
commissioners;

(e) The number and names of witnesses, their addresses, and the substance of their
respective testimonies. The testimonies of witnesses shall be by affidavits, in question and
answer form, which shall serve as their direct testimonies, subject to oral cross-examination;

(f) A manifestation of withdrawal of certain protested or counter protested precincts, if this is

the case;

(g) The proposed number of revision committees and the names of proposes revisors and
alternated revisors; and

(h) The procedure to be followed in case the election protest or counter protest seeks the
revision or examination of ballots, or the verification or re-tabulation of election returns.

Section 5. Failure to file brief. - The failure to file the required brief or to provide the brief’s
mandatory contests shall have the same effect as the failure to appear at the preliminary
conference.

Section 6. Effect of failure to appear. – The failure of the protestant/petitioner or the duly authorized
counsel to appear at the preliminary conference authorizes the court, as its own initiative, to dismiss
the protest, or counter-protest or petition. The failure of the protestee/respondent or of the duly
authorized counsel to appear at the preliminary conference may likewise have the effect provided
under Section 4(c), Rule 4 of these Rules, i.e., the court may allow the protestant/petitioner to
present evidence ex parte and render judgment based on the evidence presented.

Section 7. Preliminary conference order. – The court shall issue an order summarizing the matters
taken up and the stipulations or agreements reached during the conference within three (3) days
following the termination of the preliminary conference. The court shall commence, the starting date
of which shall be within five (5) days from the termination of the preliminary conference.

RULE 10
REVISION OF BALLOTS

Section 1. Start of revision. – The revision of ballots shall commence on the date specified in the
preliminary conference order.

Section 2. Revision committee; under the supervision of the court. – As many revision committees
as may be necessary shall be constituted. Each revision committee shall be composed of a
chairperson and two members, one of whom is designated by the protestant and the other by the
protestee. The court shall designate the chairperson and a recorder from among its personnel. The
parties shall also designate their respective substitute revisors.

The revision committee shall conduct the revision in the court premises or at such other place in the
court may designate, in every case under its strict supervision.

The revisors shall discharge their duties with the highest degree of integrity, conducting the
proceedings with the same dignity and discipline the court itself brings to the proceedings. They shall
exercise extraordinary diligence and take the precautionary measures requires by this level of
diligence to prevent loss, disappearance or impairment of the integrity of the ballots and the election
documents, whether electronic or printed, and the misuse of the electronic election machines,
devices and paraphernalia.

Section 3. Compensation of the revisors. - The court shall fix the compensation of the revisors at
Eight Hundred Pesos (P800.00) per ballot box for the chairperson and Three Hundred Pesos
(P300.00) per ballot box for each party revisor. The party revisors shall each be entitled to an
additional per diem of Five Hundred Pesos (P500.00) per day. The compensation for a recorder
shall be Three Hundred Pesos (P300.00) per ballot box. This compensation shall be chargeable
against the cash deposit as provided for under Section2, Rule 7 of these Rules.

Section 4. Continuous revisions. –

(a) Period for revision. – Revision shall be conducted from 8:30 a.m. to 12:00 noon and from
1:30 p.m. to 4:30 p.m. from Monday to Friday, except on non-working holidays. The revisors
may take fifteen-minute breaks during the revision.

(b) Revision to continue even if a party revisor is absent or late. – The revision shall bot be
delayed or postponed by reason of the absence or tardiness of a party’s revisor or substitute
revisor, as long as the chairperson and one party revisor are present. The court may at any
time designate another chairperson if the regular chairperson fails for any reason to report.

(c) If the revisor of the protestee is absent or late. - If the revisor of the protestee is absent or
late for thirty minutes and no alternate appears as a substitute, the revision shall
nevertheless commence. The protestee shall be deemed to have waived the right to appear
and to object to the revision of ballots made during his or her revisor’s absence or tardiness.

(d) If the revisor of the protestant or the revisors of both parties fail to appear. – If the
protestant’s revisor or the revisors of both parties or their alternates fail to appear without
justifiable reason within one hour after the scheduled start of the revision, the ballot boxes
scheduled for revision that day and the corresponding ballot box keys in the possession of
the chairperson, shall be returned to the court’s ballot box custodian, and the ballots shall no
longer be revised, the parties are deemed to have waived their right to the revision for that
day, and the chairperson shall state the facts of absence and waiver in the revision report.

Section 5. Prohibited access. – During the revision, no person other than the judge, the clerk of the
court, the chairperson and the members of the revision committee, the parties and their duly
authorized representatives shall have the access to the revision area.

Section 6. Conduct of revision. – The revision of the votes on the ballots shall be done manually and
visually and through the use of appropriate PCOS machines, according to the procedure below:
(a) On the scheduled day of revision, the following, if needed, should be in the custody of the
court:

(i)the ballot boxes containing the ballots in protested and counter protested precincts;
and

(ii) the data storage devices and the PCOS machines used in the precincts
concerned or any other device that can be used to authenticate or assure the
genuineness of the ballots;

(b) The revision committee shall initially note, before anything else, the condition of the ballot
box and its locks and locking mechanism, and record this condition in the revision report.
Based on this observation, the revision committee must also determine whether the integrity
of the ballot box has been preserved.

(c) The ballot box shall then be opened and the ballots taken out. The "valid" ballots shall
first be counted, without regard to the votes obtained by the parties. This will be followed by
the counting of the torn, unused stray and rejected ballots, as classified at the polling place.

(d) The votes appearing in the election returns copy for the ballot box shall then be recorded
in the minutes.

(e) Prior to the actual revision, the revision committee must authenticate each and every
ballot to make sure that it was the same ballots cast and fed to the PCOS machine during
the voting. The authentication shall be through the use of PCOS machines actually used
during the elections in the subject precinct, or by another device certified by the Commission
to be capable of performing the desired authentication requirement through the use of the
bar codes and the ultra-violet ray code detection mechanism.

(f) The recount shall only proceed after the revision committee, through its chairperson and
members, has determined that the integrity of the ballots has been preserved.

(g) The revision committee shall thereafter proceed to look at the ballots and count the
indicated votes for the contested position.

(h) In looking at the shades or marks used to register votes, the revision committee shall
bear in mind that the will of the voters reflected as votes in the ballots shall as much as
possible be given effect, setting technicalities aside. Furthermore, the votes are presumed to
have been made by the voter and shall be so considered unless reasons exist to justify their
rejection. However, marks or shades that are less than 50% of the oval shall not be
considered as valid votes. Any issue as to whether a certain mark or shade is within the
threshold shall be determined by using the PCOS machine, not by human determination.

(i) The rules on the appreciation of the ballots under Section211 of the Omnibus Election
Code shall apply suppletorily when appropriate.

(j) There shall be a tally sheet in at least 5 copies, plus additional copies depending on the
number of additional parties, that shall be used to tally the votes as they are counted through
the use of taras and sticks.
 (k) After all the ballots from one ballot box have been counted, the revision committee shall
secure the contested ballots and complete the recount report for the precinct. Thereafter, it
shall proceed to recount the votes from the ballots of the next precinct.

(l) In case of multiple revision committees, the recount shall be done simultaneously.

(m) In the event that the revision committee determines that the integrity of the ballots and
the ballot box have not been preserved, as when proof of tampering or substitution exists, it
shall proceed to instruct the printing of the picture image of the ballots stored in the data
storage device for the precinct. The court shall provide a non-partisan technical person who
shall conduct the necessary authentication process to ensure that the data or image stored is
genuine and not a substitute. Only after this determination can the printed picture image be
used for the recount,

Section 7. Preparation and submission of revision report. – The committee shall prepare and submit
to the court a revision report per precinct stating the following:

<p

(a) the precinct number;

<p

(b) the date, the place and the time of revision;

<p

(c) the votes of the parties per physical count;

<p

(d) the condition and the serial numbers of the following:.

(i) ballot boxes;

(ii) self-locking security metal or plastic seals (inner and outer) and padlocks of the
ballot boxes;

(iii) security envelopes containing the election returns; and

(iv) numbered paper seal of the envelopes;

<p

(e) if required, the availability of and other circumstances attendant to the PCOS machines
and other automated election devices and paraphernalia used in the revision;

<p
(f) the votes of the parties per the ballot box copy of the election returns and per the tally
sheet/board found inside the ballot box;

<p

(g) the number of ballots objected to by the parties indicating therein the exhibit numbers;

<p

(h) the grounds of objections;

<p

(i) the number of stray ballots;

<p

(j) the claims on ballots with their exhibit numbers; and

<p

(k) the entries in the Minutes of Voting and Counting, particularly:

(i) the number of registered voters;

(ii) the number of voters who actually voted;

(iii) the number of official ballots, together with their serial numbers, used in the
election;

(iv) the number if ballots actually used indicating the serial numbers of the ballots;
and

(v) the unused ballots together with their serial numbers.

The revision forms shall be made available prior to the revision. The per-precinct revision
report shall be signed and certified by the chairperson and by the parties’ revisors, and shall
form part of the records of the case.

In addition to the per-precinct revision report, the revision committee shall also prepare and
submit to the court, within three days from termination of the revision, a committee report
summarizing the data, votes, ballot objections and claims, and significant observations made
during the revision of ballots from the protested precincts and later from the counter-
protested precincts, if so conducted based on the provisions of Section 10 below. Each party
furnished with a copy of the committee report may submit its comments thereon within a non-
extendible period of three (3) days from notice.

</p

</p
 </p

</p

</p

</p

</p

</p

</p

</p

</p

Section 8. Order of revision. – Revision of ballots shall start with those from the protested precincts ,
subject to the provisions of Section 10 thereof.

Section 9. Inquiry as to security markings and vital information relative to ballots and election
documents. – When a revision of ballots is ordered, and for the guidance of the revisors, the court
shall inquire about the security markings on the ballots and the security measures used in the
election documents from the Chairperson of COMELEC who shall be obliged to indicate this
markings, measures and other vital information that may aid the court in determining the authenticity
of the ballots and election documents. The parties shall be notified of the results of this inquiry.

Section 10. Post-revision determination of the merit or legitimacy of the protest prior to revision of
the counter-protest. – Immediately after the revision or examination of ballots, or the verification or
re-tabulation of election returns in all protested precincts, the protestant shall be required to point to
a number of precincts, corresponding to twenty percent (20%) of the total of the revised protested
precincts, that will best attest to the votes recovered, ore that will best exemplify the fraud or
irregularities pleaded in the protest. In the meanwhile, the revision or examination of the ballots, or
the verification or re-tabulation of election returns in the counter-protested precincts, shall be
suspended for a period not exceeding fifteen days to allow the court to preliminarily determine,
through the appreciation of ballots and other submitted election documents, the merit of legitimacy of
the protest based in the chosen twenty percent (20%) of the protested precincts.

Based on the results of this post-revision preliminary determination, the court may dismiss the
protest without further proceedings if the validity of the grounds for the protest is no established by
the evidence from the chosen twenty percent (20%) of the protested precincts; or proceed with the
revision or examination if the ballots, or the verification or re-tabulation of election returns in the
counter-protested precincts. In the latter case, the protestee shall be required to pay the cash
deposit within a non-extendible period of three (3) days from notice.

Section 11. Continuation of the appreciation of ballots. - If the court decides not to dismiss the
protest after the preliminary examination of the evidence from the chose twenty percent (20%) of the
protested precincts, revision with respect to the remaining precincts shall proceed at the same time
that the ballots or election documents from the counter-protested precincts are being revised. After
completion of the revision of the protested precincts, the court shall proceed with the appreciation
and revision of ballots from the counter-protested precincts.

RULE 11
TECHNICAL EXAMINATION

Section 1. Motion f or technical examination; contents. – Except when the protest or counter-protest
involves allegation of massive substitute voting, a party may move for the technical examination of
the presented evidence within five (5) days after completion of the revision in the protest or counter-
protest, specifying:

(a) The nature of the technical examination requested (e.g., fingerprint examination, etc.);

(b) The documents or machines/equipment to be subjected to technical examination;

(c) The objections made in the course of the revision of ballots which the movant intends to
substantiate with the results of the technical examination; and

(d) The ballots covered by these objections.

Section 2. Technical examination; time limits. – The court may grant the motion for technical
examination at its discretion and under the conditions it may impose. If the motion is granted, the
technical examination shall start within five (5) days from notice to both parties, and shall be
completed within the period specified by the court, in no case to exceed to twenty successive
working days, unless the court grants an extension based on exceptionally meritorious ground. A
party may attend the technical examination either personally or through a representative. However
the technical examination shall proceed with or without the attendance of a party, provided that the
due notice has been given.

The expenses for technical examination shall be for the account of the party requesting the
examination. The technical examination shall be under the supervision of the clerk of court.

Section 3. Experts; who shall provide. – Experts necessary for the conduct of technical examination
shall be provided by the party requesting the same and may come from the National Bureau of
Investigation, the PNP Crime Laboratory, the Commission on Elections, the Department of Science
and Technology, or experts from the private sector. The other party may secure the services of his
or her own expert who may only observe, not interfere with, the examination conducted by the
movant’s experts.

RULE 12
PHOTOCOPYING OF BALLOTS

Section 1. Photocopying simultaneous with revision. – On the motion of a party, the court may allow
the photocopying of ballots and election documents, upon such terms and conditions as the court
may impose. The photocopying, if allowed, must start at the commencement of revision and, as far
as practicable, must be completed simultaneously with the termination of revision.

Section 2. Where conducted; parties to provide own photocopying units. – Photocopying shall be
done within the premises of the court, near the revision area, and shall be under the supervision of
the clerk of court. The requesting party shall provide an efficient photocopying unit and shall bear all
attendant expenses.
Section 3. Copying or reproduction of electronic data. – On the motion of a party, the court may
allow the reproduction of electronic data that are submitted as evidence, or that are within the
custody and control of the COMELEC under the conditions and safeguards the COMELEC shall
require. The costs and expenses shall be for the account of the party seeking the reproduction.

RULE 13
PRESENTATION OF EVIDENCE

Section 1. Presentation and reception of evidence; order of hearing. – If at the preliminary

conference the parties have agreed on issues that do not involve the examination and appreciation
of ballots or other election documents (e.g., vote-buying, fraud, terrorism or violence), the reception
of evidence on the issues, including the testimonies of witnesses, shall be done simultaneously with
the revision of ballots that may be required.

The reception of evidence on all other matters or issues incidental to or involving the ballots and
related election documents shall be made upon completion of (a) the revision of ballots or election
documents; or (b) the technical examination, if allowed by the court under the provisions of Rule 11
of these Rules.

Reception of evidence shall be made in accordance with the following order of hearing:

(a) The protestant or petitioner shall present evidence in support of the protest or petition;

(b) The protestee or respondent shall then adduce evidence in support of the defense,
counterclaim or counter-protest, if any;

(c) The parties may then respectively offer rebuttal evidence only, unless the court for good
reasons and in the furtherance of justice, permits them to offer evidence on their original
case; and

(d) No sur-rebuttal evidence shall be allowed.

In offering testimonial evidence, the party shall require the proposed witness to execute an affidavit
which shall be considered as the witness’ direct testimony, subject to the right of the adverse party to
object to its inadmissible portions and to orally cross-examine the witness. The affidavit shall be
based on personal knowledge, shall set forth facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to testify on the stated matters. The affidavit shall be
in question and answer form, and shall be submitted to the court and served on the adverse party at
least three (3) days before the hearing.

Failure to submit the affidavit of witness within the specified time shall constitute a waiver of the
party’s right to present testimonial evidence.

The one-day-cross-examination-of witness rule – i.e., that a witness has to be fully cross-examined
on one day – shall strictly be followed, subject to the court’s discretion to extend the cross-
examination for justifiable reasons.

The revision reports, as well as the ballots objected to or claimed by the parties and the submitted
electronic evidence, shall automatically form part of court records and may be adopted by the other
parties as their evidence.
Section 2. Offer of evidence. – The court shall not consider any evidence that has not been formally
offered. Offer of evidence shall be done orally on the last day of hearing allowed for each party after
the presentation of the party’s last witness. The opposing party shall be required to immediately
interpose objections to the offer. The court shall rule on the offer of evidence in open court.
However, the court may, at its discretion, allow the party to make an offer of evidence in writing,
which shall be submitted within three days from notice of the court’s order. If the court rejects any
evidence offered, the party may make a tender of the excluded evidence.

Section 3. Reception of evidence continuous. – Reception of evidence, once commenced, shall

continue from day to day, as far as practicable, until fully completed or terminated at the court’s
order. In no case shall the entire period for reception of evidence exceed ten successive days for
each party, from the first day reception of evidence starts, unless otherwise authorized by the
Supreme Court.

Section 4. Adjournments and postponements. – No motion for postponement shall be allowed,

except for clearly meritorious reasons. In no case shall the resetting of hearings have an interval
exceeding three calendar days, nor shall the postponements of hearing granted to each party
exceed three (3). The filing of dilatory pleadings or motions shall constitute direct contempt of court
and shall be punished accordingly.

Section 5. Burden of proof. – Burden of proof is the duty of a party to present evidence of the facts
in issue to establish his or her claim or defense.

Section 6. Disputable presumptions. – The following presumptions are considered as established

facts, unless contradicted and overcome by other evidence:

(a) On the election procedure:

(i) The election of candidates was held on the date and at the time set and in the
polling place determined by the Commission on Elections;

(ii) The Boards of Election Inspectors were duly constituted and organized;

(iii) Political parties and candidates were duly represented by pollwatchers;

(iv) Pollwatchers were able to perform their functions;

(v) The Minutes of Voting and Counting contains all the incidents that transpired
before the Board of Election Inspectors; and

(vi) The Audit Log contains the list of all activities performed by the PCOS machines
from the time it was powered on until it was turned off.

(b) On election paraphernalia:

(i) Ballots and election returns that bear the security markings and features
prescribed by the Commission on Elections are genuine;

(ii) The data and information supplied by the members of the Boards of Election
Inspectors in the accountable forms are true and correct; and
 (iii) The allocation, packing and distribution of election documents or paraphernalia
were properly and timely done;

(iv) The PCOS and consolidation machines and the data storage devices are all in
order, and the data generated reflect the activities entered in these electronic
machines and devices.

(c) On appreciation of ballots:

(i) A ballot with appropriate security markings is valid;

(ii) The ballot reflects the intent of the voter;

(iii) The ballot was properly accomplished;

(iv) A voter personally prepared one ballot, except in the case of assistors; and

(v) The exercise of one’s right to vote was voluntary and free.

Section 7. Submission of memoranda. – The court may allow the parties to submit their respective
memoranda within a non-extendible period of ten (10) days from the verbal ruling of the court on the
last offer of exhibits; or, if the offer was made in writing, within ten (10) days from receipt of the
written ruling of the court. No supplemental, reply or rebuttal memorandum shall be allowed.

RULE 14
DECISION

Section 1. Rendition of decision. – The court shall decide the election contest within thirty (30) days
from the date the case is submitted for decision, in no case beyond six (6) months after its filing,
unless the Supreme Court authorizes an extension in writing. Failure to comply with this timeline
shall be considered a serious offense and shall be a ground for disciplinary action against the judge.
In addition, six (6) months after the submission of the case for decision, the judge shall be relieved of
all duties and functions except to decide the election case.

An election protest is deemed submitted for decision after completion of the reception of evidence
or, if the parties were allowed to submit memoranda, upon submission of their memoranda or the
expiration of the period for their filing, whichever is earlier. In an election protest, the winner shall be
the candidate who obtained the plurality of the valid votes cast.

