ELECTION LAW

1
P.E.T. CASE No. 002             March 29, 2005

RONALD ALLAN POE a.k.a. FERNANDO POE, JR., Protestant, 

vs.
GLORIA MACAPAGAL-ARROYO, Protestee.

RESOLUTION

QUISUMBING, J.:

The moving finger writes, says Omar Khayyam in the Rubayyat, and having writ, moves on. Nor all
your piety nor wit, adds the poet, could lure it back to cancel half a line; nor all your tears wash out a
word of it.

Such is my view on the providential case for our consideration.

Before this Electoral Tribunal, composed pursuant to the Constitution, by all the fifteen members of
the Supreme Court, is a matter of first impression. We are tasked not only to determine, as originally
prayed for, who between the Protestant and the Protestee was the true winner in the May 10, 2004
Presidential Elections, but also to decide now whether the Protestant’s widow (Mrs. Jesusa Sonora
Poe, popularly known as the cinema star Susan Roces) could intervene and/or substitute for the
deceased party, assuming arguendo that the protest could survive his death.

If one were guided by folk wisdom expressed in the adage that in a democracy, the voice of the
people is the voice of God, then it would appear our task had been made easy by fateful events.
Past midnight, in the early hours of June 24, 2004, the Congress as the representatives of the
sovereign people and acting as the National Board of Canvassers, in a near-unanimous roll-call
vote, proclaimed Mrs. Gloria Macapagal Arroyo (GMA) the duly elected President of the Philippines.
She obtained 12,905,808 votes, as against 11,782,232 votes for the second-placer, the movie actor
Fernando Poe, Jr. (FPJ).1 She took her Oath of Office before the Chief Justice of the Supreme Court
on June 30, 2004.

Refusing to concede defeat, the second-placer in the elections, Mr. FPJ, filed seasonably an election
protest before this Electoral Tribunal on July 23, 2004. Mrs. GMA, through counsel, filed her Answer
with Counter Protest on August 5, 2004. As counsels for the parties exchanged lively motions to
rush the presentation of their respective positions on the controversy, an act of God intervened. On
December 14, 2004, the Protestant died in the course of his medical treatment at St. Luke’s
Hospital. The medical certificate, filed by counsel as part of the Notice of Death of the Protestant,
showed that he died of cardio-pulmonary arrest, secondary to cerebral infarction.

However, neither the Protestee’s proclamation by Congress nor the death of her main rival as a
fortuitous intervening event, appears to abate the present controversy in the public arena. Instead,
notice may be taken of periodic mass actions, demonstrations, and rallies raising an outcry for this
Tribunal to decide the electoral protest of Mr. FPJ against Mrs. GMA once and for all. The oracular
function of this Tribunal, it would appear, needs to be fully exercised to make manifest here and
abroad who is the duly elected leader of the Filipino nation. All these, despite the fact that the
submissions by the parties on their respective sides in the protest and the counter-protest are thus
far, far from completed.

Needless to stress, this Tribunal cannot shirk its constitutional duty. Yet, neither could it go beyond
its mandate under the Constitution and the law. Further, this Tribunal is guided by its Rules, as well
as the Rules of Court in a suppletory manner. Considering the transcendental importance of the
electoral contest involving the Presidency, a rush to judgment is simply out of the question. Yet
decide the matter we must, without further delay, to prevent popular unrest and avoid further
destabilization of government at the highest level.

Together with the formal Notice of the Death of Protestant, his counsel has submitted to the
Tribunal, dated January 10, 2005, a "MANIFESTATION with URGENT PETITION/MOTION to
INTERVENE AS A SUBSTITUTE FOR DECEASED PROTESTANT FPJ," by the widow, Mrs.
Jesusa Sonora Poe, who signed the verification and certification therein.

As movant/intervenor, Mrs. FPJ claims that because of the untimely demise of her husband and in
representation not only of her deceased husband but more so because of the paramount interest of
the Filipino people, there is an urgent need for her to continue and substitute for her late husband in
the election protest initiated by him to ascertain the true and genuine will of the electorate in the
2004 elections. In support of her assertion, she cites De Castro v. Commission on
Elections,2 and Lomugdang v. Javier,3 to the effect that the death of the protestant does not
constitute a ground for the dismissal of the contest nor oust the trial court of the jurisdiction to decide
the election contest. She stresses nevertheless that even if the instant protest case succeeds, she is
cognizant that as a mere substitute she cannot succeed, assume or be entitled to said elective
office, and her utmost concern is not personal but one that involves the public’s interest. She prays,
however, that if subsequently determined that the protestee Gloria Macapagal-Arroyo did not get the
highest number of votes for president, for protestee to be disallowed from remaining in office, and
thus prevented from exercising the powers, duties, responsibilities and prerogatives reserved only to
the duly-elected president or her legitimate successor.

In her Comment, the Protestee, Mrs. GMA, relying on Vda. de De Mesa v. Mencias4 and subsequent
cases including analogous cases decided by the House of Representatives Electoral Tribunal
(HRET), asserts that the widow of a deceased candidate is not the proper party to replace the
deceased protestant since a public office is personal and not a property that passes on to the heirs.
She points out that the widow has no legal right to substitute for her husband in an election protest,
since no such right survives the husband, considering that the right to file an election protest is
personal and non-transmissible.

Protestee also contends Mrs. FPJ cannot substitute for her deceased husband because under the
Rules of the Presidential Electoral Tribunal, only the registered candidates who obtained the 2nd and
3rd highest votes for the presidency may contest the election of the president and patently, Mrs. FPJ
did not receive the 2nd and 3rd highest votes for she was not even a candidate for the presidency in
the election that is being contested.

Citing pertinent PET Rules, protestee also stresses that this Tribunal has no jurisdiction over actions
of surviving spouses to ascertain the vote of the electorate as the Tribunal has jurisdiction only over
election protests and quo warranto cases.

According to protestee, movant/intervenor Mrs. FPJ cannot use "the public interest" to justify her
request to be substituted for her husband. "Public interest", i.e. the need to dispel uncertainty over
the real choice of the electorate, is applicable only in election contests, not in an action to merely
"ascertain the true and genuine will of the people." She asserts that the only case herein cognizable
by this Tribunal is an election protest involving a protestant and a protestee, not between the
electorate and the protestee. Citing analogous HRET cases, protestee avers that in a case where
the protestant, the primary adversary in an election protest case dies, the public interest in said
protest dies with him.

Protestee also contends that in the adversarial nature of a protest case where one of the parties
dies, a correct ruling cannot be had because the dead protestant could no longer refute his
adversary’s allegations because death has rendered him hors de combat.

Further citing Defensor-Santiago v. Ramos,5 protestee points out that this Tribunal, nonetheless,

confirmed its power to dismiss an electoral case on technical grounds. She adds that if the Tribunal
can do so on a technicality, all the more it could for a stronger reason, that of protestant’s death.

In her Reply, movant/intervenor argues that reference of protestee to the HRET case of Abadilla v.
Ablan,6 was erroneous inasmuch as said case was a congressional protest and the controlling case
is De Castro. She likewise contends that protestant failed to distinguish between a right to an office
which protestant concedes is personal and non-transmissible vis-à-vis the right to pursue the
process which is not personal but imbued with public interest. She likewise stresses that the death of
the protestant abolished the personal/private character of the protest, as protestant’s right to assume
if he prevails, necessarily disappears, and the same cannot be transferred to anyone else,
protestant’s widow included. She insists, however, that the public interest remains. Further,
movant/intervenor posits that the protest having been commenced cannot be abated by the death of
the protestant and the only real issue is the determination of the proper substitute. She avers that
the Tribunal’s rule is clear on who can commence and initiate a protest compared to the persons
who can initiate a quo warranto. She admits that in the former, only the second and third placers in
the presidential election are authorized to commence the contest, while in the latter, any voter may
initiate the petition. She contends that with no personal interest involved, any registered voter can
continue the duly-commenced protest as the real-party-in-interest which is analogous to a quo
warranto. She contradicts protestee and insists that allowing "any voter" to substitute just like in
a quo warranto will not open the floodgate to whimsical protests, and the imagined political instability
feared by protestee will even more be pronounced if the protest is dismissed. Movant/intervenor
reiterates that the issue at hand involves just the continuation of proceedings by allowing substitution
and the taking over by the substitute of the prosecution of the protest already "duly commenced."

Plainly, the issue here is: May the widow substitute/intervene for the protestant who died during the
pendency of the latter’s protest case?

The fundamental rule applicable in a presidential election protest is Rule 14 of the PET Rules. It
provides,

Rule 14. Election Protest.–Only the registered candidate for President or for Vice-President
of the Philippines who received the second or third highest number of votes may contest the
election of the President or the Vice-President, as the case may be, by filing a verified
petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the
proclamation of the winner.

Pursuant to this rule, only two persons, the 2nd and 3rd placers, may contest the election. By this
express enumeration, the rule makers have in effect determined the real parties in interest
concerning an on-going election contest. It envisioned a scenario where, if the declared winner had
not been truly voted upon by the electorate, the candidate who received that 2nd or the 3rd highest
number of votes would be the legitimate beneficiary in a successful election contest.
This Tribunal, however, does not have any rule on substitution nor intervention but it does allow for
the analogous and suppletory application of the Rules of Court, decisions of the Supreme Court, and
the decisions of the electoral tribunals.7

Rule 3, Section 16 is the rule on substitution in the Rules of Court.8 This rule allows substitution by a
legal representative. It can be gleaned from the citation of this rule that movant/intervenor seeks to
appear before this Tribunal as the legal representative/substitute of the late protestant prescribed by
said Section 16. However, in our application of this rule to an election contest, we have every time
ruled that a public office is personal to the public officer and not a property transmissible to the heirs
upon death.9 Thus, we consistently rejected substitution by the widow or the heirs in election
contests where the protestant dies during the pendency of the protest. In Vda. de De Mesa v.
Mencias,10 we recognized substitution upon the death of the protestee but denied substitution by the
widow or heirs since they are not the real parties in interest. Similarly, in the later case of De la
Victoria v. Commission on Elections,11 we struck down the claim of the surviving spouse and children
of the protestee to the contested office for the same reason. Even in analogous cases before other
electoral tribunals,12 involving substitution by the widow of a deceased protestant, in cases where the
widow is not a real party in interest, we denied substitution by the wife or heirs.

This is not to say that death of the protestant necessarily abates the pending action. We have held
as early as Vda. de De Mesa (1966) that while the right to a public office is personal and exclusive to
the public officer, an election protest is not purely personal and exclusive to the protestant or to the
protestee such that the death of either would oust the court of all authority to continue the protest
proceedings.13 Hence, we have allowed substitution and intervention but only by a real party in
interest. A real party in interest is the party who would be benefited or injured by the judgment, and
the party who is entitled to the avails of the suit.14 In Vda. de De Mesa v. Mencias15 and Lomugdang
v. Javier,16 we permitted substitution by the vice-mayor since the vice-mayor is a real party in interest
considering that if the protest succeeds and the protestee is unseated, the vice-mayor succeeds to
the office of the mayor that becomes vacant if the one duly elected cannot assume office. In
contrast, herein movant/intervenor, Mrs. FPJ, herself denies any claim to the august office of
President. Thus, given the circumstances of this case, we can conclude that protestant’s widow is
not a real party in interest to this election protest.

We are not unaware that a contest before election tribunals has two aspects. First, it is in pursuit of
one’s right to a public office, and second, it is imbued with public interest.

Indeed the personal aspect of the case is inextricably linked with the public interest. For an election
protest involves not merely conflicting private aspirations but is imbued with public interest which
raises it into a plane over and above ordinary civil actions.17 But herein movant/intervenor, Mrs. FPJ,
has overly stressed that it is with the "paramount public interest" in mind that she desires "to pursue
the process" commenced by her late husband. She avers that she is "pursuing the process" to
determine who truly won the election, as a service to the Filipino people. We laud her noble intention
and her interest to find out the true will of the electorate. However, nobility of intention is not the point
of reference in determining whether a person may intervene in an election protest. Rule 19, Section
1 of the Rules of Court18 is the applicable rule on intervention in the absence of such a rule in the
PET Rules. In such intervention, the interest which allows a person to intervene in a suit must be in
the matter of litigation and of such direct and immediate character that the intervenor will either gain
or lose by the effect of the judgment. In this protest, Mrs. FPJ will not immediately and directly
benefit from the outcome should it be determined that the declared president did not truly get the
highest number of votes. We fully appreciate counsel’s manifestation that movant/intervenor herself
claims she has no interest in assuming the position as she is aware that she cannot succeed to the
presidency, having no legal right to it. Yet thus far, in this case, no real parties such as the vice-
presidential aspirants in the 2004 elections, have come forward to intervene, or to be substituted for
the deceased protestant. In our view, if persons not real parties in the action could be allowed to
intervene, proceedings will be unnecessarily complicated, expensive and interminable – and this is
not the policy of the law.19 It is far more prudent to abide by the existing strict limitations on
intervention and substitution under the law and the rules.

Conformably then with the law, the rules and prevailing jurisprudence, this Tribunal finds no
justifiable reason to grant the petition/motion for intervention and substitution.

WHEREFORE, the motion of movant/intervenor JESUSA SONORA POE a.k.a. SUSAN ROCES to
intervene and substitute for the deceased protestant is DENIED for lack of merit.

Acting on the protest and considering the Notice of the Death, submitted by counsel of protestant
RONALD ALLAN POE, a.k.a. FERNANDO POE, JR., we also resolve that Presidential Electoral
Tribunal Case No. 002, entitled Ronald Allan Poe a.k.a. Fernando Poe, Jr. v. Gloria Macapagal-
Arroyo, should be as it is hereby DISMISSED on the ground that no real party in interest has come
forward within the period allowed by law, to intervene in this case or be substituted for the deceased
protestant.

No pronouncement as to costs.

SO ORDERED.

2
G.R. No. 180164             June 17, 2008

FLORENTINO P. BLANCO, petitioner, 
vs.
THE COMMISSION ON ELECTIONS and EDUARDO A. ALARILLA, respondents.

DECISION

AZCUNA, J.:

This is a petition for certiorari1 alleging that the Commission on Elections (COMELEC), Second

Division, acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing
the Resolution dated August 28, 2007 disqualifying petitioner from running for an elective office in
the May 14, 2007 National and Local Elections.

The facts are as follows:

Petitioner Florentino P. Blanco was the mayor of Meycauayan, Bulacan from 1987 up to 1992.

During the May 8, 1995 elections, petition ran as a candidate for the same mayoralty position and
won during the canvassing by more than 6,000 votes over private respondent Eduardo A. Alarilla.
Private respondent filed a petition for the disqualification of petitioner on the ground of vote-buying
which resulted in the suspension of petitioner's proclamation.
On August 15, 1995, public respondent issued a resolution disqualifying petitioner as candidate for
the said position due to violation of Sec. 261 (a) of the Omnibus Election Code. This Court affirmed
the disqualification under Sec. 68 of the Omnibus Election Code in Blanco v. COMELEC, 2 G.R. No.
122258, which was promulgated on July 21, 1997.

During the 1998 elections, petitioner again ran as a mayoralty candidate. Domiciano G. Ruiz, a voter
of Meycauayan, Bulacan, sought to disqualify him on the basis of the Court's ruling in G.R. No.
122258.

On April 30, 1998, the COMELEC, Second Division, issued a resolution in SPA No. 98-043
dismissing the petition for disqualification on the ground that petitioner was not disqualified under
Sec. 68 of the Omnibus Election Code as his previous disqualification in the May 8, 1995 elections
attached only during that particular election.

Moreover, the COMELEC stated that "no criminal action was instituted against [petitioner], much
less a judgment of conviction for vote-buying under Sec. 261 (a) of the Omnibus Election Code has
been rendered against [petitioner] in order that Section 264 of the same [Code] providing for the
accessory penalty of disqualification from holding public office may attach to [petitioner]."

During the May 14, 2001 elections, petitioner again ran for a mayoralty position, but private
respondent sought petitioner's disqualification based on the Court's ruling in G.R. No. 122258.

On May 11, 2001, the COMELEC, Second Division, issued a resolution in SPA No. 01-050, this time
disqualifying petitioner from running for a mayoralty position in the May 14, 2001 elections under
Sec. 40 (b) of the Local Government Code for having been removed from office through an
administrative case. It denied petitioner's motion for reconsideration for having been filed beyond the
5-day reglementary period.

During the May 10, 2004 elections, petitioner again ran as a mayoralty candidate, but private
respondent sought to disqualify him based on the Court's ruling in G.R. No. 122258. Petitioner
withdrew his certificate of candidacy, so the petition for disqualification was dismissed for being
moot.

Apprehensive that he would encounter another petition for disqualification in succeeding elections,
petitioner filed a petition for declaratory relief before the Regional Trial Court (RTC) of Malolos,
Bulacan, for the issuance of a judgment declaring him eligible to run for public office in
contemplation of Sec. 40 (b) of the Local Government Code and Secs. 68, 261(a) and 264 of the
Omnibus Election Code.

In a Decision dated November 6, 2005, the RTC declared petitioner eligible to run for an elective
office.

During the May 14, 2007 elections, petitioner ran anew for a mayoralty position. Again, private
respondent sought the disqualification of petitioner based on the Court's ruling in G.R. No. 122258
and the COMELEC Resolution dated May 11, 2001 in SPA No. 01-050.

On August 28, 2007, the COMELEC, Second Division, issued a resolution in SPA Case No. 07-410
disqualifying petitioner from running in the May 14, 2007 elections on the ground that Blanco v.
COMELEC, G.R. No. 122258, affirmed its disqualification of petitioner in the May 8, 1995 elections,
and that the COMELEC Resolution in SPA No. 01-050 also disqualified petitioner under Sec. 40 (b)
of the Local Government Code. The COMELEC stated that since petitioner failed to show that he
had been bestowed a presidential pardon, amnesty or other form of executive clemency, there is no
reason to disturb its findings in SPA No. 01-050.

Hence, this petition praying that the COMELEC Resolution dated August 28, 2007 be reversed and
set aside, and that petitioner be declared as eligible to run for public office.

Petitioner raised these issues:

I.

WHETHER OR NOT THE COMELEC, SECOND DIVISION, GRAVELY ABUSED ITS

DISCRETION IN RULING THAT PETITIONER IS DISQUALIFIED TO RUN FOR AN
ELECTIVE OFFICE BY REASON OF THE COURT'S RULING IN BLANCO V. COMELEC,
G.R. NO. 122258, AS WELL AS THE RESOLUTION OF THE COMELEC IN SPA NO. 01-
050.

II.

WHETHER OR NOT THE COMELEC, SECOND DIVISION, GRAVELY ABUSED ITS

DISCRETION IN RULING THAT PETITIONER IS DISQUALIFIED TO RUN FOR AN
ELECTIVE OFFICE SINCE HE HAS NOT BEEN BESTOWED A PRESIDENTIAL PARDON,
AMNESTY OR ANY FORM OF EXECUTIVE CLEMENCY.3

The initial issue that has to be determined is whether the Court can take cognizance of this case
since petitioner did not file a motion for reconsideration of the Resolution of the COMELEC, Second
Division before the COMELEC en banc as he went directly to this Court by filing this petition "in
accordance with Sec. 7 of Article IX-A of the Constitution," which provides:

Section 7. Each commission shall decide by a majority vote of all its members any case or
matter brought before it within sixty days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for decision or resolution upon the filing of
the last pleading, brief, or memorandum required by the rules of the commission or by the
commission itself. Unless otherwise provided by this constitution or by law, any decision,
order, or ruling of each commission may be brought to the Supreme Court on certiorari by
the aggrieved party within thirty days from receipt of a copy thereof.

Soriano v. COMELEC4 and Repol v. COMELEC5 gave the Court's interpretation of Sec. 7, Article IX-

A of the Constitution, thus:

We have interpreted this constitutional provision to mean final orders, rulings and decisions
of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers. The
decision must be a final decision or resolution of the COMELEC en banc. The Supreme
Court has no power to review via certiorari an interlocutory order or even a final resolution of
a Division of the COMELEC. Failure to abide by this procedural requirement constitutes a
ground for dismissal of the petition.

However, this rule is not ironclad. In ABS-CBN Broadcasting Corporation v. COMELEC, we stated -

This Court, however, has ruled in the past that this procedural requirement [of filing a motion
for reconsideration] may be glossed over to prevent a miscarriage of justice, when the issue
involves the principle of social justice or the protection of labor, when the decision or
 resolution sought to be set aside is a nullity, or when the need for relief is extremely
urgent and certiorari is the only adequate and speedy remedy available.6

The Court holds that direct resort to this Court through a special civil action for certiorari is justified in
this case since the Resolution sought to be set aside is a nullity. The holding of periodic elections is
a basic feature of our democratic government.7 Setting aside the resolution of the issue will only
postpone a task that could well crop up again in future elections.8

In this case, petitioner contends that in Blanco v. COMELEC, G.R. No. 122258, he was found only
administratively liable for vote-buying in the 1995 elections and was disqualified under Sec. 68 of the
Omnibus Election Code, and that he was not disqualified under Sec. 261(a) and Sec. 264 of the
Omnibus Election Code since no criminal action was filed against him. He submits that his
disqualification was limited only to the 1995 elections and that it did not bar him from running for
public office in the succeeding elections.

Petitioner's contention is meritorious.

The Court notes that the Office of the Solicitor General, in its Comment, found this petition
meritorious.

Petitioner's disqualification in 1995 in Blanco v. COMELEC, G.R. No. 122258, was based on Sec. 68
of the Omnibus Election Code, although the COMELEC, Second Division, pronounced that petitioner
violated 261 (a) of the Omnibus Election Code.

Sec. 68 and Sec. 261 (a) of the Omnibus Election Code provide:

Sec. 68. Disqualifications. - Any candidate who, in an action or protest in which he was a

party is declared by final decision of a competent court guilty of, or found by the Commission
of having (a) given money or other material consideration to influence, induce or
corrupt the voters or public officials performing electoral functions; (b) committed acts
of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in
excess of that allowed by this Code; (d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85,
86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from
continuing as a candidate, or if he has been elected, from holding the office. Any
person who is a permanent resident of or an immigrant to a foreign country shall not be
qualified to run for any elective office under this Code, unless said person has waived his
status as permanent resident or immigrant of a foreign country in accordance with the
residence requirement provided for in the election laws.9

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

(a) Vote-buying and vote-selling. - (1) Any person who gives, offers or promises
money or anything of value, gives or promises any office or employment, franchise or
grant, public or private, or makes or offers to make an expenditure, directly or
indirectly, or cause an expenditure to be made to any person, association,
corporation, entity, or community in order to induce anyone or the public in general to
vote for or against any candidate or withhold his vote in the election, or to vote for or
against any aspirant for the nomination or choice of a candidate in a convention or
similar selection process of a political party.
In Blanco v. COMELEC, G.R. No. 122258, the Court held:

. . . Vote-buying has its criminal and electoral aspects. Its criminal aspect to determine the
guilt or innocence of the accused cannot be the subject of summary hearing. However, its
electoral aspect to ascertain whether the offender should be disqualified from office can be
determined in an administrative proceeding that is summary in character. 10

In Lanot v. COMELEC,11 the Court further explained:

. . . The electoral aspect of a disqualification case determines whether the offender should
be disqualified from being a candidate or from holding office. Proceedings are summary in
character and require only clear preponderance of evidence. An erring candidate may be
disqualified even without prior determination of probable cause in a preliminary investigation.
The electoral aspect may proceed independently of the criminal aspect, and vice versa.

The criminal aspect of a disqualification case determines whether there is probable cause to
charge a candidate for an election offense. The prosecutor is the COMELEC, through its Law
Department, which determines whether probable cause exists. If there is probable cause, the
COMELEC, through its Law Department, files the criminal information before the proper
court. Proceedings before the proper court demand a full-blown hearing and require proof
beyond reasonable doubt to convict. A criminal conviction shall result in the disqualification
of the offender, which may even include disqualification from holding a future public office.12

Petitioner's disqualification in 1995 was resolved by the COMELEC in a summary proceeding. The
COMELEC only determined the electoral aspect of whether petitioner should be disqualified as a
candidate. It resolved "to DISQUALIFY [petitioner] Florentino P. Blanco as a candidate for the Office
of Mayor of Meycauayan, Bulacan in the May 8, 1995 elections for having violated Section 261 (a) of
the Omnibus Election Code." This Court, in G.R. No. 122258, affirmed only the electoral aspect of
the disqualification made by COMELEC, which falls under Sec. 68 of the Omnibus Election Code:

Sec. 68. Disqualifications. - Any candidate who, in an action or protest in which he was a

party is declared by final decision of a competent court guilty of, or found by the Commission
of having (a) given money or other material consideration to influence, induce or
corrupt the voters or public officials performing electoral functions x x x shall be
disqualified from continuing as a candidate, or if he has been elected, from holding
the office. . . .

Hence, in G.R. No. 122258, petitioner was disqualified from continuing as a candidate only in the
May 8, 1995 elections.

Relevant to this case is Codilla v. De Venecia,13 which held that the jurisdiction of the COMELEC
to disqualify candidates is limited to those enumerated in Sec. 68 of the Omnibus Election
Code, thus:

. . . [T]he jurisdiction of the COMELEC to disqualify candidates is limited to those

enumerated in section 68 of the Omnibus Election Code. All other election offenses are
beyond the ambit of COMELEC jurisdiction. They are criminal and not administrative in
nature. Pursuant to sections 265 and 268 of the Omnibus Election Code, the power of the
COMELEC is confined to the conduct of preliminary investigation on the alleged election
offenses for the purpose of prosecuting the alleged offenders before the regular courts of
justice, viz:
 Section 265. Prosecution. - The Commission shall, through its duly authorized legal
officers, have the exclusive power to conduct preliminary investigation of all election
offenses punishable under this Code, and to prosecute the same. The Commission
may avail of the assistance of other prosecuting arms of the government: Provided,
however, That in the event that the Commission fails to act on any complaint within
four months from its filing, the complainant may file the complaint with the office of
the fiscal or with the Ministry of Justice for proper investigation and prosecution, if
warranted.

xxx

Section 268. Jurisdiction of courts. - The regional trial court shall have the exclusive
original jurisdiction to try and decide any criminal action or proceeding for violation of
this Code, except those relating to the offense of failure to register or failure to vote
which shall be under the jurisdictions of metropolitan or municipal trial courts. From
the decision of the courts, appeal will lie as in other criminal cases.14

The records did not show that a criminal complaint was filed against petitioner for the election
offense of vote-buying under Sec. 261 (a) of the Omnibus Election Code. There was also no
evidence that the accessory penalty of disqualification to hold public office under Sec. 26415 of the
same Code was imposed on petitioner by the proper court as a consequence of conviction for an
election offense.

Since there is no proof that petitioner was convicted of an election offense under the Omnibus
Election Code and sentenced to suffer disqualification to hold public office, the COMELEC, Second
Division, committed grave abuse of discretion in pronouncing that absent any showing that petitioner
had been bestowed a presidential pardon, amnesty or any other form of executive clemency,
petitioner's disqualification from being a candidate for an elective position remains.

In view of the above ruling, the second issue raised by petitioner regarding the necessity of a
presidential pardon in order for him to be able to run for an elective office need not be discussed.

Petitioner also contends that the COMELEC gravely abused its discretion in ruling that he was
disqualified from running for a mayoralty position under Sec. 40 (b) of the Local Government
Code16 for having been removed from office as a result of an administrative case.

Petitioner's contention is meritorious.

Removal from office entails the ouster of an incumbent before the expiration of his term.17 In G.R No.
122258, petitioner was disqualified from continuing as a candidate for the mayoralty position in
the May 8, 1995 elections. The suspension of his proclamation was made permanent, so petitioner
never held office from which he could be removed.

In fine, therefore, the COMELEC, Second Division, committed grave abuse of discretion in
disqualifying petitioner from running for an elective position under Sec. 40 (b) of the Local
Government Code in its Resolutions in SPA No. 01-050 dated May 11, 2001 and in SPA No. 07-410
dated August 28, 2007. The grave abuse of discretion attending the Resolution in this case is
tantamount to lack of jurisdiction and thus renders it a nullity, thereby allowing this Court to grant this
petition directly against the Resolution of the COMELEC's Second Division.18
WHEREFORE, the petition is GRANTED. The Resolution of the COMELEC, Second Division, in
SPA Case No. 07-410, promulgated on August 28, 2007, is declared NULL and SET ASIDE, and
petitioner Florentino P. Blanco is held eligible to run for an elective office.

No costs.

3
G.R. No. 87193 June 23, 1989

JUAN GALLANOSA FRIVALDO, petitioner, 

vs.
COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON
CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT, SALVADOR NEE
ESTUYE, respondents.

J.L. Misa & Associates for petitioner.

Lladoc, Huab & Associates for private respondent.

CRUZ, J.:

Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on January
22, 1988, and assumed office in due time. On October 27, 1988, the League of Municipalities,
Sorsogon Chapter (hereafter, League), represented by its President, Salvador Estuye, who was also
suing in his personal capacity, filed with the Commission on Elections a petition for the annulment of
Frivaldo; election and proclamation on the ground that he was not a Filipino citizen, having been
naturalized in the United States on January 20, 1983. In his answer dated May 22, 1988, Frivaldo
admitted that he was naturalized in the United States as alleged but pleaded the special and
affirmative defenses that he had sought American citizenship only to protect himself against
President Marcos. His naturalization, he said, was "merely forced upon himself as a means of
survival against the unrelenting persecution by the Martial Law Dictator's agents abroad." He added
that he had returned to the Philippines after the EDSA revolution to help in the restoration of
democracy. He also argued that the challenge to his title should be dismissed, being in reality a quo
warranto petition that should have been filed within ten days from his proclamation, in accordance
with Section 253 of the Omnibus Election Code. The League, moreover, was not a proper party
because it was not a voter and so could not sue under the said section.

Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent Commission
on Elections decided instead by its Order of January 20, 1988, to set the case for hearing on the
merits. His motion for reconsideration was denied in another Order dated February 21, 1988. He
then came to this Court in a petition for certiorari and prohibition to ask that the said orders be set
aside on the ground that they had been rendered with grave abuse of discretion. Pending resolution
of the petition, we issued a temporary order against the hearing on the merits scheduled by the
COMELEC and at the same time required comments from the respondents.

In their Comment, the private respondents reiterated their assertion that Frivaldo was a naturalized
American citizen and had not reacquired Philippine citizenship on the day of the election on January
18, 1988. He was therefore not qualified to run for and be elected governor. They also argued that
their petition in the Commission on Elections was not really for quo warranto under Section 253 of
the Omnibus Election Code. The ultimate purpose was to prevent Frivaldo from continuing as
governor, his candidacy and election being null and void ab initio because of his alienage. Even if
their petition were to be considered as one for quo warranto, it could not have been filed within ten
days from Frivaldo's proclamation because it was only in September 1988 that they received proof of
his naturalization. And assuming that the League itself was not a proper party, Estuye himself, who
was suing not only for the League but also in his personal capacity, could nevertheless institute the
suit by himself alone.

Speaking for the public respondent, the Solicitor General supported the contention that Frivaldo was
not a citizen of the Philippines and had not repatriated himself after his naturalization as an
American citizen. As an alien, he was disqualified from public office in the Philippines. His election
did not cure this defect because the electorate of Sorsogon could not amend the Constitution, the
Local Government Code, and the Omnibus Election Code. He also joined in the private respondent's
argument that Section 253 of the Omnibus Election Code was not applicable because what the
League and Estuye were seeking was not only the annulment of the proclamation and election of
Frivaldo. He agreed that they were also asking for the termination of Frivaldo's incumbency as
governor of Sorsogon on the ground that he was not a Filipino.

In his Reply, Frivaldo insisted that he was a citizen of the Philippines because his naturalization as
an American citizen was not "impressed with voluntariness." In support he cited the Nottebohm
Case, [(1955 I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a German national's naturalization in
Liechtenstein was not recognized because it had been obtained for reasons of convenience only. He
said he could not have repatriated himself before the 1988 elections because the Special Committee
on Naturalization created for the purpose by LOI No. 27C had not yet been organized then. His oath
in his certificate of candidacy that he was a natural-born citizen should be a sufficient act of
repatriation. Additionally, his active participation in the 1987 congressional elections had divested
him of American citizenship under the laws of the United States, thus restoring his Philippine
citizenship. He ended by reiterating his prayer for the rejection of the move to disqualify him for
being time-barred under Section 253 of the Omnibus Election Code.

Considering the importance and urgency of the question herein raised, the Court has decided to
resolve it directly instead of allowing the normal circuitous route that will after all eventually end with
this Court, albeit only after a, long delay. We cannot permit this delay. Such delay will be inimical to
the public interest and the vital principles of public office to be here applied.

It is true that the Commission on Elections has the primary jurisdiction over this question as the sole
judge of all contests relating to the election, returns and qualifications of the members of the
Congress and elective provincial and city officials. However, the decision on Frivaldo's citizenship
has already been made by the COMELEC through its counsel, the Solicitor General, who
categorically claims that Frivaldo is a foreigner. We assume this stance was taken by him after
consultation with the public respondent and with its approval. It therefore represents the decision of
the COMELEC itself that we may now review. Exercising our discretion to interpret the Rules of
Court and the Constitution, we shall consider the present petition as having been filed in accordance
with Article IX-A Section 7, of the Constitution, to challenge the aforementioned Orders of the
COMELEC.

The basic question we must resolve is whether or not Juan G. Frivaldo was a citizen of the
Philippines at the time of his election on January 18, 1988, as provincial governor of Sorsogon. All
the other issues raised in this petition are merely secondary to this basic question.
The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all public
officials and employees owe the State and the Constitution "allegiance at all times" and the specific
requirement in Section 42 of the Local Government Code that a candidate for local elective office
must be inter alia a citizen of the Philippines and a qualified voter of the constituency where he is
running. Section 117 of the Omnibus Election Code provides that a qualified voter must be, among
other qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage
under Article V, Section 1, of the Constitution.

In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a
"natural-born" citizen of the Philippines, omitting mention of any subsequent loss of such status. The
evidence shows, however, that he was naturalized as a citizen of the United States in 1983 per the
following certification from the United States District Court, Northern District of California, as duly
authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San
Francisco, California, U.S.A.

OFFICE OF THE CLERK

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

September 23, 1988

TO WHOM IT MAY CONCERN:

Our records show that JUAN GALLANOSA FRIVALDO, born on October 20, 1915,
was naturalized in this Court on January 20, 1983, and issued Certificate of
Naturalization No. 11690178.

Petition No. 280225.

Alien Registration No. A23 079 270.

Very truly yours,

WILLIAM L. WHITTAKER

Clerk

by:

(Sgd.)

ARACELI V. BAREN

Deputy Clerk
This evidence is not denied by the petitioner. In fact, he expressly admitted it in his
answer. Nevertheless, as earlier noted, he claims it was "forced" on him as a
measure of protection from the persecution of the Marcos government through his
agents in the United States.

The Court sees no reason not to believe that the petitioner was one of the enemies
of the Marcos dictatorship. Even so, it cannot agree that as a consequence thereof
he was coerced into embracing American citizenship. His feeble suggestion that his
naturalization was not the result of his own free and voluntary choice is totally
unacceptable and must be rejected outright.

There were many other Filipinos in the United States similarly situated as Frivaldo,
and some of them subject to greater risk than he, who did not find it necessary — nor
do they claim to have been coerced — to abandon their cherished status as Filipinos.
They did not take the oath of allegiance to the United States, unlike the petitioner
who solemnly declared "on oath, that I absolutely and entirely renounce and abjure
all allegiance and fidelity to any foreign prince, potentate, state or sovereignty of
whom or which I have heretofore been a subject or citizen," meaning in his case the
Republic of the Philippines. The martyred Ninoy Aquino heads the impressive list of
those Filipinos in exile who, unlike the petitioner, held fast to their Philippine
citizenship despite the perils of their resistance to the Marcos regime.

The Nottebohm case cited by the petitioner invoked the international law principle of
effective nationality which is clearly not applicable to the case at bar. This principle is
expressed in Article 5 of the Hague Convention of 1930 on the Conflict of Nationality
Laws as follows:

Art. 5. Within a third State a person having more than one nationality
shall be treated as if he had only one. Without prejudice to the
application of its law in matters of personal status and of any
convention in force, a third State shall, of the nationalities which any
such person possesses, recognize exclusively in its territory either
the nationality of the country in which he is habitually and principally
resident or the nationality of the country with which in the
circumstances he appears to be in fact most closely connected.

Nottebohm was a German by birth but a resident of Guatemala for 34 years when he
applied for and acquired naturalization in Liechtenstein one month before the
outbreak of World War II. Many members of his family and his business interests
were in Germany. In 1943, Guatemala, which had declared war on Germany,
arrested Nottebohm and confiscated all his properties on the ground that he was a
German national. Liechtenstein thereupon filed suit on his behalf, as its citizen,
against Guatemala. The International Court of Justice held Nottebohm to be still a
national of Germany, with which he was more closely connected than with
Liechtenstein.

That case is not relevant to the petition before us because it dealt with a conflict
between the nationality laws of two states as decided by a third state. No third state
is involved in the case at bar; in fact, even the United States is not actively claiming
Frivaldo as its national. The sole question presented to us is whether or not Frivaldo
is a citizen of the Philippines under our own laws, regardless of other nationality
laws. We can decide this question alone as sovereign of our own territory,
conformably to Section 1 of the said Convention providing that "it is for each State to
determine under its law who are its nationals."

It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein

whereas in the present case Frivaldo is rejecting his naturalization in the United
States.

If he really wanted to disavow his American citizenship and reacquire Philippine

citizenship, the petitioner should have done so in accordance with the laws of our
country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine
citizenship may be reacquired by direct act of Congress, by naturalization, or by
repatriation.

While Frivaldo does not invoke either of the first two methods, he nevertheless
claims he has reacquired Philippine citizenship by virtue of a valid repatriation. He
claims that by actively participating in the elections in this country, he automatically
forfeited American citizenship under the laws of the United States. Such laws do not
concern us here. The alleged forfeiture is between him and the United States as his
adopted country. It should be obvious that even if he did lose his naturalized
American citizenship, such forfeiture did not and could not have the effect of
automatically restoring his citizenship in the Philippines that he had earlier
renounced. At best, what might have happened as a result of the loss of his
naturalized citizenship was that he became a stateless individual.

Frivaldo's contention that he could not have repatriated himself under LOI 270
because the Special Committee provided for therein had not yet been constituted
seems to suggest that the lack of that body rendered his repatriation unnecessary.
That is far-fetched if not specious Such a conclusion would open the floodgates, as it
were. It would allow all Filipinos who have renounced this country to claim back their
abandoned citizenship without formally rejecting their adoptedstate and reaffirming
their allegiance to the Philippines.

It does not appear that Frivaldo has taken these categorical acts. He contends that
by simply filing his certificate of candidacy he had, without more, already effectively
recovered Philippine citizenship. But that is hardly the formal declaration the law
envisions — surely, Philippine citizenship previously disowned is not that cheaply
recovered. If the Special Committee had not yet been convened, what that meant
simply was that the petitioner had to wait until this was done, or seek naturalization
by legislative or judicial proceedings.

The argument that the petition filed with the Commission on Elections should be
dismissed for tardiness is not well-taken. The herein private respondents are seeking
to prevent Frivaldo from continuing to discharge his office of governor because he is
disqualified from doing so as a foreigner. Qualifications for public office are
continuing requirements and must be possessed not only at the time of appointment
or election or assumption of office but during the officer's entire tenure. Once any of
the required qualifications is lost, his title may be seasonably challenged. If, say, a
female legislator were to marry a foreigner during her term and by her act or
omission acquires his nationality, would she have a right to remain in office simply
because the challenge to her title may no longer be made within ten days from her
proclamation? It has been established, and not even denied, that the evidence of
 Frivaldo's naturalization was discovered only eight months after his proclamation and
his title was challenged shortly thereafter.

This Court will not permit the anomaly of a person sitting as provincial governor in
this country while owing exclusive allegiance to another country. The fact that he was
elected by the people of Sorsogon does not excuse this patent violation of the
salutary rule limiting public office and employment only to the citizens of this country.
The qualifications prescribed for elective office cannot be erased by the electorate
alone. The will of the people as expressed through the ballot cannot cure the vice of
ineligibility, especially if they mistakenly believed, as in this case, that the candidate
was qualified. Obviously, this rule requires strict application when the deficiency is
lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he
must owe his total loyalty to this country only, abjuring and renouncing all fealty and
fidelity to any other state.

It is true as the petitioner points out that the status of the natural-born citizen is
favored by the Constitution and our laws, which is all the more reason why it should
be treasured like a pearl of great price. But once it is surrendered and renounced, the
gift is gone and cannot be lightly restored. This country of ours, for all its difficulties
and limitations, is like a jealous and possessive mother. Once rejected, it is not quick
to welcome back with eager arms its prodigal if repentant children. The returning
renegade must show, by an express and unequivocal act, the renewal of his loyalty
and love.

WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is

hereby declared not a citizen of the Philippines and therefore DISQUALIFIED from
serving as Governor of the Province of Sorsogon. Accordingly, he is ordered to
vacate his office and surrender the same to the duly elected Vice-Governor of the
said province once this decision becomes final and executory. The temporary
restraining order dated March 9, 1989, is LIFTED.

SO ORDERED.

4
G.R. No. 181613               November 25, 2009

ROSALINDA A. PENERA, Petitioner, 
vs.
COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents.

RESOLUTION

CARPIO, J.:

We grant Rosalinda A. Penera’s (Penera) motion for reconsideration of this Court’s Decision of 11
September 2009 (Decision).

The assailed Decision dismissed Penera’s petition and affirmed the Resolution dated 30 July 2008
of the COMELEC En Banc as well as the Resolution dated 24 July 2007 of the COMELEC Second
Division. The Decision disqualified Penera from running for the office of Mayor in Sta. Monica,
Surigao del Norte and declared that the Vice-Mayor should succeed Penera.

In support of her motion for reconsideration, Penera submits the following arguments:

1. Penera was not yet a candidate at the time of the incident under Section 11 of RA 8436 as
amended by Section 13 of RA 9369.

2. The petition for disqualification failed to submit convincing and substantial evidence
against Penera for violation of Section 80 of the Omnibus Election Code.

3. Penera never admitted the allegations of the petition for disqualification and has
consistently disputed the charge of premature campaigning.

4. The admission that Penera participated in a motorcade is not the same as admitting she
engaged in premature election campaigning.

Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person aspiring for or
seeking an elective public office, who has filed a certificate of candidacy x x x." The second
sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides
that "[a]ny person who files his certificate of candidacy within [the period for filing] shall only be
considered as a candidate at the start of the campaign period for which he filed his certificate of
candidacy." The immediately succeeding proviso in the same third paragraph states that "unlawful
acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid
campaign period." These two provisions determine the resolution of this case.

The Decision states that "[w]hen the campaign period starts and [the person who filed his certificate
of candidacy] proceeds with his/her candidacy, his/her intent turning into actuality, we can already
consider his/her acts, after the filing of his/her COC and prior to the campaign period, as the
promotion of his/her election as a candidate, hence, constituting premature campaigning, for which
he/she may be disqualified."1

Under the Decision, a candidate may already be liable for premature campaigning after the filing of
the certificate of candidacy but even before the start of the campaign period. From the filing of the
certificate of candidacy, even long before the start of the campaign period, the Decision considers
the partisan political acts of a person so filing a certificate of candidacy "as the promotion of his/her
election as a candidate." Thus, such person can be disqualified for premature campaigning for acts
done before the start of the campaign period. In short, the Decision considers a person who files a
certificate of candidacy already a "candidate" even before the start of the campaign period.  lawphil

The assailed Decision is contrary to the clear intent and letter of the law.

The Decision reverses Lanot v. COMELEC,2 which held that a person who files a certificate of
candidacy is not a candidate until the start of the campaign period. In Lanot, this
Court explained:

Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a
person engages in an election campaign or partisan political activity; (2) the act is designed to
promote the election or defeat of a particular candidate or candidates; (3) the act is done outside the
campaign period.
The second element requires the existence of a "candidate." Under Section 79(a), a candidate is
one who "has filed a certificate of candidacy" to an elective public office. Unless one has filed his
certificate of candidacy, he is not a "candidate." The third element requires that the campaign period
has not started when the election campaign or partisan political activity is committed.

Assuming that all candidates to a public office file their certificates of candidacy on the last day,
which under Section 75 of the Omnibus Election Code is the day before the start of the campaign
period, then no one can be prosecuted for violation of Section 80 for acts done prior to such last day.
Before such last day, there is no "particular candidate or candidates" to campaign for or against. On
the day immediately after the last day of filing, the campaign period starts and Section 80 ceases to
apply since Section 80 covers only acts done "outside" the campaign period.

Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to
acts done on such last day, which is before the start of the campaign period and after at least one
candidate has filed his certificate of candidacy. This is perhaps the reason why those running for
elective public office usually file their certificates of candidacy on the last day or close to the last day.

There is no dispute that Eusebio’s acts of election campaigning or partisan political activities were
committed outside of the campaign period. The only question is whether Eusebio, who filed his
certificate of candidacy on 29 December 2003, was a "candidate" when he committed those acts
before the start of the campaign period on 24 March 2004.

Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates of
candidacy to 120 days before election day. Thus, the original deadline was moved from 23 March
2004 to 2 January 2004, or 81 days earlier. The crucial question is: did this change in the deadline
for filing the certificate of candidacy make one who filed his certificate of candidacy before 2 January
2004 immediately liable for violation of Section 80 if he engaged in election campaign or partisan
political activities prior to the start of the campaign period on 24 March 2004?

Section 11 of RA 8436 provides:

SECTION 11. Official Ballot. – The Commission shall prescribe the size and form of the official ballot
which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in
an initiative, referendum or plebiscite. Under each position, the names of candidates shall be
arranged alphabetically by surname and uniformly printed using the same type size. A fixed space
where the chairman of the Board of Election Inspectors shall affix his/her signature to authenticate
the official ballot shall be provided.

Both sides of the ballots may be used when necessary.

For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/
manifestation to participate in the election shall not be later than one hundred twenty (120) days
before the elections: Provided, That, any elective official, whether national or local, running for any
office other than the one which he/she is holding in a permanent capacity, except for president and
vice-president, shall be deemed resigned only upon the start of the campaign period corresponding
to the position for which he/she is running: Provided, further, That, unlawful acts or omissions
applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided,
finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of
candidacy for the positions of President, Vice-President, Senators and candidates under the party-
list system as well as petitions for registration and/or manifestation to participate in the party-list
system shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for
other positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng
Pilipinas at the price comparable with that of private printers under proper security measures which
the Commission shall adopt. The Commission may contract the services of private printers upon
certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the
printing requirements. Accredited political parties and deputized citizens’ arms of the Commission
may assign watchers in the printing, storage and distribution of official ballots.

To prevent the use of fake ballots, the Commission through the Committee shall ensure that the
serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by
inexpensive hardware and shall be impossible to reproduce on a photocopying machine, and that
identification marks, magnetic strips, bar codes and other technical and security markings, are
provided on the ballot.

The official ballots shall be printed and distributed to each city/municipality at the rate of one (1)
ballot for every registered voter with a provision of additional four (4) ballots per precinct.

Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to
give ample time for the printing of official ballots. This is clear from the following deliberations of the
Bicameral Conference Committee:

SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,]
uniform for local and national officials?

THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present
periods.

SENATOR GONZALES. But the moment one files a certificate of candidacy, he’s already a
candidate, and there are many prohibited acts on the part of candidate.

THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .

SENATOR GONZALES. And you cannot say that the campaign period has not yet began (sic).

THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of the certificate will not
bring about one’s being a candidate.

SENATOR GONZALES. If that’s a fact, the law cannot change a fact.

THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of
candidacy will not result in that official vacating his position, we can also provide that insofar he is
concerned, election period or his being a candidate will not yet commence. Because here, the
reason why we are doing an early filing is to afford enough time to prepare this machine readable
ballots.

So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will
withdraw its proposal and will agree to the 120-day period provided in the Senate version.

THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.

xxxx
SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which
apply immediately upon being a candidate?

THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford
the Comelec enough time to print the ballots, this provision does not intend to change the campaign
periods as presently, or rather election periods as presently fixed by existing law.

THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition.

THE CHAIRMAN (REP. TANJUATCO). That’s right.

THE ACTING CHAIRMAN (SEN. FERNAN). Okay.

THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore
because we are talking about the 120-day period before election as the last day of filing a certificate
of candidacy, election period starts 120 days also. So that is election period already. But he will still
not be considered as a candidate.

Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots,
Eusebio filed his certificate of candidacy on 29 December 2003. Congress, however, never intended
the filing of a certificate of candidacy before 2 January 2004 to make the person filing to become
immediately a "candidate" for purposes other than the printing of ballots. This legislative intent
prevents the immediate application of Section 80 of the Omnibus Election Code to those filing to
meet the early deadline. The clear intention of Congress was to preserve the "election periods as x x
x fixed by existing law" prior to RA 8436 and that one who files to meet the early deadline "will still
not be considered as a candidate."3 (Emphasis in the original)

Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate until
the start of the campaign period. This ground was based on the deliberations of the legislators who
explained the intent of the provisions of RA 8436, which laid the legal framework for an automated
election system. There was no express provision in the original RA 8436 stating that one who files a
certificate of candidacy is not a candidate until the start of the campaign period.

When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot doctrine
into law, realizing that Lanot merely relied on the deliberations of Congress in holding that —

The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law"
prior to RA 8436 and that one who files to meet the early deadline "will still not be considered as a
candidate."4 (Emphasis supplied)

Congress wanted to insure that no person filing a certificate of candidacy under the early deadline
required by the automated election system would be disqualified or penalized for any partisan
political act done before the start of the campaign period. Thus, in enacting RA 9369, Congress
expressly wrote the Lanot doctrine into the second sentence, third paragraph of the amended
Section 15 of RA 8436, thus:

xxx

For this purpose, the Commission shall set the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in the election. Any person who files
his certificate of candidacy within this period shall only be considered as a candidate at the start of
the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or
omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign
period: Provided, finally, That any person holding a public appointive office or position, including
active members of the armed forces, and officers and employees in government-owned or
-controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate
the same at the start of the day of the filing of his/her certificate of candidacy. (Boldfacing and
underlining supplied)

Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second
sentence of the third paragraph of the amended Section 15 of RA 8436, which cannot be annulled
by this Court except on the sole ground of its unconstitutionality. The Decision cannot reverse Lanot
without repealing this second sentence, because to reverse Lanot would mean repealing this second
sentence.

The assailed Decision, however, in reversing Lanot does not claim that this second sentence or any
portion of Section 15 of RA 8436, as amended by RA 9369, is unconstitutional. In fact, the Decision
considers the entire Section 15 good law. Thus, the Decision is self-contradictory — reversing Lanot
but maintaining the constitutionality of the second sentence, which embodies the Lanot doctrine. In
so doing, the Decision is irreconcilably in conflict with the clear intent and letter of the second
sentence, third paragraph, Section 15 of RA 8436, as amended by RA 9369.

In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of
Section 15 of RA 8436. The original provision in RA 8436 states —

x x x Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect
upon the start of the aforesaid campaign period, x x x.

In RA 9369, Congress inserted the word "only" so that the first proviso now reads —

x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon
the start of the aforesaid campaign period x x x. (Emphasis supplied)

Thus, Congress not only reiterated but also strengthened its mandatory directive that election
offenses can be committed by a candidate "only" upon the start of the campaign period. This clearly
means that before the start of the campaign period, such election offenses cannot be so committed.

When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these
provisions of law do not consider Penera a candidate for purposes other than the printing of ballots,
until the start of the campaign period. There is absolutely no room for any other interpretation.

We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:

x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election Code should be read
together with the amended Section 15 of RA 8436. A "‘candidate’ refers to any person aspiring for or
seeking an elective public office, who has filed a certificate of candidacy by himself or through an
accredited political party, aggroupment or coalition of parties." However, it is no longer enough to
merely file a certificate of candidacy for a person to be considered a candidate because "any person
who files his certificate of candidacy within [the filing] period shall only be considered a candidate at
the start of the campaign period for which he filed his certificate of candidacy." Any person may thus
file a certificate of candidacy on any day within the prescribed period for filing a certificate of
candidacy yet that person shall be considered a candidate, for purposes of determining one’s
possible violations of election laws, only during the campaign period. Indeed, there is no "election
campaign" or "partisan political activity" designed to promote the election or defeat of a particular
candidate or candidates to public office simply because there is no "candidate" to speak of prior to
the start of the campaign period. Therefore, despite the filing of her certificate of candidacy, the law
does not consider Penera a candidate at the time of the questioned motorcade which was conducted
a day before the start of the campaign period. x x x

The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007. Penera
filed her certificate of candidacy on 29 March 2007. Penera was thus a candidate on 29 March 2009
only for purposes of printing the ballots. On 29 March 2007, the law still did not consider Penera a
candidate for purposes other than the printing of ballots. Acts committed by Penera prior to 30 March
2007, the date when she became a "candidate," even if constituting election campaigning or partisan
political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts are
within the realm of a citizen’s protected freedom of expression. Acts committed by Penera within the
campaign period are not covered by Section 80 as Section 80 punishes only acts outside the
campaign period.5

The assailed Decision gives a specious reason in explaining away the first proviso in the third
paragraph, the amended Section 15 of RA 8436 that election offenses applicable to candidates take
effect only upon the start of the campaign period. The Decision states that:

x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides that "any
unlawful act or omission applicable to a candidate shall take effect only upon the start of the
campaign period," does not mean that the acts constituting premature campaigning can only be
committed, for which the offender may be disqualified, during the campaign period. Contrary to the
pronouncement in the dissent, nowhere in said proviso was it stated that campaigning before the
start of the campaign period is lawful, such that the offender may freely carry out the same with
impunity.

As previously established, a person, after filing his/her COC but prior to his/her becoming a
candidate (thus, prior to the start of the campaign period), can already commit the acts described
under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity,
However, only after said person officially becomes a candidate, at the beginning of the campaign
period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus
Election Code. Only after said person officially becomes a candidate, at the start of the campaign
period, can his/her disqualification be sought for acts constituting premature campaigning.
Obviously, it is only at the start of the campaign period, when the person officially becomes a
candidate, that the undue and iniquitous advantages of his/her prior acts, constituting premature
campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only about
to begin their election campaign, a candidate who had previously engaged in premature
campaigning already enjoys an unfair headstart in promoting his/her candidacy.6(Emphasis supplied)

It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is
specially true to expression or speech, which Congress cannot outlaw except on very narrow
grounds involving clear, present and imminent danger to the State. The mere fact that the law does
not declare an act unlawful ipso facto means that the act is lawful. Thus, there is no need for
Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that political partisan
activities before the start of the campaign period are lawful. It is sufficient for Congress to state that
"any unlawful act or omission applicable to a candidate shall take effect only upon the start of the
campaign period." The only inescapable and logical result is that the same acts, if done before the
start of the campaign period, are lawful.
In layman’s language, this means that a candidate is liable for an election offense only for acts done
during the campaign period, not before. The law is clear as daylight — any election offense that may
be committed by a candidate under any election law cannot be committed before the start of the
campaign period. In ruling that Penera is liable for premature campaigning for partisan political acts
before the start of the campaigning, the assailed Decision ignores the clear and express provision of
the law.

The Decision rationalizes that a candidate who commits premature campaigning can be disqualified
or prosecuted only after the start of the campaign period. This is not what the law says. What the law
says is "any unlawful act or omission applicable to a candidate shall take effect only upon the start of
the campaign period." The plain meaning of this provision is that the effective date when partisan
political acts become unlawful as to a candidate is when the campaign period starts. Before the start
of the campaign period, the same partisan political acts are lawful.

The law does not state, as the assailed Decision asserts, that partisan political acts done by a
candidate before the campaign period are unlawful, but may be prosecuted only upon the start of the
campaign period. Neither does the law state that partisan political acts done by a candidate before
the campaign period are temporarily lawful, but becomes unlawful upon the start of the campaign
period. This is clearly not the language of the law. Besides, such a law as envisioned in the
Decision, which defines a criminal act and curtails freedom of expression and speech, would be void
for vagueness.

Congress has laid down the law — a candidate is liable for election offenses only upon the start of
the campaign period. This Court has no power to ignore the clear and express mandate of the law
that "any person who files his certificate of candidacy within [the filing] period shall only be
considered a candidate at the start of the campaign period for which he filed his certificate of
candidacy." Neither can this Court turn a blind eye to the express and clear language of the law that
"any unlawful act or omission applicable to a candidate shall take effect only upon the start of the
campaign period."

The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court
but the Legislature. This Court has no recourse but to apply a law that is as clear, concise and
express as the second sentence, and its immediately succeeding proviso, as written in the third
paragraph of Section 15 of RA 8436, as amended by RA 9369.

WHEREFORE, we GRANT petitioner Rosalinda A. Penera’s Motion for Reconsideration. We SET

ASIDE the Decision of this Court in G.R. No. 181613 promulgated on 11 September 2009, as well as
the Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division and the
COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A. Penera shall continue as Mayor
of Sta. Monica, Surigao del Norte.

SO ORDERED.

5
G.R. No. 139545           January 28, 2000

MAIMONA H. N. M. S. DIANGKA, petitioner, 
vs.
COMMISSION ON ELECTIONS, and ATTY. ALI M. BALINDONG, respondents.
GONZAGA-REYES, J.:

Challenged in this petition for certiorari with a prayer for the issuance of a temporary restraining
order and/or preliminary injunction are the Resolution of September 2, 1998 of the Second Division
1 

of the Commission on Elections (COMELEC), declaring petitioner Maimona H.N.M.S. Diangka

(DIANGKA) disqualified as candidate for Mayor of Ganassi, Lanao del Sur in the May 11, 1998
elections, and the Resolution of August 24, 1992 of the COMELEC en banc denying DIANGKA's
2 

motion for reconsideration.

Briefly, the antecedents as gathered from the records are:

A special action for disqualification was commenced by private respondent Ali Balindong
(BALINDONG), a rival mayoralty candidate of DIANGKA, before the COMELEC on May 27,
1998. BALINDONG sought to disqualify DIANGKA from continuing to run as candidate for Mayor in
3 

the May 11, 1998 elections in the municipality of Ganassi, Lanao del Sur, on the ground that the
latter and her husband, then incumbent mayor of said municipality, committed acts of terrorism in
order to accord DIANGKA an undue advantage at the polls. BALINDONG alleged, among others,
that DIANGKA, directly or indirectly through her husband, committed serious acts of terrorism in
violation of the Omnibus Elections Code as follows:

1. First Act of Terrorism — that of having compelled the Watchers of other candidates
through force, threat and intimidation to leave the ballot box and election paraphernalia for
Precinct No. 2-A thereby giving respondent and her followers free hands in the filling-up of
the official ballots in favor of the respondent and thereby enhanced her candidacy. 4

2. Second Act of Terrorism — that of having swooped down and assaulted the Poblacion of
Ganassi, Lanao del Sur, creating tumultuous commotion or disturbances therein scaring
away and preventing voters from casting their votes, snatching ballot boxes and other
election paraphernalia including the official ballots and thereafter stuffing the ballot boxes
with spurious ballots favoring and enhancing the candidacy of the respondent. 5

As regards the first act of terrorism, it was alleged that DIANGKA together with Barangay Chairman
of Barangay Bagoaingud, Lombayan Dubar and several others, loaded and transported the ballots,
ballot boxes and other election paraphernalia intended for Precinct No. 2A at the Gadongan
Elementary School in an ambulance car of the municipality. Instead of transporting the ballots, ballot
boxes and other election paraphernalia directly to the aforesaid precinct, the ambulance stopped in
Barangay Bagoaingud where the watchers of DIANGKA's rivals were forced to alight from the
ambulance amidst threats and intimidation. As regards the second act of terrorism, it was alleged
6 

that on election day, the husband of DIANGKA, Mayor Omra Maning Diangka, accompanied by
several armed men including the Chief of Police went to the Ganassi Central Elementary School
where several precincts were clustered and created commotion by firing their firearms in the air. 7

In her Answer filed on July 2, 1998, DIANGKA did not traverse the allegations contained in the
8 

petition but merely made a general denial and attacked the sworn statements attached to the petition
as hearsay, self-serving, biased, fabricated and designed to eliminate her from the mayoralty race in
the municipality.