Section 2. Form of decision in election protests. – After the termination of the revision of ballots and
before rendering its decision in an election protest that involved a revision, the court shall examine
and appreciate the original ballots. The court, in its appreciation of the ballots and in ruling on the
parties’ claims and objections, shall observe the following rules:

(a) On marked ballots – The court must specify and point to the marking clearly indicating the
voter’s intent to identify the ballot.

(b) On fake or spurious ballots, election document, machine, device or paraphernalia – The
court must specify the COMELEC security markings or features that are not found in the
ballot, election documents, machine, device or paraphernalia considered fake or spurious, or
 the operation or aspects of the machine, device or paraphernalia that resulted in fake or
spurious results;

(c) On stray ballots – The court must specify and state in detail why the ballots are
considered stray;

(d) On claimed ballots – The court must specify the exact basis for admitting claimed votes
or crediting these to either party.

Section 3. Several judgments. – In a protest or petition against several protestees or respondents,

the court may, when a several judgment is proper, render judgment against one or more of them,
leaving the protest or petition to proceed against the others.

Section 4. Promulgation of decision. – The decision signed by the presiding judge shall be
promulgated by reading its dispositive portion in open court on a date set with notice to the parties
and filing the decision with the clerk of court; or by the delivery of a copy of the signed decision to
the clerk of court, who shall forthwith indicate the date of rendition and cause true copies thereof to
be served, personally or by registered mail, on the counsels or on the parties if they are not
represented by counsel.

Section 5. Finality of decision. – The court’s promulgated decision shall become final and executory
five (5) days after receipt of notice by the parties if no appeal is taken.

Section 6. Entry of judgment. – If no appeal is filed within the time provided in these Rules, the
judgment shall be entered by the clerk in the book of entries of judgments. The date of finality of the
judgment shall be the date of its entry. The record shall contain the dispositive part of the judgment
and shall be signed by the clerk, with a certificate that the judgment has become final and executory.

Section 7. Notice of final decision. – As soon as the decision becomes final, the clerk of court shall
send notices to the COMELEC, the Department of the Interior and Local Government, and the
Commission on Audit.

Section 8. Appeal. – An aggrieved party may appeal the decision to the COMELEC within five (5)
days after promulgation, by filing a notice of appeal with the court that rendered the decision, with
copy served on the adverse counsel or on the adverse party who is not represented by counsel.

Section 9. Appeal fee. – The appellant in an election contest shall pay to the court that rendered the
decision an appeal fee of One Thousand Pesos (P1,000.00), simultaneously with the filing of the
notice of appeal.

Section 10. Immediate transmittal of records of the case. – The clerk of court shall, within fifteen
(15) days from the filing of the notice of appeal, transmit to the Electoral Contests Adjudication
Department, COMELEC, the complete records of the case, together with all the evidence, including
the original and three copies of the transcript of stenographic notes of the proceedings.

Section 11. Execution pending appeal. – On motion of the prevailing party with notice to the adverse
party, the court, at its discretion and while still in possession of the original records, may order the
execution of its decision before the expiration of the period to appeal, subject to the following rules:

(a) Execution pending appeal shall not issue except upon motion and hearing with prior
notice of the motion of at least three (3) days to the adverse party. The motion for execution
 pending appeal must be supported by good reasons cited and stated by the court in a
special order. These reasons must:

(i) constitute superior circumstances demanding urgency that would outweigh the
injury or damage, should the losing party secure a reversal of the judgment on
appeal; and

(ii) manifest, in the decision sought to be executed, that the defeat of the protestee or
the victory of the protestant has been clearly established.

(b) If the court grants an execution pending appeal, an aggrieved party shall have twenty
working days from notice of the special order within which to secure a restraining order or
status quo order from the Supreme Court or the COMELEC. The corresponding writ of
execution shall issue after twenty (20) days if no restraining order or status quo order is
issued. During the twenty (20)-day period, the issuance of a writ of execution pending appeal
shall be stayed.

Section 12. Jurisdiction of the Commission on Elections in certiorari cases. – The COMELEC has
the authority to issue the extraordinary writs of certiorari, prohibition and mandamus only in aid of its
appellate jurisdiction over decisions of the courts in election cases involving elective municipal
officials.

Section 13. Preferential disposition of election contests. – The courts shall give preference to
election contests over all other cases, except petitions for habeas corpus and for the writs of amparo
and habeas data.

RULE 15
COSTS, DAMAGES AND ATTORNEY’S FEES

Section 1. Costs; when allowed. – Costs shall be allowed to the prevailing party as a matter of
course. The court shall have the power, for special reasons, to apportion the costs, as may be
equitable. The court may render judgment for costs if a protest, a counter-protest or a petition for
quo warranto is dismissed. When a protest, a counter-protest or a petition for quo warranto is found
to be frivolous, double or treble costs may be imposed on the protestant, the counter-protestant or
the petitioner.

Section 2. Damages and attorney’s fees. – In all election contests, the court may adjudicate
damages and attorney’s fees as it may deem just and as established by the evidence, if the
aggrieved party has included these claims in the pleadings.

RULE 16
ELECTRONIC EVIDENCE

Section 1. Original of an electronic document or data. – An electronic document or data shall be

regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or
an output readable by sight or other means and shown to reflect the data accurately.

Section 2. Copies as equivalent of the originals. – When a document is in two or more copies
executed at or about the same time with identical contents, or is a counterpart produced by the same
impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or
by chemical reproduction, or by other equivalent techniques that accurately reproduce the original,
such copies or duplicates shall be regarded as the equivalent of the original.

Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the
original if:

a) a genuine question is raised as to the authenticity of the original; or

b) under the circumstances, it would be unjust or inequitable to admit the copy in lieu of the
original.

Section 3. Affidavit as evidence. – All matters relating to the admissibility and evidentiary weight of
an electronic document may be established by an affidavit stating facts of direct personal knowledge
of the affiant or based on authentic records. The affidavit must affirmatively show the competence of
the affiant to testify on the matters contained therein. The affiant shall be made to affirm the contents
of the affidavit in open session and may be cross-examined as a matter of right by the adverse party.

RULE 17
AUTHENTICATION OF ELECTRONIC DOCUMENTS AND DATA

Section 1. Burden of proving authenticity. – The person seeking to introduce an electronic document
in an election protest has the burden of proving its authenticity in the manner provided in this Rule.

Section 2. Manner of authentication. – Before any electronic document or data offered as authentic
is received in evidence, its authenticity must be proved by any of the following means:

a) By evidence that it has been digitally signed by the person purported to have signed it.
"Digitally signed" refers to an electronic document or electronic data message bearing a
digital signature verified by the public key listed in a certificate.

b) By evidence that other appropriate security procedures or devices for authentication of

electronic documents authorized by the Supreme Court or by law for the authentication of
electronic documents were applied to the document; or

c) By other evidence showing its integrity and reliability to the satisfaction of the judge.

Section 3. The Rules on Electronic Evidence. – The Rules on Electronic Evidence shall apply to
evidentiary aspects of pleadings, practice and procedure in election contests not otherwise
specifically provided for in these Rules.

RULE 18
FINAL PROVISIONS

Section 1. Repealing clause. – For municipal election contests, these rules supersede A.M. No. 07-
4-15-SC (The Rules of Procedure In Election Contests Before The Courts Involving Municipal and
Barangay Officials) which became effective on May 15, 2007. All other rules, resolutions, regulations
or circulars of the Supreme Court or parts thereof that are inconsistent with any provision of these
Rules are hereby deemed repealed or modified accordingly.

Section 2. Effectivity clause. These Rules shall take effect fifteen (15) days after their publication in
a newspaper of general circulation in the Philippines.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-54718 May 3l, 1983

CRISOLOGO VILLANUEVA Y PAREDES, petitioner,

vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF DOLORES
QUEZON, AND VIVENCIO G. LIRIO, respondents.

Crisologo P. Villanueva in his own behalf.

The Solicitor General for respondents. Danosos, Lirio, Bautista & Asso. for private respondents.

DE CASTRO, J.:

Petitioner Crisologo Villanueva seeks in this petition for certiorari with preliminary injunction to set
aside Resolution No. 9192 of respondent Commission on Elections dated February 21, 1980,
denying his petition for annulment of the proclamation of respondent Vivencio Lirio as the elected
vice-mayor of Dolores, Quezon, as well as Resolution No. 9885 of said Commission dated July 31,
1980, denying his motion for reconsideration and supplemental motion for reconsideration.

It appears that on January 4, 1980, which is the last day for the firing of certificates of candidacy in
the January 30, 1980 elections, one Narciso Mendoza, Jr. filed with the Election Registrar of
Dolores, Quezon, his sworn certificate of candidacy for the office of vice-mayor of said municipality.
Subsequently, however, but on the same day, Mendoza filed an unsworn letter withdrawing his said
certificate of candidacy.

On January 25, 1980, herein petitioner filed with the Election Registrar of Dolores, Quezon, his
sworn "Certificate of Candidacy in Substitution" of the aforementioned Narciso Mendoza, Jr. for the
office of vice-mayor of said municipality.

On January 31, 1980, the respondent Municipal Board of Canvassers proclaimed, on the basis of
the results of its canvass, respondent Vivencio Lirio as the duly elected vice-mayor of Dolores,
Quezon. Respondent Board considered all the votes cast in favor of petitioner as stray votes on the
ground that his certificate of candidacy was not given due course by the Commission on Elections,
Manila, and his name was not included in the certified list of official candidates.

On February 6, 1980, petitioner filed with the COMELEC a petition to annul the proclamation of
respondent. He likewise prayed that COMELEC should order the official counting of the votes that
may have been cast in his favor and thereafter, to proclaim him as the duly elected vice-mayor of
Dolores, Quezon.

On February 21, 1980, COMELEC issued the herein questioned resolution denying the said petition,
upon the reasoning that petitioner could not have filed his candidacy in substitution of Mendoza's
because the withdrawal of the latter had produced no legal effect, the same not having been made
under oath as required by Section 27 of the Election Code, and even assuming the efficacy of said
withdrawal, the same was made not after the last day for filing of certificates of candidacy as
provided under Section 28 of said Code, but on the very same last day. COMELEC reaffirmed its
stand upon petitioner's filing of a motion for reconsideration and supplemental motion for
reconsideration. Hence, the present recourse.

Petitioner insists that the withdrawal of Narciso Mendoza's certificate of candidacy was valid and
effective, and therefore, his certificate of candidacy in substitution of Mendoza's was, likewise, valid
and effective. Petitioner further alleged that there is sufficient legal basis for the annulment of the
proclamation of respondent Lirio, petitioner having supposedly polled the highest number of votes for
vice-mayor of Dolores, Quezon.

The law on the matter of withdrawal or cancellation of certificates of candidacy is Section 27 of the
1978 Election Code, which provides:

Sec. 27. Withdrawal or cancellation of certificates of candidacy. - No certification of

candidacy duly filed shall be considered withdrawn or cancelled unless the candidate
files with the office which received the certificate of candidacy or with the
Commission, a sworn statement of withdrawal or cancellation at any time before the
day of election. (Emphasis supplied)

There is absolutely no vagueness or ambiguity of the above provision, as to the need of a sworn
statement of withdrawal or cancellation of a duly filed certificate of candidacy. That the withdrawal of
Mendoza's certificate of candidacy was not made under oath is not disputed. As such, the
withdrawal produces no legal effect for failure to comply with the clear and unequivocal mandate of
the law. Mendoza, therefore, for all legal intents and purposes, remained to be a candidate for vice.
mayor of Dolores, Quezon, up to January 30, 1980, the date of the elections, as correctly ruled by
the COMELEC.

Even assuming that the questioned withdrawal is effective, under a liberal construction of the law as
invoked by petitioner, which should not be the case when the terms of the statute are clear and
unmistakable, still petitioner may not derive comfort therefrom for Mendoza's withdrawal was made
on January 4, 1980, on the very last day for filing certificates of candidacy. Substitution of a
candidate by reason of withdrawal is proper only when such withdrawal is made after the last day for
filing of certificates of candidacy. This is as, likewise, clearly provided by Section 28 of the 1978
Election Code.

Sec. 28. Candidates in case of death, withdrawal or disqualification of another. —

If, after the last day for filing certificates of candidacy, a candidate with a certificate of
candidacy duly filed should die, withdraw or be disqualified for any cause, any voter
qualified for the office may file his certificate of candidacy for the office for which the
deceased, the candidate who has withdrawn, or disqualified person was a candidate
in accordance with the preceding sections on or before mid-day of the day of the
election, and if the death, withdrawal or disqualification should occur between the
day before the election and the mid-day of election day, said certificate may filed with
any election committee in the political subdivision where he is a candidate: Provided,
however, That if the candidate who died, withdrew or was disqualified is the official
candidate of a political party, group or aggrupation, only a person belonging to, and
certified by, the same political party, group or aggrupation may file a certificate of
candidacy for the same office.
While it may be true as persistently pointed out by the petitioner that a certificate of candidacy duly
filed may be withdrawn or cancelled at any time before the day of election, it does not necessarily
follow that such withdrawn or cancelled certificate of candidacy may be the subject of substitution by
another's certificate of candidacy. For substitution to take place, the withdrawal must be
effected after the last day for filing of certificates of candidacy. If the withdrawal was made prior to or
on the said last day, as what happened in the instant case, substitution is not allowed. Hence, the
person filing a certificate of candidacy is filing said certificate in his own right, not as substitute
candidate, and the filing to make the certificate of candidacy valid must not be after the last day for
filing ordinary certificates of candidacy, which is January 4, 1980.

By and large, petitioner was, therefore, not a candidate, either in substitution of Mendoza or in his
own right, as he filed his certificate of candidacy on January 25, 1980, long after the last day for filing
certificates of candidacy. Whatever votes may have been cast in his favor are necessarily
considered stray votes. [Section 155 (15), Election Code] There is thus no legal basis for the
annulment of respondent Lirio's proclamation as vice-mayor.

In view of the foregoing, the COMELEC did not commit any error in issuing Resolution Nos. 9192
and 9885. In such a case, this Court cannot properly exercise its limited jurisdiction to review
decisions, orders or rulings of the COMELEC, which under the present Constitution has been
narrowed down to one of review by certiorari which may be invoked only when there is grave abuse
of discretion, or lack or excess of jurisdiction (Aratuc v. COMELEC, 88 SCRA 251), or patent errors
of law.

WHEREFORE, the instant petition is dismissed, without special pronouncement as to cost.

SO ORDERED.

Makasiar, Aquino, Concepcion Jr., Guerrero, Abad Santos, Melencio-Herrera, Plana, Escolin,
Vasquez, Relova, and Gutierrez, Jr., JJ., concur.

Separate Opinions

FERNANDO, C.J., dissenting:

On the ground that the bona fides of petitioner Crisologo Villanueva y Parades as a substitute
candidate cannot, in his opinion be successfully assailed. It follows that the votes cast in his favor
must be counted. Such being the case, there is more than sufficient justification for his proclamation
as Vice Mayor assuming that he did poll a greater number of votes than private respondent Vivencio
Lirio.

TEEHANKEE, J., dissenting:

I am constrained to dissent from the majority decision penned by Mr. Justice de Castro. With an due
respect, the same seems to be based on too technical and literal a reading of the provisions of the
Election Code on substitute candidates in case of death, withdrawal or disqualification of another
and disregards the substance and spirit of the law as wen as the basic antecedent facts which are
hereinbelow stated.

In this particular case, one Narciso Mendoza, Jr. had filed on the last day for filing of certificates of
candidacy in the January 30, 1980 local elections his sworn certificate of candidacy for the office of
vice mayor of the municipality of Dolores, Quezon. But later on the very same day, Mendoza filed an
unsworn letter in his own handwriting withdrawing his said certificate of candidacy "for personal
reasons."

Later on January 25, 1980, petitioner Crisologo Villanueva, upon learning of Mendoza's withdrawal,
filed his sworn "Certificate of Candidacy in Substitution" of Mendoza's for the said office of vice
mayor as a one-man independent ticket pitted against the otherwise unopposed KBL complete
ticket. There being no time to include petitioner's name in the Comelec list of registered candidates
(since the election was only four days away), petitioner as substitute candidate circularized formal
notices of his candidacy to al chairmen and members of the citizens election committees in
compliance with the suggestion of the Comelec Law Manager, Atty. Zoilo Gomez.

The results showed petitioner to be the clear winner over respondent with a margin of 452 votes
(3,112 votes as against his opponent respondent Lirio's 2,600 votes). But the Municipal Board of
Canvassers disregarded all votes cast in favor of petitioner as stray votes on the basis of the
Provincial Election Officer's opinion that since petitioner's name does not appear in the Comelec's
certified list of candidates for that municipality, it could be presumed that his candidacy was not duly
approved by the Comelec so that his votes could not be "legally counted." This was gross error since
it is impossible to require that the names of substitute candidates should appear in the Comelec's
certified list of candidates as of the deadline of January 4, 1980, while such substitute candidacies
perforce are filed after the last day of such deadline and up to the very day (mid-day) of the election
itself. Hence, petitioner's substitute certificate of candidacy filed on January 25, 1980 was endorsed
to the Provincial Election Officer on January 28, 1980. But that officer, for unexplained reasons,
instead of transmitting the papers to the Comelec Law Department by the fastest communication (by
telegram or messenger) before Election Day on January 30th, sent them by registered mail, which
was received only on February 11, 1980, long after the elections. On the basis of non-fulfillment of
this impossible condition, that petitioner's substitute candidacy must appear in the Comelec list, the
canvassers proclaimed the repudiated candidate respondent Vivencio G. Lirio as the only
unopposed candidate and as the duly elected vice mayor of the municipality of Dolores.

Petitioner Villanueva consequently filed on February 6, 1980 a petition with the Comelec to annul
respondent's proclamation and praying that Comelec order the official counting of the majority votes
cast in his favor and thereafter to proclaim him as the duly elected vice mayor.

Comelec issued its questioned resolution on February 21, 1980 denying the petition on two grounds
after citing the pertinent legal provisions, as follows:

The 1978 Election Code provides:

SEC. 27. ... No certificate of candidacy duly filed shall be considered withdrawn ...
unless the candidate files with the office which received the certificate ... or with the
Commission a sworn statement of with. withdrawal. ...

SEC. 28. ... If, after the last day for filing certificates of candidacy, a candidate with a
certificate of candidacy duly filed should ... withdraw ... any voter for the office may
file his certificate of candidacy for the office for which ... the candidate who has
withdrawn ... was a candidate on or before mid-day of election. ...
 Clearly, Petitioner Villanueva could not have substituted for Candidate Mendoza on
the strength of Section 28 of the 1978 Election Code which he invokes. For one
thing, Mendoza's withdrawal of his certificate is not under oath, as required under
Sec. 27 of the Code; hence it produces no legal effect. For another, said withdrawal
was made not after the last day (JANUARY 4, 1980) for filing certificates of
candidacy, as contemplated under Sec. 28 of the Code, but on that very same day.
(Italics copied)

To start with, Comelec's first ground for denying due course to petitioner's substitute certificate of
candidacy, i.e. that Mendoza's withdrawal of his certificate of candidacy was not, "under oath,"
deserves scant consideration. It is not seriously contended by respondent nor by the Comelec that
Mendoza's withdrawal was not an actual fact and a reality, so much so that no votes were cast for
him at all. In fact, Mendoza's name, even though his candidacy was filed on the last day within the
deadline, was not in the Comelec's certified list of candidates. His unsworn withdrawal filed later on
the same day had been accepted by the election registrar without protest nor objection.