On July 14, 1998, the COMELEC en banc issued an Omnibus Order declaring a partial failure of
election in nine (9) out of the fifty-eight (58) precincts in Ganassi, Lanao del Sur, and accordingly
scheduled special elections on July 27, 1998 in the nine (9) precincts. The results of the special
elections were consolidated with the result of the May 11, 1998 elections, and DIANGKA emerged
as the winner. Based on the COMELEC's preliminary determination that the evidence against
DIANGKA in the petition for disqualification is strong, the former ordered the Municipal Board of
Canvassers to cease and desist from proclaiming her. Nevertheless, DIANGKA's proclamation as
mayor of the municipality proceeded on July 27, 1998 since the Municipal Board of Canvassers
received the order an hour after the proclamation. 9

On the date of the hearing of the petition for disqualification on August 13, 1998, only BALINDONG
and his counsel appeared. BALINDONG's counsel marked and offered in evidence the affidavits of
BALINDONG's witnesses to support the petition and thereafter asked the COMELEC for a period of
five (5) days to file his memorandum. After BALINDONG and his counsel left, the counsel of
DIANGKA arrived and was informed of what had transpired. Upon his request, DIANGKA's counsel
was allowed to file a memorandum with the affidavits of her witnesses.

On September 2, 1998, the COMELEC 2nd Division issued a Resolution disqualifying DIANGKA as
candidate for Mayor of Ganassi, Lanao del Sur, on the basis of the following findings:

. . . Respondent is the wife of then incumbent Ganassi Mayor Omra Maning Diangka who is
disqualified from seeking another term as Mayor. As a gesture of tradition in Philippine
politics, if the husband is disqualified to run by reason of his having already served three (3)
consecutive terms, it is the wife who is fielded as candidate in her husband's stead. While we
find credibility and consistency in the testimonies of petitioner's witnesses which all point to
the perpetration of terrorism during the election, respondent cannot escape liability by the
mere expedient of stating that she is not privy nor a participant to the said acts of terrorism.
In our considered view, such terrorism and violation of election laws were perpetrated to
enhance her candidacy and are attributable to her, she being the wife of the incumbent
Mayor and widely acknowledged to be fielded by her husband to run for the mayoralty seat
in Ganassi, Lanao del Sur. 1âwphi1.nêt

After a careful and thorough examination of the evidences, we find that the same possess
the degree of persuasiveness that could warrant the disqualification of respondent from
running as mayoralty candidate of Ganassi, Lanao del Sur. The alleged acts of terrorism and
violation of election laws are sufficiently established by the documentary evidence submitted
by petitioner Balindong.10

On September 9, 1998, DIANGKA filed a motion for reconsideration. In a Resolution dated August
11 

24, 1999, the COMELEC en banc denied the motion for reconsideration and affirmed the resolution
of the COMELEC Second Division. 12

In the meantime, however, and during the pendency of the instant petition, Baguio A. Macapodi, duly
elected Municipal Vice-Mayor of Ganassi, Lanao del Sur took his oath of office on August 30, 1999
as Municipal Mayor of Ganassi, Lanao del Sur and has assumed the duties and responsibilities
thereof as the lawful successor in accordance with the Local Government Code. 13

Hence, the present petition for certiorari on the following grounds:

1. THE PETITIONER COULD NOT BE DISQUALIFIED ON THE BASIS OF THE ALLEGED

TERRORISM SUPPOSEDLY PERPETRATED BY HER HUSBAND AT THE GANASSI CENTRAL
ELEMENTARY SCHOOL AT 2:00 P.M., MAY 11, 1998. THE COMELEC VIOLATED THE RULE
OF RES INTER ALIUS ACTA. IT IS NOT EVEN CLAIMED THAT THE PETITIONER CONSPIRED
WITH HER HUSBAND IN THE ALLEGED CRIMINAL ACTS COMMITTED. THERE IS EVEN NO
EVIDENCE SUBMITTED THAT THE PETITIONER WAS WITH HER HUSBAND WHEN THE
ALLEGED CRIMINAL ACTS WERE COMMITTED;
2. WITH RESPECT TO PRECINCT 2A, THE COMELEC DISQUALIFIED THE PETITIONER CITING
AS SOLE BASIS THE AFFIDAVITS OF TWO (2) WATCHERS OF THE PRIVATE RESPONDENT
WHO ARE OBVIOUSLY BIASED WITNESSES. ONLY ONE WITNESS AFFIRMED HIS AFFIDAVIT
BEFORE THE COMELEC. THE OTHER DID NOT;

3. THE COMELEC DID NOT EVEN DISCUSS OR CONSIDER THE TESTIMONY OF THE
ELECTION OFFICER OF GANASSI; THE MEMBERS OF THE BOARD OF ELECTION
INSPECTORS OF THE ADJOINING PRECINCTS; THE TESTIMONY OF THE PNP CHIEF OF
POLICE WHO ALL DENIED THE ALLEGATIONS OF THE TWO (2) WATCHERS OF THE PRIVATE
RESPONDENT. "Not only must the party be given an opportunity to present his case and to adduce
evidence tending to establish the rights which he asserts but the tribunal must consider the evidence
presented." [Ang Tibay vs. Court of Industrial Relations, 69 Phil. 635] THERE IS VIOLATION OF
DUE PROCESS OF LAW.

4. THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT MERELY RELIED

ON THE AFFIDAVITS OF THE WITNESSES OF THE PRIVATE RESPONDENT WITHOUT
CONDUCTING CLARIFICATORY QUESTIONING AND/OR CROSS-EXAMINATION OF THE
WITNESSES. THE PROCEEDINGS ON AUGUST 13, 1998 BEING EX-PARTE, THE COMELEC
SECOND DIVISION SHOULD HAVE CONDUCTED CLARIFICATORY QUESTIONS AND/OR
CROSS-EXAMINATION OF THE WITNESSES OF PRIVATE RESPONDENT. IT SHOULD NOT
HAVE RELIED ON THE MERE SAY SO OF THE WITNESSES. 14

At the outset, it must be stressed that we cannot depart from the settled norm of reviewing decisions
of the COMELEC, i.e., "this Court cannot review the factual findings of the COMELEC absent a
grave abuse of discretion and a showing of arbitrariness in its decision, order or resolution." The
15 

arguments of petitioner DIANGKA do not convince this Court that the COMELEC gravely abused its
discretion in ordering her disqualification.

A perusal of the issues raised by DIANGKA readily shows that there is an attempt to discredit the
factual findings of the COMELEC that DIANGKA, directly or indirectly through her husband, who was
then incumbent mayor of the municipality, committed acts of terrorism which is a ground for
disqualification under Section 68 of the Omnibus Election Code. The said section enumerates the
instances where a candidate can be disqualified by the COMELEC, to wit:

Sec. 68. — Disqualifications. — Any candidate who, in an action or protest in which he is a

party is declared by final decision of a competent court guilty of, or found by the Commission
of having (a) given money or other material consideration to influence, induce or corrupt the
voters or public officials performing electoral functions: (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in excess of that
allowed by this code; (d) solicited, received or made any contribution prohibited under
Sections 89, 95, 96, 97 and 104; or (e) violated any of Section 80, 83, 85, 86 and 261,
paragraphs d,e,k,v, and cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any person who is a permanent
resident of or an immigrant of a foreign country shall not be qualified to run for any elective
office under this code, unless said person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence requirement provided for in
the election laws. (Sec. 25, 1971 EC). (emphasis supplied)

The following are excerpts from the Resolution dated August 24, 1999 of the COMELEC en
banc affirming the Resolution dated September 2, 1998 of the COMELEC (Second Division):
 There is enough evidence to support the findings of the Commission (Second division) that
the alleged acts of terrorism and violation of election laws, which transpired in her presence,
are sufficiently established by the evidence submitted by the Petitioner and that the same
were perpetrated to enhance her candidacy and are attributable to her.

It is not denied by respondent that then incumbent Mayor of Ganassi is Omra Maning
Diangka, her husband. A preponderance of evidence shows that it was an ambulance car
that was used in the distribution of ballots and other election paraphernalia. In fact, in her
affidavit, respondent explicitly stated that it was an ambulance that was used. She had not
denied that the same is under the control of and being used by Omra Maning Diangka and
his family. No specific denial of this fact can be found in her Answer. And as shown by the
evidence, the respondent was in that ambulance, at the front seat beside the driver where
she can easily give directions for the latter to follow during the time material to the petition.

Petitioner's witness, Hadji Naif Amerol, a watcher of mayoral candidate Salahudin Amerol,
stated in his affidavit the following:

2. At about 12:00 noon of May 11, 1998 we boarded the ambulance car of Ganassi,
Lanao del Sur to keep watch over the election paraphernalia, official ballots and
ballot box intended for Precinct No. 2A of Barangay Bagoaingud loaded in the said
car. On board the car were certain Mansawi, the BEI Chairman of the said precinct,
Mr. Mamosaca Marangit, an elementary Grades teacher and brother-in-law of
mayoral candidate Maimona Diangka; one (1) armed man whom I have identified
later on as LOMBAYAN DUBAR, Barangay Chairman of Barangay Bagoainged,
Ganassi, Lanao del Sur; mayoral Maimona Diangka;

3. The ambulance vehicle took off from Pindulunan and was driven straight to
Barangay Bagoainged. The election paraphernalia, official ballots and other election
supplies intended for Precinct No. 2A were not brought to the officially designated
polling place at Gadungan Elementary School at Gadungan, Ganassi, Lanao del Sur
but to a private house at Bagoainged, Ganassi, Lanao del Sur. We protested but to
no avail in that we were threatened to be killed with high-powered firearms of several
men led by Barangay Lombayan Dubar if we insist on watching them or do not leave
the place;

The Commission (En Banc) finds it significant that Respondent has not successfully refuted the
allegations of Petitioner. Nowhere in all her pleadings submitted before this Commission has
Respondent presented any evidence sufficient to rebut Petitioner's allegations. It was only in her
affidavit attached to her motion for reconsideration that Respondent denied these allegations. Quite
late for her.

In Respondent's belatedly submitted affidavit, she stated as follows:

2. I did not participate nor did I have any previous knowledge nor consented to the
alleged terrorism supposedly committed by my husband, Mayor Maning Diangka
described by Mamolawan B. Balindong in her supposed affidavit submitted to the
Commission on Elections . . . I was in my house at Bagoaingud when the purported
incident allegedly transpired "past 1:00 o'clock" and "about past 2:00 o'clock in the
same afternoon;

x x x           x x x           x x x.
 5. My opponent, Atty. Ali M. Balindong, did his best to delay the distribution and
delivery of the ballot boxes of the three precincts of Barangay Bagoaingud. It was
only about noontime of May 11, 1998 that the clustered precincts of Precinct Nos.
2A1 and 2A2 of Barangay Bagoaingud were given to the Board of Election
Inspectors. Thereafter, the members of the BEI of said precincts, watchers of
candidates, PNP policemen, and I boarded the ambulance vehicle together with the
ballot boxes and election documents of Precinct 2A, and the clustered precincts of
2A1 and 2A2. I was seated in front of the vehicle beside the driver;

6. Since it was already past noon when we reached the junction going to the
Gadungan Elementary School, I asked the driver to first bring me to my residence
which was about 500 meters away from the junction. . . . Accordingly, the driver
brought me to my house where alighted. . . .[.]

Petitioner notes in his Comment/Opposition to the motion for reconsideration, that the
foregoing denials were in fact admissions that the Respondent had control over the driver of
the ambulance vehicle, bolstering Petitioner's allegation against respondent. Moreover, it
further shows that the said ambulance vehicle, a property that belongs to the municipality, is
under the control of respondent's husband and was being used at the same time by
respondent during election day. Respondent's admission that she was a passenger in the
ambulance vehicle on election day already speaks volumes. More so, when respondent
admitted that the driver, at her request, dropped her off at her house. Hence, respondent
was not a mere passenger of the ambulance but one who controls its driver. And she was
there not as an ordinary person but as a candidate whose interest should not be served
through the use of government assets, even if they are under the control of her husband, the
incumbent Mayor of the Municipality of Ganassi. She cannot now deny that her use thereof
on election day was facilitated by the incumbent mayor who has control over the ambulance.
Much less can she deny the fact that she was an active participant in the commission of the
offense.

On the second act of terrorism complained of, the description of the incident by the BEI
Chairman Almairan Aguam (Annex C Petition) vividly show that it was incumbent Mayor
Omra Maning Diangka who disrupted the voting process by violence and forcefully took the
ballot box in the precinct. The incumbent mayor could not have done it just for the heck of it.
Rather, it is clear that said terrorist acts were done to favor not just any of the candidates but
were calculated to ensure the victory in the polls of a specific candidate, his wife. It cannot be
said that the terrorism of Mayor Diangka was a blind one. Also, neither can it be said that
respondent was unaware of this nor was she unaware that arms were being used on election
day to further the ends of her candidacy. The incident in Bagoaingud shows clearly that she
was using arms through her husband, his men and her supporters to achieve her political
ends.

We uphold the foregoing factual findings, as well as the conclusions reached by the COMELEC.
Factual findings of the COMELEC based on its own assessment and duly supported by gathered
evidence, are conclusive absence of a substantiated attack on the validity of the same, as is the
16 

case in the instant petition.

In support of the first ground, DIANGKA argues that her disqualification was simply based on
relationship, she being the wife of the alleged terrorist; that there is no evidence that she conspired
with her husband in the perpetration of the acts of terrorism; and that there is a violation of the rule
that "rights of a party cannot be prejudiced by an act, declaration, or omission of another." 17
Contrary to DIANGKA'S claim, the COMELEC found evidence of her direct act of terrorism. She was
on board the ambulance used to transport the ballots, ballot boxes and other election paraphernalia
intended for Precinct 2A at the Gadongan Elementary School. Instead of proceeding to the said
place, the ambulance went to Barangay Bagoaingud where the watchers of DIANGKA's rivals were
forced off the ambulance at gunpoint by barangay chairman Lombayan Dubar and the cohorts.
DIANGKA could not feign ignorance as to what had transpired as the COMELEC had found, based
on her own admission and the testimonies of witnesses, that DIANGKA was a passenger in the
ambulance; that she had control over the driver of the ambulance, who upon her request, dropped
her off at her house; and that the ambulance belongs to the municipality under the control of her
mayor husband. Evidently, the application of the rule on res inter alios acta is unavailing on account
of these circumstances which shows her participation or at the very least her acquiescence to the
incident.

Neither could DIANGKA escape responsibility on the ground that there is no proof that she and her
husband conspired to commit the acts of terrorism. Inasmuch as her husband along with his cohorts
fired their high-powered firearms in the air during election day in a place where several voting
precincts were clustered has been duly established, DIANGKA could only argue that she cannot be
held liable for the actuations of her husband.

The fact that DIANGKA was not at the scene when the aforesaid event happened does not
necessarily exculpate her. First of all, it could not be expected that DIANGKA herself would have
swooped down on the voting precincts in Ganassi Elementary School and fired the high-powered
firearms in the air. Secondly, she has not successfully presented any evidence which tends to
disprove that she was actually a lay figure or alter ego of her husband and fielded by the latter to
run, as he was no longer qualified to run for another term as mayor pursuant to the Local
Government Code which limits the tenure of local elective officials to three (3) consecutive terms.
Third, her participation in the first act of terrorism taken together with what happened at the Ganassi
Central Elementary School ultimately points to a common purpose and community of interest
between the mayor husband and his candidate wife, that is, to accord the latter undue advantage at
the polls. Hence, she cannot be held blameless for the acts perpetrated by her husband.

As regards the second, third and fourth grounds, DIANGKA would have this Court analyze and
weigh all over again the evidence already considered in the proceedings before the COMELEC on
the ground that she was denied due process.

We find that DIANGKA was not denied due process. DIANGKA was given all the opportunity to
prove that the evidence on her disqualification based on the commission of acts of terrorism was not
strong. On July 21, 1998, she filed her Answer to the petition to disqualify her. On August 24, 1998
she submitted her memorandum. The COMELEC Second Division considered the evidence of the
parties and their arguments and thereafter affirmed his disqualification. As stated by this Court
in Nolasco vs. Commission on Elections, "[t]he hoary rule is that due process does not mean prior
18 

hearing but only an opportunity to be heard." The COMELEC gave DIANGKA all the opportunity to
be heard.

DIANGKA cannot also fault the COMELEC for not conducting clarificatory questioning and/or cross-
examination of the witnesses; or that witness Hadji Naif Amerol did not appear nor affirm his affidavit
during the hearing before the COMELEC. Again, our ingrained jurisprudence is that technical rules
of evidence should not be rigorously applied in administrative proceedings specially where the law
calls for the proceeding to be summary in character. Pursuant to Section 4, Rule 25 of the 1993
19 

COMELEC Rules of Procedure, petitions for disqualifications are subject to summary hearings. In 20 

relation thereto, Section 3, Rule 17 of the said Rules provides that it remains in the sound discretion
21 

of the COMELEC whether clarificatory questions are to be asked the witnesses-affiants, and
whether the adverse party is to be granted opportunity to cross-examine said witnesses-affiants.
Furthermore, when the COMELEC en banc reviews and evaluates a party's petition, or as in the
case at bar, a party's answer and the supporting papers attached thereto, the same is tantamount to
a fair "hearing" of his case.
22

In fine, there is no showing that the COMELEC gravely abused its discretion in issuing the
Resolutions subject of the instant petition.1âwphi1.nêt

WHEREFORE, the instant petition is hereby DISMISSED. The Resolution of the COMELEC
(Second Division) dated September 2, 1998 and Resolution of the COMELEC en banc dated August
24, 1999 are hereby AFFIRMED.

SO ORDERED.

6
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, 2013  and April 23,
1

2013  Resolutions of the Commission on Elections (COMELEC), Second Division and En bane,
2

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-Intervention  filed by Alfredo S. Lim (Lim), wherein he prays to be declared the
3

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 Secretary 5

On October 26, 2007, at 3:35 p.m., former President Estrada "received and accepted"  the pardon by
6

affixing his signature beside his handwritten notation thereon.

On November 30, 2009, former President Estrada filed a Certificate of Candidacy  for the position of
7

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 Resolutions  dated January 20, 2010 by the COMELEC, Second Division,
8

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 Resolution  dated August
9

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,  this time vying for a local elective post, that ofthe Mayor of the City of
10

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."  She
11

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 Resolution  dated June
15

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."  In other words, she considers the above constraints as mandatory requirements that
17

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.  to endorse her position that "[t]he restoration of the right to
18

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."  The restoration of his right to run for any public office is the exception to the
21

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."  Lastly, taking into consideration the third
22

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;  and that his
25

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. Labrador  and Pelobello v. Palatino,  which were decided under the 1935
27 28

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.  thereby establishing that, under the present Constitution, "a pardon, being a
29

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.  (Emphases
30

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.  It is31

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."  Moreso, this fundamental principle
33

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,  otherwise known as the "Citizenship Retention and
34

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,  the Court unequivocally referred to the

35

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.  to justify
36

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,  the Court
37

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.  The pertinent ruling in the Jalosjos case is
38

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.  (Emphasis supplied.)
39
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."  Whereas clauses do not form part of a statute because, strictly speaking, they are not
40

part of the operative language of the statute.  In this case, the whereas clause at issue is not an
41

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.  (Emphasis supplied.)
42

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.

SO ORDERED.

7
G.R. No. 119976 September 18, 1995

IMELDA ROMUALDEZ-MARCOS, petitioner, 
vs.
COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

KAPUNAN, J.:

A constitutional provision should be construed as to give it effective operation and suppress the
mischief at which it is aimed.  The 1987 Constitution mandates that an aspirant for election to the
1

House of Representatives be "a registered voter in the district in which he shall be elected, and a
resident thereof for a period of not less than one year immediately preceding the election."  The
2

mischief which this provision — reproduced verbatim from the 1973 Constitution — seeks to prevent
is the possibility of a "stranger or newcomer unacquainted with the conditions and needs of a
community and not identified with the latter, from an elective office to serve that community." 3
Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of
Representative of the First District of Leyte with the Provincial Election Supervisor on March 8, 1995,
providing the following information in item no. 8:
4

RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED

IMMEDIATELY PRECEDING THE ELECTION: __________ Years
and seven Months.

On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of the
First District of Leyte and a candidate for the same position, filed a "Petition for Cancellation and
Disqualification"  with the Commission on Elections alleging that petitioner did not meet the
5

constitutional requirement for residency. In his petition, private respondent contended that Mrs.
Marcos lacked the Constitution's one year residency requirement for candidates for the House of
Representatives on the evidence of declarations made by her in Voter Registration Record 94-No.
3349772  and in her Certificate of Candidacy. He prayed that "an order be issued declaring
6

(petitioner) disqualified and canceling the certificate of candidacy."

7

On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy, changing the
entry "seven" months to "since childhood" in item no. 8 of the amended certificate.  On the same
8

day, the Provincial Election Supervisor of Leyte informed petitioner that:

[T]his office cannot receive or accept the aforementioned Certificate of Candidacy on

the ground that it is filed out of time, the deadline for the filing of the same having
already lapsed on March 20, 1995. The Corrected/Amended Certificate of Candidacy
should have been filed on or before the March 20, 1995 deadline. 9

Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with the COMELEC's
Head Office in Intramuros, Manila on
March 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 was likewise filed
with the head office on the same day. In said Answer, petitioner averred that the entry of the word
"seven" in her original Certificate of Candidacy was the result of an "honest
misinterpretation"   which she sought to rectify by adding the words "since childhood" in her
10

Amended/Corrected Certificate of Candidacy and that "she has always maintained Tacloban City as
her domicile or residence.   Impugning respondent's motive in filing the petition seeking her
11

disqualification, she noted that:

When respondent (petitioner herein) announced that she was intending to register as
a voter in Tacloban City and run for Congress in the First District of Leyte, petitioner
immediately opposed her intended registration by writing a letter stating that "she is
not a resident of said city but of Barangay Olot, Tolosa, Leyte. After respondent had
registered as a voter in Tolosa following completion of her six month actual residence
therein, petitioner filed a petition with the COMELEC to transfer the town of Tolosa
from the First District to the Second District and pursued such a move up to the
Supreme Court, his purpose being to remove respondent as petitioner's opponent in
the congressional election in the First District. He also filed a bill, along with other
Leyte Congressmen, seeking the creation of another legislative district to remove the
town of Tolosa out of the First District, to achieve his purpose. However, such bill did
not pass the Senate. Having failed on such moves, petitioner now filed the instant
petition for the same objective, as it is obvious that he is afraid to submit along with
respondent for the judgment and verdict of the electorate of the First District of Leyte
in an honest, orderly, peaceful, free and clean elections on May 8, 1995.  12
On April 24, 1995, the Second Division of the Commission on Elections (COMELEC), by a vote of 2
to 1,   came up with a Resolution 1) finding private respondent's Petition for Disqualification in SPA
13

95-009 meritorious; 2) striking off petitioner's Corrected/Amended Certificate of Candidacy of March

31, 1995; and 3) canceling her original Certificate of Candidacy.   Dealing with two primary issues,
14

namely, the validity of amending the original Certificate of Candidacy after the lapse of the deadline
for filing certificates of candidacy, and petitioner's compliance with the one year residency
requirement, the Second Division held:

Respondent raised the affirmative defense in her Answer that the printed word
"Seven" (months) was a result of an "honest misinterpretation or honest mistake" on
her part and, therefore, an amendment should subsequently be allowed. She averred
that she thought that what was asked was her "actual and physical" presence in
Tolosa and not residence of origin or domicile in the First Legislative District, to which
she could have responded "since childhood." In an accompanying affidavit, she
stated that her domicile is Tacloban City, a component of the First District, to which
she always intended to return whenever absent and which she has never
abandoned. Furthermore, in her memorandum, she tried to discredit petitioner's
theory of disqualification by alleging that she has been a resident of the First
Legislative District of Leyte since childhood, although she only became a resident of
the Municipality of Tolosa for seven months. She asserts that she has always been a
resident of Tacloban City, a component of the First District, before coming to the
Municipality of Tolosa.

Along this point, it is interesting to note that prior to her registration in Tolosa,
respondent announced that she would be registering in Tacloban City so that she
can be a candidate for the District. However, this intention was rebuffed when
petitioner wrote the Election Officer of Tacloban not to allow respondent since she is
a resident of Tolosa and not Tacloban. She never disputed this claim and instead
implicitly acceded to it by registering in Tolosa.

This incident belies respondent's claim of "honest misinterpretation or honest

mistake." Besides, the Certificate of Candidacy only asks for RESIDENCE. Since on
the basis of her Answer, she was quite aware of "residence of origin" which she
interprets to be Tacloban City, it is curious why she did not cite Tacloban City in her
Certificate of Candidacy. Her explanation that she thought what was asked was her
actual and physical presence in Tolosa is not easy to believe because there is none
in the question that insinuates about Tolosa. In fact, item no. 8 in the Certificate of
Candidacy speaks clearly of "Residency in the CONSTITUENCY where I seek to be
elected immediately preceding the election." Thus, the explanation of respondent
fails to be persuasive.

From the foregoing, respondent's defense of an honest mistake or misinterpretation,

therefore, is devoid of merit.

To further buttress respondent's contention that an amendment may be made, she

cited the case of Alialy v. COMELEC (2 SCRA 957). The reliance of respondent on
the case of Alialy is misplaced. The case only applies to the "inconsequential
deviations which cannot affect the result of the election, or deviations from provisions
intended primarily to secure timely and orderly conduct of elections." The Supreme
Court in that case considered the amendment only as a matter of form. But in the
instant case, the amendment cannot be considered as a matter of form or an
inconsequential deviation. The change in the number of years of residence in the
place where respondent seeks to be elected is a substantial matter which determines
her qualification as a candidacy, specially those intended to suppress, accurate
material representation in the original certificate which adversely affects the filer. To
admit the amended certificate is to condone the evils brought by the shifting minds of
manipulating candidate, of the detriment of the integrity of the election.

Moreover, to allow respondent to change the seven (7) month period of her
residency in order to prolong it by claiming it was "since childhood" is to allow an
untruthfulness to be committed before this Commission. The arithmetical accuracy of
the 7 months residency the respondent indicated in her certificate of candidacy can
be gleaned from her entry in her Voter's Registration Record accomplished on
January 28, 1995 which reflects that she is a resident of Brgy. Olot, Tolosa, Leyte for
6 months at the time of the said registration (Annex A, Petition). Said accuracy is
further buttressed by her letter to the election officer of San Juan, Metro Manila,
dated August 24, 1994, requesting for the cancellation of her registration in the
Permanent List of Voters thereat so that she can be re-registered or transferred to
Brgy. Olot, Tolosa, Leyte. The dates of these three (3) different documents show the
respondent's consistent conviction that she has transferred her residence to Olot,
Tolosa, Leyte from Metro Manila only for such limited period of time, starting in the
last week of August 1994 which on March 8, 1995 will only sum up to 7 months. The
Commission, therefore, cannot be persuaded to believe in the respondent's
contention that it was an error.

xxx xxx xxx

Based on these reasons the Amended/Corrected Certificate of Candidacy cannot be

admitted by this Commission.

xxx xxx xxx

Anent the second issue, and based on the foregoing discussion, it is clear that
respondent has not complied with the one year residency requirement of the
Constitution.

In election cases, the term "residence" has always been considered as synonymous
with "domicile" which imports not only the intention to reside in a fixed place but also
personal presence in-that place, coupled with conduct indicative of such intention.
Domicile denotes a fixed permanent residence to which when absent for business or
pleasure, or for like reasons, one intends to return. (Perfecto Faypon vs. Eliseo
Quirino, 96 Phil 294; Romualdez vs. RTC-Tacloban, 226 SCRA 408). In respondent's
case, when she returned to the Philippines in 1991, the residence she chose was not
Tacloban but San Juan, Metro Manila. Thus, her animus revertendi is pointed to
Metro Manila and not Tacloban.

This Division is aware that her claim that she has been a resident of the First District
since childhood is nothing more than to give her a color of qualification where she is
otherwise constitutionally disqualified. It cannot hold ground in the face of the facts
admitted by the respondent in her affidavit. Except for the time that she studied and
worked for some years after graduation in Tacloban City, she continuously lived in
Manila. In 1959, after her husband was elected Senator, she lived and resided in San
Juan, Metro Manila where she was a registered voter. In 1965, she lived in San
Miguel, Manila where she was again a registered voter. In 1978, she served as
 member of the Batasang Pambansa as the representative of the City of Manila and
later on served as the Governor of Metro Manila. She could not have served these
positions if she had not been a resident of the City of Manila. Furthermore, when she
filed her certificate of candidacy for the office of the President in 1992, she claimed to
be a resident of San Juan, Metro Manila. As a matter of fact on August 24, 1994,
respondent wrote a letter with the election officer of San Juan, Metro Manila
requesting for the cancellation of her registration in the permanent list of voters that
she may be re-registered or transferred to Barangay Olot, Tolosa, Leyte. These facts
manifest that she could not have been a resident of Tacloban City since childhood up
to the time she filed her certificate of candidacy because she became a resident of
many places, including Metro Manila. This debunks her claim that prior to her
residence in Tolosa, Leyte, she was a resident of the First Legislative District of
Leyte since childhood.

In this case, respondent's conduct reveals her lack of intention to make Tacloban her
domicile. She registered as a voter in different places and on several occasions
declared that she was a resident of Manila. Although she spent her school days in
Tacloban, she is considered to have abandoned such place when she chose to stay
and reside in other different places. In the case of Romualdez vs. RTC (226 SCRA
408) the Court explained how one acquires a new domicile by choice. There must
concur: (1) residence or bodily presence in the new locality; (2) intention to remain
there; and (3) intention to abandon the old domicile. In other words there must
basically be animus manendi with animus non revertendi. When respondent chose to
stay in Ilocos and later on in Manila, coupled with her intention to stay there by
registering as a voter there and expressly declaring that she is a resident of that
place, she is deemed to have abandoned Tacloban City, where she spent her
childhood and school days, as her place of domicile.

Pure intention to reside in that place is not sufficient, there must likewise be conduct
indicative of such intention. Respondent's statements to the effect that she has
always intended to return to Tacloban, without the accompanying conduct to prove
that intention, is not conclusive of her choice of residence. Respondent has not
presented any evidence to show that her conduct, one year prior the election,
showed intention to reside in Tacloban. Worse, what was evident was that prior to
her residence in Tolosa, she had been a resident of Manila.

It is evident from these circumstances that she was not a resident of the First District
of Leyte "since childhood."

To further support the assertion that she could have not been a resident of the First
District of Leyte for more than one year, petitioner correctly pointed out that on
January 28, 1995 respondent registered as a voter at precinct No. 18-A of Olot,
Tolosa, Leyte. In doing so, she placed in her Voter Registration Record that she
resided in the municipality of Tolosa for a period of six months. This may be
inconsequential as argued by the respondent since it refers only to her residence in
Tolosa, Leyte. But her failure to prove that she was a resident of the First District of
Leyte prior to her residence in Tolosa leaves nothing but a convincing proof that she
had been a resident of the district for six months only. 15

In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en banc denied
petitioner's Motion for Reconsideration   of the April 24, 1995 Resolution declaring her not qualified
16
to run for the position of Member of the House of Representatives for the First Legislative District of
Leyte.   The Resolution tersely stated:
17

After deliberating on the Motion for Reconsideration, the Commission RESOLVED to

DENY it, no new substantial matters having been raised therein to warrant re-
examination of the resolution granting the petition for disqualification. 
18

On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's proclamation should the
results of the canvass show that she obtained the highest number of votes in the congressional
elections in the First District of Leyte. On the same day, however, the COMELEC reversed itself and
issued a second Resolution directing that the proclamation of petitioner be suspended in the event
that she obtains the highest number of votes.  19

In a Supplemental Petition dated 25 May 1995, petitioner averred that she was the overwhelming
winner of the elections for the congressional seat in the First District of Leyte held May 8, 1995
based on the canvass completed by the Provincial Board of Canvassers on May 14, 1995. Petitioner
alleged that the canvass showed that she obtained a total of 70,471 votes compared to the 36,833
votes received by Respondent Montejo. A copy of said Certificate of Canvass was annexed to the
Supplemental Petition.

On account of the Resolutions disqualifying petitioner from running for the congressional seat of the
First District of Leyte and the public respondent's Resolution suspending her proclamation, petitioner
comes to this court for relief.

Petitioner raises several issues in her Original and Supplemental Petitions. The principal issues may
be classified into two general areas:

I. The issue of Petitioner's qualifications

Whether or not petitioner was a resident, for election purposes, of the First District of
Leyte for a period of one year at the time of the May 9, 1995 elections.

II. The Jurisdictional Issue

a) Prior to the elections

Whether or not the COMELEC properly exercised its jurisdiction in disqualifying

petitioner outside the period mandated by the Omnibus Election Code for
disqualification cases under Article 78 of the said Code.

b) After the Elections

Whether or not the House of Representatives Electoral Tribunal assumed exclusive

jurisdiction over the question of petitioner's qualifications after the May 8, 1995
elections.

I. Petitioner's qualification

A perusal of the Resolution of the COMELEC's Second Division reveals a startling confusion in the
application of settled concepts of "Domicile" and "Residence" in election law. While the COMELEC
seems to be in agreement with the general proposition that for the purposes of election law,
residence is synonymous with domicile, the Resolution reveals a tendency to substitute or mistake
the concept of domicile for actual residence, a conception not intended for the purpose of
determining a candidate's qualifications for election to the House of Representatives as required by
the 1987 Constitution. As it were, residence, for the purpose of meeting the qualification for an
elective position, has a settled meaning in our jurisdiction.

Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is their place of habitual residence." In Ong
vs. Republic   this court took the concept of domicile to mean an individual's "permanent home", "a
20

place to which, whenever absent for business or for pleasure, one intends to return, and depends on
facts and circumstances in the sense that they disclose intent."  Based on the foregoing, domicile
21

includes the twin elements of "the fact of residing or physical presence in a fixed place" and animus
manendi, or the intention of returning there permanently.

Residence, in its ordinary conception, implies the factual relationship of an individual to a certain
place. It is the physical presence of a person in a given area, community or country. The essential
distinction between residence and domicile in law is that residence involves the intent to leave when
the purpose for which the resident has taken up his abode ends. One may seek a place for purposes
such as pleasure, business, or health. If a person's intent be to remain, it becomes his domicile; if his
intent is to leave as soon as his purpose is established it is residence.   It is thus, quite perfectly
22

normal for an individual to have different residences in various places. However, a person can only
have a single domicile, unless, for various reasons, he successfully abandons his domicile in favor of
another domicile of choice. In Uytengsu vs. Republic,   we laid this distinction quite clearly:
23

There is a difference between domicile and residence. "Residence" is used to

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

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

In Nuval vs. Guray,   the Court held that "the term residence. . . is synonymous with domicile which
24

imports not only intention to reside in a fixed place, but also personal presence in that place, coupled
with conduct indicative of such intention."   Larena vs. Teves   reiterated the same doctrine in a
25 26

case involving the qualifications of the respondent therein to the post of Municipal President of
Dumaguete, Negros Oriental. Faypon vs. Quirino,   held that the absence from residence to pursue
27

studies or practice a profession or registration as a voter other than in the place where one is elected
does not constitute loss of residence.   So settled is the concept (of domicile) in our election law that
28

in these and other election law cases, this Court has stated that the mere absence of an individual
from his permanent residence without the intention to abandon it does not result in a loss or change
of domicile.
The deliberations of the 1987 Constitution on the residence qualification for certain elective positions
have placed beyond doubt the principle that when the Constitution speaks of "residence" in election
law, it actually means only "domicile" to wit:

Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional
Convention, there was an attempt to require residence in the place not less than one
year immediately preceding the day of the elections. So my question is: What is the
Committee's concept of residence of a candidate for the legislature? Is it actual
residence or is it the concept of domicile or constructive residence?

Mr. Davide: Madame President, insofar as the regular members of the National
Assembly are concerned, the proposed section merely provides, among others, "and
a resident thereof", that is, in the district for a period of not less than one year
preceding the day of the election. This was in effect lifted from the 1973 Constitution,
the interpretation given to it was domicile. 
29

xxx xxx xxx

Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner
Nolledo has raised the same point that "resident" has been interpreted at times as a
matter of intention rather than actual residence.

Mr. De los Reyes: Domicile.

Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper time to go
back to actual residence rather than mere intention to reside?

Mr. De los Reyes: But we might encounter some difficulty especially considering that
a provision in the Constitution in the Article on Suffrage says that Filipinos living
abroad may vote as enacted by law. So, we have to stick to the original concept that
it should be by domicile and not physical residence.  30

In Co vs. Electoral Tribunal of the House of Representatives,   this Court concluded that the framers
31

of the 1987 Constitution obviously adhered to the definition given to the term residence in election
law, regarding it as having the same meaning as domicile.  32

In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos satisfied the
residency requirement mandated by Article VI, Sec. 6 of the 1987 Constitution? Of what significance
is the questioned entry in petitioner's Certificate of Candidacy stating her residence in the First
Legislative District of Leyte as seven (7) months?

It is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in
determining whether or not and individual has satisfied the constitution's residency qualification
requirement. The said statement becomes material only when there is or appears to be a deliberate
attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. It
would be plainly ridiculous for a candidate to deliberately and knowingly make a statement in a
certificate of candidacy which would lead to his or her disqualification.

It stands to reason therefore, that petitioner merely committed an honest mistake in jotting the word
"seven" in the space provided for the residency qualification requirement. The circumstances leading
to her filing the questioned entry obviously resulted in the subsequent confusion which prompted
petitioner to write down the period of her actual stay in Tolosa, Leyte instead of her period of
residence in the First district, which was "since childhood" in the space provided. These
circumstances and events are amply detailed in the COMELEC's Second Division's questioned
resolution, albeit with a different interpretation. For instance, when herein petitioner announced that
she would be registering in Tacloban City to make her eligible to run in the First District, private
respondent Montejo opposed the same, claiming that petitioner was a resident of Tolosa, not
Tacloban City. Petitioner then registered in her place of actual residence in the First District, which is
Tolosa, Leyte, a fact which she subsequently noted down in her Certificate of Candidacy. A close
look at said certificate would reveal the possible source of the confusion: the entry for residence
(Item No. 7) is followed immediately by the entry for residence in the constituency where a candidate
seeks election thus:

7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte

POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot, Tolosa, Leyte

8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO

BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:_________ Years
and Seven Months.

Having been forced by private respondent to register in her place of actual residence in Leyte
instead of petitioner's claimed domicile, it appears that petitioner had jotted down her period of stay
in her legal residence or domicile. The juxtaposition of entries in Item 7 and Item 8 — the first
requiring actual residence and the second requiring domicile — coupled with the circumstances
surrounding petitioner's registration as a voter in Tolosa obviously led to her writing down an
unintended entry for which she could be disqualified. This honest mistake should not, however, be
allowed to negate the fact of residence in the First District if such fact were established by means
more convincing than a mere entry on a piece of paper.

We now proceed to the matter of petitioner's domicile.

In support of its asseveration that petitioner's domicile could not possibly be in the First District of
Leyte, the Second Division of the COMELEC, in its assailed Resolution of April 24,1995 maintains
that "except for the time when (petitioner) studied and worked for some years after graduation in
Tacloban City, she continuously lived in Manila." The Resolution additionally cites certain facts as
indicative of the fact that petitioner's domicile ought to be any place where she lived in the last few
decades except Tacloban, Leyte. First, according to the Resolution, petitioner, in 1959, resided in
San Juan, Metro Manila where she was also registered voter. Then, in 1965, following the election of
her husband to the Philippine presidency, she lived in San Miguel, Manila where she as a voter. In
1978 and thereafter, she served as a member of the Batasang Pambansa and Governor of Metro
Manila. "She could not, have served these positions if she had not been a resident of Metro Manila,"
the COMELEC stressed. Here is where the confusion lies.

We have stated, many times in the past, that an individual does not lose his domicile even if he has
lived and maintained residences in different places. Residence, it bears repeating, implies a factual
relationship to a given place for various purposes. The absence from legal residence or domicile to
pursue a profession, to study or to do other things of a temporary or semi-permanent nature does
not constitute loss of residence. Thus, the assertion by the COMELEC that "she could not have been
a resident of Tacloban City since childhood up to the time she filed her certificate of candidacy
because she became a resident of many places" flies in the face of settled jurisprudence in which
this Court carefully made distinctions between (actual) residence and domicile for election law
purposes. In Larena vs. Teves,   supra, we stressed:
33
 [T]his court is of the opinion and so holds that a person who has his own house
wherein he lives with his family in a municipality without having ever had the intention
of abandoning it, and without having lived either alone or with his family in another
municipality, has his residence in the former municipality, notwithstanding his having
registered as an elector in the other municipality in question and having been a
candidate for various insular and provincial positions, stating every time that he is a
resident of the latter municipality.

More significantly, in Faypon vs. Quirino,   We explained that:

34

A citizen may leave the place of his birth to look for "greener pastures," as the saying
goes, to improve his lot, and that, of course includes study in other places, practice of
his avocation, or engaging in business. When an election is to be held, the citizen
who left his birthplace to improve his lot may desire to return to his native town to
cast his ballot but for professional or business reasons, or for any other reason, he
may not absent himself from his professional or business activities; so there he
registers himself as voter as he has the qualifications to be one and is not willing to
give up or lose the opportunity to choose the officials who are to run the government
especially in national elections. Despite such registration, the animus revertendi to
his home, to his domicile or residence of origin has not forsaken him. This may be
the explanation why the registration of a voter in a place other than his residence of
origin has not been deemed sufficient to constitute abandonment or loss of such
residence. It finds justification in the natural desire and longing of every person to
return to his place of birth. This strong feeling of attachment to the place of one's
birth must be overcome by positive proof of abandonment for another.

From the foregoing, it can be concluded that in its above-cited statements supporting its proposition
that petitioner was ineligible to run for the position of Representative of the First District of Leyte, the
COMELEC was obviously referring to petitioner's various places of (actual) residence, not her
domicile. In doing so, it not only ignored settled jurisprudence on residence in election law and the
deliberations of the constitutional commission but also the provisions of the Omnibus Election Code
(B.P. 881). 35

What is undeniable, however, are the following set of facts which establish the fact of petitioner's
domicile, which we lift verbatim from the COMELEC's Second Division's assailed Resolution:  36

In or about 1938 when respondent was a little over 8 years old, she established her
domicile in Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy
in Tacloban from 1938 to 1949 when she graduated from high school. She pursued
her college studies in St. Paul's College, now Divine Word University in Tacloban,
where she earned her degree in Education. Thereafter, she taught in the Leyte
Chinese School, still in Tacloban City. In 1952 she went to Manila to work with her
cousin, the late speaker Daniel Z. Romualdez in his office in the House of
Representatives. In 1954, she married ex-President Ferdinand E. Marcos when he
was still a congressman of Ilocos Norte and registered there as a voter. When her
husband was elected Senator of the Republic in 1959, she and her husband lived
together in San Juan, Rizal where she registered as a voter. In 1965, when her
husband was elected President of the Republic of the Philippines, she lived with him
in Malacanang Palace and registered as a voter in San Miguel, Manila.

[I]n February 1986 (she claimed that) she and her family were abducted and
kidnapped to Honolulu, Hawaii. In November 1991, she came home to Manila. In
 1992, respondent ran for election as President of the Philippines and filed her
Certificate of Candidacy wherein she indicated that she is a resident and registered
voter of San Juan, Metro Manila.

Applying the principles discussed to the facts found by COMELEC, what is inescapable is that
petitioner held various residences for different purposes during the last four decades. None of these
purposes unequivocally point to an intention to abandon her domicile of origin in Tacloban, Leyte.
Moreover, while petitioner was born in Manila, as a minor she naturally followed the domicile of her
parents. She grew up in Tacloban, reached her adulthood there and eventually established
residence in different parts of the country for various reasons. Even during her husband's
presidency, at the height of the Marcos Regime's powers, petitioner kept her close ties to her
domicile of origin by establishing residences in Tacloban, celebrating her birthdays and other
important personal milestones in her home province, instituting well-publicized projects for the
benefit of her province and hometown, and establishing a political power base where her siblings
and close relatives held positions of power either through the ballot or by appointment, always with
either her influence or consent. These well-publicized ties to her domicile of origin are part of the
history and lore of the quarter century of Marcos power in our country. Either they were entirely
ignored in the COMELEC'S Resolutions, or the majority of the COMELEC did not know what the rest
of the country always knew: the fact of petitioner's domicile in Tacloban, Leyte.

Private respondent in his Comment, contends that Tacloban was not petitioner's domicile of origin
because she did not live there until she was eight years old. He avers that after leaving the place in
1952, she "abandoned her residency (sic) therein for many years and . . . (could not) re-establish her
domicile in said place by merely expressing her intention to live there again." We do not agree.

First, minor follows the domicile of his parents. As domicile, once acquired is retained until a new
one is gained, it follows that in spite of the fact of petitioner's being born in Manila, Tacloban, Leyte
was her domicile of origin by operation of law. This domicile was not established only when her
father brought his family back to Leyte contrary to private respondent's averments.

Second, domicile of origin is not easily lost. To successfully effect a change of domicile, one must
demonstrate:  37

1. An actual removal or an actual change of domicile;

2. A bona fide intention of abandoning the former place of residence and establishing

a new one; and

3. Acts which correspond with the purpose.

In the absence of clear and positive proof based on these criteria, the residence of origin should be
deemed to continue. Only with evidence showing concurrence of all three requirements can the
presumption of continuity or residence be rebutted, for a change of residence requires an actual and
deliberate abandonment, and one cannot have two legal residences at the same time.   In the case
38

at bench, the evidence adduced by private respondent plainly lacks the degree of persuasiveness
required to convince this court that an abandonment of domicile of origin in favor of a domicile of
choice indeed occurred. To effect an abandonment requires the voluntary act of relinquishing
petitioner's former domicile with an intent to supplant the former domicile with one of her own
choosing (domicilium voluntarium).

In this connection, it cannot be correctly argued that petitioner lost her domicile of origin by operation
of law as a result of her marriage to the late President Ferdinand E. Marcos in 1952. For there is a
clearly established distinction between the Civil Code concepts of "domicile" and "residence."   The
39

presumption that the wife automatically gains the husband's domicile by operation of law upon
marriage cannot be inferred from the use of the term "residence" in Article 110 of the Civil Code
because the Civil Code is one area where the two concepts are well delineated. Dr. Arturo Tolentino,
writing on this specific area explains:

In the Civil Code, there is an obvious difference between domicile and residence.
Both terms imply relations between a person and a place; but in residence, the
relation is one of fact while in domicile it is legal or juridical, independent of the
necessity of physical presence.  40

Article 110 of the Civil Code provides:

Art. 110. — The husband shall fix the residence of the family. But the court may
exempt the wife from living with the husband if he should live abroad unless in the
service of the Republic.

A survey of jurisprudence relating to Article 110 or to the concepts of domicile or residence as they
affect the female spouse upon marriage yields nothing which would suggest that the female spouse
automatically loses her domicile of origin in favor of the husband's choice of residence upon
marriage.

Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889 which states:

La mujer esta obligada a seguir a su marido donde quiera que fije su residencia. Los
Tribunales, sin embargo, podran con justa causa eximirla de esta obligacion cuando
el marido transende su residencia a ultramar o' a pais extranjero.

Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted article, which
means wherever (the husband) wishes to establish residence. This part of the article clearly
contemplates only actual residence because it refers to a positive act of fixing a family home or
residence. Moreover, this interpretation is further strengthened by the phrase "cuando el marido
translade su residencia" in the same provision which means, "when the husband shall transfer his
residence," referring to another positive act of relocating the family to another home or place of
actual residence. The article obviously cannot be understood to refer to domicile which is a fixed,
fairly-permanent concept when it plainly connotes the possibility of transferring from one place to
another not only once, but as often as the husband may deem fit to move his family, a circumstance
more consistent with the concept of actual residence.

The right of the husband to fix the actual residence is in harmony with the intention of the law to
strengthen and unify the family, recognizing the fact that the husband and the wife bring into the
marriage different domiciles (of origin). This difference could, for the sake of family unity, be
reconciled only by allowing the husband to fix a single place of actual residence.

Very significantly, Article 110 of the Civil Code is found under Title V under the heading: RIGHTS
AND OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately preceding Article 110 is Article
109 which obliges the husband and wife to live together, thus:

Art. 109. — The husband and wife are obligated to live together, observe mutual
respect and fidelity and render mutual help and support.
The duty to live together can only be fulfilled if the husband and wife are physically together. This
takes into account the situations where the couple has many residences (as in the case of the
petitioner). If the husband has to stay in or transfer to any one of their residences, the wife should
necessarily be with him in order that they may "live together." Hence, it is illogical to conclude that
Art. 110 refers to "domicile" and not to "residence." Otherwise, we shall be faced with a situation
where the wife is left in the domicile while the husband, for professional or other reasons, stays in
one of their (various) residences. As Dr. Tolentino further explains:

Residence and Domicile — Whether the word "residence" as used with reference to
particular matters is synonymous with "domicile" is a question of some difficulty, and
the ultimate decision must be made from a consideration of the purpose and intent
with which the word is used. Sometimes they are used synonymously, at other times
they are distinguished from one another.

xxx xxx xxx

Residence in the civil law is a material fact, referring to the physical presence of a
person in a place. A person can have two or more residences, such as a country
residence and a city residence. Residence is acquired by living in place; on the other
hand, domicile can exist without actually living in the place. The important thing for
domicile is that, once residence has been established in one place, there be an
intention to stay there permanently, even if residence is also established in some
other
place. 41

In fact, even the matter of a common residence between the husband and the wife during the
marriage is not an iron-clad principle; In cases applying the Civil Code on the question of a common
matrimonial residence, our jurisprudence has recognized certain situations   where the spouses
42

could not be compelled to live with each other such that the wife is either allowed to maintain a
residence different from that of her husband or, for obviously practical reasons, revert to her original
domicile (apart from being allowed to opt for a new one). In De la Vina vs.Villareal   this Court held
43

that "[a] married woman may acquire a residence or domicile separate from that of her husband
during the existence of the marriage where the husband has given cause for divorce."   Note that the
44

Court allowed the wife either to obtain new residence or to choose a new domicile in such an event.
In instances where the wife actually opts, .under the Civil Code, to live separately from her husband
either by taking new residence or reverting to her domicile of origin, the Court has held that the wife
could not be compelled to live with her husband on pain of contempt. In Arroyo vs. Vasques de
Arroyo   the Court held that:
45

Upon examination of the authorities, we are convinced that it is not within the
province of the courts of this country to attempt to compel one of the spouses to
cohabit with, and render conjugal rights to, the other. Of course where the property
rights of one of the pair are invaded, an action for restitution of such rights can be
maintained. But we are disinclined to sanction the doctrine that an order, enforcible
(sic) by process of contempt, may be entered to compel the restitution of the purely
personal right of consortium. At best such an order can be effective for no other
purpose than to compel the spouses to live under the same roof; and he experience
of those countries where the courts of justice have assumed to compel the
cohabitation of married people shows that the policy of the practice is extremely
questionable. Thus in England, formerly the Ecclesiastical Court entertained suits for
the restitution of conjugal rights at the instance of either husband or wife; and if the
facts were found to warrant it, that court would make a mandatory decree,
 enforceable by process of contempt in case of disobedience, requiring the delinquent
party to live with the other and render conjugal rights. Yet this practice was
sometimes criticized even by the judges who felt bound to enforce such orders, and
in Weldon v. Weldon (9 P.D. 52), decided in 1883, Sir James Hannen, President in
the Probate, Divorce and Admiralty Division of the High Court of Justice, expressed
his regret that the English law on the subject was not the same as that which
prevailed in Scotland, where a decree of adherence, equivalent to the decree for the
restitution of conjugal rights in England, could be obtained by the injured spouse, but
could not be enforced by imprisonment. Accordingly, in obedience to the growing
sentiment against the practice, the Matrimonial Causes Act (1884) abolished the
remedy of imprisonment; though a decree for the restitution of conjugal rights can still
be procured, and in case of disobedience may serve in appropriate cases as the
basis of an order for the periodical payment of a stipend in the character of alimony.

In the voluminous jurisprudence of the United States, only one court, so far as we
can discover, has ever attempted to make a preemptory order requiring one of the
spouses to live with the other; and that was in a case where a wife was ordered to
follow and live with her husband, who had changed his domicile to the City of New
Orleans. The decision referred to (Bahn v. Darby, 36 La. Ann., 70) was based on a
provision of the Civil Code of Louisiana similar to article 56 of the Spanish Civil Code.
It was decided many years ago, and the doctrine evidently has not been fruitful even
in the State of Louisiana. In other states of the American Union the idea of enforcing
cohabitation by process of contempt is rejected. (21 Cyc., 1148).

In a decision of January 2, 1909, the Supreme Court of Spain appears to have

affirmed an order of the Audiencia Territorial de Valladolid requiring a wife to return
to the marital domicile, and in the alternative, upon her failure to do so, to make a
particular disposition of certain money and effects then in her possession and to
deliver to her husband, as administrator of the ganancial property, all income, rents,
and interest which might accrue to her from the property which she had brought to
the marriage. (113 Jur. Civ., pp. 1, 11) But it does not appear that this order for the
return of the wife to the marital domicile was sanctioned by any other penalty than
the consequences that would be visited upon her in respect to the use and control of
her property; and it does not appear that her disobedience to that order would
necessarily have been followed by imprisonment for contempt.

Parenthetically when Petitioner was married to then Congressman Marcos, in 1954, petitioner was
obliged — by virtue of Article 110 of the Civil Code — to follow her husband's actual place of
residence fixed by him. The problem here is that at that time, Mr. Marcos had several places of
residence, among which were San Juan, Rizal and Batac, Ilocos Norte. There is no showing which
of these places Mr. Marcos did fix as his family's residence. But assuming that Mr. Marcos had fixed
any of these places as the conjugal residence, what petitioner gained upon marriage was actual
residence. She did not lose her domicile of origin.

On the other hand, the common law concept of "matrimonial domicile" appears to have been
incorporated, as a result of our jurisprudential experiences after the drafting of the Civil Code of
1950, into the New Family Code. To underscore the difference between the intentions of the Civil
Code and the Family Code drafters, the term residence has been supplanted by the term domicile in
an entirely new provision (Art. 69) distinctly different in meaning and spirit from that found in Article
110. The provision recognizes revolutionary changes in the concept of women's rights in the
intervening years by making the choice of domicile a product of mutual agreement between the
spouses.  46
Without as much belaboring the point, the term residence may mean one thing in civil law (or under
the Civil Code) and quite another thing in political law. What stands clear is that insofar as the Civil
Code is concerned-affecting the rights and obligations of husband and wife — the term residence
should only be interpreted to mean "actual residence." The inescapable conclusion derived from this
unambiguous civil law delineation therefore, is that when petitioner married the former President in
1954, she kept her domicile of origin and merely gained a new home, not a domicilium necessarium.

Even assuming for the sake of argument that petitioner gained a new "domicile" after her marriage
and only acquired a right to choose a new one after her husband died, petitioner's acts following her
return to the country clearly indicate that she not only impliedly but expressly chose her domicile of
origin (assuming this was lost by operation of law) as her domicile. This "choice" was unequivocally
expressed in her letters to the Chairman of the PCGG when petitioner sought the PCGG's
permission to "rehabilitate (our) ancestral house in Tacloban and Farm in Olot, Leyte. . . to make
them livable for the Marcos family to have a home in our homeland."   Furthermore, petitioner
47

obtained her residence certificate in 1992 in Tacloban, Leyte, while living in her brother's house, an
act which supports the domiciliary intention clearly manifested in her letters to the PCGG Chairman.
She could not have gone straight to her home in San Juan, as it was in a state of disrepair, having
been previously looted by vandals. Her "homes" and "residences" following her arrival in various
parts of Metro Manila merely qualified as temporary or "actual residences," not domicile. Moreover,
and proceeding from our discussion pointing out specific situations where the female spouse either
reverts to her domicile of origin or chooses a new one during the subsistence of the marriage, it
would be highly illogical for us to assume that she cannot regain her original domicile upon the death
of her husband absent a positive act of selecting a new one where situations exist within the
subsistence of the marriage itself where the wife gains a domicile different from her husband.

In the light of all the principles relating to residence and domicile enunciated by this court up to this
point, we are persuaded that the facts established by the parties weigh heavily in favor of a
conclusion supporting petitioner's claim of legal residence or domicile in the First District of Leyte.

II. The jurisdictional issue

Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering that the
assailed resolutions were rendered on April 24, 1995, fourteen (14) days before the election in
violation of Section 78 of the Omnibus Election Code.   Moreover, petitioner contends that it is the
48

House of Representatives Electoral Tribunal and not the COMELEC which has jurisdiction over the
election of members of the House of Representatives in accordance with Article VI Sec. 17 of the
Constitution. This is untenable.

It is a settled doctrine that a statute requiring rendition of judgment within a specified time is
generally construed to be merely directory,   "so that non-compliance with them does not invalidate
49

the judgment on the theory that if the statute had intended such result it would have clearly indicated
it."   The difference between a mandatory and a directory provision is often made on grounds of
50

necessity. Adopting the same view held by several American authorities, this court in Marcelino
vs. Cruz held that: 51

The difference between a mandatory and directory provision is often determined on

grounds of expediency, the reason being that less injury results to the general public
by disregarding than enforcing the letter of the law.

In Trapp v. Mc Cormick, a case calling for the interpretation of a statute containing a
limitation of thirty (30) days within which a decree may be entered without the
consent of counsel, it was held that "the statutory provisions which may be thus
 departed from with impunity, without affecting the validity of statutory proceedings,
are usually those which relate to the mode or time of doing that which is essential to
effect the aim and purpose of the Legislature or some incident of the essential act."
Thus, in said case, the statute under examination was construed merely to be
directory.

The mischief in petitioner's contending that the COMELEC should have abstained from rendering a
decision after the period stated in the Omnibus Election Code because it lacked jurisdiction, lies in
the fact that our courts and other quasi-judicial bodies would then refuse to render judgments merely
on the ground of having failed to reach a decision within a given or prescribed period.

In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section 78 of B.P.
881,   it is evident that the respondent Commission does not lose jurisdiction to hear and decide a
52

pending disqualification case under Section 78 of B.P. 881 even after the elections.

As to the House of Representatives Electoral Tribunal's supposed assumption of jurisdiction over the
issue of petitioner's qualifications after the May 8, 1995 elections, suffice it to say that HRET's
jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of
members of Congress begins only after a candidate has become a member of the House of
Representatives.   Petitioner not being a member of the House of Representatives, it is obvious that
53

the HRET at this point has no jurisdiction over the question.

It would be an abdication of many of the ideals enshrined in the 1987 Constitution for us to either to
ignore or deliberately make distinctions in law solely on the basis of the personality of a petitioner in
a case. Obviously a distinction was made on such a ground here. Surely, many established
principles of law, even of election laws were flouted for the sake perpetuating power during the pre-
EDSA regime. We renege on these sacred ideals, including the meaning and spirit of EDSA
ourselves bending established principles of principles of law to deny an individual what he or she
justly deserves in law. Moreover, in doing so, we condemn ourselves to repeat the mistakes of the
past.