The fact that Mendoza's withdrawal was not sworn is but a technicality which cannot be used to
frustrate the people's will in favor of petitioner as the substitute candidate. This has long been settled
and unquestioned doctrine-ignored in the main opinion. In Guzman vs. Board of Canvassers, 48
Phil. 211, clearly applicable, mutatismutandis, this Court held that "(T)he will of the people cannot be
frustrated by a technicality that the certificate of candidacy had not been properly sworn to. This
legal provision is mandatory and non-compliance therewith before the election would be fatal to the
status of the candidate before the electorate, but after the people have expressed their will, the
result of the election cannot be defeated by the fact that the candidate has not sworn to his
certificate of candidacy." (See also Gundan vs. Court of First Instance, 66 Phil. 125) As likewise
ruled by this Court in Canceran vs. Comelec, 107 Phil, 607, the legal requirement that a withdrawal
be under oath will be held to be merely directory and Mendoza's failure to observe the requirement
should be "considered a harmless irregularity."

Secondly, Mendoza's withdrawal of his certificate of candidacy right on the very same day that he
filed his certificate of candidacy on January 4, 1980 which was the very last day for filing of
certificates of candidacy shows that his certificate of candidacy was but a sham. It is against the
ordinary course of human behavior and conduct. Yet the majority judgment would uphold Comelec's
second ground and rule that "for substitution to take place, the withdrawal must be effected after the
last day for filing of certificates of candidacy. If the withdrawal was made prior to or on the said last
day, as what happened in the instant case, substitution is not allowed. " (At pages 3-4; emphasis
copied) Such construction provides a loophole not intended by the law whereby a sham candidate
files and withdraws his certificate of candidacy on the very last day for filing of such certificates of
candidacy and thereby shuts out a bona fide substitute candidate, like petitioner who had not filed
his candidacy in deference to Mendoza's candidacy who was one of his " co-planners " with "some
concerned citizens . . . . (who) held caucuses to put up a slate that will run against the erstwhile
unopposed KBL slate." (Petitioner's memorandum, page 2)

As in this case, petitioner learned of the sham candidacy and withdrawal only much later than the
last day for filing of certificates of candidacy and forthwith filed his substitute certificate of candidacy
on January 25, 1980, just four days before the scheduled elections of January 30, 1980. Mendoza's
candidacy could not but be considered a sham one under such circumstances, whatever may have
been his "personal reasons" for withdrawing his candidacy, although it is noteworthy that private
respondent states that his (respondent's) candidacy was "to the dismay and frustration of a certain
Narciso Mendoza, Jr., who took time persuading Governor Alcala to make private respondent
withdraw so he could take his place in the KBL slate for Vice-Mayor. Sensing perhaps, that he had
no way of winning as an independent candidate, coupled with the fact that he may not have a valid
certificate of candidacy for not being a registered voter in the municipality of Dolores, Quezon, said
Narciso Mendoza, Jr. Caused the withdrawal of his certificate of candidacy the very day he filed it
(January 4, 1980) through a letter addressed to the Municipal Election Registrar." (Respondent's
memorandum, page 2)

Thirdly, the Comelec's post-election act of denying petitioner's substitute candidacy as sustained by
the majority certainly does not seem to be in consonance with the substance and spirit of the law.
Section 28 of the 1978 Election Code provides for such substitute candidates in case of death,
withdrawal or disqualification up to mid-day of the very day of the elections. Mendoza's withdrawal
was filed on the last hour of the last day which he had filed earlier that same day. For all intents and
purposes, such withdrawal should therefore be considered as having been made substantially and in
truth after the last day, even going by the literal reading of the provision by the Comelec, as upheld
by the majority decision. Specially, if the difficulty of communications should be taken into account,
particularly the bizarre fact that no one would expect a genuine bona fide candidate to file his
candidacy on the last day of the deadline and then surreptitiously withdraw the same in
handwriting (apparently to keep it known to as few people as possible) later on the very same last
day.

Fourthly, the cardinal rule that the purpose of election laws is to give effect to, rather than frustrate,
the will of the voters should receive the foremost consideration. This Court has time and again
reaffirmed the right of the people to vote as particles of sovereignty. We have consistently held in an
unbroken line of cases, "after the termination of the election, public interest must be made to prevail
over that of the defeated candidate" (De Guzman vs. Board of Canvassers, 48 Phil. 211 [1925],
citing Lino Luna vs. Rodriguez. 39 Phil. 208 [1918]). As stressed by the now Chief Justice in
Badelles vs. Cabili (27 SCRA 121 [1969]), "it is [the people's] undeniable right to have officials of
their unfettered choice." Thus, we have invariably held that the will of the electorate should ever be
respected, not defeated or frustrated by material defects in the winning candidate's certificate of
candidacy (including one not being a registered elector in the very municipality where he was
nevertheless elected president of Meycauayan, Yra vs. Abano 52 Phil. 380 [1928], which
while mandatory before the elections (and would therefore render null and void the certificate of
candidacy) were held to be directory only after the elections, as otherwise innocent voters will be
deprived of their votes without any fault on their part. (Lino Luna, supra; also Canceran vs. Comelec,
107 Phil. 607 [1960], Corocoro vs. Bascara 9 SCRA 522 [1963], Pungutan vs. Abubakar, 43 SCRA
11 [1972]; and Lacson, Jr. vs. Posadas 72 SCRA 170 [1976]). After all, the whole purpose of these
first martial law local elections on January 30, 1980 was to enable the people to exercise their right
of suffrage and to vote for the candidates of their choice. It is not conducive to justice and
democracy that independent or opposition candidates be summarily knocked out and that the
nominees of the party in power be thereby left unopposed. The said 1980 local elections were
precisely called to give the electorate a chance after nine years to elect the candidates of their
choice and it would be tragic to ten them now that it was but an exercise in futility and they could not
even vote yes or no for respondent as the unopposed candidate left for the vice-mayoralty due to the
constricted application of the letter rather than the substance and spirit of the law which is what gives
the law life and meaning. (Cf. the writer's dissents in Gabatan vs. Comelec, G.R. No. 52381, January
26, 1980; and Sibulo vs. Comelec, G.R. No. 52422, January 29, 1980)

Finally, the very essence of elections is to give the electorate a choice and to elect the candidate of
their choice. I vote, therefore, that petitioner's substitute certificate of candidacy should be given due
course and his votes counted and that he should be forthwith seated as the people's choice if the
official count of his votes shows the truth of his averment that he polled the highest number of votes.
The losing candidate repudiated by the people should not offend the sovereign will of the people
who rejected him by assuming office as the lone unopposed candidate in consequence of the
Comelec's unjustified post-election refusal to give due course to petitioner's substitute candidacy.
(Cf. the writer's separate concurrence in Nepomuceno vs. Comelec, G.R. Nos. 52427 and 52506,
May 15, 1980)
This would be but to give substance and meaning to the President's oft-repeated pleas for
encouraging legitimate opposition rather than to alienate them. Here, petitioner presented to his
townmates impressive credentials: the ration's youngest first councilor in the 1967 elections who was
to take up law and graduate as a U.P. lawyer during his councilorship and became a member of the
bar in 1973 and an active law practitioner. There is no question of "turncoatism" or disqualification
here. All that is asked is to respect the verdict of the electorate and not to disenfranchise them by
declaring their legitimate votes for petitioner as stray votes.

Separate Opinions

FERNANDO, C.J., dissenting:

On the ground that the bona fides of petitioner Crisologo Villanueva y Parades as a substitute
candidate cannot, in his opinion be successfully assailed. It follows that the votes cast in his favor
must be counted. Such being the case, there is more than sufficient justification for his proclamation
as Vice Mayor assuming that he did poll a greater number of votes than private respondent Vivencio
Lirio.

TEEHANKEE, J., dissenting:

I am constrained to dissent from the majority decision penned by Mr. Justice de Castro. With an due
respect, the same seems to be based on too technical and literal a reading of the provisions of the
Election Code on substitute candidates in case of death, withdrawal or disqualification of another
and disregards the substance and spirit of the law as wen as the basic antecedent facts which are
hereinbelow stated.

In this particular case, one Narciso Mendoza, Jr. had filed on the last day for filing of certificates of
candidacy in the January 30, 1980 local elections his sworn certificate of candidacy for the office of
vice mayor of the municipality of Dolores, Quezon. But later on the very same day, Mendoza filed an
unsworn letter in his own handwriting withdrawing his said certificate of candidacy "for personal
reasons."

Later on January 25, 1980, petitioner Crisologo Villanueva, upon learning of Mendoza's withdrawal,
filed his sworn "Certificate of Candidacy in Substitution" of Mendoza's for the said office of vice
mayor as a one-man independent ticket pitted against the otherwise unopposed KBL complete
ticket. There being no time to include petitioner's name in the Comelec list of registered candidates
(since the election was only four days away), petitioner as substitute candidate circularized formal
notices of his candidacy to al chairmen and members of the citizens election committees in
compliance with the suggestion of the Comelec Law Manager, Atty. Zoilo Gomez.

The results showed petitioner to be the clear winner over respondent with a margin of 452 votes
(3,112 votes as against his opponent respondent Lirio's 2,600 votes). But the Municipal Board of
Canvassers disregarded all votes cast in favor of petitioner as stray votes on the basis of the
Provincial Election Officer's opinion that since petitioner's name does not appear in the Comelec's
certified list of candidates for that municipality, it could be presumed that his candidacy was not duly
approved by the Comelec so that his votes could not be "legally counted." This was gross error since
it is impossible to require that the names of substitute candidates should appear in the Comelec's
certified list of candidates as of the deadline of January 4, 1980, while such substitute candidacies
perforce are filed after the last day of such deadline and up to the very day (mid-day) of the election
itself. Hence, petitioner's substitute certificate of candidacy filed on January 25, 1980 was endorsed
to the Provincial Election Officer on January 28, 1980. But that officer, for unexplained reasons,
instead of transmitting the papers to the Comelec Law Department by the fastest communication (by
telegram or messenger) before Election Day on January 30th, sent them by registered mail, which
was received only on February 11, 1980, long after the elections. On the basis of non-fulfillment of
this impossible condition, that petitioner's substitute candidacy must appear in the Comelec list, the
canvassers proclaimed the repudiated candidate respondent Vivencio G. Lirio as the only
unopposed candidate and as the duly elected vice mayor of the municipality of Dolores.

Petitioner Villanueva consequently filed on February 6, 1980 a petition with the Comelec to annul
respondent's proclamation and praying that Comelec order the official counting of the majority votes
cast in his favor and thereafter to proclaim him as the duly elected vice mayor.

Comelec issued its questioned resolution on February 21, 1980 denying the petition on two grounds
after citing the pertinent legal provisions, as follows:

The 1978 Election Code provides:

SEC. 27. ... No certificate of candidacy duly filed shall be considered withdrawn ...
unless the candidate files with the office which received the certificate ... or with the
Commission a sworn statement of with. withdrawal. ...

SEC. 28. ... If, after the last day for filing certificates of candidacy, a candidate with a
certificate of candidacy duly filed should ... withdraw ... any voter for the office may
file his certificate of candidacy for the office for which ... the candidate who has
withdrawn ... was a candidate on or before mid-day of election. ...

Clearly, Petitioner Villanueva could not have substituted for Candidate Mendoza on
the strength of Section 28 of the 1978 Election Code which he invokes. For one
thing, Mendoza's withdrawal of his certificate is not under oath, as required under
Sec. 27 of the Code; hence it produces no legal effect. For another, said withdrawal
was made not after the last day (JANUARY 4, 1980) for filing certificates of
candidacy, as contemplated under Sec. 28 of the Code, but on that very same day.
(Emphasis copied)

To start with, Comelec's first ground for denying due course to petitioner's substitute certificate of
candidacy, i.e. that Mendoza's withdrawal of his certificate of candidacy was not, "under oath,"
deserves scant consideration. It is not seriously contended by respondent nor by the Comelec that
Mendoza's withdrawal was not an actual fact and a reality, so much so that no votes were cast for
him at all. In fact, Mendoza's name, even though his candidacy was filed on the last day within the
deadline, was not in the Comelec's certified list of candidates. His unsworn withdrawal filed later on
the same day had been accepted by the election registrar without protest nor objection.

The fact that Mendoza's withdrawal was not sworn is but a technicality which cannot be used to
frustrate the people's will in favor of petitioner as the substitute candidate. This has long been settled
and unquestioned doctrine-ignored in the main opinion. In Guzman vs. Board of Canvassers, 48
Phil. 211, clearly applicable, mutatismutandis, this Court held that "(T)he will of the people cannot be
frustrated by a technicality that the certificate of candidacy had not been properly sworn to. This
legal provision is mandatory and non-compliance therewith before the election would be fatal to the
status of the candidate before the electorate, but after the people have expressed their will, the
result of the election cannot be defeated by the fact that the candidate has not sworn to his
certificate of candidacy." (See also Gundan vs. Court of First Instance, 66 Phil. 125) As likewise
ruled by this Court in Canceran vs. Comelec, 107 Phil, 607, the legal requirement that a withdrawal
be under oath will be held to be merely directory and Mendoza's failure to observe the requirement
should be "considered a harmless irregularity."

Secondly, Mendoza's withdrawal of his certificate of candidacy right on the very same day that he
filed his certificate of candidacy on January 4, 1980 which was the very last day for filing of
certificates of candidacy shows that his certificate of candidacy was but a sham. It is against the
ordinary course of human behavior and conduct. Yet the majority judgment would uphold Comelec's
second ground and rule that "for substitution to take place, the withdrawal must be effected after the
last day for filing of certificates of candidacy. If the withdrawal was made prior to or on the said last
day, as what happened in the instant case, substitution is not allowed. " (At pages 3-4; emphasis
copied) Such construction provides a loophole not intended by the law whereby a sham candidate
files and withdraws his certificate of candidacy on the very last day for filing of such certificates of
candidacy and thereby shuts out a bona fide substitute candidate, like petitioner who had not filed
his candidacy in deference to Mendoza's candidacy who was one of his " co-planners " with "some
concerned citizens ... (who) held caucuses to put up a slate that will run against the erstwhile
unopposed KBL slate." (Petitioner's memorandum, page 2)

As in this case, petitioner learned of the sham candidacy and withdrawal only much later than the
last day for filing of certificates of candidacy and forthwith filed his substitute certificate of candidacy
on January 25, 1980, just four days before the scheduled elections of January 30, 1980. Mendoza's
candidacy could not but be considered a sham one under such circumstances, whatever may have
been his "personal reasons" for withdrawing his candidacy, although it is noteworthy that private
respondent states that his (respondent's) candidacy was "to the dismay and frustration of a certain
Narciso Mendoza, Jr., who took time persuading Governor Alcala to make private respondent
withdraw so he could take his place in the KBL slate for Vice-Mayor. Sensing perhaps, that he had
no way of winning as an independent candidate, coupled with the fact that he may not have a valid
certificate of candidacy for not being a registered voter in the municipality of Dolores, Quezon, said
Narciso Mendoza, Jr. Caused the withdrawal of his certificate of candidacy the very day he filed it
(January 4, 1980) through a letter addressed to the Municipal Election Registrar." (Respondent's
memorandum, page 2)

Thirdly, the Comelec's post-election act of denying petitioner's substitute candidacy as sustained by
the majority certainly does not seem to be in consonance with the substance and spirit of the law.
Section 28 of the 1978 Election Code provides for such substitute candidates in case of death,
withdrawal or disqualification up to mid-day of the very day of the elections. Mendoza's withdrawal
was filed on the last hour of the last day which he had filed earlier that same day. For all intents and
purposes, such withdrawal should therefore be considered as having been made substantially and in
truth after the last day, even going by the literal reading of the provision by the Comelec, as upheld
by the majority decision. Specially, if the difficulty of communications should be taken into account,
particularly the bizarre fact that no one would expect a genuine bona fide candidate to file his
candidacy on the last day of the deadline and then surreptitiously withdraw the same in
handwriting (apparently to keep it known to as few people as possible) later on the very same last
day.

Fourthly, the cardinal rule that the purpose of election laws is to give effect to, rather than frustrate,
the will of the voters should receive the foremost consideration. This Court has time and again
reaffirmed the right of the people to vote as particles of sovereignty. We have consistently held in an
unbroken line of cases, "after the termination of the election, public interest must be made to prevail
over that of the defeated candidate" (De Guzman vs. Board of Canvassers, 48 Phil. 211 [1925],
citing Lino Luna vs. Rodriguez. 39 Phil. 208 [1918]). As stressed by the now Chief Justice in
Badelles vs. Cabili (27 SCRA 121 [1969]), "it is [the people's] undeniable right to have officials of
their unfettered choice." Thus, we have invariably held that the will of the electorate should ever be
respected, not defeated or frustrated by material defects in the winning candidate's certificate of
candidacy (including one not being a registered elector in the very municipality where he was
nevertheless elected president of Meycauayan, Yra vs. Abano 52 Phil. 380 [1928], which
while mandatory before the elections (and would therefore render null and void the certificate of
candidacy) were held to be directory only after the elections, as otherwise innocent voters will be
deprived of their votes without any fault on their part. (Lino Luna, supra; also Canceran vs. Comelec,
107 Phil. 607 [1960], Corocoro vs. Bascara 9 SCRA 522 [1963], Pungutan vs. Abubakar, 43 SCRA
11 [1972]; and Lacson, Jr. vs. Posadas 72 SCRA 170 [1976]). After all, the whole purpose of these
first martial law local elections on January 30, 1980 was to enable the people to exercise their right
of suffrage and to vote for the candidates of their choice. It is not conducive to justice and
democracy that independent or opposition candidates be summarily knocked out and that the
nominees of the party in power be thereby left unopposed. The said 1980 local elections were
precisely called to give the electorate a chance after nine years to elect the candidates of their
choice and it would be tragic to ten them now that it was but an exercise in futility and they could not
even vote yes or no for respondent as the unopposed candidate left for the vice-mayoralty due to the
constricted application of the letter rather than the substance and spirit of the law which is what gives
the law life and meaning. (Cf. the writer's dissents in Gabatan vs. Comelec, G.R. No. 52381, January
26, 1980; and Sibulo vs. Comelec, G.R. No. 52422, January 29, 1980)

Finally, the very essence of elections is to give the electorate a choice and to elect the candidate of
their choice. I vote, therefore, that petitioner's substitute certificate of candidacy should be given due
course and his votes counted and that he should be forthwith seated as the people's choice if the
official count of his votes shows the truth of his averment that he polled the highest number of votes.
The losing candidate repudiated by the people should not offend the sovereign will of the people
who rejected him by assuming office as the lone unopposed candidate in consequence of the
Comelec's unjustified post-election refusal to give due course to petitioner's substitute candidacy.
(Cf. the writer's separate concurrence in Nepomuceno vs. Comelec, G.R. Nos. 52427 and 52506,
May 15, 1980)

This would be but to give substance and meaning to the President's oft-repeated pleas for
encouraging legitimate opposition rather than to alienate them. Here, petitioner presented to his
townmates impressive credentials: the ration's youngest first councilor in the 1967 elections who was
to take up law and graduate as a U.P. lawyer during his councilorship and became a member of the
bar in 1973 and an active law practitioner. There is no question of "turncoatism" or disqualification
here. All that is asked is to respect the verdict of the electorate and not to disenfranchise them by
declaring their legitimate votes for petitioner as stray votes.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 205136 December 2, 2014

OLIVIA DA SILVA CERAFICA, Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

DECISION

PEREZ, J.:

For the consideration of the Court is the Special Civil Action for Certiorari under Rule 64 of the
Revised Rules of Court, assailing the ruling of respondent Commission on Elections (Comelec)
which cancelled the Certificate of Candidacy (COC) of Kimberly Da Silva Cerafica (Kimberly) and
denied the substitution of Kimberly by petitioner Olivia Da Silva Cerafica (Olivia).