WHEREFORE, having determined that petitioner possesses the necessary residence qualifications
to run for a seat in the House of Representatives in the First District of Leyte, the COMELEC's
questioned Resolutions dated April 24, May 7, May 11, and May 25, 1995 are hereby SET ASIDE.
Respondent COMELEC is hereby directed to order the Provincial Board of Canvassers to proclaim
petitioner as the duly elected Representative of the First District of Leyte.

SO ORDERED.

8
G.R. No. 135083 May 26, 1999

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 54,275 1

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,  the Second Division of the COMELEC granted the petition of
2

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.  The motion remained
3

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.  Petitioner's motion
4

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.  The pertinent portions of the resolution of the
5

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,  reiterated in several cases,  only
6 7

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.  For instance, such a situation may arise when a person
9

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"   of which at the time he is a
14

subject or citizen before he can be issued a certificate of naturalization as a citizen of the

Philippines. In Parado v. Republic,   it was held:
15

[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   as16

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   applies mutatis mundatis to private respondent in the case at bar:
18

. . . 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,   we 19

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.

WHEREFORE, the petition for certiorari is DISMISSED for lack of merit. 1âwphi1.nêt

SO ORDERED.
 9
G.R. No. L-59068 January 27, 1983

JOSE MARI EULALIO C. LOZADA and ROMEO B. IGOT, petitioners, 

vs.
THE COMMISSION ON ELECTIONS, respondent.

DE CASTRO, J.:

This is a petition for mandamus filed by Jose Mari Eulalio C. Lozada and Romeo B. Igot as a
representative suit for and in behalf of those who wish to participate in the election irrespective of
party affiliation, to compel the respondent COMELEC to call a special election to fill up existing
vacancies numbering twelve (12) in the Interim Batasan Pambansa. The petition is based on Section
5(2), Article VIII of the 1973 Constitution which reads:

(2) In case a vacancy arises in the Batasang Pambansa eighteen months or more
before a regular election, the Commission on Election shall call a special election to
be held within sixty (60) days after the vacancy occurs to elect the Member to serve
the unexpired term.

Petitioner Lozada claims that he is a taxpayer and a bonafide elector of Cebu City and a transient
voter of Quezon City, Metro Manila, who desires to run for the position in the Batasan Pambansa;
while petitioner Romeo B. Igot alleges that, as a taxpayer, he has standing to petition by mandamus
the calling of a special election as mandated by the 1973 Constitution. As reason for their petition,
petitioners allege that they are "... deeply concerned about their duties as citizens and desirous to
uphold the constitutional mandate and rule of law ...; that they have filed the instant petition on their
own and in behalf of all other Filipinos since the subject matters are of profound and general interest.
"

The respondent COMELEC, represented by counsel, opposes the petition alleging, substantially,
that 1) petitioners lack standing to file the instant petition for they are not the proper parties to
institute the action; 2) this Court has no jurisdiction to entertain this petition; and 3) Section 5(2),
Article VIII of the 1973 Constitution does not apply to the Interim Batasan Pambansa.

The petition must be dismiss.

As taxpayers, petitioners may not file the instant petition, for nowhere therein is it alleged that tax
money is being illegally spent. The act complained of is the inaction of the COMELEC to call a
special election, as is allegedly its ministerial duty under the constitutional provision above cited, and
therefore, involves no expenditure of public funds. It is only when an act complained of, which may
include a legislative enactment or statute, involves the illegal expenditure of public money that the
so-called taxpayer suit may be allowed.   What the case at bar seeks is one that entails expenditure
1

of public funds which may be illegal because it would be spent for a purpose that of calling a special
election which, as will be shown, has no authority either in the Constitution or a statute.
As voters, neither have petitioners the requisite interest or personality to qualify them to maintain
and prosecute the present petition. The unchallenged rule is that the person who impugns the
validity of a statute must have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement.   In the case before Us, the
2

alleged inaction of the COMELEC to call a special election to fill-up the existing vacancies in the
Batasan Pambansa, standing alone, would adversely affect only the generalized interest of all
citizens. Petitioners' standing to sue may not be predicated upon an interest of the kind alleged here,
which is held in common by all members of the public because of the necessarily abstract nature of
the injury supposedly shared by all citizens. Concrete injury, whether actual or threatened, is that
indispensable element of a dispute which serves in part to cast it in a form traditionally capable of
judicial resolution.   When the asserted harm is a "generalized grievance" shared in substantially
3

equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise
of jurisdiction.   As adverted to earlier, petitioners have not demonstrated any permissible personal
4

stake, for petitioner Lozada's interest as an alleged candidate and as a voter is not sufficient to
confer standing. Petitioner Lozada does not only fail to inform the Court of the region he wants to be
a candidate but makes indiscriminate demand that special election be called throughout the country.
Even his plea as a voter is predicated on an interest held in common by all members of the public
and does not demonstrate any injury specially directed to him in particular.

II

The Supreme Court's jurisdiction over the COMELEC is only to review by certiorari the latter's
decision, orders or rulings. This is as clearly provided in Article XI IC Section 11 of the New
Constitution which reads:

Any decision, order, or ruling of the Commission may be brought to the Supreme
Court on certiorari by the aggrieved party within thirty days from his receipt of a copy
thereof.

There is in this case no decision, order or ruling of the COMELEC which is sought to be reviewed by
this Court under its certiorari jurisdiction as provided for in the aforequoted provision which is the
only known provision conferring jurisdiction or authority on the Supreme Court over the COMELEC.
It is not alleged that the COMELEC was asked by petitioners to perform its alleged duty under the
Constitution to call a special election, and that COMELEC has issued an order or resolution denying
such petition.

Even from the standpoint of an action for mandamus, with the total absence of a showing that
COMELEC has unlawfully neglected the performance of a ministerial duty, or has refused on being
demanded, to discharge such a duty; and as demonstrated above, it is not shown, nor can it ever be
shown, that petitioners have a clear right to the holding of a special election. which is equally the
clear and ministerial duty of COMELEC to respect, mandamus will not lie.   The writ will not issue in
5

doubtful cases.  6

It is obvious that the holding of special elections in several regional districts where vacancies exist,
would entail huge expenditure of money. Only the Batasan Pambansa can make the necessary
appropriation for the purpose, and this power of the Batasan Pambansa may neither be subject to
mandamus by the courts much less may COMELEC compel the Batasan to exercise its power of
appropriation. From the role Batasan Pambansa has to play in the holding of special elections, which
is to appropriate the funds for the expenses thereof, it would seem that the initiative on the matter
must come from said body, not the COMELEC, even when the vacancies would occur in the regular
not interim Batasan Pambansa. The power to appropriate is the sole and exclusive prerogative of
the legislative body, the exercise of which may not be compelled through a petition for mandamus.
What is more, the provision of Section 5(2), Article VIII of the Constitution was intended to apply to
vacancies in the regular National Assembly, now Batasan Pambansa, not to the Interim Batasan
Pambansa, as will presently be shown.

III

Perhaps the strongest reason why the aforecited provision of the Constitution is not intended to
apply to the Interim National Assembly as originally envisioned by the 1973 Constitution is the fact
that as passed by the Constitutional Convention, the Interim National Assembly was to be composed
by the delegates to the Constitutional Convention, as well as the then incumbent President and Vice-
President, and the members of the Senate and House of Representatives of Congress under the
1935 Constitution. With such number of representatives representing each congressional district, or
a province, not to mention the Senators, there was felt absolutely no need for filing vacancies
occurring in the Interim National Assembly, considering the uncertainty of the duration of its
existence. What was in the mind of the Constitutional Convention in providing for special elections to
fill up vacancies is the regular National Assembly, because a province or representative district
would have only one representative in the said National Assembly.

Even as presently constituted where the representation in the Interim Batasan Pambansa is regional
and sectoral, the need to fill up vacancies in the Body is neither imperative nor urgent. No district or
province would ever be left without representation at all, as to necessitate the filling up of vacancies
in the Interim Batasan Pambansa. There would always be adequate representation for every
province which only forms part of a certain region, specially considering that the Body is only
transitory in character.

The unmistakable intent of the Constitutional Convention as adverted to is even more positively
revealed by the fact that the provision of Section 5(2) of Article VIII of the New Constitution is in the
main body of the said Constitution, not in the transitory provisions in which all matters relating to the
Interim Batasan Pambansa are found. No provision outside of Article VIII on the "Transitory
Provisions" has reference or relevance to the Interim Batasan Pambansa.

Also under the original provision of the Constitution (Section 1, Article XVII-Transitory Provisions),
the Interim National Assembly had only one single occasion on which to call for an election, and that
is for the election of members of the regular National Assembly. The Constitution could not have at
1äwphï1.ñët 

that time contemplated to fill up vacancies in the Interim National Assembly the composition of
which, as already demonstrated, would not raise any imperious necessity of having to call special
elections for that purpose, because the duration of its existence was neither known or pre-
determined. It could be for a period so brief that the time prescriptions mentioned in Section 5(2),
Article VIII of the Constitution cannot be applicable.

The foregoing observations make it indubitably clear that the aforementioned provision for calling
special elections to fill up vacancies apply only to the regular Batasan Pambansa. This is evident
from the language thereof which speaks of a vacancy in the Batasan Pambansa, " which means
the regular Batasan Pambansa as the same words "Batasan Pambansa" found in all the many other
sections of Article VIII, undoubtedly refer to the regular Batasan, not the interim one. A word or
phrase used in one part of a Constitution is to receive the same interpretation when used in every
other part, unless it clearly appears, from the context or otherwise, that a different meaning should
be applied. 7

WHEREFORE, the petition is hereby dismissed.

SO ORDERED.
 10
G.R. No. 189698               February 22, 2010

ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners, 

vs.
COMMISSION ON ELECTIONS, Respondent.

RESOLUTION

PUNO, C.J.:

Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission on
Elections’ (COMELEC) motion for reconsideration, and the movants-intervenors’ motions for
reconsideration-in-intervention, of this Court’s December 1, 2009 Decision (Decision).1

The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar P. Quinto
and Gerino A. Tolentino, Jr. and declared as unconstitutional the second proviso in the third
paragraph of Section 13 of Republic Act No. 9369,2 Section 66 of the Omnibus Election Code3 and
Section 4(a) of COMELEC Resolution No. 8678,4mainly on the ground that they violate the equal
protection clause of the Constitution and suffer from overbreadth. The assailed Decision thus paved
the way for public appointive officials to continue discharging the powers, prerogatives and functions
of their office notwithstanding their entry into the political arena.

In support of their respective motions for reconsideration, respondent COMELEC and movants-
intervenors submit the following arguments:

(1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription
against the participation of public appointive officials and members of the military in partisan
political activity;

(2) The assailed provisions do not violate the equal protection clause when they accord
differential treatment to elective and appointive officials, because such differential treatment
rests on material and substantial distinctions and is germane to the purposes of the law;

(3) The assailed provisions do not suffer from the infirmity of overbreadth; and

(4) There is a compelling need to reverse the assailed Decision, as public safety and interest
demand such reversal.

We find the foregoing arguments meritorious.

I.

Procedural Issues

First, we shall resolve the procedural issues on the timeliness of the COMELEC’s motion for
reconsideration which was filed on December 15, 2009, as well as the propriety of the motions for
reconsideration-in-intervention which were filed after the Court had rendered its December 1, 2009
Decision.

i. Timeliness of COMELEC’s Motion for Reconsideration

Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court,5 in relation to Section 1, Rule 52 of the
same rules,6COMELEC had a period of fifteen days from receipt of notice of the assailed Decision
within which to move for its reconsideration. COMELEC received notice of the assailed Decision on
December 2, 2009, hence, had until December 17, 2009 to file a Motion for Reconsideration.

The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14, 2009.
The corresponding Affidavit of Service (in substitution of the one originally submitted on December
14, 2009) was subsequently filed on December 17, 2009 – still within the reglementary period.

ii. Propriety of the Motions for Reconsideration-in-Intervention

Section 1, Rule 19 of the Rules of Court provides:

A person who has legal interest in the matter in litigation or in the success of either of the parties, or
an interest against both, or is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof may, with leave of court, be
allowed to intervene in the action. The court 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 proceeding.

Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be entertained
when the following requisites are satisfied: (1) the would-be intervenor shows that he has a
substantial right or interest in the case; and (2) such right or interest cannot be adequately pursued
and protected in another proceeding.7

Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a
motion for intervention may be filed, viz.:

SECTION 2. Time to intervene.– The motion for intervention may be filed at any time before
rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the
motion and served on the original parties. (italics supplied)

This rule, however, is not inflexible. Interventions have been allowed even beyond the period
prescribed in the Rule, when demanded by the higher interest of justice. Interventions have also
been granted to afford indispensable parties, who have not been impleaded, the right to be heard
even after a decision has been rendered by the trial court,8 when the petition for review of the
judgment has already been submitted for decision before the Supreme Court,9 and even where the
assailed order has already become final and executory.10 In Lim v. Pacquing,11 the motion for
intervention filed by the Republic of the Philippines was allowed by this Court to avoid grave injustice
and injury and to settle once and for all the substantive issues raised by the parties.

In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion of the
court12 after consideration of the appropriate circumstances.13 We stress again that Rule 19 of the
Rules of Court is a rule of procedure whose object is to make the powers of the court fully and
completely available for justice.14 Its purpose is not to hinder or delay, but to facilitate and promote
the administration of justice.15
We rule that, with the exception of the IBP – Cebu City Chapter, all the movants-intervenors may
properly intervene in the case at bar.

First, the movants-intervenors have each sufficiently established a substantial right or interest in the
case.

As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1,
2009 Decision, which nullifies a long established law; as a voter, he has a right to intervene in a
matter that involves the electoral process; and as a public officer, he has a personal interest in
maintaining the trust and confidence of the public in its system of government.

On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the
May 2010 elections running against appointive officials who, in view of the December 1, 2009
Decision, have not yet resigned from their posts and are not likely to resign from their posts. They
stand to be directly injured by the assailed Decision, unless it is reversed.

Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and
protected in another proceeding. Clearly, their rights will be foreclosed if this Court’s Decision attains
finality and forms part of the laws of the land.

With regard to the IBP – Cebu City Chapter, it anchors its standing on the assertion that "this case
involves the constitutionality of elections laws for this coming 2010 National Elections," and that
"there is a need for it to be allowed to intervene xxx so that the voice of its members in the legal
profession would also be heard before this Highest Tribunal as it resolves issues of transcendental
importance."16

Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed to
present a specific and substantial interest sufficient to clothe it with standing to intervene in the case
at bar. Its invoked interest is, in character, too indistinguishable to justify its intervention.

We now turn to the substantive issues.

II.

Substantive Issues

The assailed Decision struck down Section 4(a) of Resolution 8678, the second proviso in the third
paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the Omnibus Election Code,
on the following grounds:

(1) They violate the equal protection clause of the Constitution because of the differential
treatment of persons holding appointive offices and those holding elective positions;

(2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding
appointive posts: (a) without distinction as to whether or not they occupy high/influential
positions in the government, and (b) they limit these civil servants’ activity regardless of
whether they be partisan or nonpartisan in character, or whether they be in the national,
municipal or barangay level; and

(3) Congress has not shown a compelling state interest to restrict the fundamental right of
these public appointive officials.
We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678, Section
66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA
9369 are not unconstitutional, and accordingly reverse our December 1, 2009 Decision.

III.

Section 4(a) of COMELEC Resolution 8678 Compliant with Law

Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law and
jurisprudence on the matter, viz.:

Incumbent Appointive Official. - Under Section 13 of RA 9369, which reiterates Section 66 of the
Omnibus Election Code, any person holding a public appointive office or position, including active
members of the Armed Forces of the Philippines, and officers and employees in government-owned
or -controlled corporations, shall be considered ipso facto resigned from his office upon the filing of
his certificate of candidacy.

Incumbent Elected Official. – Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair
Election Act,17which repealed Section 67 of the Omnibus Election Code18 and rendered ineffective
Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only upon the start of
the campaign period corresponding to the positions for which they are running,19 an elected official is
not deemed to have resigned from his office upon the filing of his certificate of candidacy for the
same or any other elected office or position. In fine, an elected official may run for another position
without forfeiting his seat.

These laws and regulations implement Section 2(4), Article IX-B of the 1987 Constitution, which
prohibits civil service officers and employees from engaging in any electioneering or partisan political
campaign.

The intention to impose a strict limitation on the participation of civil service officers and employees
in partisan political campaigns is unmistakable. The exchange between Commissioner Quesada and
Commissioner Foz during the deliberations of the Constitutional Commission is instructive:

MS. QUESADA.

xxxx

Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I quote:
"No officer or employee in the civil service shall engage, directly or indirectly, in any partisan political
activity." This is almost the same provision as in the 1973 Constitution. However, we in the
government service have actually experienced how this provision has been violated by the direct or
indirect partisan political activities of many government officials.

So, is the Committee willing to include certain clauses that would make this provision more strict,
and which would deter its violation?

MR. FOZ. Madam President, the existing Civil Service Law and the implementing rules on the matter
are more than exhaustive enough to really prevent officers and employees in the public service from
engaging in any form of partisan political activity. But the problem really lies in implementation
because, if the head of a ministry, and even the superior officers of offices and agencies of
government will themselves violate the constitutional injunction against partisan political activity, then
no string of words that we may add to what is now here in this draft will really implement the
constitutional intent against partisan political activity. x x x20 (italics supplied)

To emphasize its importance, this constitutional ban on civil service officers and employees is
presently reflected and implemented by a number of statutes. Section 46(b)(26), Chapter 7 and
Section 55, Chapter 8 – both of Subtitle A, Title I, Book V of the Administrative Code of 1987 –
respectively provide in relevant part:

Section 44. Discipline: General Provisions:

xxxx

(b) The following shall be grounds for disciplinary action:

xxxx

(26) Engaging directly or indirectly in partisan political activities by one holding a non-political office.

xxxx

Section 55. Political Activity. — No officer or employee in the Civil Service including members of the
Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any
election except to vote nor shall he use his official authority or influence to coerce the political activity
of any other person or body. Nothing herein provided shall be understood to prevent any officer or
employee from expressing his views on current political problems or issues, or from mentioning the
names of his candidates for public office whom he supports: Provided, That public officers and
employees holding political offices may take part in political and electoral activities but it shall be
unlawful for them to solicit contributions from their subordinates or subject them to any of the acts
involving subordinates prohibited in the Election Code.

Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention
by civil service officers and employees in partisan political activities an election offense, viz.:

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

xxxx

(i) Intervention of public officers and employees. — Any officer or employee in the civil service,
except those holding political offices; any officer, employee, or member of the Armed Forces of the
Philippines, or any police force, special forces, home defense forces, barangay self-defense units
and all other para-military units that now exist or which may hereafter be organized who, directly or
indirectly, intervenes in any election campaign or engages in any partisan political activity, except to
vote or to preserve public order, if he is a peace officer.

The intent of both Congress and the framers of our Constitution to limit the participation of civil
service officers and employees in partisan political activities is too plain to be mistaken.

But Section 2(4), Article IX-B of the 1987 Constitution and the implementing statutes apply only to
civil servants holding apolitical offices. Stated differently, the constitutional ban does not cover
elected officials, notwithstanding the fact that "[t]he civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including government-owned or controlled
corporations with original charters."21 This is because elected public officials, by the very nature of
their office, engage in partisan political activities almost all year round, even outside of the campaign
period.22 Political partisanship is the inevitable essence of a political office, elective positions
included.23

The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as
express their views on political issues, or mention the names of certain candidates for public office
whom they support. This is crystal clear from the deliberations of the Constitutional Commission,
viz.:

MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2, Section 1,

subparagraph 4, lines 13 and 14. On line 13, between the words "any" and "partisan," add the
phrase ELECTIONEERING AND OTHER; and on line 14, delete the word "activity" and in lieu
thereof substitute the word CAMPAIGN.

May I be allowed to explain my proposed amendment?

THE PRESIDING OFFICER (Mr. Treñas): Commissioner Aquino may proceed.

MS. AQUINO: The draft as presented by the Committee deleted the phrase "except to vote" which
was adopted in both the 1935 and 1973 Constitutions. The phrase "except to vote" was not intended
as a guarantee to the right to vote but as a qualification of the general prohibition against taking part
in elections.

Voting is a partisan political activity. Unless it is explicitly provided for as an exception to this
prohibition, it will amount to disenfranchisement. We know that suffrage, although plenary, is not an
unconditional right. In other words, the Legislature can always pass a statute which can withhold
from any class the right to vote in an election, if public interest so required. I would only like to
reinstate the qualification by specifying the prohibited acts so that those who may want to vote but
who are likewise prohibited from participating in partisan political campaigns or electioneering may
vote.

MR. FOZ: There is really no quarrel over this point, but please understand that there was no
intention on the part of the Committee to disenfranchise any government official or employee. The
elimination of the last clause of this provision was precisely intended to protect the members of the
civil service in the sense that they are not being deprived of the freedom of expression in a political
contest. The last phrase or clause might have given the impression that a government employee or
worker has no right whatsoever in an election campaign except to vote, which is not the case. They
are still free to express their views although the intention is not really to allow them to take part
actively in a political campaign.24

IV.

Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election
Code Do Not Violate the Equal Protection Clause

We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and
the second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal
protection clause of the Constitution.

i. Fariñas, et al. v. Executive Secretary, et al. is Controlling

In truth, this Court has already ruled squarely on whether these deemed-resigned provisions
challenged in the case at bar violate the equal protection clause of the Constitution in Fariñas, et al.
v. Executive Secretary, et al.25

In Fariñas, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66 and
67 of the Omnibus Election Code, was assailed on the ground, among others, that it unduly
discriminates against appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-
resigned provision in respect of elected officials) of the Omnibus Election Code, elected officials are
no longer considered ipso facto resigned from their respective offices upon their filing of certificates
of candidacy. In contrast, since Section 66 was not repealed, the limitation on appointive officials
continues to be operative – they are deemed resigned when they file their certificates of candidacy.

The petitioners in Fariñas thus brought an equal protection challenge against Section 14, with the
end in view of having the deemed-resigned provisions "apply equally" to both elected and appointive
officials. We held, however, that the legal dichotomy created by the Legislature is a reasonable
classification, as there are material and significant distinctions between the two classes of officials.
Consequently, the contention that Section 14 of the Fair Election Act, in relation to Sections 66 and
67 of the Omnibus Election Code, infringed on the equal protection clause of the Constitution, failed
muster. We ruled:

The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to
elective officials gives undue benefit to such officials as against the appointive ones and violates the
equal protection clause of the constitution, is tenuous.

The equal protection of the law clause in the Constitution is not absolute, but is subject to
reasonable classification. If the groupings are characterized by substantial distinctions that make
real differences, one class may be treated and regulated differently from the other. The Court has
explained the nature of the equal protection guarantee in this manner:

The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation
which is limited either in the object to which it is directed or by territory within which it is to operate. It
does not demand absolute equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to privileges conferred and liabilities
enforced. The equal protection clause is not infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike to all persons within such class, and
reasonable grounds exist for making a distinction between those who fall within such class and
those who do not.

Substantial distinctions clearly exist between elective officials and appointive officials. The former
occupy their office by virtue of the mandate of the electorate. They are elected to an office for a
definite term and may be removed therefrom only upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of their designation thereto by an appointing authority.
Some appointive officials hold their office in a permanent capacity and are entitled to security of
tenure while others serve at the pleasure of the appointing authority.

Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8,
Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987
(Executive Order No. 292), appointive officials, as officers and employees in the civil service, are
strictly prohibited from engaging in any partisan political activity or take (sic) part in any election
except to vote. Under the same provision, elective officials, or officers or employees holding political
offices, are obviously expressly allowed to take part in political and electoral activities.
By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators
deemed it proper to treat these two classes of officials differently with respect to the effect on their
tenure in the office of the filing of the certificates of candidacy for any position other than those
occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom
of this classification.

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-à-vis
appointive officials, is anchored upon material and significant distinctions and all the persons
belonging under the same classification are similarly treated, the equal protection clause of the
Constitution is, thus, not infringed.26

The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed
Decision gave it new life. We ought to be guided by the doctrine of stare decisis et non quieta
movere. This doctrine, which is really "adherence to precedents," mandates that once a case has
been decided one way, then another case involving exactly the same point at issue should be
decided in the same manner.27 This doctrine is one of policy grounded on the necessity for securing
certainty and stability of judicial decisions. As the renowned jurist Benjamin Cardozo stated in his
treatise The Nature of the Judicial Process:

It will not do to decide the same question one way between one set of litigants and the opposite way
between another. "If a group of cases involves the same point, the parties expect the same decision.
It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided
against me yesterday when I was a defendant, I shall look for the same judgment today if I am
plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be
an infringement, material and moral, of my rights." Adherence to precedent must then be the rule
rather than the exception if litigants are to have faith in the even-handed administration of justice in
the courts.28

Our Fariñas ruling on the equal protection implications of the deemed-resigned provisions cannot be
minimalized as mere obiter dictum. It is trite to state that an adjudication on any point within the
issues presented by the case cannot be considered as obiter dictum.29 This rule applies to all
pertinent questions that are presented and resolved in the regular course of the consideration of the
case and lead up to the final conclusion, and to any statement as to the matter on which the decision
is predicated.30 For that reason, a point expressly decided does not lose its value as a precedent
because the disposition of the case is, or might have been, made on some other ground; or even
though, by reason of other points in the case, the result reached might have been the same if the
court had held, on the particular point, otherwise than it did.31 As we held in Villanueva, Jr. v. Court of
Appeals, et al.:32

… A decision which the case could have turned on is not regarded as obiter dictum merely because,
owing to the disposal of the contention, it was necessary to consider another question, nor can an
additional reason in a decision, brought forward after the case has been disposed of on one ground,
be regarded as dicta. So, also, where a case presents two (2) or more points, any one of which is
sufficient to determine the ultimate issue, but the court actually decides all such points, the case as
an authoritative precedent as to every point decided, and none of such points can be regarded as
having the status of a dictum, and one point should not be denied authority merely because another
point was more dwelt on and more fully argued and considered, nor does a decision on one
proposition make statements of the court regarding other propositions dicta.33 (italics supplied)

ii. Classification Germane to the Purposes of the Law

The Fariñas ruling on the equal protection challenge stands on solid ground even if reexamined.
To start with, the equal protection clause does not require the universal application of the laws to all
persons or things without distinction.34 What it simply requires is equality among equals as
determined according to a valid classification.35 The test developed by jurisprudence here and
yonder is that of reasonableness,36 which has four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.37

Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first,
third and fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the
differential treatment of appointive officials vis-à-vis elected officials is not germane to the purpose of
the law, because "whether one holds an appointive office or an elective one, the evils sought to be
prevented by the measure remain," viz.:

… For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield
the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the
recent past, elected Vice-Presidents were appointed to take charge of national housing, social
welfare development, interior and local government, and foreign affairs). With the fact that they both
head executive offices, there is no valid justification to treat them differently when both file their
[Certificates of Candidacy] for the elections. Under the present state of our law, the Vice-President,
in the example, running this time, let us say, for President, retains his position during the entire
election period and can still use the resources of his office to support his campaign.38

Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice,
the Legislature need not address every manifestation of the evil at once; it may proceed "one step at
a time."39 In addressing a societal concern, it must invariably draw lines and make choices, thereby
creating some inequity as to those included or excluded.40 Nevertheless, as long as "the bounds of
reasonable choice" are not exceeded, the courts must defer to the legislative judgment.41 We may
not strike down a law merely because the legislative aim would have been more fully achieved by
expanding the class.42 Stated differently, the fact that a legislative classification, by itself, is
underinclusive will not render it unconstitutionally arbitrary or invidious.43 There is no constitutional
requirement that regulation must reach each and every class to which it might be applied;44 that the
Legislature must be held rigidly to the choice of regulating all or none.

Thus, any person who poses an equal protection challenge must convincingly show that the law
creates a classification that is "palpably arbitrary or capricious."45 He must refute all possible rational
bases for the differing treatment, whether or not the Legislature cited those bases as reasons for the
enactment,46 such that the constitutionality of the law must be sustained even if the reasonableness
of the classification is "fairly debatable."47In the case at bar, the petitioners failed – and in fact did not
even attempt – to discharge this heavy burden. Our assailed Decision was likewise silent as a
sphinx on this point even while we submitted the following thesis:

... [I]t is not sufficient grounds for invalidation that we may find that the statute’s distinction is unfair,
underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find
that there is no reasonably rational reason for the differing treatment.48
In the instant case, is there a rational justification for excluding elected officials from the operation of
the deemed resigned provisions? I submit that there is.

An election is the embodiment of the popular will, perhaps the purest expression of the sovereign
power of the people.49 It involves the choice or selection of candidates to public office by popular
vote.50 Considering that elected officials are put in office by their constituents for a definite term, it
may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in
utmost respect for the mandate of the sovereign will. In other words, complete deference is accorded
to the will of the electorate that they be served by such officials until the end of the term for which
they were elected. In contrast, there is no such expectation insofar as appointed officials are
concerned.

The dichotomized treatment of appointive and elective officials is therefore germane to the purposes
of the law. For the law was made not merely to preserve the integrity, efficiency, and discipline of the
public service; the Legislature, whose wisdom is outside the rubric of judicial scrutiny, also thought it
wise to balance this with the competing, yet equally compelling, interest of deferring to the sovereign
will.51 (emphasis in the original)

In fine, the assailed Decision would have us "equalize the playing field" by invalidating provisions of
law that seek to restrain the evils from running riot. Under the pretext of equal protection, it would
favor a situation in which the evils are unconfined and vagrant, existing at the behest of both
appointive and elected officials, over another in which a significant portion thereof is contained. The
absurdity of that position is self-evident, to say the least.

The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected
officials (vis-à-vis appointive officials) have greater political clout over the electorate, is indeed a
matter worth exploring – but not by this Court. Suffice it to say that the remedy lies with the
Legislature. It is the Legislature that is given the authority, under our constitutional system, to
balance competing interests and thereafter make policy choices responsive to the exigencies of the
times. It is certainly within the Legislature’s power to make the deemed-resigned provisions
applicable to elected officials, should it later decide that the evils sought to be prevented are of such
frequency and magnitude as to tilt the balance in favor of expanding the class. This Court cannot
and should not arrogate unto itself the power to ascertain and impose on the people the best state of
affairs from a public policy standpoint.

iii. Mancuso v. Taft Has Been Overruled

Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision
adverted to, and extensively cited, Mancuso v. Taft.52 This was a decision of the First Circuit of the
United States Court of Appeals promulgated in March 1973, which struck down as unconstitutional a
similar statutory provision. Pathetically, our assailed Decision, relying on Mancuso, claimed:

(1) The right to run for public office is "inextricably linked" with two fundamental freedoms –
freedom of expression and association;

(2) Any legislative classification that significantly burdens this fundamental right must be
subjected to strict equal protection review; and

(3) While the state has a compelling interest in maintaining the honesty and impartiality of its
public work force, the deemed-resigned provisions pursue their objective in a far too heavy-
handed manner as to render them unconstitutional.
It then concluded with the exhortation that since "the Americans, from whom we copied the provision
in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time
that we, too, should follow suit."

Our assailed Decision’s reliance on Mancuso is completely misplaced. We cannot blink away the
fact that the United States Supreme Court effectively overruled Mancuso three months after its
promulgation by the United States Court of Appeals. In United States Civil Service Commission, et
al. v. National Association of Letter Carriers AFL-CIO, et al.53 and Broadrick, et al. v. State of
Oklahoma, et al.,54 the United States Supreme Court was faced with the issue of whether statutory
provisions prohibiting federal55 and state56 employees from taking an active part in political
management or in political campaigns were unconstitutional as to warrant facial invalidation.
Violation of these provisions results in dismissal from employment and possible criminal sanctions.

The Court declared these provisions compliant with the equal protection clause. It held that (i) in
regulating the speech of its employees, the state as employer has interests that differ significantly
from those it possesses in regulating the speech of the citizenry in general; (ii) the courts must
therefore balance the legitimate interest of employee free expression against the interests of the
employer in promoting efficiency of public services; (iii) if the employees’ expression interferes with
the maintenance of efficient and regularly functioning services, the limitation on speech is not
unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in ascertaining
which positions are to be covered by any statutory restrictions.57 Therefore, insofar as government
employees are concerned, the correct standard of review is an interest-balancing approach, a
means-end scrutiny that examines the closeness of fit between the governmental interests and the
prohibitions in question.58

Letter Carriers elucidated on these principles, as follows:

Until now, the judgment of Congress, the Executive, and the country appears to have been that
partisan political activities by federal employees must be limited if the Government is to operate
effectively and fairly, elections are to play their proper part in representative government, and
employees themselves are to be sufficiently free from improper influences. The restrictions so far
imposed on federal employees are not aimed at particular parties, groups, or points of view, but
apply equally to all partisan activities of the type described. They discriminate against no racial,
ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere
with or influence anyone's vote at the polls.

But, as the Court held in Pickering v. Board of Education,59 the government has an interest in
regulating the conduct and ‘the speech of its employees that differ(s) significantly from those it
possesses in connection with regulation of the speech of the citizenry in general. The problem in any
case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting
upon matters of public concern and the interest of the (government), as an employer, in promoting
the efficiency of the public services it performs through its employees.’ Although Congress is free to
strike a different balance than it has, if it so chooses, we think the balance it has so far struck is
sustainable by the obviously important interests sought to be served by the limitations on partisan
political activities now contained in the Hatch Act.

It seems fundamental in the first place that employees in the Executive Branch of the Government,
or those working for any of its agencies, should administer the law in accordance with the will of
Congress, rather than in accordance with their own or the will of a political party. They are expected
to enforce the law and execute the programs of the Government without bias or favoritism for or
against any political party or group or the members thereof. A major thesis of the Hatch Act is that to
serve this great end of Government-the impartial execution of the laws-it is essential that federal
employees, for example, not take formal positions in political parties, not undertake to play
substantial roles in partisan political campaigns, and not run for office on partisan political tickets.
Forbidding activities like these will reduce the hazards to fair and effective government.

There is another consideration in this judgment: it is not only important that the Government and its
employees in fact avoid practicing political justice, but it is also critical that they appear to the public
to be avoiding it, if confidence in the system of representative Government is not to be eroded to a
disastrous extent.

Another major concern of the restriction against partisan activities by federal employees was
perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction
that the rapidly expanding Government work force should not be employed to build a powerful,
invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns
convinced Congress that these dangers were sufficiently real that substantial barriers should be
raised against the party in power-or the party out of power, for that matter-using the thousands or
hundreds of thousands of federal employees, paid for at public expense, to man its political structure
and political campaigns.

A related concern, and this remains as important as any other, was to further serve the goal that
employment and advancement in the Government service not depend on political performance, and
at the same time to make sure that Government employees would be free from pressure and from
express or tacit invitation to vote in a certain way or perform political chores in order to curry favor
with their superiors rather than to act out their own beliefs. It may be urged that prohibitions against
coercion are sufficient protection; but for many years the joint judgment of the Executive and
Congress has been that to protect the rights of federal employees with respect to their jobs and their
political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or
coerce another. For example, at the hearings in 1972 on proposed legislation for liberalizing the
prohibition against political activity, the Chairman of the Civil Service Commission stated that ‘the
prohibitions against active participation in partisan political management and partisan political
campaigns constitute the most significant safeguards against coercion . . ..’ Perhaps Congress at
some time will come to a different view of the realities of political life and Government service; but
that is its current view of the matter, and we are not now in any position to dispute it. Nor, in our
view, does the Constitution forbid it.

Neither the right to associate nor the right to participate in political activities is absolute in any
event.60 x x x

xxxx

As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will
of Congress, so as to comport with constitutional limitations. (italics supplied)

Broadrick likewise definitively stated that the assailed statutory provision is constitutionally
permissible, viz.:

Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan
political conduct of state employees. Appellants freely concede that such restrictions serve valid and
important state interests, particularly with respect to attracting greater numbers of qualified people by
insuring their job security, free from the vicissitudes of the elective process, and by protecting them
from ‘political extortion.’ Rather, appellants maintain that however permissible, even commendable,
the goals of s 818 may be, its language is unconstitutionally vague and its prohibitions too broad in
their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be
permitted. For these and other reasons, appellants assert that the sixth and seventh paragraphs of s
818 are void in toto and cannot be enforced against them or anyone else.

We have held today that the Hatch Act is not impermissibly vague.61 We have little doubt that s 818
is similarly not so vague that ‘men of common intelligence must necessarily guess at its
meaning.’62 Whatever other problems there are with s 818, it is all but frivolous to suggest that the
section fails to give adequate warning of what activities it proscribes or fails to set out ‘explicit
standards' for those who must apply it. In the plainest language, it prohibits any state classified
employee from being ‘an officer or member’ of a ‘partisan political club’ or a candidate for ‘any paid
public office.’ It forbids solicitation of contributions ‘for any political organization, candidacy or other
political purpose’ and taking part ‘in the management or affairs of any political party or in any political
campaign.’ Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be
disputes over the meaning of such terms in s 818 as ‘partisan,’ or ‘take part in,’ or ‘affairs of’ political
parties. But what was said in Letter Carriers, is applicable here: ‘there are limitations in the English
language with respect to being both specific and manageably brief, and it seems to us that although
the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that
the ordinary person exercising ordinary common sense can sufficiently understand and comply with,
without sacrifice to the public interest.' x x x

xxxx

[Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as
well as unprotected conduct, and must therefore be struck down on its face and held to be incapable
of any constitutional application. We do not believe that the overbreadth doctrine may appropriately
be invoked in this manner here.

xxxx

The consequence of our departure from traditional rules of standing in the First Amendment area is
that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting
construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to
constitutionally protected expression. Application of the overbreadth doctrine in this manner is,
manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. x
xx

x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an
exception to our traditional rules of practice and that its function, a limited one at the outset,
attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from
‘pure speech’ toward conduct and that conduct-even if expressive-falls within the scope of otherwise
valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over
harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter
protected speech to some unknown extent, there comes a point where that effect-at best a
prediction-cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State
from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the
matter another way, particularly where conduct and not merely speech is involved, we believe that
the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the
statute's plainly legitimate sweep. It is our view that s 818 is not substantially overbroad and that
whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations
to which its sanctions, assertedly, may not be applied.

Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its
terms, at political expression which if engaged in by private persons would plainly be protected by
the First and Fourteenth Amendments. But at the same time, s 818 is not a censorial statute,
directed at particular groups or viewpoints. The statute, rather, seeks to regulate political activity in
an even-handed and neutral manner. As indicted, such statutes have in the past been subject to a
less exacting overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial
spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal
trespass. This much was established in United Public Workers v. Mitchell, and has been
unhesitatingly reaffirmed today in Letter Carriers. Under the decision in Letter Carriers, there is no
question that s 818 is valid at least insofar as it forbids classified employees from: soliciting
contributions for partisan candidates, political parties, or other partisan political purposes; becoming
members of national, state, or local committees of political parties, or officers or committee members
in partisan political clubs, or candidates for any paid public office; taking part in the management or
affairs of any political party's partisan political campaign; serving as delegates or alternates to
caucuses or conventions of political parties; addressing or taking an active part in partisan political
rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get
voters to the polls; participating in the distribution of partisan campaign literature; initiating or
circulating partisan nominating petitions; or riding in caravans for any political party or partisan
political candidate.

x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of some
other improper applications. But, as presently construed, we do not believe that s 818 must be
discarded in toto because some persons’ arguably protected conduct may or may not be caught or
chilled by the statute. Section 818 is not substantially overbroad and it not, therefore,
unconstitutional on its face. (italics supplied)

It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles
enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be
interpreted to mean a reversal of Mancuso, since they "pertain to different types of laws and were
decided based on a different set of facts," viz.:

In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or
threatening to enforce, the Hatch Act’s prohibition against "active participation in political
management or political campaigns." The plaintiffs desired to campaign for candidates for public
office, to encourage and get federal employees to run for state and local offices, to participate as
delegates in party conventions, and to hold office in a political club.

In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the
(sic) Oklahoma’s Merit System of Personnel Administration Act restricting the political activities of
the State’s classified civil servants, in much the same manner as the Hatch Act proscribed partisan
political activities of federal employees. Prior to the commencement of the action, the appellants
actively participated in the 1970 reelection campaign of their superior, and were administratively
charged for asking other Corporation Commission employees to do campaign work or to give
referrals to persons who might help in the campaign, for soliciting money for the campaign, and for
receiving and distributing campaign posters in bulk.

Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth
Mancuso, a full time police officer and classified civil service employee of the City of Cranston, filed
as a candidate for nomination as representative to the Rhode Island General Assembly. The Mayor
of Cranston then began the process of enforcing the resign-to-run provision of the City Home Rule
Charter.
Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a
different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a reversal of
Mancuso. x x x (italics in the original)

We hold, however, that his position is belied by a plain reading of these cases. Contrary to his claim,
Letter Carriers, Broadrick and Mancuso all concerned the constitutionality of resign-to-run laws, viz.:

(1) Mancuso involved a civil service employee who filed as a candidate for nomination as
representative to the Rhode Island General Assembly. He assailed the constitutionality of
§14.09(c) of the City Home Rule Charter, which prohibits "continuing in the classified service
of the city after becoming a candidate for nomination or election to any public office."

(2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was
enforcing, or threatening to enforce, the Hatch Act’s prohibition against "active participation
in political management or political campaigns"63 with respect to certain defined activities in
which they desired to engage. The plaintiffs relevant to this discussion are:

(a) The National Association of Letter Carriers, which alleged that its members were
desirous of, among others, running in local elections for offices such as school board
member, city council member or mayor;

(b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for
the office of Borough Councilman in his local community for fear that his participation
in a partisan election would endanger his job; and

(c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in
the 1971 partisan election for the mayor of West Lafayette, Indiana, and that he
would do so except for fear of losing his job by reason of violation of the Hatch Act.

The Hatch Act defines "active participation in political management or political campaigns" by cross-
referring to the rules made by the Civil Service Commission. The rule pertinent to our inquiry states:

30. Candidacy for local office: Candidacy for a nomination or for election to any National, State,
county, or municipal office is not permissible. The prohibition against political activity extends not
merely to formal announcement of candidacy but also to the preliminaries leading to such
announcement and to canvassing or soliciting support or doing or permitting to be done any act in
furtherance of candidacy. The fact that candidacy, is merely passive is immaterial; if an employee
acquiesces in the efforts of friends in furtherance of such candidacy such acquiescence constitutes
an infraction of the prohibitions against political activity. (italics supplied)

Section 9(b) requires the immediate removal of violators and forbids the use of appropriated funds
thereafter to pay compensation to these persons.64

(3) Broadrick was a class action brought by certain Oklahoma state employees seeking a declaration
of unconstitutionality of two sub-paragraphs of Section 818 of Oklahoma’s Merit System of
Personnel Administration Act. Section 818 (7), the paragraph relevant to this discussion, states that
"[n]o employee in the classified service shall be … a candidate for nomination or election to any paid
public office…" Violation of Section 818 results in dismissal from employment, possible criminal
sanctions and limited state employment ineligibility.
Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled Mancuso.
By no stretch of the imagination could Mancuso still be held operative, as Letter Carriers and
Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided by a superior
court, the United States Supreme Court. It was thus not surprising for the First Circuit Court of
Appeals – the same court that decided Mancuso – to hold categorically and emphatically in Magill v.
Lynch65 that Mancuso is no longer good law. As we priorly explained:

Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtucket’s "Little
Hatch Act" prohibits city employees from engaging in a broad range of political activities. Becoming a
candidate for any city office is specifically proscribed,66 the violation being punished by removal from
office or immediate dismissal. The firemen brought an action against the city officials on the ground
that that the provision of the city charter was unconstitutional. However, the court, fully cognizant of
Letter Carriers and Broadrick, took the position that Mancuso had since lost considerable vitality. It
observed that the view that political candidacy was a fundamental interest which could be infringed
upon only if less restrictive alternatives were not available, was a position which was no longer
viable, since the Supreme Court (finding that the government’s interest in regulating both the
conduct and speech of its employees differed significantly from its interest in regulating those of the
citizenry in general) had given little weight to the argument that prohibitions against the coercion of
government employees were a less drastic means to the same end, deferring to the judgment of
Congress, and applying a "balancing" test to determine whether limits on political activity by public
employees substantially served government interests which were "important" enough to outweigh
the employees’ First Amendment rights.67

It must be noted that the Court of Appeals ruled in this manner even though the election in Magill
was characterized as nonpartisan, as it was reasonable for the city to fear, under the circumstances
of that case, that politically active bureaucrats might use their official power to help political friends
and hurt political foes. Ruled the court:

The question before us is whether Pawtucket's charter provision, which bars a city employee's
candidacy in even a nonpartisan city election, is constitutional. The issue compels us to extrapolate
two recent Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and
Broadrick v. Oklahoma. Both dealt with laws barring civil servants from partisan political activity.
Letter Carriers reaffirmed United Public Workers v. Mitchell, upholding the constitutionality of the
Hatch Act as to federal employees. Broadrick sustained Oklahoma's "Little Hatch Act" against
constitutional attack, limiting its holding to Oklahoma's construction that the Act barred only activity in
partisan politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy in nonpartisan
elections would not be constitutional. Letter Carriers and Broadrick compel new analysis.

xxxx

What we are obligated to do in this case, as the district court recognized, is to apply the Court’s
interest balancing approach to the kind of nonpartisan election revealed in this record. We believe
that the district court found more residual vigor in our opinion in Mancuso v. Taft than remains after
Letter Carriers. We have particular reference to our view that political candidacy was a fundamental
interest which could be trenched upon only if less restrictive alternatives were not available. While
this approach may still be viable for citizens who are not government employees, the Court in Letter
Carriers recognized that the government's interest in regulating both the conduct and speech of its
employees differs significantly from its interest in regulating those of the citizenry in general. Not only
was United Public Workers v. Mitchell "unhesitatingly" reaffirmed, but the Court gave little weight to
the argument that prohibitions against the coercion of government employees were a less drastic
means to the same end, deferring to the judgment of the Congress. We cannot be more precise than
the Third Circuit in characterizing the Court's approach as "some sort of 'balancing' process".68 It
appears that the government may place limits on campaigning by public employees if the limits
substantially serve government interests that are "important" enough to outweigh the employees'
First Amendment rights. x x x (italics supplied)

Upholding thus the constitutionality of the law in question, the Magill court detailed the major
governmental interests discussed in Letter Carriers and applied them to the Pawtucket provision as
follows:

In Letter Carriers[,] the first interest identified by the Court was that of an efficient government,
faithful to the Congress rather than to party. The district court discounted this interest, reasoning that
candidates in a local election would not likely be committed to a state or national platform. This
observation undoubtedly has substance insofar as allegiance to broad policy positions is concerned.
But a different kind of possible political intrusion into efficient administration could be thought to
threaten municipal government: not into broad policy decisions, but into the particulars of
administration favoritism in minute decisions affecting welfare, tax assessments, municipal contracts
and purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter Carriers
identified a second governmental interest in the avoidance of the appearance of "political justice" as
to policy, so there is an equivalent interest in avoiding the appearance of political preferment in
privileges, concessions, and benefits. The appearance (or reality) of favoritism that the charter's
authors evidently feared is not exorcised by the nonpartisan character of the formal election process.
Where, as here, party support is a key to successful campaigning, and party rivalry is the norm, the
city might reasonably fear that politically active bureaucrats would use their official power to help
political friends and hurt political foes. This is not to say that the city's interest in visibly fair and
effective administration necessarily justifies a blanket prohibition of all employee campaigning; if
parties are not heavily involved in a campaign, the danger of favoritism is less, for neither friend nor
foe is as easily identified.

A second major governmental interest identified in Letter Carriers was avoiding the danger of a
powerful political machine. The Court had in mind the large and growing federal bureaucracy and its
partisan potential. The district court felt this was only a minor threat since parties had no control over
nominations. But in fact candidates sought party endorsements, and party endorsements proved to
be highly effective both in determining who would emerge from the primary election and who would
be elected in the final election. Under the prevailing customs, known party affiliation and support
were highly significant factors in Pawtucket elections. The charter's authors might reasonably have
feared that a politically active public work force would give the incumbent party, and the incumbent
workers, an unbreakable grasp on the reins of power. In municipal elections especially, the small
size of the electorate and the limited powers of local government may inhibit the growth of interest
groups powerful enough to outbalance the weight of a partisan work force. Even when nonpartisan
issues and candidacies are at stake, isolated government employees may seek to influence voters
or their co-workers improperly; but a more real danger is that a central party structure will mass the
scattered powers of government workers behind a single party platform or slate. Occasional misuse
of the public trust to pursue private political ends is tolerable, especially because the political views
of individual employees may balance each other out. But party discipline eliminates this diversity and
tends to make abuse systematic. Instead of a handful of employees pressured into advancing their
immediate superior's political ambitions, the entire government work force may be expected to turn
out for many candidates in every election. In Pawtucket, where parties are a continuing presence in
political campaigns, a carefully orchestrated use of city employees in support of the incumbent
party's candidates is possible. The danger is scarcely lessened by the openness of Pawtucket's
nominating procedure or the lack of party labels on its ballots.

The third area of proper governmental interest in Letter Carriers was ensuring that employees
achieve advancement on their merits and that they be free from both coercion and the prospect of
favor from political activity. The district court did not address this factor, but looked only to the
possibility of a civil servant using his position to influence voters, and held this to be no more of a
threat than in the most nonpartisan of elections. But we think that the possibility of coercion of
employees by superiors remains as strong a factor in municipal elections as it was in Letter Carriers.
Once again, it is the systematic and coordinated exploitation of public servants for political ends that
a legislature is most likely to see as the primary threat of employees' rights. Political oppression of
public employees will be rare in an entirely nonpartisan system. Some superiors may be inclined to
ride herd on the politics of their employees even in a nonpartisan context, but without party officials
looking over their shoulders most supervisors will prefer to let employees go their own ways.

In short, the government may constitutionally restrict its employees' participation in nominally
nonpartisan elections if political parties play a large role in the campaigns. In the absence of
substantial party involvement, on the other hand, the interests identified by the Letter Carriers Court
lose much of their force. While the employees' First Amendment rights would normally outbalance
these diminished interests, we do not suggest that they would always do so. Even when parties are
absent, many employee campaigns might be thought to endanger at least one strong public interest,
an interest that looms larger in the context of municipal elections than it does in the national
elections considered in Letter Carriers. The city could reasonably fear the prospect of a subordinate
running directly against his superior or running for a position that confers great power over his
superior. An employee of a federal agency who seeks a Congressional seat poses less of a direct
challenge to the command and discipline of his agency than a fireman or policeman who runs for
mayor or city council. The possibilities of internal discussion, cliques, and political bargaining, should
an employee gather substantial political support, are considerable. (citations omitted)

The court, however, remanded the case to the district court for further proceedings in respect of the
petitioners’ overbreadth charge. Noting that invalidating a statute for being overbroad is "not to be
taken lightly, much less to be taken in the dark," the court held:

The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a
closely analogous case. Under Broadrick, when one who challenges a law has engaged in
constitutionally unprotected conduct (rather than unprotected speech) and when the challenged law
is aimed at unprotected conduct, "the overbreadth of a statute must not only be real, but substantial
as well, judged in relation to the statute's plainly legitimate sweep." Two major uncertainties attend
the doctrine: how to distinguish speech from conduct, and how to define "substantial" overbreadth.
We are spared the first inquiry by Broadrick itself. The plaintiffs in that case had solicited support for
a candidate, and they were subject to discipline under a law proscribing a wide range of activities,
including soliciting contributions for political candidates and becoming a candidate. The Court found
that this combination required a substantial overbreadth approach. The facts of this case are so
similar that we may reach the same result without worrying unduly about the sometimes opaque
distinction between speech and conduct.

The second difficulty is not so easily disposed of. Broadrick found no substantial overbreadth in a
statute restricting partisan campaigning. Pawtucket has gone further, banning participation in
nonpartisan campaigns as well. Measuring the substantiality of a statute's overbreadth apparently
requires, inter alia, a rough balancing of the number of valid applications compared to the number of
potentially invalid applications. Some sensitivity to reality is needed; an invalid application that is far-
fetched does not deserve as much weight as one that is probable. The question is a matter of
degree; it will never be possible to say that a ratio of one invalid to nine valid applications makes a
law substantially overbroad. Still, an overbreadth challenger has a duty to provide the court with
some idea of the number of potentially invalid applications the statute permits. Often, simply reading
the statute in the light of common experience or litigated cases will suggest a number of probable
invalid applications. But this case is different. Whether the statute is overbroad depends in large part
on the number of elections that are insulated from party rivalry yet closed to Pawtucket employees.
For all the record shows, every one of the city, state, or federal elections in Pawtucket is actively
contested by political parties. Certainly the record suggests that parties play a major role even in
campaigns that often are entirely nonpartisan in other cities. School committee candidates, for
example, are endorsed by the local Democratic committee.

The state of the record does not permit us to find overbreadth; indeed such a step is not to be taken
lightly, much less to be taken in the dark. On the other hand, the entire focus below, in the short
period before the election was held, was on the constitutionality of the statute as applied. Plaintiffs
may very well feel that further efforts are not justified, but they should be afforded the opportunity to
demonstrate that the charter forecloses access to a significant number of offices, the candidacy for
which by municipal employees would not pose the possible threats to government efficiency and
integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, we remand
for consideration of plaintiffs' overbreadth claim. (italics supplied, citations omitted)

Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft,
heavily relied upon by the ponencia, has effectively been overruled.69 As it is no longer good law, the
ponencia’s exhortation that "[since] the Americans, from whom we copied the provision in question,
had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too,
should follow suit" is misplaced and unwarranted.70

Accordingly, our assailed Decision’s submission that the right to run for public office is "inextricably
linked" with two fundamental freedoms – those of expression and association – lies on barren
ground. American case law has in fact never recognized a fundamental right to express one’s
political views through candidacy,71 as to invoke a rigorous standard of review.72 Bart v.
Telford73 pointedly stated that "[t]he First Amendment does not in terms confer a right to run for
public office, and this court has held that it does not do so by implication either." Thus, one’s interest
in seeking office, by itself, is not entitled to constitutional protection.74 Moreover, one cannot bring
one’s action under the rubric of freedom of association, absent any allegation that, by running for an
elective position, one is advancing the political ideas of a particular set of voters.75

Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar,
are not violative of the equal protection clause. The deemed-resigned provisions substantially serve
governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather
than to party; (ii) avoidance of the appearance of "political justice" as to policy; (iii) avoidance of the
danger of a powerful political machine; and (iv) ensuring that employees achieve advancement on
their merits and that they be free from both coercion and the prospect of favor from political activity).
These are interests that are important enough to outweigh the non-fundamental right of appointive
officials and employees to seek elective office. 1avvphi1

En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing76 and Morial, et
al. v. Judiciary Commission of the State of Louisiana, et al.77 to buttress his dissent. Maintaining that
resign-to-run provisions are valid only when made applicable to specified officials, he explains:

…U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions when
applied to specified or particular officials, as distinguished from all others,78 under a classification that
is germane to the purposes of the law. These resign-to-run legislations were not expressed in a
general and sweeping provision, and thus did not violate the test of being germane to the purpose of
the law, the second requisite for a valid classification. Directed, as they were, to particular officials,
they were not overly encompassing as to be overbroad. (emphasis in the original)
This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run provisions
in these cases were upheld not because they referred to specified or particular officials (vis-à-vis a
general class); the questioned provisions were found valid precisely because the Court deferred to
legislative judgment and found that a regulation is not devoid of a rational predicate simply because
it happens to be incomplete. In fact, the equal protection challenge in Clements revolved around the
claim that the State of Texas failed to explain why some public officials are subject to the resign-to-
run provisions, while others are not. Ruled the United States Supreme Court:

Article XVI, § 65, of the Texas Constitution provides that the holders of certain offices automatically
resign their positions if they become candidates for any other elected office, unless the unexpired
portion of the current term is one year or less. The burdens that § 65 imposes on candidacy are
even less substantial than those imposed by § 19. The two provisions, of course, serve essentially
the same state interests. The District Court found § 65 deficient, however, not because of the nature
or extent of the provision's restriction on candidacy, but because of the manner in which the offices
are classified. According to the District Court, the classification system cannot survive equal
protection scrutiny, because Texas has failed to explain sufficiently why some elected public officials
are subject to § 65 and why others are not. As with the case of § 19, we conclude that § 65 survives
a challenge under the Equal Protection Clause unless appellees can show that there is no rational
predicate to the classification scheme.

The history behind § 65 shows that it may be upheld consistent with the "one step at a time"
approach that this Court has undertaken with regard to state regulation not subject to more vigorous
scrutiny than that sanctioned by the traditional principles. Section 65 was enacted in 1954 as a
transitional provision applying only to the 1954 election. Section 65 extended the terms of those
offices enumerated in the provision from two to four years. The provision also staggered the terms of
other offices so that at least some county and local offices would be contested at each election. The
automatic resignation proviso to § 65 was not added until 1958. In that year, a similar automatic
resignation provision was added in Art. XI, § 11, which applies to officeholders in home rule cities
who serve terms longer than two years. Section 11 allows home rule cities the option of extending
the terms of municipal offices from two to up to four years.

Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms of
1958. That the State did not go further in applying the automatic resignation provision to those
officeholders whose terms were not extended by § 11 or § 65, absent an invidious purpose, is not
the sort of malfunctioning of the State's lawmaking process forbidden by the Equal Protection
Clause. A regulation is not devoid of a rational predicate simply because it happens to be
incomplete. The Equal Protection Clause does not forbid Texas to restrict one elected officeholder's
candidacy for another elected office unless and until it places similar restrictions on other
officeholders. The provision's language and its history belie any notion that § 65 serves the invidious
purpose of denying access to the political process to identifiable classes of potential candidates.
(citations omitted and italics supplied)

Furthermore, it is unfortunate that the dissenters took the Morial line that "there is no blanket
approval of restrictions on the right of public employees to become candidates for public office" out
of context. A correct reading of that line readily shows that the Court only meant to confine its ruling
to the facts of that case, as each equal protection challenge would necessarily have to involve
weighing governmental interests vis-à-vis the specific prohibition assailed. The Court held:

The interests of public employees in free expression and political association are unquestionably
entitled to the protection of the first and fourteenth amendments. Nothing in today's decision should
be taken to imply that public employees may be prohibited from expressing their private views on
controversial topics in a manner that does not interfere with the proper performance of their public
duties. In today's decision, there is no blanket approval of restrictions on the right of public
employees to become candidates for public office. Nor do we approve any general restrictions on
the political and civil rights of judges in particular. Our holding is necessarily narrowed by the
methodology employed to reach it. A requirement that a state judge resign his office prior to
becoming a candidate for non-judicial office bears a reasonably necessary relation to the
achievement of the state's interest in preventing the actuality or appearance of judicial impropriety.
Such a requirement offends neither the first amendment's guarantees of free expression and
association nor the fourteenth amendment's guarantee of equal protection of the laws. (italics
supplied)

Indeed, the Morial court even quoted Broadrick and stated that:

In any event, the legislature must have some leeway in determining which of its employment
positions require restrictions on partisan political activities and which may be left unregulated. And a
State can hardly be faulted for attempting to limit the positions upon which such restrictions are
placed. (citations omitted)

V.

Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election
Code Do Not Suffer from Overbreadth

Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the
Omnibus Election Code on equal protection ground, our assailed Decision struck them down for
being overbroad in two respects, viz.:

(1) The assailed provisions limit the candidacy of all civil servants holding appointive posts
without due regard for the type of position being held by the employee seeking an elective
post and the degree of influence that may be attendant thereto;79 and

(2) The assailed provisions limit the candidacy of any and all civil servants holding appointive
positions without due regard for the type of office being sought, whether it be partisan or
nonpartisan in character, or in the national, municipal or barangay level.