On 1 October 2012, Kimberly filed her COC for Councilor, City of Taguig for the 2013 Elections. Her
COC stated that she was born on 29 October 1992, or that she will be twenty (20) years of age on
the day of the elections,1 in contravention of the requirement that one must be at least twenty-three
(23) years of age on the day of the elections as set out in Sec. 9 (c) of Republic Act (R.A.) No. 8487
(Charter of the City of Taguig).2 As such, Kimberly was summoned to a clarificatory hearing due to
the age qualification.

Instead of attending the hearing,Kimberly opted to file a sworn Statement of Withdrawal of COC on
17 December 2012.3 Simultaneously, Olivia filed her own COC as a substitute of Kimberly. Owing to
these events, the clarificatory hearing no longer pushed through.

In a Memorandum dated 18 December 2012, Director Esmeralda Amora-Ladra (Director Amora-

Ladra) of the Comelec Law Department recommended the cancellation of Kimberly’s COC, and
consequently, the denial of the substitution of Kimberly by Olivia. Relying on Comelec Resolution
No. 9551,4 Director Amora-Ladra opined that it is as if no COC was filed by Kimberly; thus, she
cannot be substituted.

In a Special En Banc Meeting of the Comelec on 3 January 2013,5 the Comelec adopted the
recommendation of Director Amora-Ladra, cancelled Kimberly’s COC, and denied the substitution of
Kimberly by Olivia as an effect of the cancellation of Kimberly’s COC, viz:6

The Commission RESOLVED, as it hereby RESOLVES, to approve the foregoing recommendation

of Director Esmeralda-AmoraLadra, Law Department, as follows:

1. To cancelthe Certificate of Candidacy (COC) of aspirant Kimberly Da Silva Cerafica

without prejudice to any civil, criminal or administrative liability that she may have incurred
pursuant to Section 14 of COMELEC Resolution 9518; and

2. To deny the substitution of Kimberly Da Silva Cerafica by Olivia Da Silva Cerafica as an

effect of the cancellation of the COC of Kimberly.
Let the Law Department implement this resolution.

SO ORDERED.

Olivia then filed the present petition for certiorari with Prayer for the Issuance of a Temporary
Restraining Order, Status Quo AnteOrder, and/or Writ of Preliminary Mandatory Injunction, raising
the following issues:7

I.

WHETHER PUBLIC RESPONDENT COMMISSION ON ELECTIONS ACTED WITH GRAVE

ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND
CONTRARY TO LAW AND JURISPRUDENCE IN ISSUING THE ASSAILED MINUTE
RESOLUTION RESULTING IN THE CANCELLATION OF THE CERTIFICATE OF CANDIDACY
(COC) OF ASPIRANT KIMBERLY DA SILVA CERAFICA AND THE DENIAL OF THE
SUBSTITUTION OF KIMBERLY DA SILVA CERAFICA BY OLIVIA DA SILVA CERAFICA AS AN
EFFECT OF THE CANCELLATION OF THE COC OF KIMBERLY.

II.

WHETHER PUBLIC RESPONDENT COMMISSION ON ELECTIONS ACTED WITH GRAVE

ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND
CONTRARY TO LAW AND JURISPRUDENCE WHEN IT RULED THAT THERE WAS NO VALID
SUBSTITUTION BY PETITIONER FOR KIMBERLY RESULTING IN THE MOTU PROPRIO DENIAL
OF PETITIONER’S CERTIFICATE OF CANDIDACY.

III.

WHETHER PUBLIC RESPONDENT COMMISSION ON ELECTIONS ACTED WITH GRAVE

ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND
CONTRARY TO LAW AND JURISPRUDENCE IN ISSUING THE ASSAILED RESOLUTION
WITHOUT GIVING PETITIONER AN OPPORTUNITY TO BE HEARD, THEREBY RESULTING IN
THE MOTU PROPRIODENIAL OF THE SUBSTITUTION OF KIMBERLY DA SILVA CERAFICA BY
OLIVIA DA SILVA CERAFICA.

In its Comment8 filed on 22 April 2013, respondent Comelec argued that Olivia cannot substitute
Kimberly as the latter was never an official candidate because she was not eligible for the post by
reason of her age, and that, moreover, the COC that Kimberly filed was invalid because it contained
a material misrepresentation relating to her eligibility for the office she seeks to be elected to.9 The
Comelec further averred that it can cancel Kimberly’s COC motu proprioas it may look into patent
defects in the COCs, such as Kimberly’s failure to comply with the age requirement.10

In her Reply11 filed on 10 May 2013, Oliviacountered that although Kimberly may not be qualified to
run for election because of her age, it cannot be denied that she still filed a valid COC and was, thus,
an official candidate who may be substituted.12 Olivia also claimed that there was no ground to
cancel or deny Kimberly’s COC on the ground of lack of qualification and material misrepresentation
because she did not misrepresent her birth dateto qualify for the position of councilor, and as there
was no deliberate attempt to mislead the electorate, which is precisely why she withdrew her COC
upon learning that she was not qualified.13
At the outset, we note that a verification with the Comelec database yields the finding that Olivia was
not among the official candidates14 for the 2013 Elections and, thus, was not voted for.15 As such, a
ruling on the present petition would no longer be of practical use or value. Even if we were to resolve
the petition for the purpose of determining Olivia’s legal status as a legitimate and qualified
candidate for public office, such purpose has been rendered inconsequential as a result of the
proclamation of the winning councilors for the 2013 elections.16

Be that as it may, the Court deems it opportune to address the merits of the case, if only to caution
the Comelec against the precipitate cancellation of COCs.

In Albaña v. Comelec,17 we held that where the issues have become moot and academic, there is no
justiciable controversy, thereby rendering the resolution of the same of no practical use or value.
Nonetheless, courts will decide a question otherwise moot and academic if it is capable of repetition,
yet evading review. In this case, we find it necessary to resolve the issues raised in the petition in
order to prevent a repetition thereof and, thus, enhance free, orderly, and peaceful elections.

VALID SUBSTITUTION

In declaring that Kimberly, being under age, could not be considered to have filed a valid COC and,
thus, could not be validly substituted by Olivia, we find that the Comelec gravely abused its
discretion.

Firstly, subject to its authority over nuisance candidates18 and its power to deny due course to or
cancel COCs under Sec. 78, Batas Pambansa (B.P.) Blg. 881, the Comelec has the ministerial duty
to receive and acknowledge receipt of COCs.19

In Cipriano v. Comelec,20 we ruled that the Comelec has no discretion to give or not to give due
couse to COCs. We emphasized that the duty of the Comelec to give due course to COCs filed in
due form is ministerial in character, and that whilethe Comelec may look into patent defects in the
COCs, it may not go into matters not appearing on their face. The question of eligibility or ineligibility
of a candidate is thus beyond the usual and proper cognizance of the Comelec.

Section 77 of the Omnibus Election Code (B.P. Blg. 881) provides for the procedure of substitution
of candidates, to wit:

Sec. 77. Candidates in case of death, disqualification or withdrawal of another. – If after the last day
for the filing of certificates of candidacy, an official candidate of a registered or accredited political
party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by,
the same political party may file a certificate of candidacy to replace the candidate who died,
withdrew or was disqualified. The substitute candidate nominated by the political party concerned
may file his certificate of candidacy for the office affected in accordance with the preceding sections
not later than mid-day of election day of the election.

If the death, withdrawal or disqualification should occur between the day before the election and mid-
day of election day, said certificate may be filed with any board of election inspectors in the political
subdivision where he is candidate or, in case of candidates to be voted for by the entire electorate of
the country, with the Commission.

Under the express provision of Sec. 77 of B. P. Blg. 881, not just any person, but only "an official
candidate of a registered or accredited political party" may be substituted.21 In the case at bar,
Kimberly was an official nominee of the Liberal Party;22 thus, she can be validly substituted.
The next question then is whether Olivia complied with all of the requirements for a valid substitution;
we answer in the affirmative. First, there was a valid withdrawal of Kimberly’s COC after the last day
for the filing of COCs; second, Olivia belongs to and is certified to by the same political party to
which Kimberly belongs;23 and third, Olivia filed her COC not later than mid-day of election day.24

In Luna v. Comelec,25 where the candidate, who was also under age, withdrew his COC before
election day and was substituted by a qualified candidate, we declared that suchsubstitution was
valid. The Court eloquently explained:

Substitution of Luna for Hans Roger was Valid

Luna contends that Hans Roger filed a valid certificate of candidacy and, subsequently, upon Hans
Roger’s withdrawal of his certificate of candidacy, there was a valid substitution by Luna. On the
other hand, the COMELEC ruled that Hans Roger, being under age, could not be considered tohave
filed a valid certificate of candidacy and, therefore, is not a valid candidate who could be substituted
by Luna.

When a candidate files his certificate of candidacy, the COMELEC has a ministerial duty to receive
and acknowledge its receipt. Section 76 of the Omnibus Election Code(Election Code) provides:

Sec. 76. Ministerial duty of receiving and acknowledging receipt. – The Commission, provincial
election supervisor, election registrar or officer designated by the Commission or the board of
election inspectors under the succeeding section shall have the ministerial duty to receive and
acknowledge receipt of the certificate of candidacy.

In this case, when Hans Roger filed his certificate of candidacy on 5 January 2004, the COMELEC
had the ministerial duty to receive and acknowledge receipt of Hans Roger’s certificate of candidacy.
Thus, the COMELEC had the ministerial duty to give due course to Hans Rogers certificate of
candidacy.

On 15 January 2004, Hans Roger withdrew his certificate of candidacy. The Election Code allows a
person who has filed a certificate of candidacy to withdraw the same prior to the election by
submitting a written declaration under oath. There is no provision of law which prevents a candidate
from withdrawing his certificate of candidacy before the election.

On the same date, Luna filed her certificate of candidacy as substitute for Hans Roger. Section 77 of
the Election Code prescribes the rules on substitution of an official candidate of a registered political
party who dies, withdraws, or is disqualified for any cause after the last day for the filing of certificate
of candidacy. Section 77 of the Election Code provides:

Sec. 77. Candidates in case of death, disqualification or withdrawal of another. – If after the last day
for the filing of certificates of candidacy, an official candidate of a registered or accredited
politicalparty dies, withdraws or is disqualified for any cause, only a person belonging to, and
certified by, the same political party may file a certificate of candidacy to replace the candidate who
died, withdrew or was disqualified. The substitute candidate nominated by the political party
concerned may file his certificate of candidacy for the office affected in accordance with the
preceding sections not later thanmid-day of election day of the election. If the death, withdrawal or
disqualification should occur between the day before the election and midday of election day, said
certificate may be filed with any board of election inspectors in the political subdivision where he is
candidate or, in case of candidates to be voted for by the entire electorate of the country, with the
Commission.
Since Hans Roger withdrew his certificate of candidacy and the COMELEC found that Luna
complied with all the procedural requirements for a valid substitution, Luna can validly substitute for
Hans Roger.

The COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in
declaring that Hans Roger, being under age, could not be considered to have filed a valid certificate
of candidacy and, thus, could not be validly substituted by Luna. The COMELEC may not, by itself,
without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in due
form. In Sanchez vs. Del Rosario, the Court ruled that the question of eligibility or ineligibility of a
candidate for non-age is beyond the usual and proper cognizance of the COMELEC.

Section 74 of the Election Code provides that the certificate of candidacy shall state, among others,
the date of birth of the person filing the certificate. Section 78 of the Election Code provides that in
case a person filing a certificate of candidacy has committed false material representation, a verified
petition to deny due course to or cancel the certificate of candidacy of said person may be filed at
any time not later than 25 days from the time of filing of the certificate of candidacy.

If Hans Roger made a material misrepresentation as to his date of birth or age in his certificate of
candidacy, his eligibility may only be impugned through a verified petition to deny due course to or
cancel such certificate of candidacy under Section 78 of the Election Code.

In this case, there was no petition to deny due course to or cancel the certificate of candidacyof
Hans Roger. The COMELEC only declared that Hans Roger did not file a valid certificate of
candidacy and, thus, was not a valid candidate in the petition to deny due course to or cancel Luna’s
certificate of candidacy. In effect, the COMELEC, without the proper proceedings, cancelled Hans
Roger’s certificate of candidacy and declared the substitution by Luna invalid.

It would have been different if there was a petition to deny due course to or cancel Hans Roger’s
certificate of candidacy. For if the COMELEC cancelled Hans Roger’s certificate of candidacy after
1âwphi1

the proper proceedings, then he is no candidate at all and there can be no substitution of a person
whose certificate of candidacy has been cancelled and denied due course. However, Hans Roger’s
certificate of candidacy was never cancelled or denied due course by the COMELEC.

Moreover, Hans Roger already withdrew his certificate of candidacy before the COMELEC declared
that he was not a valid candidate. Therefore, unless Hans Roger’s certificate of candidacy was
denied due course or cancelled in accordance with Section 78 of the Election Code, Hans Roger’s
certificate of candidacy was valid and he may be validly substituted by Luna.26 (Emphases supplied.)

LACK OF DUE PROCESS

Moreover, in simply relying on the Memorandum of Director Amora Ladra in cancelling Kimberly’s
COC and denying the latter’s substitution by Olivia, and absent any petition to deny due course to or
cancel said COC, the Court finds that the Comelec once more gravely abused its discretion. The
Court reminds the Comelec that, inthe exercise of it adjudicatory or quasi-judicial powers, the
Constitution27 mandates it to hear and decide cases first by Division and, upon motion for
reconsideration, by the En Banc.

Where a power rests in judgment or discretion, so that it is of judicial nature or character, but does
not involve the exercise of functions of a judge, or is conferred upon an officer other than a judicial
officer, it is deemed quasi-judicial.28 As cancellation proceedings involve the exercise of quasi judicial
functions of the Comelec, the Comelec in Division should have first decided this case.
In Bautista v. Comelec, et al.,29 where the Comelec Law Department recommended the cancellation
of a candidate’s COC for lack of qualification, and which recommendation was affirmed by the
Comelec En Banc, the Court held that the Comelec En Banc cannot short cut the proceedings by
acting on the case without a prior action by a division because it denies due process to the
candidate. The Court held:

A division of the COMELEC should have first heard this case. The COMELEC en banc can only act
on the case if there is a motion for reconsideration of the decision of the COMELEC division. Hence,
the COMELEC en banc acted without jurisdiction when it ordered the cancellation of Bautista’s
certificate of candidacy without first referring the case to a division for summary hearing.

xxxx

Under Section 3, Rule 23 of the 1993 COMELEC Rules of Procedure, a petition for the denial or
cancellation of a certificate of candidacy must be heard summarily after due notice. It isthus clear
that cancellation proceedings involve the exercise of the quasi-judicial functions of the COMELEC
which the COMELEC in divisionshould first decide. More so in this case where the cancellation
proceedings originated not from a petition but from a report of the election officer regarding the lack
of qualification of the candidate in the barangay election. The COMELEC en bane cannot short cut
the proceedings by acting on the case without a prior action by a division because it denies due
process to the candidate.30 (Emphasis supplied.)

The determination of whether a candidate is eligible for the position he is seeking involves a
determination of fact where parties must be allowed to adduce evidence in support of their
contentions.31 We thus caution the Comelec against its practice of impetuous cancellation of COCs
via minute resolutions adopting the recommendations of its Law Department when the situation
properly calls for the case's referral to a Division for summary hearing.

WHEREFORE, premises considered, with the cautionary counsel that cancellation of certificate of
candidacy is a quasi-judicial process, and accordingly is heard by the Commission on Elections in
Division and En Banc on appeal, we DISMISS the present petition for being moot and academic.

SO ORDERED.
ERNESTO S. MERCADO, petitioner,
vs.
EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS, respondents.

MENDOZA, J.:

Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for
vice mayor of the City of Makati in the May 11, 1998 elections. The other one was Gabriel V. Daza
III. The results of the election were as follows:

Eduardo B. Manzano 103,853

Ernesto S. Mercado 100,894

Gabriel V. Daza III 54,2751

The proclamation of private respondent was suspended in view of a pending petition for
disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a
citizen of the Philippines but of the United States.

In its resolution, dated May 7, 1998,2 the Second Division of the COMELEC granted the petition of
Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the
ground that he is a dual citizen and, under §40(d) of the Local Government Code, persons with dual
citizenship are disqualified from running for any elective position. The COMELEC's Second Division
said:

What is presented before the Commission is a petition for disqualification of Eduardo

Barrios Manzano as candidate for the office of Vice-Mayor of Makati City in the May
11, 1998 elections. The petition is based on the ground that the respondent is an
American citizen based on the record of the Bureau of Immigration and
misrepresented himself as a natural-born Filipino citizen.

In his answer to the petition filed on April 27, 1998, the respondent admitted that he
is registered as a foreigner with the Bureau of Immigration under Alien Certificate of
Registration No. B-31632 and alleged that he is a Filipino citizen because he was
born in 1955 of a Filipino father and a Filipino mother. He was born in the United
States, San Francisco, California, September 14, 1955, and is considered in
American citizen under US Laws. But notwithstanding his registration as an
American citizen, he did not lose his Filipino citizenship.

Judging from the foregoing facts, it would appear that respondent Manzano is born a
Filipino and a US citizen. In other words, he holds dual citizenship.

The question presented is whether under our laws, he is disqualified from the
position for which he filed his certificate of candidacy. Is he eligible for the office he
seeks to be elected?
 Under Section 40(d) of the Local Government Code, those holding dual citizenship
are disqualified from running for any elective local position.

WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios

Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati City.

On May 8, 1998, private respondent filed a motion for reconsideration.3 The motion remained
pending even until after the election held on May 11, 1998.

Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the
board of canvassers tabulated the votes cast for vice mayor of Makati City but suspended the
proclamation of the winner.

On May 19, 1998, petitioner sought to intervene in the case for disqualification.4 Petitioner's motion
was opposed by private respondent.

The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its
resolution. Voting 4 to 1, with one commissioner abstaining, the COMELEC en banc reversed the
ruling of its Second Division and declared private respondent qualified to run for vice mayor of the
City of Makati in the May 11, 1998 elections.5The pertinent portions of the resolution of the
COMELEC en banc read:

As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco,

California, U.S.A. He acquired US citizenship by operation of the United States
Constitution and laws under the principle ofjus soli.

He was also a natural born Filipino citizen by operation of the 1935 Philippine
Constitution, as his father and mother were Filipinos at the time of his birth. At the
age of six (6), his parents brought him to the Philippines using an American passport
as travel document. His parents also registered him as an alien with the Philippine
Bureau of Immigration. He was issued an alien certificate of registration. This,
however, did not result in the loss of his Philippine citizenship, as he did not
renounce Philippine citizenship and did not take an oath of allegiance to the United
States.

It is an undisputed fact that when respondent attained the age of majority, he

registered himself as a voter, and voted in the elections of 1992, 1995 and 1998,
which effectively renounced his US citizenship under American law. Under Philippine
law, he no longer had U.S. citizenship.

At the time of the May 11, 1998 elections, the resolution of the Second Division,
adopted on May 7, 1998, was not yet final. Respondent Manzano obtained the
highest number of votes among the candidates for vice-mayor of Makati City,
garnering one hundred three thousand eight hundred fifty three (103,853) votes over
his closest rival, Ernesto S. Mercado, who obtained one hundred thousand eight
hundred ninety four (100,894) votes, or a margin of two thousand nine hundred fifty
nine (2,959) votes. Gabriel Daza III obtained third place with fifty four thousand two
hundred seventy five (54,275) votes. In applying election laws, it would be far better
to err in favor of the popular choice than be embroiled in complex legal issues
involving private international law which may well be settled before the highest court
(Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727).
 WHEREFORE, the Commission en banc hereby REVERSES the resolution of the
Second Division, adopted on May 7, 1998, ordering the cancellation of the
respondent's certificate of candidacy.

We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a

candidate for the position of vice-mayor of Makati City in the May 11, 1998, elections.

ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon
proper notice to the parties, to reconvene and proclaim the respondent Eduardo Luis
Barrios Manzano as the winning candidate for vice-mayor of Makati City.

Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening of
August 31, 1998, proclaimed private respondent as vice mayor of the City of Makati.

This is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en
banc and to declare private respondent disqualified to hold the office of vice mayor of Makati City.
Petitioner contends that —

[T]he COMELEC en banc ERRED in holding that:

A. Under Philippine law, Manzano was no longer a U.S. citizen when he:

1. He renounced his U.S. citizenship when he attained the age of

majority when he was already 37 years old; and,

2. He renounced his U.S. citizenship when he (merely) registered

himself as a voter and voted in the elections of 1992, 1995 and 1998.

B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of the
City of Makati;

C. At the time of the May 11, 1998 elections, the resolution of the Second Division
adopted on 7 May 1998 was not yet final so that, effectively, petitioner may not be
declared the winner even assuming that Manzano is disqualified to run for and hold
the elective office of Vice-Mayor of the City of Makati.

We first consider the threshold procedural issue raised by private respondent Manzano — whether
petitioner Mercado his personality to bring this suit considering that he was not an original party in
the case for disqualification filed by Ernesto Mamaril nor was petitioner's motion for leave to
intervene granted.

I. PETITIONER'S RIGHT TO BRING THIS SUIT

Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the
COMELEC in support of his claim that petitioner has no right to intervene and, therefore, cannot
bring this suit to set aside the ruling denying his motion for intervention:

Sec. 1. When proper and when may be permitted to intervene. — Any person
allowed to initiate an action or proceeding may, before or during the trial of an action
or proceeding, be permitted by the Commission, in its discretion to intervene in such
action or proceeding, if he has legal interest in the matter in litigation, or in the
 success of either of the parties, or an interest against both, or when he is so situated
as to be adversely affected by such action or proceeding.

xxx xxx xxx

Sec. 3. Discretion of Commission. — In allowing or disallowing a motion for

intervention, the Commission or the Division, in the exercise of its discretion, shall
consider whether or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties and whether or not the intervenor's
rights may be fully protected in a separate action or proceeding.

Private respondent argues that petitioner has neither legal interest in the matter in litigation
nor an interest to protect because he is "a defeated candidate for the vice-mayoralty post of
Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City if the private
respondent be ultimately disqualified by final and executory judgment."

The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the
proceedings before the COMELEC, there had already been a proclamation of the results of the
election for the vice mayoralty contest for Makati City, on the basis of which petitioner came out only
second to private respondent. The fact, however, is that there had been no proclamation at that time.
Certainly, petitioner had, and still has, an interest in ousting private respondent from the race at the
time he sought to intervene. The rule in Labo v. COMELEC,6 reiterated in several cases,7 only
applies to cases in which the election of the respondent is contested, and the question is whether
one who placed second to the disqualified candidate may be declared the winner. In the present
case, at the time petitioner filed a "Motion for Leave to File Intervention" on May 20, 1998, there had
been no proclamation of the winner, and petitioner's purpose was precisely to have private
respondent disqualified "from running for [an] elective local position" under §40(d) of R.A. No. 7160.
If Ernesto Mamaril (who originally instituted the disqualification proceedings), a registered voter of
Makati City, was competent to bring the action, so was petitioner since the latter was a rival
candidate for vice mayor of Makati City.

Nor is petitioner's interest in the matter in litigation any less because he filed a motion for
intervention only on May 20, 1998, after private respondent had been shown to have garnered the
highest number of votes among the candidates for vice mayor. That petitioner had a right to
intervene at that stage of the proceedings for the disqualification against private respondent is clear
from §6 of R.A. No. 6646, otherwise known as the Electoral Reform Law of 1987, which provides:

Any candidate who his been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election, the Court
or Commission shall continue with the trial and hearing of action, inquiry, or protest
and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the
evidence of guilt is strong.

Under this provision, intervention may be allowed in proceedings for disqualification even after
election if there has yet been no final judgment rendered.

The failure of the COMELEC en banc to resolve petitioner's motion for intervention was tantamount
to a denial of the motion, justifying petitioner in filing the instant petition for certiorari. As the
COMELEC en banc instead decided the merits of the case, the present petition properly deals not
only with the denial of petitioner's motion for intervention but also with the substantive issues
respecting private respondent's alleged disqualification on the ground of dual citizenship.

This brings us to the next question, namely, whether private respondent Manzano possesses dual
citizenship and, if so, whether he is disqualified from being a candidate for vice mayor of Makati City.

II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION

The disqualification of private respondent Manzano is being sought under §40 of the Local
Government Code of 1991 (R.A. No. 7160), which declares as "disqualified from running for any
elective local position: . . . (d) Those with dual citizenship." This provision is incorporated in the
Charter of the City of Makati. 8

Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him
in this case, contends that through §40(d) of the Local Government Code, Congress has
"command[ed] in explicit terms the ineligibility of persons possessing dual allegiance to hold local
elective office."

To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result
of the concurrent application of the different laws of two or more states, a person is simultaneously
considered a national by the said states.9 For instance, such a situation may arise when a person
whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state
which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his
part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV)
of our Constitution, it is possible for the following classes of citizens of the Philippines to possess
dual citizenship:

(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the
principle of jus soli;

(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of
their father's' country such children are citizens of that country;

(3) Those who marry aliens if by the laws of the latter's country the former are
considered citizens, unless by their act or omission they are deemed to have
renounced Philippine citizenship.

There may be other situations in which a citizen of the Philippines may, without performing any act,
be also a citizen of another state; but the above cases are clearly possible given the constitutional
provisions on citizenship.

Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by
some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance
is the result of an individual's volition.

With respect to dual allegiance, Article IV, §5 of the Constitution provides: "Dual allegiance of
citizens is inimical to the national interest and shall be dealt with by law." This provision was included
in the 1987 Constitution at the instance of Commissioner Blas F. Ople who explained its necessity
as follows: 10
 . . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I
have circulated a memorandum to the Bernas Committee according to which a dual
allegiance — and I reiterate a dual allegiance — is larger and more threatening than
that of mere double citizenship which is seldom intentional and, perhaps, never
insidious. That is often a function of the accident of mixed marriages or of birth on
foreign soil. And so, I do not question double citizenship at all.

What we would like the Committee to consider is to take constitutional cognizance of

the problem of dual allegiance. For example, we all know what happens in the
triennial elections of the Federation of Filipino-Chinese Chambers of Commerce
which consists of about 600 chapters all over the country. There is a Peking ticket, as
well as a Taipei ticket. Not widely known is the fact chat the Filipino-Chinese
community is represented in the Legislative Yuan of the Republic of China in Taiwan.
And until recently, sponsor might recall, in Mainland China in the People's Republic
of China, they have the Associated Legislative Council for overseas Chinese wherein
all of Southeast Asia including some European and Latin countries were
represented, which was dissolved after several years because of diplomatic friction.
At that time, the Filipino-Chinese were also represented in that Overseas Council.

When I speak of double allegiance, therefore, I speak of this unsettled kind of

allegiance of Filipinos, of citizens who are already Filipinos but who, by their acts,
may be said to be bound by a second allegiance, either to Peking or Taiwan. I also
took close note of the concern expressed by some Commissioners yesterday,
including Commissioner Villacorta, who were concerned about the lack of guarantees
of thorough assimilation, and especially Commissioner Concepcion who has always
been worried about minority claims on our natural resources.

Dull allegiance can actually siphon scarce national capital to Taiwan, Singapore,
China or Malaysia, and this is already happening. Some of the great commercial
places in downtown Taipei are Filipino-owned, owned by Filipino-Chinese — it is of
common knowledge in Manila. It can mean a tragic capital outflow when we have to
endure a capital famine which also means economic stagnation, worsening
unemployment and social unrest.

And so, this is exactly what we ask — that the Committee kindly consider
incorporating a new section, probably Section 5, in the article on Citizenship which
will read as follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND
SHALL BE DEALT WITH ACCORDING TO LAW.

In another session of the Commission, Ople spoke on the problem of these citizens with dual
allegiance, thus: 11

. . . A significant number of Commissioners expressed their concern about dual

citizenship in the sense that it implies a double allegiance under a double sovereignty
which some of us who spoke then in a freewheeling debate thought would be
repugnant to the sovereignty which pervades the Constitution and to citizenship itself
which implies a uniqueness and which elsewhere in the Constitution is defined in
terms of rights and obligations exclusive to that citizenship including, of course, the
obligation to rise to the defense of the State when it is threatened, and back of this,
Commissioner Bernas, is, of course, the concern for national security. In the course
of those debates, I think some noted the fact that as a result of the wave of
naturalizations since the decision to establish diplomatic relations with the People's
 Republic of China was made in 1975, a good number of these naturalized Filipinos
still routinely go to Taipei every October 10; and it is asserted that some of them do
renew their oath of allegiance to a foreign government maybe just to enter into the
spirit of the occasion when the anniversary of the Sun Yat-Sen Republic is
commemorated. And so, I have detected a genuine and deep concern about double
citizenship, with its attendant risk of double allegiance which is repugnant to our
sovereignty and national security. I appreciate what the Committee said that this
could be left to the determination of a future legislature. But considering the scale of
the problem, the real impact on the security of this country, arising from, let us say,
potentially great numbers of double citizens professing double allegiance, will the
Committee entertain a proposed amendment at the proper time that will prohibit, in
effect, or regulate double citizenship?

Clearly, in including §5 in Article IV on citizenship, the concern of the Constitutional Commission was
not with dual citizens per se but with naturalized citizens who maintain their allegiance to their
countries of origin even after their naturalization. Hence, the phrase "dual citizenship" in R.A. No.
7160, §40(d) and in R.A. No. 7854, §20 must be understood as referring to "dual allegiance."
Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those
with dual allegiance, who must, therefore, be subject to strict process with respect to the termination
of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their
certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with
dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of
different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional
Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no
control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But
whether she is considered a citizen of another country is something completely beyond our
control." 12

By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other
country of which they are also citizens and thereby terminate their status as dual citizens. It may be
that, from the point of view of the foreign state and of its laws, such an individual has not effectively
renounced his foreign citizenship. That is of no moment as the following discussion on §40(d)
between Senators Enrile and Pimentel clearly shows: 13

SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page
17: "Any person with dual citizenship" is disqualified to run for any elective local
position. Under the present Constitution, Mr. President, someone whose mother is a
citizen of the Philippines but his father is a foreigner is a natural-born citizen of the
Republic. There is no requirement that such a natural born citizen, upon reaching the
age of majority, must elect or give up Philippine citizenship.

On the assumption that this person would carry two passports, one belonging to the
country of his or her father and one belonging to the Republic of the Philippines, may
such a situation disqualify the person to run for a local government position?

SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment
when he would want to run for public office, he has to repudiate one of his
citizenships.

SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of
origin or the country of the father claims that person, nevertheless, as a citizen? No
one can renounce. There are such countries in the world.
 SENATOR PIMENTEL. Well, the very fact that he is running for public office would,
in effect, be an election for him of his desire to be considered as a Filipino citizen.

SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require
an election. Under the Constitution, a person whose mother is a citizen of the
Philippines is, at birth, a citizen without any overt act to claim the citizenship.

SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the
Gentleman's example, if he does not renounce his other citizenship, then he is
opening himself to question. So, if he is really interested to run, the first thing he
should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I
have only one citizenship."

SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr.
President. He will always have one citizenship, and that is the citizenship invested
upon him or her in the Constitution of the Republic.

SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will
prove that he also acknowledges other citizenships, then he will probably fall under
this disqualification.

This is similar to the requirement that an applicant for naturalization must renounce "all allegiance
and fidelity to any foreign prince, potentate, state, or sovereignty" 14 of which at the time he is a
subject or citizen before he can be issued a certificate of naturalization as a citizen of the
Philippines. In Parado v. Republic, 15 it was held:

[W]hen a person applying for citizenship by naturalization takes an oath that he

renounce, his loyalty to any other country or government and solemnly declares that
he owes his allegiance to the Republic of the Philippines, the condition imposed by
law is satisfied and compiled with. The determination whether such renunciation is
valid or fully complies with the provisions of our Naturalization Law lies within the
province and is an exclusive prerogative of our courts. The latter should apply the
law duly enacted by the legislative department of the Republic. No foreign law may or
should interfere with its operation and application. If the requirement of the Chinese
Law of Nationality were to be read into our Naturalization Law, we would be applying
not what our legislative department has deemed it wise to require, but what a foreign
government has thought or intended to exact. That, of course, is absurd. It must be
resisted by all means and at all cost. It would be a brazen encroachment upon the
sovereign will and power of the people of this Republic.

III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP

The record shows that private respondent was born in San Francisco, California on September 4,
1955, of Filipino parents. Since the Philippines adheres to the principle of jus sanguinis, while the
United States follows the doctrine of jus soli, the parties agree that, at birth at least, he was a
national both of the Philippines and of the United States. However, the COMELEC en banc held that,
by participating in Philippine elections in 1992, 1995, and 1998, private respondent "effectively
renounced his U.S. citizenship under American law," so that now he is solely a Philippine national.

Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is not
sufficient evidence of renunciation and that, in any event, as the alleged renunciation was made
when private respondent was already 37 years old, it was ineffective as it should have been made
when he reached the age of majority.

In holding that by voting in Philippine elections private respondent renounced his American
citizenship, the COMELEC must have in mind §349 of the Immigration and Nationality Act of the
United States, which provided that "A person who is a national of the United States, whether by birth
or naturalization, shall lose his nationality by: . . . (e) Voting in a political election in a foreign state or
participating in an election or plebiscite to determine the sovereignty over foreign territory." To be
sure this provision was declared unconstitutional by the U.S. Supreme Court in Afroyim v. Rusk 16 as
beyond the power given to the U.S. Congress to regulate foreign relations. However, by filing a
certificate of candidacy when he ran for his present post, private respondent elected Philippine
citizenship and in effect renounced his American citizenship. Private respondent's certificate of
candidacy, filed on March 27, 1998, contained the following statements made under oath:

6. I AM A FILIPINO CITIZEN (STATE IF "NATURAL-BORN" OR

"NATURALIZED") NATURAL-BORN

xxx xxx xxx

10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN

LORENZO, CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR.

11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN

COUNTRY.

12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT

AND DEFEND THE CONSTITUTION OF THE PHILIPPINES AND WILL MAINTAIN
TRUE FAITH AND ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS,
LEGAL ORDERS AND DECREES PROMULGATED BY THE DULY CONSTITUTED
AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND THAT I IMPOSE
THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT MENTAL
RESERVATION OR PURPOSE OF EVASION. I HEREBY CERTIFY THAT THE
FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY OWN PERSONAL
KNOWLEDGE.

The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively
removing any disqualification he might have as a dual citizen. Thus, in Frivaldo v. COMELEC it was
held: 17

It is not disputed that on January 20, 1983 Frivaldo became an American. Would the
retroactivity of his repatriation not effectively give him dual citizenship, which under
Sec. 40 of the Local Government Code would disqualify him "from running for any
elective local position?" We answer this question in the negative, as there is cogent
reason to hold that Frivaldo was really STATELESS at the time he took said oath of
allegiance and even before that, when he ran for governor in 1988. In his Comment,
Frivaldo wrote that he "had long renounced and had long abandoned his American
citizenship — long before May 8, 1995. At best, Frivaldo was stateless in the interim
— when he abandoned and renounced his US citizenship but before he was
repatriated to his Filipino citizenship."

On this point, we quote from the assailed Resolution dated December 19, 1995:
 By the laws of the United States, petitioner Frivaldo lost his American
citizenship when he took his oath of allegiance to the Philippine
Government when he ran for Governor in 1988, in 1992, and in 1995.
Every certificate of candidacy contains an oath of allegiance to the
Philippine Government.

These factual findings that Frivaldo has lost his foreign nationality long before the
elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic
that such findings of the Commission are conclusive upon this Court, absent any
showing of capriciousness or arbitrariness or abuse.

There is, therefore, no merit in petitioner's contention that the oath of allegiance contained in private
respondent's certificate of candidacy is insufficient to constitute renunciation that, to be effective,
such renunciation should have been made upon private respondent reaching the age of majority
since no law requires the election of Philippine citizenship to be made upon majority age.

Finally, much is made of the fact that private respondent admitted that he is registered as an
American citizen in the Bureau of Immigration and Deportation and that he holds an American
passport which he used in his last travel to the United States on April 22, 1997. There is no merit in
this. Until the filing of his certificate of candidacy on March 21, 1998, he had dual citizenship. The
acts attributed to him can be considered simply as the assertion of his American nationality before
the termination of his American citizenship. What this Court said in Aznar
v.COMELEC 18 applies mutatis mundatis to private respondent in the case at bar:

. . . Considering the fact that admittedly Osmeña was both a Filipino and an
American, the mere fact that he has a Certificate staring he is an American does not
mean that he is not still a Filipino. . . . [T]he Certification that he is an American does
not mean that he is not still a Filipino, possessed as he is, of both nationalities or
citizenships. Indeed, there is no express renunciation here of Philippine citizenship;
truth to tell, there is even no implied renunciation of said citizenship. When We
consider that the renunciation needed to lose Philippine citizenship must be
"express," it stands to reason that there can be no such loss of Philippine citizenship
when there is no renunciation, either "express" or "implied."

To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a
permanent resident or immigrant of another country; that he will defend and support the Constitution
of the Philippines and bear true faith and allegiance thereto and that he does so without mental
reservation, private respondent has, as far as the laws of this country are concerned, effectively
repudiated his American citizenship and anything which he may have said before as a dual citizen.

On the other hand, private respondent's oath of allegiance to the Philippines, when considered with
the fact that he has spent his youth and adulthood, received his education, practiced his profession
as an artist, and taken part in past elections in this country, leaves no doubt of his election of
Philippine citizenship.

His declarations will be taken upon the faith that he will fulfill his undertaking made under oath.
Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine
citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago, 19 we
sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as
a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in
commercial documents executed abroad that he was a Portuguese national. A similar sanction can
be taken against any one who, in electing Philippine citizenship, renounces his foreign nationality, but subsequently does some act
constituting renunciation of his Philippine citizenship.
G.R. No. 206004 February 24, 2015

JOSEPH B. TIMBOL, Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

RESOLUTION

LEONEN, J.:

The power of the Commission on Elections (COMELEC) to restrict a citizen's right of suffrage should
not be arbitrarily exercised. The COMELEC cannot motu proprio deny due course to or cancel an
alleged nuisance candidate’s certificate of candidacy without providing the candidate his opportunity
to be heard.