Again, on second look, we have to revise our assailed Decision.

i. Limitation on Candidacy Regardless of Incumbent Appointive Official’s Position, Valid

According to the assailed Decision, the challenged provisions of law are overly broad because they
apply indiscriminately to all civil servants holding appointive posts, without due regard for the type of
position being held by the employee running for elective office and the degree of influence that may
be attendant thereto.

Its underlying assumption appears to be that the evils sought to be prevented are extant only when
the incumbent appointive official running for elective office holds an influential post.

Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the
government posed by the partisan potential of a large and growing bureaucracy: the danger of
systematic abuse perpetuated by a "powerful political machine" that has amassed "the scattered
powers of government workers" so as to give itself and its incumbent workers an "unbreakable grasp
on the reins of power."80 As elucidated in our prior exposition:81
Attempts by government employees to wield influence over others or to make use of their respective
positions (apparently) to promote their own candidacy may seem tolerable – even innocuous –
particularly when viewed in isolation from other similar attempts by other government employees.
Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous
possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on
the part of an emerging central party structure to advance its own agenda through a "carefully
orchestrated use of [appointive and/or elective] officials" coming from various levels of the
bureaucracy.

…[T]he avoidance of such a "politically active public work force" which could give an emerging
political machine an "unbreakable grasp on the reins of power" is reason enough to impose a
restriction on the candidacies of all appointive public officials without further distinction as to the type
of positions being held by such employees or the degree of influence that may be attendant thereto.
(citations omitted)

ii. Limitation on Candidacy Regardless of Type of Office Sought, Valid

The assailed Decision also held that the challenged provisions of law are overly broad because they
are made to apply indiscriminately to all civil servants holding appointive offices, without due regard
for the type of elective office being sought, whether it be partisan or nonpartisan in character, or in
the national, municipal or barangay level.

This erroneous ruling is premised on the assumption that "the concerns of a truly partisan office and
the temptations it fosters are sufficiently different from those involved in an office removed from
regular party politics [so as] to warrant distinctive treatment,"82 so that restrictions on candidacy akin
to those imposed by the challenged provisions can validly apply only to situations in which the
elective office sought is partisan in character. To the extent, therefore, that such restrictions are said
to preclude even candidacies for nonpartisan elective offices, the challenged restrictions are to be
considered as overbroad.

Again, a careful study of the challenged provisions and related laws on the matter will show that the
alleged overbreadth is more apparent than real. Our exposition on this issue has not been
repudiated, viz.:

A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein
refer to the filing of certificates of candidacy and nomination of official candidates of registered
political parties, in connection with the May 10, 2010 National and Local Elections.83 Obviously, these
rules and guidelines, including the restriction in Section 4(a) of Resolution 8678, were issued
specifically for purposes of the May 10, 2010 National and Local Elections, which, it must be noted,
are decidedly partisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678
applies only to the candidacies of appointive officials vying for partisan elective posts in the May 10,
2010 National and Local Elections. On this score, the overbreadth challenge leveled against Section
4(a) is clearly unsustainable.

Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus Election
Code, in conjunction with other related laws on the matter, will confirm that these provisions are
likewise not intended to apply to elections for nonpartisan public offices.

The only elections which are relevant to the present inquiry are the elections for barangay offices,
since these are the only elections in this country which involve nonpartisan public offices.84
In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code
in 1985, Congress has intended that these nonpartisan barangay elections be governed by special
rules, including a separate rule on deemed resignations which is found in Section 39 of the Omnibus
Election Code. Said provision states:

Section 39. Certificate of Candidacy. – No person shall be elected punong barangay or kagawad ng
sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from
the commencement of the election period but not later than the day before the beginning of the
campaign period in a form to be prescribed by the Commission. The candidate shall state the
barangay office for which he is a candidate.

xxxx

Any elective or appointive municipal, city, provincial or national official or employee, or those in the
civil or military service, including those in government-owned or-controlled corporations, shall be
considered automatically resigned upon the filing of certificate of candidacy for a barangay office.

Since barangay elections are governed by a separate deemed resignation rule, under the present
state of law, there would be no occasion to apply the restriction on candidacy found in Section 66 of
the Omnibus Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to any
election other than a partisan one. For this reason, the overbreadth challenge raised against Section
66 of the Omnibus Election Code and the pertinent proviso in Section 13 of RA 9369 must also fail. 85

In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus
Election Code and the corresponding provision in Section 13 of RA 9369 are general rules that apply
also to elections for nonpartisan public offices, the overbreadth challenge would still be futile. Again,
we explained:

In the first place, the view that Congress is limited to controlling only partisan behavior has not
received judicial imprimatur, because the general proposition of the relevant US cases on the matter
is simply that the government has an interest in regulating the conduct and speech of its employees
that differs significantly from those it possesses in connection with regulation of the speech of the
citizenry in general.86

Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly
broad, particularly where, as in this case, "conduct" and not "pure speech" is involved, the
overbreadth must not only be real, but substantial as well, judged in relation to the statute’s plainly
legitimate sweep.87

In operational terms, measuring the substantiality of a statute’s overbreadth would entail, among
other things, a rough balancing of the number of valid applications compared to the number of
potentially invalid applications.88 In this regard, some sensitivity to reality is needed; an invalid
application that is far-fetched does not deserve as much weight as one that is probable.89 The
question is a matter of degree.90 Thus, assuming for the sake of argument that the partisan-
nonpartisan distinction is valid and necessary such that a statute which fails to make this distinction
is susceptible to an overbreadth attack, the overbreadth challenge presently mounted must
demonstrate or provide this Court with some idea of the number of potentially invalid elections (i.e.
the number of elections that were insulated from party rivalry but were nevertheless closed to
appointive employees) that may in all probability result from the enforcement of the statute.91

The state of the record, however, does not permit us to find overbreadth. Borrowing from the words
of Magill v. Lynch, indeed, such a step is not to be taken lightly, much less to be taken in the
dark,92 especially since an overbreadth finding in this case would effectively prohibit the State from
‘enforcing an otherwise valid measure against conduct that is admittedly within its power to
proscribe.’93

This Court would do well to proceed with tiptoe caution, particularly when it comes to the application
of the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden
the exercise of the right to freedom of speech, for such approach is manifestly strong medicine that
must be used sparingly, and only as a last resort.94

In the United States, claims of facial overbreadth have been entertained only where, in the judgment
of the court, the possibility that protected speech of others may be muted and perceived grievances
left to fester (due to the possible inhibitory effects of overly broad statutes) outweighs the possible
harm to society in allowing some unprotected speech or conduct to go unpunished.95 Facial
overbreadth has likewise not been invoked where a limiting construction could be placed on the
challenged statute, and where there are readily apparent constructions that would cure, or at least
substantially reduce, the alleged overbreadth of the statute.96

In the case at bar, the probable harm to society in permitting incumbent appointive officials to remain
in office, even as they actively pursue elective posts, far outweighs the less likely evil of having
arguably protected candidacies blocked by the possible inhibitory effect of a potentially overly broad
statute.
a1f

In this light, the conceivably impermissible applications of the challenged statutes – which are, at
best, bold predictions – cannot justify invalidating these statutes in toto and prohibiting the State
from enforcing them against conduct that is, and has for more than 100 years been, unquestionably
within its power and interest to proscribe.97Instead, the more prudent approach would be to deal with
these conceivably impermissible applications through case-by-case adjudication rather than through
a total invalidation of the statute itself.98

Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for
Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet members had
already filed their Certificates of Candidacy without relinquishing their posts.99 Several COMELEC
election officers had likewise filed their Certificates of Candidacy in their respective
provinces.100 Even the Secretary of Justice had filed her certificate of substitution for representative
of the first district of Quezon province last December 14, 2009101 – even as her position as Justice
Secretary includes supervision over the City and Provincial Prosecutors,102 who, in turn, act as Vice-
Chairmen of the respective Boards of Canvassers.103 The Judiciary has not been spared, for a
Regional Trial Court Judge in the South has thrown his hat into the political arena. We cannot allow
the tilting of our electoral playing field in their favor.

For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of RA
9369, which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally
overbroad.

IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondent’s and the intervenors’
Motions for Reconsideration; REVERSE and SET ASIDE this Court’s December 1, 2009 Decision;
DISMISS the Petition; and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1)
Section 4(a) of COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of
Section 13 of Republic Act No. 9369, and (3) Section 66 of the Omnibus Election Code.

SO ORDERED.
 11
G.R. No. 184836               December 23, 2009

SIMON B. ALDOVINO, JR., DANILO B. FALLER AND FERDINAND N. TALABONG, Petitioners, 

vs.
COMMISSION ON ELECTIONS AND WILFREDO F. ASILO, Respondents.

DECISION

BRION, J.:

Is the preventive suspension of an elected public official an interruption of his term of office for
purposes of the three-term limit rule under Section 8, Article X of the Constitution and Section 43(b)
of Republic Act No. 7160 (RA 7160, or the Local Government Code)?

The respondent Commission on Elections (COMELEC) ruled that preventive suspension is an

effective interruption because it renders the suspended public official unable to provide complete
service for the full term; thus, such term should not be counted for the purpose of the three-term limit
rule.

The present petition1 seeks to annul and set aside this COMELEC ruling for having been issued with
grave abuse of discretion amounting to lack or excess of jurisdiction.

THE ANTECEDENTS

The respondent Wilfredo F. Asilo (Asilo) was elected councilor of Lucena City for three consecutive
terms: for the 1998-2001, 2001-2004, and 2004-2007 terms, respectively. In September 2005 or
during his 2004-2007 term of office, the Sandiganbayan preventively suspended him for 90 days in
relation with a criminal case he then faced. This Court, however, subsequently lifted the
Sandiganbayan’s suspension order; hence, he resumed performing the functions of his office and
finished his term.

In the 2007 election, Asilo filed his certificate of candidacy for the same position. The petitioners
Simon B. Aldovino, Jr., Danilo B. Faller, and Ferdinand N. Talabong (the petitioners) sought to deny
due course to Asilo’s certificate of candidacy or to cancel it on the ground that he had been elected
and had served for three terms; his candidacy for a fourth term therefore violated the three-term limit
rule under Section 8, Article X of the Constitution and Section 43(b) of RA 7160.

The COMELEC’s Second Division ruled against the petitioners and in Asilo’s favour in its Resolution
of November 28, 2007. It reasoned out that the three-term limit rule did not apply, as Asilo failed to
render complete service for the 2004-2007 term because of the suspension the Sandiganbayan had
ordered.

The COMELEC en banc refused to reconsider the Second Division’s ruling in its October 7, 2008
Resolution; hence, the PRESENT PETITION raising the following ISSUES:

1. Whether preventive suspension of an elected local official is an interruption of the three-

term limit rule; and
 2. Whether preventive suspension is considered involuntary renunciation as contemplated in
Section 43(b) of RA 7160

Thus presented, the case raises the direct issue of whether Asilo’s preventive suspension
constituted an interruption that allowed him to run for a 4th term.

THE COURT’S RULING

We find the petition meritorious.

General Considerations

The present case is not the first before this Court on the three-term limit provision of the Constitution,
but is the first on the effect of preventive suspension on the continuity of an elective official’s term.
To be sure, preventive suspension, as an interruption in the term of an elective public official, has
been mentioned as an example in Borja v. Commission on Elections.2 Doctrinally, however, Borja is
not a controlling ruling; it did not deal with preventive suspension, but with the application of the
three-term rule on the term that an elective official acquired by succession.

a. The Three-term Limit Rule:

The Constitutional Provision Analyzed

Section 8, Article X of the Constitution states:

Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was elected.

Section 43 (b) of RA 7160 practically repeats the constitutional provision, and any difference in
wording does not assume any significance in this case.

As worded, the constitutional provision fixes the term of a local elective office and limits an elective
official’s stay in office to no more than three consecutive terms. This is the first branch of the rule
embodied in Section 8, Article X.

Significantly, this provision refers to a "term" as a period of time – three years – during which an
official has title to office and can serve. Appari v. Court of Appeals,3 a Resolution promulgated on
November 28, 2007, succinctly discusses what a "term" connotes, as follows:

The word "term" in a legal sense means a fixed and definite period of time which the law
describes that an officer may hold an office. According to Mechem, the term of office is the
period during which an office may be held. Upon expiration of the officer’s term, unless he is
authorized by law to holdover, his rights, duties and authority as a public officer must ipso facto
cease. In the law of public officers, the most and natural frequent method by which a public officer
ceases to be such is by the expiration of the terms for which he was elected or appointed. [Emphasis
supplied].1avvphi1
A later case, Gaminde v. Commission on Audit,4 reiterated that "[T]he term means the time during
which the officer may claim to hold office as of right, and fixes the interval after which the several
incumbents shall succeed one another."

The "limitation" under this first branch of the provision is expressed in the negative – "no such
official shall serve for more than three consecutive terms." This formulation – no more than three
consecutive terms – is a clear command suggesting the existence of an inflexible rule. While it gives
no exact indication of what to "serve. . . three consecutive terms" exactly connotes, the meaning is
clear – reference is to the term, not to the service that a public official may render.  In other words,
1awphi1

the limitation refers to the term.

The second branch relates to the provision’s express initiative to prevent any circumvention of the
limitation through voluntary severance of ties with the public office; it expressly states that voluntary
renunciation of office "shall not be considered as an interruption in the continuity of his service for
the full term for which he was elected." This declaration complements the term limitation mandated
by the first branch.

A notable feature of the second branch is that it does not textually state that voluntary renunciation is
the only actual interruption of service that does not affect "continuity of service for a full term" for
purposes of the three-term limit rule. It is a pure declaratory statement of what does not serve as an
interruption of service for a full term, but the phrase "voluntary renunciation," by itself, is not without
significance in determining constitutional intent.

The word "renunciation" carries the dictionary meaning of abandonment. To renounce is to give up,
abandon, decline, or resign.5 It is an act that emanates from its author, as contrasted to an act that
operates from the outside. Read with the definition of a "term" in mind, renunciation, as mentioned
under the second branch of the constitutional provision, cannot but mean an act that results in
cutting short the term, i.e., the loss of title to office. The descriptive word "voluntary" linked together
with "renunciation" signifies an act of surrender based on the surenderee’s own freely exercised will;
in other words, a loss of title to office by conscious choice. In the context of the three-term limit rule,
such loss of title is not considered an interruption because it is presumed to be purposely sought to
avoid the application of the term limitation.

The following exchanges in the deliberations of the Constitutional Commission on the term
"voluntary renunciation" shed further light on the extent of the term "voluntary renunciation":

MR. MAAMBONG. Could I address the clarificatory question to the Committee? This term "voluntary
renunciation" does not appear in Section 3 [of Article VI]; it also appears in Section 6 [of Article VI].

MR DAVIDE. Yes.

MR. MAAMBONG. It is also a recurring phrase all over the Constitution. Could the Committee
please enlighten us exactly what "voluntary renunciation" mean? Is this akin to abandonment?

MR. DAVIDE. Abandonment is voluntary. In other words, he cannot circumvent the restriction by
merely resigning at any given time on the second term.

MR. MAAMBONG. Is the Committee saying that the term "voluntary renunciation" is more general
than abandonment and resignation?

MR. DAVIDE. It is more general, more embracing.6

From this exchange and Commissioner Davide’s expansive interpretation of the term "voluntary
renunciation," the framers’ intent apparently was to close all gaps that an elective official may seize
to defeat the three-term limit rule, in the way that voluntary renunciation has been rendered
unavailable as a mode of defeating the three-term limit rule. Harking back to the text of the
constitutional provision, we note further that Commissioner Davide’s view is consistent with the
negative formulation of the first branch of the provision and the inflexible interpretation that it
suggests.

This examination of the wording of the constitutional provision and of the circumstances surrounding
its formulation impresses upon us the clear intent to make term limitation a high priority constitutional
objective whose terms must be strictly construed and which cannot be defeated by, nor sacrificed
for, values of less than equal constitutional worth. We view preventive suspension vis-à-vis term
limitation with this firm mindset.

b. Relevant Jurisprudence on the

Three-term Limit Rule

Other than the above-cited materials, jurisprudence best gives us a lead into the concepts within the
provision’s contemplation, particularly on the "interruption in the continuity of service for the full term"
that it speaks of.

Lonzanida v. Commission on Elections7 presented the question of whether the disqualification on the

basis of the three-term limit applies if the election of the public official (to be strictly accurate, the
proclamation as winner of the public official) for his supposedly third term had been declared invalid
in a final and executory judgment. We ruled that the two requisites for the application of the
disqualification (viz., 1. that the official concerned has been elected for three consecutive terms in
the same local government post; and 2. that he has fully served three consecutive terms) were not
present. In so ruling, we said:

The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term
limit by a voluntary renunciation of office and at the same time respect the people’s choice and grant
their elected official full service of a term is evident in this provision. Voluntary renunciation of a term
does not cancel the renounced term in the computation of the three term limit; conversely,
involuntary severance from office for any length of time short of the full term provided by law
amounts to an interruption of continuity of service. The petitioner vacated his post a few months
before the next mayoral elections, not by voluntary renunciation but in compliance with the legal
process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from
office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-
1998 mayoral term. [Emphasis supplied]

Our intended meaning under this ruling is clear: it is severance from office, or to be exact, loss of
title, that renders the three-term limit rule inapplicable.

Ong v. Alegre8 and Rivera v. COMELEC,9 like Lonzanida, also involved the issue of whether there
had been a completed term for purposes of the three-term limit disqualification. These cases,
however, presented an interesting twist, as their final judgments in the electoral contest came after
the term of the contested office had expired so that the elective officials in these cases were never
effectively unseated.

Despite the ruling that Ong was never entitled to the office (and thus was never validly elected), the
Court concluded that there was nevertheless an election and service for a full term in contemplation
of the three-term rule based on the following premises: (1) the final decision that the third-termer lost
the election was without practical and legal use and value, having been promulgated after the term
of the contested office had expired; and (2) the official assumed and continuously exercised the
functions of the office from the start to the end of the term. The Court noted in Ong the absurdity and
the deleterious effect of a contrary view – that the official (referring to the winner in the election
protest) would, under the three-term rule, be considered to have served a term by virtue of a
veritably meaningless electoral protest ruling, when another actually served the term pursuant to a
proclamation made in due course after an election. This factual variation led the Court to rule
differently from Lonzanida.

In the same vein, the Court in Rivera rejected the theory that the official who finally lost the election
contest was merely a "caretaker of the office" or a mere "de facto officer." The Court obeserved that
Section 8, Article X of the Constitution is violated and its purpose defeated when an official fully
served in the same position for three consecutive terms. Whether as "caretaker" or "de facto" officer,
he exercised the powers and enjoyed the perquisites of the office that enabled him "to stay on
indefinitely."

Ong and Rivera are important rulings for purposes of the three-term limitation because of what they
directly imply. Although the election requisite was not actually present, the Court still gave full effect
to the three-term limitation because of the constitutional intent to strictly limit elective officials to
service for three terms. By so ruling, the Court signalled how zealously it guards the three-term limit
rule. Effectively, these cases teach us to strictly interpret the term limitation rule in favor of limitation
rather than its exception.

Adormeo v. Commission on Elections10 dealt with the effect of recall on the three-term limit
disqualification. The case presented the question of whether the disqualification applies if the official
lost in the regular election for the supposed third term, but was elected in a recall election covering
that term. The Court upheld the COMELEC’s ruling that the official was not elected for three (3)
consecutive terms. The Court reasoned out that for nearly two years, the official was a private
citizen; hence, the continuity of his mayorship was disrupted by his defeat in the election for the third
term.

Socrates v. Commission on Elections11 also tackled recall vis-à-vis the three-term limit

disqualification. Edward Hagedorn served three full terms as mayor. As he was disqualified to run for
a fourth term, he did not participate in the election that immediately followed his third term. In this
election, the petitioner Victorino Dennis M. Socrates was elected mayor. Less than 1 ½ years after
Mayor Socrates assumed the functions of the office, recall proceedings were initiated against him,
leading to the call for a recall election. Hagedorn filed his certificate of candidacy for mayor in the
recall election, but Socrates sought his disqualification on the ground that he (Hagedorn) had fully
served three terms prior to the recall election and was therefore disqualified to run because of the
three-term limit rule. We decided in Hagedorn’s favor, ruling that:

After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth
term. The prohibited election refers to the next regular election for the same office following the end
of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by
the prohibition for two reasons. First, a subsequent election like a recall election is no longer an
immediate reelection after three consecutive terms. Second, the intervening period constitutes an
involuntary interruption in the continuity of service.

When the framers of the Constitution debated on the term limit of elective local officials, the question
asked was whether there would be no further election after three terms, or whether there would be
"no immediate reelection" after three terms.
 xxxx

Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three
consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth
term as long as the reelection is not immediately after the end of the third consecutive term. A recall
election mid-way in the term following the third consecutive term is a subsequent election but not an
immediate reelection after the third term.

Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any
other subsequent election involving the same term of office. What the Constitution prohibits is a
consecutive fourth term.12

Latasa v. Commission on Elections13 presented the novel question of whether a municipal mayor

who had fully served for three consecutive terms could run as city mayor in light of the intervening
conversion of the municipality into a city. During the third term, the municipality was converted into a
city; the cityhood charter provided that the elective officials of the municipality shall, in a holdover
capacity, continue to exercise their powers and functions until elections were held for the new city
officials. The Court ruled that the conversion of the municipality into a city did not convert the office
of the municipal mayor into a local government post different from the office of the city mayor – the
territorial jurisdiction of the city was the same as that of the municipality; the inhabitants were the
same group of voters who elected the municipal mayor for 3 consecutive terms; and they were the
same inhabitants over whom the municipal mayor held power and authority as their chief executive
for nine years. The Court said:

This Court reiterates that the framers of the Constitution specifically included an exception to the
people’s freedom to choose those who will govern them in order to avoid the evil of a single person
accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay
in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served
for three consecutive terms as a municipal mayor would obviously defeat the very intent of the
framers when they wrote this exception. Should he be allowed another three consecutive terms as
mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over
the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the
very scenario sought to be avoided by the Constitution, if not abhorred by it.14

Latasa instructively highlights, after a review of Lonzanida, Adormeo and Socrates, that no three-
term limit violation results if a rest period or break in the service between terms or tenure in a given
elective post intervened. In Lonzanida, the petitioner was a private citizen with no title to any elective
office for a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the
private respondents lived as private citizens for two years and fifteen months, respectively. Thus,
these cases establish that the law contemplates a complete break from office during which the local
elective official steps down and ceases to exercise power or authority over the inhabitants of the
territorial jurisdiction of a particular local government unit.

Seemingly differing from these results is the case of Montebon v. Commission on Elections,15 where
the highest-ranking municipal councilor succeeded to the position of vice-mayor by operation of law.
The question posed when he subsequently ran for councilor was whether his assumption as vice-
mayor was an interruption of his term as councilor that would place him outside the operation of the
three-term limit rule. We ruled that an interruption had intervened so that he could again run as
councilor. This result seemingly deviates from the results in the cases heretofore discussed since
the elective official continued to hold public office and did not become a private citizen during the
interim. The common thread that identifies Montebon with the rest, however, is that the elective
official vacated the office of councilor and assumed the higher post of vice-mayor by operation of
law. Thus, for a time he ceased to be councilor – an interruption that effectively placed him outside
the ambit of the three-term limit rule.

c. Conclusion Based on Law and Jurisprudence

From all the above, we conclude that the "interruption" of a term exempting an elective official from
the three-term limit rule is one that involves no less than the involuntary loss of title to office. The
elective official must have involuntarily left his office for a length of time, however short, for an
effective interruption to occur. This has to be the case if the thrust of Section 8, Article X and its strict
intent are to be faithfully served, i.e., to limit an elective official’s continuous stay in office to no more
than three consecutive terms, using "voluntary renunciation" as an example and standard of what
does not constitute an interruption.

Thus, based on this standard, loss of office by operation of law, being involuntary, is an effective
interruption of service within a term, as we held in Montebon. On the other hand, temporary inability
or disqualification to exercise the functions of an elective post, even if involuntary, should not be
considered an effective interruption of a term because it does not involve the loss of title to office or
at least an effective break from holding office; the office holder, while retaining title, is simply barred
from exercising the functions of his office for a reason provided by law.

An interruption occurs when the term is broken because the office holder lost the right to hold on to
his office, and cannot be equated with the failure to render service. The latter occurs during an office
holder’s term when he retains title to the office but cannot exercise his functions for reasons
established by law. Of course, the term "failure to serve" cannot be used once the right to office is
lost; without the right to hold office or to serve, then no service can be rendered so that none is really
lost.

To put it differently although at the risk of repetition, Section 8, Article X – both by structure and
substance – fixes an elective official’s term of office and limits his stay in office to three consecutive
terms as an inflexible rule that is stressed, no less, by citing voluntary renunciation as an example of
a circumvention. The provision should be read in the context of interruption of term, not in the
context of interrupting the full continuity of the exercise of the powers of the elective position. The
"voluntary renunciation" it speaks of refers only to the elective official’s voluntary relinquishment of
office and loss of title to this office. It does not speak of the temporary "cessation of the exercise of
power or authority" that may occur for various reasons, with preventive suspension being only one of
them. To quote Latasa v. Comelec:16

Indeed, [T]he law contemplates a rest period during which the local elective official steps down from
office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a
particular local government unit. [Emphasis supplied].

Preventive Suspension and the Three-Term Limit Rule

a. Nature of Preventive Suspension

Preventive suspension – whether under the Local Government Code,17 the Anti-Graft and Corrupt
Practices Act,18or the Ombudsman Act19 – is an interim remedial measure to address the situation of
an official who have been charged administratively or criminally, where the evidence preliminarily
indicates the likelihood of or potential for eventual guilt or liability.
Preventive suspension is imposed under the Local Government Code "when the evidence of guilt is
strong and given the gravity of the offense, there is a possibility that the continuance in office of the
respondent could influence the witnesses or pose a threat to the safety and integrity of the records
and other evidence." Under the Anti-Graft and Corrupt Practices Act, it is imposed after a valid
information (that requires a finding of probable cause) has been filed in court, while under the
Ombudsman Act, it is imposed when, in the judgment of the Ombudsman, the evidence of guilt is
strong; and (a) the charge involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; or (b) the charges would warrant removal from the service; or (c) the
respondent’s continued stay in office may prejudice the case filed against him.

Notably in all cases of preventive suspension, the suspended official is barred from performing the
functions of his office and does not receive salary in the meanwhile, but does not vacate and lose
title to his office; loss of office is a consequence that only results upon an eventual finding of guilt or
liability.

Preventive suspension is a remedial measure that operates under closely-controlled conditions and
gives a premium to the protection of the service rather than to the interests of the individual office
holder. Even then, protection of the service goes only as far as a temporary prohibition on the
exercise of the functions of the official’s office; the official is reinstated to the exercise of his position
as soon as the preventive suspension is lifted. Thus, while a temporary incapacity in the exercise of
power results, no position is vacated when a public official is preventively suspended. This was what
exactly happened to Asilo.

That the imposition of preventive suspension can be abused is a reality that is true in the exercise of
all powers and prerogative under the Constitution and the laws. The imposition of preventive
suspension, however, is not an unlimited power; there are limitations built into the laws20 themselves
that the courts can enforce when these limitations are transgressed, particularly when grave abuse
of discretion is present. In light of this well-defined parameters in the imposition of preventive
suspension, we should not view preventive suspension from the extreme situation – that it can totally
deprive an elective office holder of the prerogative to serve and is thus an effective interruption of an
election official’s term.

Term limitation and preventive suspension are two vastly different aspects of an elective officials’
service in office and they do not overlap. As already mentioned above, preventive suspension
involves protection of the service and of the people being served, and prevents the office holder from
temporarily exercising the power of his office. Term limitation, on the other hand, is triggered after an
elective official has served his three terms in office without any break. Its companion concept –
interruption of a term – on the other hand, requires loss of title to office. If preventive suspension and
term limitation or interruption have any commonality at all, this common point may be with respect to
the discontinuity of service that may occur in both. But even on this point, they merely run parallel to
each other and never intersect; preventive suspension, by its nature, is a temporary incapacity to
render service during an unbroken term; in the context of term limitation, interruption of service
occurs after there has been a break in the term.

b. Preventive Suspension and the Intent of the Three-Term Limit Rule

Strict adherence to the intent of the three-term limit rule demands that preventive suspension should
not be considered an interruption that allows an elective official’s stay in office beyond three terms. A
preventive suspension cannot simply be a term interruption because the suspended official
continues to stay in office although he is barred from exercising the functions and prerogatives of the
office within the suspension period. The best indicator of the suspended official’s continuity in office
is the absence of a permanent replacement and the lack of the authority to appoint one since no
vacancy exists.

To allow a preventively suspended elective official to run for a fourth and prohibited term is to close
our eyes to this reality and to allow a constitutional violation through sophistry by equating the
temporary inability to discharge the functions of office with the interruption of term that the
constitutional provision contemplates. To be sure, many reasons exist, voluntary or involuntary –
some of them personal and some of them by operation of law – that may temporarily prevent an
elective office holder from exercising the functions of his office in the way that preventive suspension
does. A serious extended illness, inability through force majeure, or the enforcement of a suspension
as a penalty, to cite some involuntary examples, may prevent an office holder from exercising the
functions of his office for a time without forfeiting title to office. Preventive suspension is no different
because it disrupts actual delivery of service for a time within a term. Adopting such interruption of
actual service as the standard to determine effective interruption of term under the three-term rule
raises at least the possibility of confusion in implementing this rule, given the many modes and
occasions when actual service may be interrupted in the course of serving a term of office. The
standard may reduce the enforcement of the three-term limit rule to a case-to-case and possibly
see-sawing determination of what an effective interruption is.

c. Preventive Suspension and Voluntary Renunciation

Preventive suspension, because it is imposed by operation of law, does not involve a voluntary act
on the part of the suspended official, except in the indirect sense that he may have voluntarily
committed the act that became the basis of the charge against him. From this perspective,
preventive suspension does not have the element of voluntariness that voluntary renunciation
embodies. Neither does it contain the element of renunciation or loss of title to office as it merely
involves the temporary incapacity to perform the service that an elective office demands. Thus
viewed, preventive suspension is – by its very nature – the exact opposite of voluntary renunciation;
it is involuntary and temporary, and involves only the actual delivery of service, not the title to the
office. The easy conclusion therefore is that they are, by nature, different and non-comparable.