This is a Petition1 for Certiorari with prayer for issuance of preliminary mandatory injunction against
the following issuances of the COMELEC: first, Resolution No. 96102 dated January 11, 2013,
declaring petitioner Joseph B. Timbol (Timbol) a nuisance candidate and ordering the removal of his
name from the certified list of candidates;3and second, Minute Resolution4 dated February 5, 2013,
denying his Petition to have his name listed in the certified list of candidates and printed on the
ballots for the May 13, 2013 elections.5

On October 5, 2012, Timbol filed a Certificate of Candidacy6 for the position of Member of the
Sangguniang Panlungsod of the Second District of Caloocan City. On January 15, 2013, he received
a Subpoena7 from COMELEC Election Officer Dinah A. Valencia (Election Officer Valencia), ordering
him to appear before her office on January 17, 2013 for a clarificatory hearing in connection with his
Certificate of Candidacy.8

Timbol, together with his counsel, appeared before Election Officer Valencia. During the clarificatory
hearing, Timbol argued that he was not a nuisance candidate. He contended that in the 2010
elections, he ranked eighth among all the candidates who ran for Member of the Sangguniang
Panlungsod of the Second District of Caloocan City. He allegedly had sufficient resources to sustain
his campaign.9

He pointed out before the clarificatory hearing panel that his name already appeared in the list of
nuisance candidates posted in the COMELEC website pursuant to Resolution No. 9610 dated
January 11, 2013. The clarificatory hearing panel allegedly assured him that his name would be
deleted from the list and that his Certificate of Candidacy would be given due course.10

In the Memorandum11 dated January 17, 2013, Election Officer Valencia recommended that Timbol’s
Certificate of Candidacy be given due course.12

Despite Election Officer Valencia’s favorable recommendation, Timbol’s name was not removed
from the list of nuisance candidates posted in the COMELEC’s website. With the printing of ballots
for the automated elections set on February 4, 2013, Timbol filed on February 2, 2013 a
Petition13 praying that his name be included in the certified list of candidates for the May 13, 2013
elections.14

In the Minute Resolution dated February 5, 2013, the COMELEC denied the Petition for being moot,
considering that the printing of ballots had already begun.15
On March 15, 2013,16 Timbol filed his Petition for Certiorari with this court, arguing that the
COMELEC gravely abused its discretion in declaring him a nuisance candidate.17 According to
Timbol, the COMELEC deprived him of due process of law when he was declared a nuisance
candidate even before Election Officer Valencia conducted the clarificatory hearing.18 He prayed for a
preliminary mandatory injunction ordering the COMELEC to include his name in the certified list of
candidates for the position of Member of Sangguniang Panlungsod of the Second District of
Caloocan City.19

In the Resolution20 dated April 16, 2013, this court ordered the Office of the Solicitor General to
comment on behalf of the COMELEC.

In its Comment,21 the COMELEC argued that the Petition was already moot and academic,
considering that the May 13, 2013 elections had already been conducted.22

Even assuming that the Petition was not moot and academic, the COMELEC maintained that it did
not gravely abuse its discretion. Contrary to Timbol’s argument, he was given an opportunity to be
heard when Election Officer Valencia heard him during the clarificatory hearing. He even admitted
that he attended the clarificatory hearing with his counsel.23

Moreover, the COMELEC did not gravely abuse its discretion in denying Timbol’s Petition to be
included in the certified list of candidates, considering that the printing of ballots had already
started.24

With these arguments, the COMELEC prayed that this court deny the Petition for lack of merit.25

In the Resolution26 dated August 6, 2013, this court ordered Timbol to file a reply. When Timbol failed
to file his reply despite receipt of the order,27 we required Atty. Jose Ventura Aspiras (Atty. Aspiras),
counsel for Timbol, to show cause why he should not be disciplinarily dealt with for failing to file a
reply on behalf of his client in the Resolution28 dated September 2, 2014. We likewise reiterated our
order for Atty. Aspiras to file a reply for Timbol.29Still, Atty. Aspiras failed to comply with our show
cause resolution.

We dispense with the filing of the reply and resolve to decide this case based on the Petition and the
Comment.

The issues for this court’s resolution are the following:

First, whether this case is moot and academic; and

Second, whether respondent COMELEC gravely abused its discretion in denying petitioner Timbol’s
Petition for inclusion in the certified list of candidates.

We deny the Petition.

This case is moot and academic.

A case is moot and academic if it "ceases to present a justiciable controversy because of

supervening events so that a declaration thereon would be of no practical use or value."30 When a
case is moot and academic, this court generally declines jurisdiction over it.31
There are recognized exceptions to this rule. This court has taken cognizance of moot and academic
cases when:

(1) there was a grave violation of the Constitution; (2) the case involved a situation of exceptional
character and was of paramount public interest; (3) the issues raised required the formulation of
controlling principles to guide the Bench, the Bar and the public; and (4) the case was capable of
repetition yet evading review.32 (Citation omitted)

We may no longer act on petitioner’s prayer that his name be included in the certified list of
candidates and be printed on the ballots as a candidate for Member of the Sangguniang
Panlungsod. Petitioner filed with this court his Petition for Certiorari on March 15,2013, 39 days after
respondent began printing the ballots on February 4, 2013. Also, the May 13, 2013 elections had
been concluded, with the winners already proclaimed.

That this case is moot and academic, however, does not preclude us from setting forth "controlling
and authoritative doctrines"33 to be observed by respondent in motu proprio denying due course to or
cancelling certificates of candidacy of alleged nuisance candidates. This motu proprio authority is
always subject to the alleged nuisance candidate’s opportunity to be heard34 — an essential element
of procedural due process.35

II

Respondent’s power to motu proprio deny due course to a certificate of candidacy is subject to the
candidate’s opportunity to be heard.

Under Article II, Section 26 of the Constitution, "[t]he State shall guarantee equal access to
opportunities for public service[.]" This, however, does not guarantee "a constitutional right to run for
or hold public office[.]"36 To run for public office is a mere "privilege subject to limitations imposed by
law."37 Among these limitations is the prohibition on nuisance candidates. Nuisance candidates are
persons who file their certificates of candidacy "to put the election process in mockery or disrepute or
to cause confusion among the voters by the similarity of the names of the registered candidates or
by other circumstances or acts which clearly demonstrate that the candidate has no bona fide
intention to run for the office for which the certificate of candidacy has been filed and thus prevent a
faithful determination of the true will of the electorate."38 In Pamatong v. Commission on
Elections,39 this court explained why nuisance candidates are prohibited from running for public
office:

. . . The State has a compelling interest to ensure that its electoral exercises are rational, objective,
and orderly. Towards this end, the State takes into account the practical considerations in
conducting elections. Inevitably, the greater the number of candidates, the greater the opportunities
for logistical confusion, not to mention the increased allocation of time and resources in preparation
for the election. These practical difficulties should, of course, never exempt the State from the
conduct of a mandated electoral exercise. At the same time, remedial actions should be available to
alleviate these logistical hardships, whenever necessary and proper. Ultimately, a disorderly election
is not merely a textbook example of inefficiency, but a rot that erodes faith in our democratic
institutions. . . .

....

. . . The organization of an election with bona fide candidates standing is onerous enough. To add
1âwphi1

into the mix candidates with no serious intentions or capabilities to run a viable campaign would
actually impair the electoral process. This is not to mention the candidacies which are palpably
ridiculous so as to constitute a one-note joke. The poll body would be bogged by irrelevant minutiae
covering every step of the electoral process, most probably posed at the instance of these nuisance
candidates. It would be a senseless sacrifice on the part of the State.40

To minimize the logistical confusion caused by nuisance candidates, their certificates of candidacy
may be denied due course or cancelled by respondent. This denial or cancellation may be "motu
proprio or upon a verified petition of an interested party,"41 "subject to an opportunity to be heard."42

The opportunity to be heard is a chance "to explain one’s side or an opportunity to seek a
reconsideration of the action or ruling complained of."43 In election cases, due process requirements
are satisfied "when the parties are afforded fair and reasonable opportunity to explain their side of
the controversy at hand."44

In Cipriano v. Commission on Elections,45 this court explained:

[T]he determination whether a candidate is eligible for the position he is seeking involves a
determination of fact where both parties must be allowed to adduce evidence in support of their
contentions. Because the resolution of such fact may result to a deprivation of one’s right to run for
public office, or, as in this case, one’s right to hold public office, it is only proper and fair that the
candidate concerned be notified of the proceedings against him and that he be given the opportunity
to refute the allegations against him. It should be stressed that it is not sufficient, as the COMELEC
claims, that the candidate be notified of the Commission’s inquiry into the veracity of the contents of
his certificate of candidacy, but he must also be allowed to present his own evidence to prove that
he possesses the qualifications for the office he seeks.46 Respondent commits grave abuse of
discretion if it denies due course to or cancels a certificate of candidacy without affording the
candidate an opportunity to be heard.47

Respondent declared petitioner a nuisance candidate without giving him a chance to explain his
bona fide intention to run for office. Respondent had already issued Resolution No. 9610on January
11, 2013 when petitioner appeared before Election Officer Valencia in a clarificatory hearing on
January 17, 2013. This was an ineffective opportunity to be heard.

That petitioner was able to file a Petition for inclusion in the certified list of candidates did not cure
the defect in the issuance of Resolution No. 9610. First, he would not have to file the Petition had he
been given an opportunity to be heard in the first place. Second, in the Minute Resolution dated
February 5, 2013, respondent denied petitioner’s Petition on the sole ground that the printing of
ballots had already begun on February 4, 2013.

We understand the "insurmountable and tremendous operational constraints and costs

implications"48 of reprinting ballots had respondent ordered the inclusion of petitioner’s name in the
certified list of candidates. The ballots already printed would have to be recalled, leading to the
waste of the ballots previously printed. It should be noted that these ballots are special as they have
the capability of being optically scanned by Precinct Count Optical Scan machines. Reprinting
another batch of ballots would, indeed, be costly.

Still, "automation is not the end-all and be-all of an electoral process."49 Respondent should also
balance its duty "to ensure that the electoral process is clean, honest, orderly, and peaceful"50 with
the right of a candidate to explain his or her bona fide intention to run for public office before he or
she is declared a nuisance candidate.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 206666 January 21, 2015

ATTY. ALICIA RISOS-VIDAL, Petitioner,

ALFREDO S. LIM Petitioner-Intervenor,
vs.
COMMISSION ON ELECTIONS and JOSEPH EJERCITO ESTRADA, Respondents.

DECISION

LEONARDO-DE CASTRO, J.:

Before the Court are (1) a Petition for Certiorari filed under Rule 64, in relation to Rule 65, both of the
Revised Rules of Court, by Atty. Alicia Risos-Vidal (Risos-Vidal), which essentially prays for the
issuance of the writ of certiorari annulling and setting aside the April 1, 20131 and April 23,
20132 Resolutions of the Commission on Elections (COMELEC), Second Division and En bane,
respectively, in SPA No. 13-211 (DC), entitled "Atty. Alicia Risos-Vidal v. Joseph Ejercito Estrada"
for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction;
and (2) a Petition-in-Intervention3 filed by Alfredo S. Lim (Lim), wherein he prays to be declared the
2013 winning candidate for Mayor of the City of Manila in view of private respondent former
President Joseph Ejercito Estrada’s (former President Estrada) disqualification to run for and hold
public office.

The Facts

The salient facts of the case are as follows:

On September 12, 2007, the Sandiganbayan convicted former President Estrada, a former President
of the Republic of the Philippines, for the crime of plunder in Criminal Case No. 26558, entitled
"People of the Philippines v. Joseph Ejercito Estrada, et al." The dispositive part of the graft court’s
decision reads:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered in Criminal Case No. 26558
finding the accused, Former President Joseph Ejercito Estrada, GUILTY beyond reasonable doubt
of the crime of PLUNDER, defined in and penalized by Republic Act No. 7080, as amended. On the
other hand, for failure of the prosecution to prove and establish their guilt beyond reasonable doubt,
the Court finds the accused Jose "Jinggoy" Estrada and Atty. Edward S. Serapio NOT GUILTY of
the crime of plunder, and accordingly, the Court hereby orders their ACQUITTAL.

The penalty imposable for the crime of plunder under Republic Act No. 7080, as amended by
Republic Act No. 7659, is Reclusion Perpetua to Death. There being no aggravating or mitigating
circumstances, however, the lesser penalty shall be applied in accordance with Article 63 of the
Revised Penal Code. Accordingly, the accused Former President Joseph Ejercito Estrada is hereby
sentenced to suffer the penalty of Reclusion Perpetua and the accessory penalties of civil
interdiction during the period of sentence and perpetual absolute disqualification.
The period within which accused Former President Joseph Ejercito Estrada has been under
detention shall be credited to him in full as long as he agrees voluntarily in writing to abide by the
same disciplinary rules imposed upon convicted prisoners.

Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended by Republic Act No.
7659, the Court hereby declares the forfeiture in favor of the government of the following:

(1) The total amount of Five Hundred Forty[-]Two Million Seven Hundred Ninety[-]One
Thousand Pesos (₱545,291,000.00), with interest and income earned, inclusive of the
amount of Two Hundred Million Pesos (₱200,000,000.00), deposited in the name and
account of the Erap Muslim Youth Foundation.

(2) The amount of One Hundred Eighty[-]Nine Million Pesos (₱189,000,000.00), inclusive of
interests and income earned, deposited in the Jose Velarde account.

(3) The real property consisting of a house and lot dubbed as "Boracay Mansion" located at
#100 11th Street, New Manila, Quezon City.

The cash bonds posted by accused Jose "Jinggoy" Estrada and Atty. Edward S. Serapio are hereby
ordered cancelled and released to the said accused or their duly authorized representatives upon
presentation of the original receipt evidencing payment thereof and subject to the usual accounting
and auditing procedures. Likewise, the hold-departure orders issued against the said accused are
hereby recalled and declared functus oficio.4

On October 25, 2007, however, former President Gloria Macapagal Arroyo (former President Arroyo)
extended executive clemency, by way of pardon, to former President Estrada. The full text of said
pardon states:

MALACAÑAN PALACE
MANILA

By the President of the Philippines

PARDON

WHEREAS, this Administration has a policy of releasing inmates who have reached the age of
seventy (70),

WHEREAS, Joseph Ejercito Estrada has been under detention for six and a half years,

WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position
or office,

IN VIEW HEREOF and pursuant to the authority conferred upon me by the Constitution, I hereby
grant executive clemency to JOSEPH EJERCITO ESTRADA, convicted by the Sandiganbayan of
Plunder and imposed a penalty of Reclusion Perpetua. He is hereby restored to his civil and political
rights.

The forfeitures imposed by the Sandiganbayan remain in force and in full, including all writs and
processes issued by the Sandiganbayan in pursuance hereof, except for the bank account(s) he
owned before his tenure as President.
Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this pardon shall take effect.

Given under my hand at the City of Manila, this 25th Day of October, in the year of Our Lord, two
thousand and seven.

Gloria M. Arroyo (sgd.)

By the President:

IGNACIO R. BUNYE (sgd.)

Acting Executive Secretary5

On October 26, 2007, at 3:35 p.m., former President Estrada "received and accepted"6 the pardon by
affixing his signature beside his handwritten notation thereon.

On November 30, 2009, former President Estrada filed a Certificate of Candidacy7 for the position of
President. During that time, his candidacy earned three oppositions in the COMELEC: (1) SPA No.
09-024 (DC), a "Petition to Deny Due Course and Cancel Certificate of Candidacy" filed by Rev. Elly
Velez B. Lao Pamatong, ESQ; (2) SPA No. 09-028 (DC), a petition for "Disqualification as
Presidential Candidate" filed by Evilio C. Pormento (Pormento); and (3) SPA No. 09-104 (DC), a
"Petition to Disqualify Estrada Ejercito, Joseph M.from Running as President due to Constitutional
Disqualification and Creating Confusion to the Prejudice of Estrada, Mary Lou B" filed by Mary Lou
Estrada. In separate Resolutions8 dated January 20, 2010 by the COMELEC, Second Division,
however, all three petitions were effectively dismissed on the uniform grounds that (i) the
Constitutional proscription on reelection applies to a sitting president; and (ii) the pardon granted to
former President Estrada by former President Arroyo restored the former’s right to vote and be voted
for a public office. The subsequent motions for reconsideration thereto were denied by the
COMELEC En banc.

After the conduct of the May 10, 2010 synchronized elections, however, former President Estrada
only managed to garner the second highest number of votes.

Of the three petitioners above-mentioned, only Pormento sought recourse to this Court and filed a
petition for certiorari, which was docketed as G.R. No. 191988, entitled "Atty. Evilio C. Pormento v.
Joseph ‘ERAP’ Ejercito Estrada and Commission on Elections." But in a Resolution9 dated August
31, 2010, the Court dismissed the aforementioned petition on the ground of mootness considering
that former President Estrada lost his presidential bid.

On October 2, 2012, former President Estrada once more ventured into the political arena, and filed
a Certificate of Candidacy,10 this time vying for a local elective post, that ofthe Mayor of the City of
Manila.

On January 24, 2013, Risos-Vidal, the petitioner in this case, filed a Petition for Disqualification
against former President Estrada before the COMELEC. The petition was docketed as SPA No. 13-
211 (DC). Risos Vidal anchored her petition on the theory that "[Former President Estrada] is
Disqualified to Run for Public Office because of his Conviction for Plunder by the Sandiganbayan in
Criminal Case No. 26558 entitled ‘People of the Philippines vs. Joseph Ejercito Estrada’ Sentencing
Him to Suffer the Penalty of Reclusion Perpetuawith Perpetual Absolute Disqualification."11 She
relied on Section 40 of the Local Government Code (LGC), in relation to Section 12 of the Omnibus
Election Code (OEC), which state respectively, that:
Sec. 40, Local Government Code:

SECTION 40. Disqualifications.- The following persons are disqualified from running for any elective
local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment, within two (2) years after
serving sentence; (b) Those removed from office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside
abroad and continue to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble minded. (Emphasis supplied.)

Sec. 12, Omnibus Election Code:

Section 12. Disqualifications. - Any person who has been declared by competent authority insane or
incompetent, or has been sentenced by final judgmentfor subversion, insurrection, rebellion, or for
any offense for which he has been sentenced to a penalty of more than eighteen months or for a
crime involving moral turpitude, shall be disqualified to be a candidate and to hold any public office,
unless he has been given plenary pardon or granted amnesty. (Emphases supplied.)

In a Resolution dated April 1, 2013,the COMELEC, Second Division, dismissed the petition for
disqualification, the fallo of which reads:

WHEREFORE, premises considered, the instant petition is hereby DISMISSED for utter lack of
merit.12

The COMELEC, Second Division, opined that "[h]aving taken judicial cognizance of the consolidated
resolution for SPA No. 09-028 (DC) and SPA No. 09-104 (DC) and the 10 May 2010 En Banc
resolution affirming it, this Commission will not be labor the controversy further. Moreso, [Risos-
Vidal] failed to present cogent proof sufficient to reverse the standing pronouncement of this
Commission declaring categorically that [former President Estrada’s] right to seek public office has
been effectively restored by the pardon vested upon him by former President Gloria M. Arroyo. Since
this Commission has already spoken, it will no longer engage in disquisitions of a settled matter lest
indulged in wastage of government resources."13

The subsequent motion for reconsideration filed by Risos-Vidal was denied in a Resolution dated
April 23, 2013.

On April 30, 2013, Risos-Vidal invoked the Court’s jurisdiction by filing the present petition. She
presented five issues for the Court’s resolution, to wit:
 I. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING THAT
RESPONDENT ESTRADA’S PARDON WAS NOT CONDITIONAL;

II. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT FINDING THAT
RESPONDENT ESTRADA IS DISQUALIFIED TO RUN AS MAYOR OF MANILA UNDER
SEC. 40 OF THE LOCAL GOVERNMENTCODE OF 1991 FOR HAVING BEEN
CONVICTED OF PLUNDER, AN OFFENSE INVOLVING MORAL TURPITUDE;

III. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DISMISSING THE PETITION
FOR DISQUALIFICATION ON THE GROUND THAT THE CASE INVOLVES THE SAME OR
SIMILAR ISSUES IT ALREADY RESOLVED IN THE CASES OF "PORMENTO VS.
ESTRADA", SPA NO. 09-028 (DC) AND IN "RE: PETITION TO DISQUALIFY ESTRADA
EJERCITO, JOSEPH M. FROM RUNNING AS PRESIDENT, ETC.," SPA NO. 09-104 (DC);

IV. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT RULING THAT
RESPONDENT ESTRADA’S PARDON NEITHER RESTORED HIS RIGHT OF SUFFRAGE
NOR REMITTED HIS PERPETUAL ABSOLUTE DISQUALIFICATION FROM SEEKING
PUBLIC OFFICE; and

V. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT HAVING EXERCISED
ITS POWER TO MOTU PROPRIO DISQUALIFY RESPONDENT ESTRADA IN THE FACE
OF HIS PATENT DISQUALIFICATION TO RUN FOR PUBLIC OFFICE BECAUSE OF HIS
PERPETUAL AND ABSOLUTE DISQUALIFICATION TO SEEK PUBLIC OFFICE AND TO
VOTE RESULTING FROM HIS CRIMINAL CONVICTION FOR PLUNDER.14

While this case was pending beforethe Court, or on May 13, 2013, the elections were conducted as
scheduled and former President Estrada was voted into office with 349,770 votes cast in his favor.
The next day, the local board of canvassers proclaimed him as the duly elected Mayor of the City of
Manila.

On June 7, 2013, Lim, one of former President Estrada’s opponents for the position of Mayor, moved
for leave to intervene in this case. His motion was granted by the Court in a Resolution15 dated June
25, 2013. Lim subscribed to Risos-Vidal’s theory that former President Estrada is disqualified to run
for and hold public office as the pardon granted to the latter failed to expressly remit his perpetual
disqualification. Further, given that former President Estrada is disqualified to run for and hold public
office, all the votes obtained by the latter should be declared stray, and, being the second placer with
313,764 votes to his name, he (Lim) should be declared the rightful winning candidate for the
position of Mayor of the City of Manila.

The Issue

Though raising five seemingly separate issues for resolution, the petition filed by Risos-Vidal actually
presents only one essential question for resolution by the Court, that is, whether or not the
COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling
that former President Estrada is qualified to vote and be voted for in public office as a result of the
pardon granted to him by former President Arroyo.
In her petition, Risos-Vidal starts her discussion by pointing out that the pardon granted to former
President Estrada was conditional as evidenced by the latter’s express acceptance thereof. The
"acceptance," she claims, is an indication of the conditional natureof the pardon, with the condition
being embodied in the third Whereas Clause of the pardon, i.e., "WHEREAS, Joseph Ejercito
Estrada has publicly committed to no longer seek any elective position or office." She explains that
the aforementioned commitment was what impelled former President Arroyo to pardon former
President Estrada, without it, the clemency would not have been extended. And any breach thereof,
that is, whenformer President Estrada filed his Certificate of Candidacy for President and Mayor of
the City of Manila, he breached the condition of the pardon; hence, "he ought to be recommitted to
prison to serve the unexpired portion of his sentence x x x and disqualifies him as a candidate for the
mayoralty [position] of Manila."16

Nonetheless, Risos-Vidal clarifies that the fundamental basis upon which former President Estrada
mustbe disqualified from running for and holding public elective office is actually the proscription
found in Section 40 of the LGC, in relation to Section 12 ofthe OEC. She argues that the crime of
plunder is both an offense punishable by imprisonment of one year or more and involving moral
turpitude; such that former President Estrada must be disqualified to run for and hold public elective
office.

Even with the pardon granted to former President Estrada, however, Risos-Vidal insists that the
same did not operate to make available to former President Estrada the exception provided under
Section 12 of the OEC, the pardon being merely conditional and not absolute or plenary. Moreover,
Risos-Vidal puts a premium on the ostensible requirements provided under Articles 36 and 41 of the
Revised Penal Code, to wit:

ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to hold publicoffice,
or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon
him by the sentence.

xxxx

ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.– The penalties of
reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or
during the period of the sentence as the case may be, and that of perpetual absolute disqualification
which the offender shall suffer even though pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon. (Emphases supplied.)

She avers that in view of the foregoing provisions of law, it is not enough that a pardon makes a
general statement that such pardon carries with it the restoration of civil and political rights. By virtue
of Articles 36 and 41, a pardon restoring civil and political rights without categorically making
mention what specific civil and political rights are restored "shall not work to restore the right to hold
public office, or the right of suffrage; nor shall it remit the accessory penalties of civil interdiction and
perpetual absolute disqualification for the principal penalties of reclusion perpetua and reclusion
temporal."17 In other words, she considers the above constraints as mandatory requirements that
shun a general or implied restoration of civil and political rights in pardons.

Risos-Vidal cites the concurring opinions of Associate Justices Teodoro R. Padilla and Florentino P.
Feliciano in Monsanto v. Factoran, Jr.18 to endorse her position that "[t]he restoration of the right to
hold public office to one who has lost such right by reason of conviction in a criminal case, but
subsequently pardoned, cannot be left to inference, no matter how intensely arguable, but must be
statedin express, explicit, positive and specific language."

Applying Monsantoto former President Estrada’s case, Risos-Vidal reckons that "such express
restoration is further demanded by the existence of the condition in the [third] [W]hereas [C]lause of
the pardon x x x indubitably indicating that the privilege to hold public office was not restored to
him."19

On the other hand, the Office ofthe Solicitor General (OSG) for public respondent COMELEC,
maintains that "the issue of whether or not the pardon extended to [former President Estrada]
restored his right to run for public office had already been passed upon by public respondent
COMELEC way back in 2010 via its rulings in SPA Nos. 09-024, 09-028 and 09-104, there is no
cogent reason for it to reverse its standing pronouncement and declare [former President Estrada]
disqualified to run and be voted as mayor of the City of Manila in the absence of any new argument
that would warrant its reversal. To be sure, public respondent COMELEC correctly exercised its
discretion in taking judicial cognizance of the aforesaid rulings which are known toit and which can
be verified from its own records, in accordance with Section 2, Rule 129 of the Rules of Court on the
courts’ discretionary power to take judicial notice of matters which are of public knowledge, orare
capable of unquestionable demonstration, or ought to be known to them because of their judicial
functions."20

Further, the OSG contends that "[w]hile at first glance, it is apparent that [former President Estrada’s]
conviction for plunder disqualifies him from running as mayor of Manila under Section 40 of the
[LGC], the subsequent grant of pardon to him, however, effectively restored his right to run for any
public office."21 The restoration of his right to run for any public office is the exception to the
prohibition under Section 40 of the LGC, as provided under Section 12 of the OEC. As to the
seeming requirement of Articles 36 and 41 of the Revised Penal Code, i.e., the express
restoration/remission of a particular right to be stated in the pardon, the OSG asserts that "an airtight
and rigid interpretation of Article 36 and Article 41 of the [RPC] x x x would be stretching too much
the clear and plain meaning of the aforesaid provisions."22 Lastly, taking into consideration the third
Whereas Clause of the pardon granted to former President Estrada, the OSG supports the position
that it "is not an integral part of the decree of the pardon and cannot therefore serve to restrict its
effectivity."23

Thus, the OSG concludes that the "COMELEC did not commit grave abuse of discretion amounting
to lack or excess of jurisdiction in issuing the assailed Resolutions."24

For his part, former President Estrada presents the following significant arguments to defend his stay
in office: that "the factual findings of public respondent COMELEC, the Constitutional body
mandated to administer and enforce all laws relative to the conduct of the elections, [relative to the
absoluteness of the pardon, the effects thereof, and the eligibility of former President Estrada to
seek public elective office] are binding [and conclusive] on this Honorable Supreme Court;" that he
"was granted an absolute pardon and thereby restored to his full civil and political rights, including
the right to seek public elective office such as the mayoral (sic) position in the City of Manila;" that
"the majority decision in the case of Salvacion A. Monsanto v. Fulgencio S. Factoran, Jr.,which was
erroneously cited by both Vidal and Lim as authority for their respective claims, x x x reveal that
there was no discussion whatsoever in the ratio decidendi of the Monsanto case as to the alleged
necessity for an expressed restoration of the ‘right to hold public office in the pardon’ as a legal
prerequisite to remove the subject perpetual special disqualification;" that moreover, the "principal
question raised in this Monsanto case is whether or not a public officer, who has been granted an
absolute pardon by the Chief Executive, is entitled to reinstatement toher former position without
need of a new appointment;" that his "expressed acceptance [of the pardon] is not proof that the
pardon extended to [him] is conditional and not absolute;" that this case is a mere rehash of the
casesfiled against him during his candidacy for President back in 2009-2010; that Articles 36 and 41
of the Revised Penal Code "cannot abridge or diminish the pardoning power of the President
expressly granted by the Constitution;" that the text of the pardon granted to him substantially, if not
fully, complied with the requirement posed by Article 36 of the Revised Penal Code as it was
categorically stated in the said document that he was "restored to his civil and political rights;" that
since pardon is an act of grace, it must be construed favorably in favor of the grantee;25and that his
disqualification will result in massive disenfranchisement of the hundreds of thousands of Manileños
who voted for him.26

The Court's Ruling

The petition for certiorari lacks merit.

Former President Estrada was granted an absolute pardon that fully restored allhis civil and political
rights, which naturally includes the right to seek public elective office, the focal point of this
controversy. The wording of the pardon extended to former President Estrada is complete,
unambiguous, and unqualified. It is likewise unfettered by Articles 36 and 41 of the Revised Penal
Code. The only reasonable, objective, and constitutional interpretation of the language of the pardon
is that the same in fact conforms to Articles 36 and 41 of the Revised Penal Code. Recall that the
petition for disqualification filed by Risos-Vidal against former President Estrada, docketed as SPA
No. 13-211 (DC), was anchored on Section 40 of the LGC, in relation to Section 12 of the OEC, that
is, having been convicted of a crime punishable by imprisonment of one year or more, and involving
moral turpitude, former President Estrada must be disqualified to run for and hold public elective
office notwithstanding the fact that he is a grantee of a pardon that includes a statement expressing
"[h]e is hereby restored to his civil and political rights." Risos-Vidal theorizes that former President
Estrada is disqualified from running for Mayor of Manila inthe May 13, 2013 Elections, and remains
disqualified to hold any local elective post despite the presidential pardon extended to him in 2007
by former President Arroyo for the reason that it (pardon) did not expressly provide for the remission
of the penalty of perpetual absolute disqualification, particularly the restoration of his (former
President Estrada) right to vote and bevoted upon for public office. She invokes Articles 36 and 41 of
the Revised Penal Code as the foundations of her theory.

It is insisted that, since a textual examination of the pardon given to and accepted by former
President Estrada does not actually specify which political right is restored, it could be inferred that
former President Arroyo did not deliberately intend to restore former President Estrada’s rights of
suffrage and to hold public office, orto otherwise remit the penalty of perpetual absolute
disqualification. Even if her intention was the contrary, the same cannot be upheld based on the
pardon’s text.

The pardoning power of the President cannot be limited by legislative action.

The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IX-C, provides
that the President of the Philippines possesses the power to grant pardons, along with other acts of
executive clemency, to wit:

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the
President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after
conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members
of the Congress.
 xxxx

Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws,
rules, and regulations shall be granted by the President without the favorable recommendation of the
Commission.

It is apparent from the foregoing constitutional provisions that the only instances in which the
President may not extend pardon remain to be in: (1) impeachment cases; (2) cases that have not
yet resulted in a final conviction; and (3) cases involving violations of election laws, rules and
regulations in which there was no favorable recommendation coming from the COMELEC.
Therefore, it can be argued that any act of Congress by way of statute cannot operate to delimit the
pardoning power of the President.

In Cristobal v. Labrador27 and Pelobello v. Palatino,28 which were decided under the 1935
Constitution,wherein the provision granting pardoning power to the President shared similar
phraseology with what is found in the present 1987 Constitution, the Court then unequivocally
declared that "subject to the limitations imposed by the Constitution, the pardoning power cannot be
restricted or controlled by legislative action." The Court reiterated this pronouncement in Monsanto v.
Factoran, Jr.29 thereby establishing that, under the present Constitution, "a pardon, being a
presidential prerogative, should not be circumscribed by legislative action." Thus, it is unmistakably
the long-standing position of this Court that the exercise of the pardoning power is discretionary in
the President and may not be interfered with by Congress or the Court, except only when it exceeds
the limits provided for by the Constitution.

This doctrine of non-diminution or non-impairment of the President’s power of pardon by acts of

Congress, specifically through legislation, was strongly adhered to by an overwhelming majority of
the framers of the 1987 Constitution when they flatly rejected a proposal to carve out an exception
from the pardoning power of the President in the form of "offenses involving graft and corruption"
that would be enumerated and defined by Congress through the enactment of a law. The following is
the pertinent portion lifted from the Record of the Commission (Vol. II):

MR. ROMULO. I ask that Commissioner Tan be recognized to introduce an amendment on the
same section.

THE PRESIDENT. Commissioner Tan is recognized.

SR. TAN. Madam President, lines 7 to 9 state:

However, the power to grant executive clemency for violations of corrupt practices laws may be
limited by legislation.

I suggest that this be deletedon the grounds that, first, violations of corrupt practices may include a
very little offense like stealing ₱10; second, which I think is more important, I get the impression,
rightly or wrongly, that subconsciously we are drafting a constitution on the premise that all our
future Presidents will bebad and dishonest and, consequently, their acts will be lacking in wisdom.
Therefore, this Article seems to contribute towards the creation of an anti-President Constitution or a
President with vast responsibilities but no corresponding power except to declare martial law.
Therefore, I request that these lines be deleted.

MR. REGALADO. Madam President,may the Committee react to that?

THE PRESIDENT. Yes, please.

MR. REGALADO. This was inserted here on the resolution of Commissioner Davide because of the
fact that similar to the provisions on the Commission on Elections, the recommendation of that
Commission is required before executive clemency isgranted because violations of the election laws
go into the very political life of the country.

With respect to violations of our Corrupt Practices Law, we felt that it is also necessary to have that
subjected to the same condition because violation of our Corrupt Practices Law may be of such
magnitude as to affect the very economic systemof the country. Nevertheless, as a compromise, we
provided here that it will be the Congress that will provide for the classification as to which
convictions will still require prior recommendation; after all, the Congress could take into account
whether or not the violation of the Corrupt Practices Law is of such magnitude as to affect the
economic life of the country, if it is in the millions or billions of dollars. But I assume the Congress in
its collective wisdom will exclude those petty crimes of corruption as not to require any further
stricture on the exercise of executive clemency because, of course, there is a whale of a difference if
we consider a lowly clerk committing malversation of government property or funds involving one
hundred pesos. But then, we also anticipate the possibility that the corrupt practice of a public officer
is of such magnitude as to have virtually drained a substantial portion of the treasury, and then he
goes through all the judicial processes and later on, a President who may have close connections
with him or out of improvident compassion may grant clemency under such conditions. That is why
we left it to Congress to provide and make a classification based on substantial distinctions between
a minor act of corruption or an act of substantial proportions. SR. TAN. So, why do we not just insert
the word GROSS or GRAVE before the word "violations"?

MR. REGALADO. We feel that Congress can make a better distinction because "GRAVE" or
"GROSS" can be misconstrued by putting it purely as a policy.

MR. RODRIGO. Madam President.

THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO. May I speak in favor of the proposed amendment?

THE PRESIDENT. Please proceed.

MR. RODRIGO. The power to grant executive clemency is essentially an executive power, and that
is precisely why it is called executive clemency. In this sentence, which the amendment seeks to
delete, an exception is being made. Congress, which is the legislative arm, is allowed to intrude into
this prerogative of the executive. Then it limits the power of Congress to subtract from this
prerogative of the President to grant executive clemency by limiting the power of Congress to only
corrupt practices laws. There are many other crimes more serious than these. Under this
amendment, Congress cannot limit the power of executive clemency in cases of drug addiction and
drug pushing which are very, very serious crimes that can endanger the State; also, rape with
murder, kidnapping and treason. Aside from the fact that it is a derogation of the power of the
President to grant executive clemency, it is also defective in that it singles out just one kind of crime.
There are far more serious crimes which are not included.

MR. REGALADO. I will just make one observation on that. We admit that the pardoning power is
anexecutive power. But even in the provisions on the COMELEC, one will notice that constitutionally,
it is required that there be a favorable recommendation by the Commission on Elections for any
violation of election laws.
At any rate, Commissioner Davide, as the principal proponent of that and as a member of the
Committee, has explained in the committee meetings we had why he sought the inclusion of this
particular provision. May we call on Commissioner Davide to state his position.

MR. DAVIDE. Madam President.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. I am constrained to rise to object to the proposal. We have just approved the Article
on Accountability of Public Officers. Under it, it is mandated that a public office is a public trust, and
all government officers are under obligation to observe the utmost of responsibility, integrity, loyalty
and efficiency, to lead modest lives and to act with patriotism and justice.

In all cases, therefore, which would go into the verycore of the concept that a public office is a public
trust, the violation is itself a violation not only of the economy but the moral fabric of public officials.
And that is the reason we now want that if there is any conviction for the violation of the Anti-Graft
and Corrupt Practices Act, which, in effect, is a violation of the public trust character of the public
office, no pardon shall be extended to the offender, unless some limitations are imposed.

Originally, my limitation was, it should be with the concurrence of the convicting court, but the
Committee left it entirely to the legislature to formulate the mechanics at trying, probably, to
distinguish between grave and less grave or serious cases of violation of the Anti-Graft and Corrupt
Practices Act. Perhaps this is now the best time, since we have strengthened the Article on
Accountability of Public Officers, to accompany it with a mandate that the President’s right to grant
executive clemency for offenders or violators of laws relating to the concept of a public office may be
limited by Congress itself.

MR. SARMIENTO. Madam President.

THE PRESIDENT. Commissioner Sarmiento is recognized.

MR. SARMIENTO. May I briefly speak in favor of the amendment by deletion.

Madam President, over and over again, we have been saying and arguing before this Constitutional
Commission that we are emasculating the powers of the presidency, and this provision to me is
another clear example of that. So, I speak against this provision. Even the 1935 and the 1973
Constitutions do not provide for this kind of provision.

I am supporting the amendment by deletion of Commissioner Tan.

MR. ROMULO. Commissioner Tingson would like to be recognized.

THE PRESIDENT. Commissioner Tingson is recognized.

MR. TINGSON. Madam President, I am also in favor of the amendment by deletion because I am in
sympathy with the stand of Commissioner Francisco "Soc" Rodrigo. I do believe and we should
remember that above all the elected or appointed officers of our Republic, the leader is the
President. I believe that the country will be as the President is, and if we systematically emasculate
the power of this presidency, the time may come whenhe will be also handcuffed that he will no
longer be able to act like he should be acting.
So, Madam President, I am in favor of the deletion of this particular line.

MR. ROMULO. Commissioner Colayco would like to be recognized.

THE PRESIDENT. Commissioner Colayco is recognized.

MR. COLAYCO. Thank you very much, Madam President.

I seldom rise here to object to or to commend or to recommend the approval of proposals, but now I
find that the proposal of Commissioner Tan is worthy of approval of this body.

Why are we singling out this particular offense? There are other crimes which cast a bigger blot on
the moral character of the public officials.

Finally, this body should not be the first one to limit the almost absolute power of our Chief Executive
in deciding whether to pardon, to reprieve or to commute the sentence rendered by the court.

I thank you.

THE PRESIDENT. Are we ready to vote now?

MR. ROMULO. Commissioner Padilla would like to be recognized, and after him will be
Commissioner Natividad.

THE PRESIDENT. Commissioner Padilla is recognized.

MR. PADILLA. Only one sentence, Madam President. The Sandiganbayan has been called the Anti-
Graft Court, so if this is allowed to stay, it would mean that the President’s power togrant pardon or
reprieve will be limited to the cases decided by the Anti-Graft Court, when as already stated, there
are many provisions inthe Revised Penal Code that penalize more serious offenses.

Moreover, when there is a judgment of conviction and the case merits the consideration of the
exercise of executive clemency, usually under Article V of the Revised Penal Code the judge will
recommend such exercise of clemency. And so, I am in favor of the amendment proposed by
Commissioner Tan for the deletion of this last sentence in Section 17.

THE PRESIDENT. Are we ready to vote now, Mr. Floor Leader?

MR. NATIVIDAD. Just one more.

THE PRESIDENT. Commissioner Natividad is recognized.

MR. NATIVIDAD. I am also against this provision which will again chip more powers from the
President. In case of other criminals convicted in our society, we extend probation to them while in
this case, they have already been convicted and we offer mercy. The only way we can offer mercy to
them is through this executive clemency extended to them by the President. If we still close this
avenue to them, they would be prejudiced even worse than the murderers and the more vicious
killers in our society. I do not think they deserve this opprobrium and punishment under the new
Constitution.
I am in favor of the proposed amendment of Commissioner Tan.

MR. ROMULO. We are ready tovote, Madam President.

THE PRESIDENT. Is this accepted by the Committee?

MR. REGALADO. The Committee, Madam President, prefers to submit this to the floor and also
because of the objection of the main proponent, Commissioner Davide. So we feel that the
Commissioners should vote on this question.

VOTING

THE PRESIDENT. As many as are in favor of the proposed amendment of Commissioner Tan to
delete the last sentence of Section 17 appearing on lines 7, 8 and 9, please raise their hand.
(Several Members raised their hand.)

As many as are against, please raise their hand. (Few Members raised their hand.)

The results show 34 votes in favor and 4 votes against; the amendment is approved.30 (Emphases
supplied.)

The proper interpretation of Articles

36 and 41 of the Revised Penal Code.

The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the Revised Penal Code
cannot, in any way, serve to abridge or diminish the exclusive power and prerogative of the
President to pardon persons convicted of violating penal statutes.

The Court cannot subscribe to Risos-Vidal’s interpretation that the said Articles contain specific
textual commands which must be strictly followed in order to free the beneficiary of presidential
grace from the disqualifications specifically prescribed by them.

Again, Articles 36 and 41 of the Revised Penal Code provides:

ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to hold publicoffice,
or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon
him by the sentence.

xxxx

ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.– The penalties of
reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or
during the period of the sentence as the case may be, and that of perpetual absolute disqualification
which the offender shall suffer even though pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon. (Emphases supplied.)
A rigid and inflexible reading of the above provisions of law, as proposed by Risos-Vidal, is
unwarranted, especially so if it will defeat or unduly restrict the power of the President to grant
executive clemency.

It is well-entrenched in this jurisdiction that where the words of a statute are clear, plain, and free
from ambiguity, it must be given its literal meaning and applied without attempted interpretation.
Verba legis non est recedendum. From the words of a statute there should be no departure.31 It is
this Court’s firm view that the phrase in the presidential pardon at issue which declares that former
President Estrada "is hereby restored to his civil and political rights" substantially complies with the
requirement of express restoration.

The Dissent of Justice Marvic M.V.F. Leonen agreed with Risos Vidal that there was no express
remission and/or restoration of the rights of suffrage and/or to hold public office in the pardon
granted to former President Estrada, as required by Articles 36 and 41 of the Revised Penal Code.

Justice Leonen posits in his Dissent that the aforementioned codal provisions must be followed by
the President, as they do not abridge or diminish the President’s power to extend clemency. He
opines that they do not reduce the coverage of the President’s pardoning power. Particularly, he
states:

Articles 36 and 41 refer only to requirements of convention or form. They only provide a procedural
prescription. They are not concerned with areas where or the instances when the President may
grant pardon; they are only concerned with how he or she is to exercise such power so that no other
governmental instrumentality needs to intervene to give it full effect.

All that Articles 36 and 41 do is prescribe that, if the President wishes to include in the pardon the
restoration of the rights of suffrage and to hold public office, or the remission of the accessory
penalty of perpetual absolute disqualification,he or she should do so expressly. Articles 36 and 41
only ask that the President state his or her intentions clearly, directly, firmly, precisely, and
unmistakably. To belabor the point, the President retains the power to make such restoration or
remission, subject to a prescription on the manner by which he or she is to state it.32

With due respect, I disagree with the overbroad statement that Congress may dictate as to how the
President may exercise his/her power of executive clemency. The form or manner by which the
President, or Congress for that matter, should exercise their respective Constitutional powers or
prerogatives cannot be interfered with unless it is so provided in the Constitution. This is the essence
of the principle of separation of powers deeply ingrained in our system of government which "ordains
that each of the three great branches of government has exclusive cognizance of and is supreme in
matters falling within its own constitutionally allocated sphere."33 Moreso, this fundamental principle
must be observed if noncompliance with the form imposed by one branch on a co-equal and
coordinate branch will result into the diminution of an exclusive Constitutional prerogative.

For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in a way that will
give full effect to the executive clemency granted by the President, instead of indulging in an overly
strict interpretation that may serve to impair or diminish the import of the pardon which emanated
from the Office of the President and duly signed by the Chief Executive himself/herself. The said
codal provisions must be construed to harmonize the power of Congress to define crimes and
prescribe the penalties for such crimes and the power of the President to grant executive clemency.
All that the said provisions impart is that the pardon of the principal penalty does notcarry with it the
remission of the accessory penalties unless the President expressly includes said accessory
penalties in the pardon. It still recognizes the Presidential prerogative to grant executive clemency
and, specifically, to decide to pardon the principal penalty while excluding its accessory penalties or
to pardon both. Thus, Articles 36 and 41 only clarify the effect of the pardon so decided upon by the
President on the penalties imposedin accordance with law.

A close scrutiny of the text of the pardon extended to former President Estrada shows that both the
principal penalty of reclusion perpetua and its accessory penalties are included in the pardon. The
first sentence refers to the executive clemency extended to former President Estrada who was
convicted by the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. The latter
is the principal penalty pardoned which relieved him of imprisonment. The sentence that followed,
which states that "(h)e is hereby restored to his civil and political rights," expressly remitted the
accessory penalties that attached to the principal penalty of reclusion perpetua. Hence, even if we
apply Articles 36 and 41 of the Revised Penal Code, it is indubitable from the textof the pardon that
the accessory penalties of civil interdiction and perpetual absolute disqualification were expressly
remitted together with the principal penalty of reclusion perpetua.

In this jurisdiction, the right toseek public elective office is recognized by law as falling under the
whole gamut of civil and political rights.

Section 5 of Republic Act No. 9225,34 otherwise known as the "Citizenship Retention and
Reacquisition Act of 2003," reads as follows:

Section 5. Civil and Political Rights and Liabilities.– Those who retain or reacquire 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 before any public officer authorized to administer an oath;

(3) Those appointed to any public office shall subscribe and swear an oath of allegiance to
the Republic of the Philippines and its duly constituted authorities prior to their assumption of
office: Provided, That they renounce their oath of allegiance to the country where they took
that oath; (4) Those intending to practice their profession in the Philippines shall apply with
the proper authority for a license or permit to engage in such practice; and

(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
theyare 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. (Emphases supplied.)

No less than the International Covenant on Civil and Political Rights, to which the Philippines is a
signatory, acknowledges the existence of said right. Article 25(b) of the Convention states: Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in
Article 2 and without unreasonable restrictions:

xxxx

(b) To vote and to be electedat genuine periodic elections which shall be by universal and equal
suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the
electors[.] (Emphasis supplied.)

Recently, in Sobejana-Condon v. Commission on Elections,35 the Court unequivocally referred to the

right to seek public elective office as a political right, to wit:

Stated differently, it is an additional qualification for elective office specific only to Filipino citizens
who re-acquire their citizenship under Section 3 of R.A. No. 9225. It is the operative act that restores
their right to run for public office. The petitioner’s failure to comply there with in accordance with the
exact tenor of the law, rendered ineffectual the Declaration of Renunciation of Australian Citizenship
she executed on September 18, 2006. As such, she is yet to regain her political right to seek elective
office. Unless she executes a sworn renunciation of her Australian citizenship, she is ineligible to run
for and hold any elective office in the Philippines. (Emphasis supplied.)

Thus, from both law and jurisprudence, the right to seek public elective office is unequivocally
considered as a political right. Hence, the Court reiterates its earlier statement that the pardon
granted to former President Estrada admits no other interpretation other than to mean that, upon
acceptance of the pardon granted tohim, he regained his FULL civil and political rights – including
the right to seek elective office.

On the other hand, the theory of Risos-Vidal goes beyond the plain meaning of said penal
provisions; and prescribes a formal requirement that is not only unnecessary but, if insisted upon,
could be in derogation of the constitutional prohibition relative to the principle that the exercise of
presidential pardon cannot be affected by legislative action.

Risos-Vidal relied heavily on the separate concurring opinions in Monsanto v. Factoran, Jr.36 to justify
her argument that an absolute pardon must expressly state that the right to hold public office has
been restored, and that the penalty of perpetual absolute disqualification has been remitted.

This is incorrect.

Her reliance on said opinions is utterly misplaced. Although the learned views of Justices Teodoro R.
Padilla and Florentino P. Feliciano are to be respected, they do not form partof the controlling
doctrine nor to be considered part of the law of the land. On the contrary, a careful reading of the
majority opinion in Monsanto, penned by no less than Chief Justice Marcelo B. Fernan, reveals no
statement that denotes adherence to a stringent and overly nuanced application of Articles 36 and
41 of the Revised Penal Code that will in effect require the President to use a statutorily prescribed
language in extending executive clemency, even if the intent of the President can otherwise be
deduced from the text or words used in the pardon. Furthermore, as explained above, the pardon
here is consistent with, and not contrary to, the provisions of Articles 36 and 41.

The disqualification of former President Estrada under Section 40 of the LGC in relation to Section
12 of the OEC was removed by his acceptance of the absolute pardon granted to him.
Section 40 of the LGC identifies who are disqualified from running for any elective local position.
Risos-Vidal argues that former President Estrada is disqualified under item (a), to wit:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence[.]
(Emphasis supplied.)

Likewise, Section 12 of the OEC provides for similar prohibitions, but it provides for an exception, to
wit:

Section 12. Disqualifications. – x x x unless he has been given plenary pardon or granted amnesty.
(Emphasis supplied.)

As earlier stated, Risos-Vidal maintains that former President Estrada’s conviction for plunder
disqualifies him from running for the elective local position of Mayor of the City of Manila under
Section 40(a) of the LGC. However, the subsequent absolute pardon granted to former President
Estrada effectively restored his right to seek public elective office. This is made possible by reading
Section 40(a) of the LGC in relation to Section 12 of the OEC.

While it may be apparent that the proscription in Section 40(a) of the LGC is worded in absolute
terms, Section 12 of the OEC provides a legal escape from the prohibition – a plenary pardon or
amnesty. In other words, the latter provision allows any person who has been granted plenary
pardon or amnesty after conviction by final judgment of an offense involving moral turpitude, inter
alia, to run for and hold any public office, whether local or national position.

Take notice that the applicability of Section 12 of the OEC to candidates running for local elective
positions is not unprecedented. In Jalosjos, Jr. v. Commission on Elections,37 the Court
acknowledged the aforementioned provision as one of the legal remedies that may be availed of to
disqualify a candidate in a local election filed any day after the last day for filing of certificates of
candidacy, but not later than the date of proclamation.38 The pertinent ruling in the Jalosjos case is
quoted as follows:

What is indisputably clear is that false material representation of Jalosjos is a ground for a petition
under Section 78. However, since the false material representation arises from a crime penalized by
prision mayor, a petition under Section 12 ofthe Omnibus Election Code or Section 40 of the Local
Government Code can also be properly filed. The petitioner has a choice whether to anchor his
petition on Section 12 or Section 78 of the Omnibus Election Code, or on Section 40 of the Local
Government Code. The law expressly provides multiple remedies and the choice of which remedy to
adopt belongs to petitioner.39 (Emphasis supplied.)

The third preambular clause of the pardon did not operate to make the pardon conditional.

Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e., "[w]hereas,
Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office,"
neither makes the pardon conditional, nor militate against the conclusion that former President
Estrada’s rights to suffrage and to seek public elective office have been restored.

This is especially true as the pardon itself does not explicitly impose a condition or limitation,
considering the unqualified use of the term "civil and political rights"as being restored. Jurisprudence
educates that a preamble is not an essential part of an act as it is an introductory or preparatory
clause that explains the reasons for the enactment, usually introduced by the word
"whereas."40 Whereas clauses do not form part of a statute because, strictly speaking, they are not
part of the operative language of the statute.41 In this case, the whereas clause at issue is not an
integral part of the decree of the pardon, and therefore, does not by itself alone operate to make the
pardon conditional or to make its effectivity contingent upon the fulfilment of the aforementioned
commitment nor to limit the scope of the pardon.

On this matter, the Court quotes with approval a relevant excerpt of COMELEC Commissioner Maria
Gracia Padaca’s separate concurring opinion in the assailed April 1, 2013 Resolution of the
COMELEC in SPA No. 13-211 (DC), which captured the essence of the legal effect of preambular
paragraphs/whereas clauses, viz:

The present dispute does not raise anything which the 20 January 2010 Resolution did not conclude
upon. Here, Petitioner Risos-Vidal raised the same argument with respect to the 3rd "whereas
clause" or preambular paragraph of the decree of pardon. It states that "Joseph Ejercito Estrada has
publicly committed to no longer seek any elective position or office." On this contention, the
undersigned reiterates the ruling of the Commission that the 3rd preambular paragraph does not
have any legal or binding effect on the absolute nature of the pardon extended by former President
Arroyo to herein Respondent. This ruling is consistent with the traditional and customary usage of
preambular paragraphs. In the case of Echegaray v. Secretary of Justice, the Supreme Court ruled
on the legal effect of preambular paragraphs or whereas clauses on statutes. The Court stated, viz.:

Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its
intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is
clear and unambiguous, the preamble can neither expand nor restrict its operation much less prevail
over its text.

If former President Arroyo intended for the pardon to be conditional on Respondent’s promise never
to seek a public office again, the former ought to have explicitly stated the same in the text of the
pardon itself. Since former President Arroyo did not make this an integral part of the decree of
pardon, the Commission is constrained to rule that the 3rd preambular clause cannot be interpreted
as a condition to the pardon extended to former President Estrada.42 (Emphasis supplied.)

Absent any contrary evidence, former President Arroyo’s silence on former President Estrada’s
decision torun for President in the May 2010 elections against, among others, the candidate of the
political party of former President Arroyo, after the latter’s receipt and acceptance of the pardon
speaks volume of her intention to restore him to his rights to suffrage and to hold public office.

Where the scope and import of the executive clemency extended by the President is in issue, the
Court must turn to the only evidence available to it, and that is the pardon itself. From a detailed
review ofthe four corners of said document, nothing therein gives an iota of intimation that the third
Whereas Clause is actually a limitation, proviso, stipulation or condition on the grant of the pardon,
such that the breach of the mentioned commitment not to seek public office will result ina revocation
or cancellation of said pardon. To the Court, what it is simply is a statement of fact or the prevailing
situation at the time the executive clemency was granted. It was not used as a condition to the
efficacy orto delimit the scope of the pardon.

Even if the Court were to subscribe to the view that the third Whereas Clausewas one of the reasons
to grant the pardon, the pardon itself does not provide for the attendant consequence of the breach
thereof. This Court will be hard put to discern the resultant effect of an eventual infringement. Just
like it will be hard put to determine which civil or political rights were restored if the Court were to
take the road suggested by Risos-Vidal that the statement "[h]e is hereby restored to his civil and
political rights" excludes the restoration of former President Estrada’s rights to suffrage and to hold
public office. The aforequoted text ofthe executive clemency granted does not provide the Court with
any guide asto how and where to draw the line between the included and excluded political rights.

Justice Leonen emphasizes the point that the ultimate issue for resolution is not whether the pardon
is contingent on the condition that former President Estrada will not seek janother elective public
office, but it actually concerns the coverage of the pardon – whether the pardon granted to former
President Estrada was so expansive as to have restored all his political rights, inclusive of the rights
of suffrage and to hold public office. Justice Leonen is of the view that the pardon in question is not
absolute nor plenary in scope despite the statement that former President Estrada is "hereby
restored to his civil and political rights," that is, the foregoing statement restored to former President
Estrada all his civil and political rights except the rights denied to him by the unremitted penalty of
perpetual absolute disqualification made up of, among others, the rights of suffrage and to hold
public office. He adds that had the President chosen to be so expansive as to include the rights of
suffrage and to hold public office, she should have been more clear on her intentions.

However, the statement "[h]e is hereby restored to his civil and political rights," to the mind of the
Court, iscrystal clear – the pardon granted to former President Estrada was absolute, meaning, it
was not only unconditional, it was unrestricted in scope, complete and plenary in character, as the
term "political rights"adverted to has a settled meaning in law and jurisprudence.

With due respect, I disagree too with Justice Leonen that the omission of the qualifying word "full"
can be construed as excluding the restoration of the rights of suffrage and to hold public office.
There appears to be no distinction as to the coverage of the term "full political rights" and the term
"political rights" used alone without any qualification. How to ascribe to the latter term the meaning
that it is "partial" and not "full" defies one’s understanding. More so, it will be extremely difficult to
identify which of the political rights are restored by the pardon, when the text of the latter is silent on
this matter. Exceptions to the grant of pardon cannot be presumed from the absence of the
qualifying word "full" when the pardon restored the "political rights" of former President Estrada
without any exclusion or reservation.

Therefore, there can be no other conclusion but to say that the pardon granted to former President
Estrada was absolute in the absence of a clear, unequivocal and concrete factual basis upon which
to anchor or support the Presidential intent to grant a limited pardon.

To reiterate, insofar as its coverageis concerned, the text of the pardon can withstand close scrutiny
even under the provisions of Articles 36 and 41 of the Revised Penal Code.

The COMELEC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction
in issuing the assailed Resolutions.

In light of the foregoing, contrary to the assertions of Risos-Vidal, the COMELEC did not commit
grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed
Resolutions.

The Court has consistently held that a petition for certiorariagainst actions of the COMELEC is
confined only to instances of grave abuse of discretion amounting to patentand substantial denial of
due process, because the COMELEC is presumed to be most competent in matters falling within its
domain.43

As settled in jurisprudence, grave abuse of discretion is the arbitrary exercise of power due to
passion, prejudice or personal hostility; or the whimsical, arbitrary, or capricious exercise of power
that amounts to an evasion or refusal to perform a positive duty enjoined by law or to act at all in
contemplation of law. For an act to be condemned as having been done with grave abuse of
discretion, such an abuse must be patent and gross.44

The arguments forwarded by Risos-Vidal fail to adequately demonstrate any factual or legal bases to
prove that the assailed COMELEC Resolutions were issued in a "whimsical, arbitrary or capricious
exercise of power that amounts to an evasion orrefusal to perform a positive duty enjoined by law" or
were so "patent and gross" as to constitute grave abuse of discretion.

On the foregoing premises and conclusions, this Court finds it unnecessary to separately discuss
Lim's petition-in-intervention, which substantially presented the same arguments as Risos-Vidal's
petition.

WHEREFORE, the petition for certiorari and petition-inintervention are DISMISSED. The Resolution
dated April 1, 2013 of the Commission on Elections, Second Division, and the Resolution dated April
23, 2013 of the Commission on Elections, En bane, both in SPA No. 13-211 (DC), are AFFIRMED.