But beyond the obvious comparison of their respective natures is the more important consideration
of how they affect the three-term limit rule.

Voluntary renunciation, while involving loss of office and the total incapacity to render service, is
disallowed by the Constitution as an effective interruption of a term. It is therefore not allowed as a
mode of circumventing the three-term limit rule.

Preventive suspension, by its nature, does not involve an effective interruption of a term and should
therefore not be a reason to avoid the three-term limitation. It can pose as a threat, however, if we
shall disregard its nature and consider it an effective interruption of a term. Let it be noted that a
preventive suspension is easier to undertake than voluntary renunciation, as it does not require
relinquishment or loss of office even for the briefest time. It merely requires an easily fabricated
administrative charge that can be dismissed soon after a preventive suspension has been imposed.
In this sense, recognizing preventive suspension as an effective interruption of a term can serve as a
circumvention more potent than the voluntary renunciation that the Constitution expressly disallows
as an interruption.

Conclusion

To recapitulate, Asilo’s 2004-2007 term was not interrupted by the Sandiganbayan-imposed

preventive suspension in 2005, as preventive suspension does not interrupt an elective official’s
term. Thus, the COMELEC refused to apply the legal command of Section 8, Article X of the
Constitution when it granted due course to Asilo’s certificate of candidacy for a prohibited fourth
term. By so refusing, the COMELEC effectively committed grave abuse of discretion amounting to
lack or excess of jurisdiction; its action was a refusal to perform a positive duty required by no less
than the Constitution and was one undertaken outside the contemplation of law.21

WHEREFORE, premises considered, we GRANT the petition and accordingly NULLIFY the assailed
COMELEC rulings. The private respondent Wilfredo F. Asilo is declared DISQUALIFIED to run, and
perforce to serve, as Councilor of Lucena City for a prohibited fourth term. Costs against private
respondent Asilo.

SO ORDERED.

12
G.R. No. 190582               April 8, 2010

ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner, 
vs.
COMMISSION ON ELECTIONS Respondent.

DECISION

DEL CASTILLO, J.:

... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow
of freedom. The test of its substance is the right to differ as to things that touch the heart of the
existing order.

Justice Robert A. Jackson

West Virginia State Board of Education v. Barnette 1

One unavoidable consequence of everyone having the freedom to choose is that others may make
different choices – choices we would not make for ourselves, choices we may disapprove of, even
choices that may shock or offend or anger us. However, choices are not to be legally prohibited
merely because they are different, and the right to disagree and debate about important questions of
public policy is a core value protected by our Bill of Rights. Indeed, our democracy is built on
genuine recognition of, and respect for, diversity and difference in opinion.

Since ancient times, society has grappled with deep disagreements about the definitions and
demands of morality. In many cases, where moral convictions are concerned, harmony among those
theoretically opposed is an insurmountable goal. Yet herein lies the paradox – philosophical
justifications about what is moral are indispensable and yet at the same time powerless to create
agreement. This Court recognizes, however, that practical solutions are preferable to ideological
stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This will
allow persons of diverse viewpoints to live together, if not harmoniously, then, at least, civilly.

Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of
preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the
Resolutions of the Commission on Elections (COMELEC) dated November 11, 20092 (the First
Assailed Resolution) and December 16, 20093 (the Second Assailed Resolution) in SPP No. 09-228
(PL) (collectively, the Assailed Resolutions). The case has its roots in the COMELEC’s refusal to
accredit Ang Ladlad as a party-list organization under Republic Act (RA) No. 7941, otherwise known
as the Party-List System Act.4

Ang Ladlad is an organization composed of men and women who identify themselves as lesbians,
gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first
applied for registration with the COMELEC in 2006. The application for accreditation was denied on
the ground that the organization had no substantial membership base. On August 17, 2009, Ang
Ladlad again filed a Petition5 for registration with the COMELEC.

Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-
represented sector that is particularly disadvantaged because of their sexual orientation and gender
identity; that LGBTs are victims of exclusion, discrimination, and violence; that because of negative
societal attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang
Ladlad complied with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-OFW
Labor Party v. Commission on Elections.6 Ang Ladlad laid out its national membership base
consisting of individual members and organizational supporters, and outlined its platform of
governance.7

On November 11, 2009, after admitting the petitioner’s evidence, the COMELEC (Second Division)
dismissed the Petition on moral grounds, stating that:

x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay,
Bisexual and Transgender (LGBT) Community, thus:

x x x a marginalized and under-represented sector that is particularly disadvantaged because of their

sexual orientation and gender identity.

and proceeded to define sexual orientation as that which:

x x x refers to a person’s capacity for profound emotional, affectional and sexual attraction to, and
intimate and sexual relations with, individuals of a different gender, of the same gender, or more
than one gender."

This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which
offends religious beliefs. In Romans 1:26, 27, Paul wrote:

For this cause God gave them up into vile affections, for even their women did change the natural
use into that which is against nature: And likewise also the men, leaving the natural use of the
woman, burned in their lust one toward another; men with men working that which is unseemly, and
receiving in themselves that recompense of their error which was meet.

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women "ye are indeed a people transgressing
beyond bounds." (7.81) "And we rained down on them a shower (of brimstone): Then see what was
the end of those who indulged in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against
people who do mischief" (29:30).

As correctly pointed out by the Law Department in its Comment dated October 2, 2008:

The ANG LADLAD apparently advocates sexual immorality as indicated in the Petition’s par. 6F:
‘Consensual partnerships or relationships by gays and lesbians who are already of age’. It is further
indicated in par. 24 of the Petition which waves for the record: ‘In 2007, Men Having Sex with Men or
MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom and
Gomorrah).

Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation.
Hence, pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of the
requirement to be complied with for accreditation.

ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as ‘Any act,
omission, establishment, business, condition of property, or anything else which x x x (3) shocks,
defies; or disregards decency or morality x x x

It also collides with Article 1306 of the Civil Code: ‘The contracting parties may establish such
stipulations, clauses, terms and conditions as they may deem convenient, provided they are not
contrary to law, morals, good customs, public order or public policy. Art 1409 of the Civil Code
provides that ‘Contracts whose cause, object or purpose is contrary to law, morals, good customs,
public order or public policy’ are inexistent and void from the beginning.

Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended,
penalizes ‘Immoral doctrines, obscene publications and exhibitions and indecent shows’ as follows:

Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. — The
penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such
imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;

2. (a) The authors of obscene literature, published with their knowledge in any form; the
editors publishing such literature; and the owners/operators of the establishment selling the
same;

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent
or immoral plays, scenes, acts or shows, it being understood that the obscene
literature or indecent or immoral plays, scenes, acts or shows, whether live or in film,
which are prescribed by virtue hereof, shall include those which: (1) glorify criminals
or condone crimes; (2) serve no other purpose but to satisfy the market for
violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in
and use of prohibited drugs; and (5) are contrary to law, public order, morals, good
customs, established policies, lawful orders, decrees and edicts.

3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature
which are offensive to morals.
Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but
likewise for not being truthful when it said that it "or any of its nominees/party-list representatives
have not violated or failed to comply with laws, rules, or regulations relating to the elections."

Furthermore, should this Commission grant the petition, we will be exposing our youth to an
environment that does not conform to the teachings of our faith. Lehman Strauss, a famous bible
teacher and writer in the U.S.A. said in one article that "older practicing homosexuals are a threat to
the youth." As an agency of the government, ours too is the State’s avowed duty under Section 13,
Article II of the Constitution to protect our youth from moral and spiritual degradation.8

When Ang Ladlad sought reconsideration,9 three commissioners voted to overturn the First Assailed

Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco),
while three commissioners voted to deny Ang Ladlad’s Motion for Reconsideration (Commissioners
Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking
the tie and speaking for the majority in his Separate Opinion, upheld the First Assailed Resolution,
stating that:

I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it
has properly proven its under-representation and marginalization, it cannot be said that Ladlad’s
expressed sexual orientations per se would benefit the nation as a whole.

Section 2 of the party-list law unequivocally states that the purpose of the party-list system of
electing congressional representatives is to enable Filipino citizens belonging to marginalized and
under-represented sectors, organizations and parties, and who lack well-defined political
constituencies but who could contribute to the formulation and enactment of appropriate legislation
that will benefit the nation as a whole, to become members of the House of Representatives.

If entry into the party-list system would depend only on the ability of an organization to represent its
constituencies, then all representative organizations would have found themselves into the party-list
race. But that is not the intention of the framers of the law. The party-list system is not a tool to
advocate tolerance and acceptance of misunderstood persons or groups of persons. Rather, the
party-list system is a tool for the realization of aspirations of marginalized individuals whose interests
are also the nation’s – only that their interests have not been brought to the attention of the nation
because of their under representation. Until the time comes when Ladlad is able to justify that having
mixed sexual orientations and transgender identities is beneficial to the nation, its application for
accreditation under the party-list system will remain just that.

II. No substantial differentiation

In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do
not recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special class" of individuals.
x x x Significantly, it has also been held that homosexuality is not a constitutionally protected
fundamental right, and that "nothing in the U.S. Constitution discloses a comparable intent to protect
or promote the social or legal equality of homosexual relations," as in the case of race or religion or
belief.

xxxx
Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s is elevated, there can
be no denying that Ladlad constituencies are still males and females, and they will remain either
male or female protected by the same Bill of Rights that applies to all citizens alike.

xxxx

IV. Public Morals

x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices.
Neither is there any attempt to any particular religious group’s moral rules on Ladlad. Rather, what
are being adopted as moral parameters and precepts are generally accepted public morals. They
are possibly religious-based, but as a society, the Philippines cannot ignore its more than 500 years
of Muslim and Christian upbringing, such that some moral precepts espoused by said religions have
sipped [sic] into society and these are not publicly accepted moral norms.

V. Legal Provisions

But above morality and social norms, they have become part of the law of the land. Article 201 of the
Revised Penal Code imposes the penalty of prision mayor upon "Those who shall publicly expound
or proclaim doctrines openly contrary to public morals." It penalizes "immoral doctrines, obscene
publications and exhibition and indecent shows." "Ang Ladlad" apparently falls under these legal
provisions. This is clear from its Petition’s paragraph 6F: "Consensual partnerships or relationships
by gays and lesbians who are already of age’ It is further indicated in par. 24 of the Petition which
waves for the record: ‘In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated
as 670,000. Moreoever, Article 694 of the Civil Code defines "nuisance" as any act, omission x x x or
anything else x x x which shocks, defies or disregards decency or morality x x x." These are all
unlawful.10

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed
Resolutions and direct the COMELEC to grant Ang Ladlad’s application for accreditation. Ang
Ladlad also sought the issuance ex parte of a preliminary mandatory injunction against the
COMELEC, which had previously announced that it would begin printing the final ballots for the May
2010 elections by January 25, 2010.

On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on
behalf of COMELEC not later than 12:00 noon of January 11, 2010.11 Instead of filing a Comment,
however, the OSG filed a Motion for Extension, requesting that it be given until January 16, 2010 to
Comment.12 Somewhat surprisingly, the OSG later filed a Comment in support of petitioner’s
application.13 Thus, in order to give COMELEC the opportunity to fully ventilate its position, we
required it to file its own comment.14 The COMELEC, through its Law Department, filed its Comment
on February 2, 2010.15

In the meantime, due to the urgency of the petition, we issued a temporary restraining order on
January 12, 2010, effective immediately and continuing until further orders from this Court, directing
the COMELEC to cease and desist from implementing the Assailed Resolutions.16

Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to
Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention.17 The CHR opined that the
denial of Ang Ladlad’spetition on moral grounds violated the standards and principles of the
Constitution, the Universal Declaration of Human Rights (UDHR), and the International Covenant on
Civil and Political Rights (ICCPR). On January 19, 2010, we granted the CHR’s motion to intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18 which motion was
granted on February 2, 2010.19

The Parties’ Arguments

Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using
religious dogma, violated the constitutional guarantees against the establishment of religion.
Petitioner also claimed that the Assailed Resolutions contravened its constitutional rights to privacy,
freedom of speech and assembly, and equal protection of laws, as well as constituted violations of
the Philippines’ international obligations against discrimination based on sexual orientation.

The OSG concurred with Ang Ladlad’s petition and argued that the COMELEC erred in denying
petitioner’s application for registration since there was no basis for COMELEC’s allegations of
immorality. It also opined that LGBTs have their own special interests and concerns which should
have been recognized by the COMELEC as a separate classification. However, insofar as the
purported violations of petitioner’s freedom of speech, expression, and assembly were concerned,
the OSG maintained that there had been no restrictions on these rights.

In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine
national political agenda to benefit the nation and that the petition was validly dismissed on moral
grounds. It also argued for the first time that the LGBT sector is not among the sectors enumerated
by the Constitution and RA 7941, and that petitioner made untruthful statements in its petition when
it alleged its national existence contrary to actual verification reports by COMELEC’s field personnel.

Our Ruling

We grant the petition.

Compliance with the Requirements of the Constitution and Republic Act No. 7941

The COMELEC denied Ang Ladlad’s application for registration on the ground that the LGBT sector
is neither enumerated in the Constitution and RA 7941, nor is it associated with or related to any of
the sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that
only those sectors specifically enumerated in the law or related to said sectors (labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth,
veterans, overseas workers, and professionals) may be registered under the party-list system. As we
explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections,20 "the
enumeration of marginalized and under-represented sectors is not exclusive". The crucial element is
not whether a sector is specifically enumerated, but whether a particular organization complies with
the requirements of the Constitution and RA 7941.

Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged
that it had nationwide existence through its members and affiliate organizations. The COMELEC
claims that upon verification by its field personnel, it was shown that "save for a few isolated places
in the country, petitioner does not exist in almost all provinces in the country."21

This argument that "petitioner made untruthful statements in its petition when it alleged its national
existence" is a new one; previously, the COMELEC claimed that petitioner was "not being truthful
when it said that it or any of its nominees/party-list representatives have not violated or failed to
comply with laws, rules, or regulations relating to the elections." Nowhere was this ground for denial
of petitioner’s accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself,
is quite curious, considering that the reports of petitioner’s alleged non-existence were already
available to the COMELEC prior to the issuance of the First Assailed Resolution. At best, this is
irregular procedure; at worst, a belated afterthought, a change in respondent’s theory, and a serious
violation of petitioner’s right to procedural due process.

Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang
Ladlad’s initial petition shows that it never claimed to exist in each province of the Philippines.
Rather, petitioner alleged that the LGBT community in the Philippines was estimated to constitute at
least 670,000 persons; that it had 16,100 affiliates and members around the country, and 4,044
members in its electronic discussion group.22 Ang Ladlad also represented itself to be "a national
LGBT umbrella organization with affiliates around the Philippines composed of the following LGBT
networks:"

§ Abra Gay Association

§ Aklan Butterfly Brigade (ABB) – Aklan

§ Albay Gay Association

§ Arts Center of Cabanatuan City – Nueva Ecija

§ Boys Legion – Metro Manila

§ Cagayan de Oro People Like Us (CDO PLUS)

§ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila

§ Cebu Pride – Cebu City

§ Circle of Friends

§ Dipolog Gay Association – Zamboanga del Norte

§ Gay, Bisexual, & Transgender Youth Association (GABAY)

§ Gay and Lesbian Activists Network for Gender Equality (GALANG) – Metro Manila

§ Gay Men’s Support Group (GMSG) – Metro Manila

§ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte

§ Iloilo City Gay Association – Iloilo City

§ Kabulig Writer’s Group – Camarines Sur

§ Lesbian Advocates Philippines, Inc. (LEAP)

§ LUMINA – Baguio City

 § Marikina Gay Association – Metro Manila

§ Metropolitan Community Church (MCC) – Metro Manila

§ Naga City Gay Association – Naga City

§ ONE BACARDI

§ Order of St. Aelred (OSAe) – Metro Manila

§ PUP LAKAN

§ RADAR PRIDEWEAR

§ Rainbow Rights Project (R-Rights), Inc. – Metro Manila

§ San Jose del Monte Gay Association – Bulacan

§ Sining Kayumanggi Royal Family – Rizal

§ Society of Transexual Women of the Philippines (STRAP) – Metro Manila

§ Soul Jive – Antipolo, Rizal

§ The Link – Davao City

§ Tayabas Gay Association – Quezon

§ Women’s Bisexual Network – Metro Manila

§ Zamboanga Gay Association – Zamboanga City23

Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no
surprise that they found that petitioner had no presence in any of these regions. In fact, if
COMELEC’s findings are to be believed, petitioner does not even exist in Quezon City, which is
registered as Ang Ladlad’s principal place of business.

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the
legal requirements for accreditation. Indeed, aside from COMELEC’s moral objection and the
belated allegation of non-existence, nowhere in the records has the respondent ever found/ruled
that Ang Ladlad is not qualified to register as a party-list organization under any of the requisites
under RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies
in Ang Ladlad’s morality, or lack thereof.

Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for Registration

Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof." At bottom, what our non-
establishment clause calls for is "government neutrality in religious matters."24 Clearly, "governmental
reliance on religious justification is inconsistent with this policy of neutrality."25 We thus find that it
was grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the
Koran to justify the exclusion of Ang Ladlad.

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend,
instead, on whether the COMELEC is able to advance some justification for its rulings beyond mere
conformity to religious doctrine. Otherwise stated, government must act for secular purposes and in
ways that have primarily secular effects. As we held in Estrada v. Escritor:26

x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent
of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the
civil public order but public moral disputes may be resolved only on grounds articulable in secular
terms." Otherwise, if government relies upon religious beliefs in formulating public policies and
morals, the resulting policies and morals would require conformity to what some might regard as
religious programs or agenda. The non-believers would therefore be compelled to conform to a
standard of conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly
approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious
views that would not support the policy. As a result, government will not provide full religious
freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are
second-class citizens. 1avvphi1

In other words, government action, including its proscription of immorality as expressed in criminal
law like concubinage, must have a secular purpose. That is, the government proscribes this conduct
because it is "detrimental (or dangerous) to those conditions upon which depend the existence and
progress of human society" and not because the conduct is proscribed by the beliefs of one religion
or the other. Although admittedly, moral judgments based on religion might have a compelling
influence on those engaged in public deliberations over what actions would be considered a moral
disapprobation punishable by law. After all, they might also be adherents of a religion and thus have
religious opinions and moral codes with a compelling influence on them; the human mind endeavors
to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth
with heaven. Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its
deepest roots, but it must have an articulable and discernible secular purpose and justification to
pass scrutiny of the religion clauses. x x x Recognizing the religious nature of the Filipinos and the
elevating influence of religion in society, however, the Philippine constitution's religion clauses
prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government
must pursue its secular goals and interests but at the same time strive to uphold religious liberty to
the greatest extent possible within flexible constitutional limits. Thus, although the morality
contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality
based on religion, provided it does not offend compelling state interests.27

Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration

Respondent suggests that although the moral condemnation of homosexuality and homosexual
conduct may be religion-based, it has long been transplanted into generally accepted public morals.
The COMELEC argues:

Petitioner’s accreditation was denied not necessarily because their group consists of LGBTs but
because of the danger it poses to the people especially the youth. Once it is recognized by the
government, a sector which believes that there is nothing wrong in having sexual relations with
individuals of the same gender is a bad example. It will bring down the standard of morals we
cherish in our civilized society. Any society without a set of moral precepts is in danger of losing its
own existence.28
We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals
themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons
behind this censure – religious beliefs, convictions about the preservation of marriage, family, and
procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle.
Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct.
Evidently, therefore, these "generally accepted public morals" have not been convincingly
transplanted into the realm of law.29

The Assailed Resolutions have not identified any specific overt immoral act performed by Ang
Ladlad. Even the OSG agrees that "there should have been a finding by the COMELEC that the
group’s members have committed or are committing immoral acts."30 The OSG argues:

x x x A person may be sexually attracted to a person of the same gender, of a different gender, or
more than one gender, but mere attraction does not translate to immoral acts. There is a great divide
between thought and action. Reduction ad absurdum. If immoral thoughts could be penalized,
COMELEC would have its hands full of disqualification cases against both the "straights" and the
gays." Certainly this is not the intendment of the law.31

Respondent has failed to explain what societal ills are sought to be prevented, or why special
protection is required for the youth. Neither has the COMELEC condescended to justify its position
that petitioner’s admission into the party-list system would be so harmful as to irreparably damage
the moral fabric of society. We, of course, do not suggest that the state is wholly without authority to
regulate matters concerning morality, sexuality, and sexual relations, and we recognize that the
government will and should continue to restrict behavior considered detrimental to society.
Nonetheless, we cannot countenance advocates who, undoubtedly with the loftiest of intentions,
situate morality on one end of an argument or another, without bothering to go through the rigors of
legal reasoning and explanation. In this, the notion of morality is robbed of all value. Clearly then, the
bare invocation of morality will not remove an issue from our scrutiny.

We also find the COMELEC’s reference to purported violations of our penal and civil laws flimsy, at
best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as "any act, omission,
establishment, condition of property, or anything else which shocks, defies, or disregards decency or
morality," the remedies for which are a prosecution under the Revised Penal Code or any local
ordinance, a civil action, or abatement without judicial proceedings.32 A violation of Article 201 of the
Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a
criminal conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not
proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal
proceedings and a judicial determination of liability or culpability.

As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to
justify exclusion of homosexuals from participation in the party-list system. The denial of Ang
Ladlad’s registration on purely moral grounds amounts more to a statement of dislike and
disapproval of homosexuals, rather than a tool to further any substantial public interest.
Respondent’s blanket justifications give rise to the inevitable conclusion that the COMELEC targets
homosexuals themselves as a class, not because of any particular morally reprehensible act. It is
this selective targeting that implicates our equal protection clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall any
person be denied equal protection of the laws," courts have never interpreted the provision as an
absolute prohibition on classification. "Equality," said Aristotle, "consists in the same treatment of
similar persons."33 The equal protection clause guarantees that no person or class of persons shall
be deprived of the same protection of laws which is enjoyed by other persons or other classes in the
same place and in like circumstances.34

Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a
suspect class, we will uphold the classification as long as it bears a rational relationship to some
legitimate government end.35 In Central Bank Employees Association, Inc. v. Banko Sentral ng
Pilipinas,36 we declared that "[i]n our jurisdiction, the standard of analysis of equal protection
challenges x x x have followed the ‘rational basis’ test, coupled with a deferential attitude to
legislative classifications and a reluctance to invalidate a law unless there is a showing of a clear
and unequivocal breach of the Constitution."37

The COMELEC posits that the majority of the Philippine population considers homosexual conduct
as immoral and unacceptable, and this constitutes sufficient reason to disqualify the petitioner.
Unfortunately for the respondent, the Philippine electorate has expressed no such belief. No law
exists to criminalize homosexual behavior or expressions or parties about homosexual behavior.
Indeed, even if we were to assume that public opinion is as the COMELEC describes it, the asserted
state interest here – that is, moral disapproval of an unpopular minority – is not a legitimate state
interest that is sufficient to satisfy rational basis review under the equal protection clause. The
COMELEC’s differentiation, and its unsubstantiated claim that Ang Ladlad cannot contribute to the
formulation of legislation that would benefit the nation, furthers no legitimate state interest other than
disapproval of or dislike for a disfavored group.

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the
same interest in participating in the party-list system on the same basis as other political parties
similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general
application should apply with equal force to LGBTs, and they deserve to participate in the party-list
system on the same basis as other marginalized and under-represented sectors.

It bears stressing that our finding that COMELEC’s act of differentiating LGBTs from heterosexuals
insofar as the party-list system is concerned does not imply that any other law distinguishing
between heterosexuals and homosexuals under different circumstances would similarly fail. We
disagree with the OSG’s position that homosexuals are a class in themselves for the purposes of the
equal protection clause.38 We are not prepared to single out homosexuals as a separate class
meriting special or differentiated treatment. We have not received sufficient evidence to this effect,
and it is simply unnecessary to make such a ruling today. Petitioner itself has merely demanded that
it be recognized under the same basis as all other groups similarly situated, and that the COMELEC
made "an unwarranted and impermissible classification not justified by the circumstances of the
case."

Freedom of Expression and Association

Under our system of laws, every group has the right to promote its agenda and attempt to persuade
society of the validity of its position through normal democratic means.39 It is in the public square that
deeply held convictions and differing opinions should be distilled and deliberated upon. As we held in
Estrada v. Escritor:40

In a democracy, this common agreement on political and moral ideas is distilled in the public square.
Where citizens are free, every opinion, every prejudice, every aspiration, and every moral
discernment has access to the public square where people deliberate the order of their life together.
Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and
these citizens have equal access to the public square. In this representative democracy, the state is
prohibited from determining which convictions and moral judgments may be proposed for public
deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority
rule is a necessary principle in this democratic governance. Thus, when public deliberation on moral
judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of
the majority, i.e., the mainstream or median groups. Nevertheless, in the very act of adopting and
accepting a constitution and the limits it specifies – including protection of religious freedom "not only
for a minority, however small – not only for a majority, however large – but for each of us" – the
majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could
do: to ride roughshod over the dissenting minorities.

Freedom of expression constitutes one of the essential foundations of a democratic society, and this
freedom applies not only to those that are favorably received but also to those that offend, shock, or
disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued.
Absent any compelling state interest, it is not for the COMELEC or this Court to impose its views on
the populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech for no
better reason than promoting an approved message or discouraging a disfavored one.

This position gains even more force if one considers that homosexual conduct is not illegal in this
country. It follows that both expressions concerning one’s homosexuality and the activity of forming a
political association that supports LGBT individuals are protected as well.

Other jurisdictions have gone so far as to categorically rule that even overwhelming public
perception that homosexual conduct violates public morality does not justify criminalizing same-sex
conduct.41 European and United Nations judicial decisions have ruled in favor of gay rights claimants
on both privacy and equality grounds, citing general privacy and equal protection provisions in
foreign and international texts.42 To the extent that there is much to learn from other jurisdictions that
have reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign
authorities, while not formally binding on Philippine courts, may nevertheless have persuasive
influence on the Court’s analysis.

In the area of freedom of expression, for instance, United States courts have ruled that existing free
speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify the
prohibition of a particular expression of opinion, public institutions must show that their actions were
caused by "something more than a mere desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint."43

With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its
vibrant human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated
that a political party may campaign for a change in the law or the constitutional structures of a state if
it uses legal and democratic means and the changes it proposes are consistent with democratic
principles. The ECHR has emphasized that political ideas that challenge the existing order and
whose realization is advocated by peaceful means must be afforded a proper opportunity of
expression through the exercise of the right of association, even if such ideas may seem shocking or
unacceptable to the authorities or the majority of the population.44 A political group should not be
hindered solely because it seeks to publicly debate controversial political issues in order to find
solutions capable of satisfying everyone concerned.45 Only if a political party incites violence or puts
forward policies that are incompatible with democracy does it fall outside the protection of the
freedom of association guarantee.46

We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful,
offensive, or even defiant. They are entitled to hold and express that view. On the other hand,
LGBTs and their supporters, in all likelihood, believe with equal fervor that relationships between
individuals of the same sex are morally equivalent to heterosexual relationships. They, too, are
entitled to hold and express that view. However, as far as this Court is concerned, our democracy
precludes using the religious or moral views of one part of the community to exclude from
consideration the values of other members of the community.

Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well
may be that this Decision will only serve to highlight the discrepancy between the rigid constitutional
analysis of this Court and the more complex moral sentiments of Filipinos. We do not suggest that
public opinion, even at its most liberal, reflect a clear-cut strong consensus favorable to gay rights
claims and we neither attempt nor expect to affect individual perceptions of homosexuality through
this Decision.

The OSG argues that since there has been neither prior restraint nor subsequent punishment
imposed on Ang Ladlad, and its members have not been deprived of their right to voluntarily
associate, then there has been no restriction on their freedom of expression or association. The
OSG argues that:

There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC]
simply exercised its authority to review and verify the qualifications of petitioner as a sectoral party
applying to participate in the party-list system. This lawful exercise of duty cannot be said to be a
transgression of Section 4, Article III of the Constitution.

xxxx

A denial of the petition for registration x x x does not deprive the members of the petitioner to freely
take part in the conduct of elections. Their right to vote will not be hampered by said denial. In fact,
the right to vote is a constitutionally-guaranteed right which cannot be limited.

As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang
Ladlad’s petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity
of its members to fully and equally participate in public life through engagement in the party list
elections.

This argument is puerile. The holding of a public office is not a right but a privilege subject to
limitations imposed by law. x x x47

The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the
party-list system, and – as advanced by the OSG itself – the moral objection offered by the
COMELEC was not a limitation imposed by law. To the extent, therefore, that the petitioner has been
precluded, because of COMELEC’s action, from publicly expressing its views as a political party and
participating on an equal basis in the political process with other equally-qualified party-list
candidates, we find that there has, indeed, been a transgression of petitioner’s fundamental rights.

Non-Discrimination and International Law

In an age that has seen international law evolve geometrically in scope and promise, international
human rights law, in particular, has grown dynamically in its attempt to bring about a more just and
humane world order. For individuals and groups struggling with inadequate structural and
governmental support, international human rights norms are particularly significant, and should be
effectively enforced in domestic legal systems so that such norms may become actual, rather than
ideal, standards of conduct.
Our Decision today is fully in accord with our international obligations to protect and promote human
rights. In particular, we explicitly recognize the principle of non-discrimination as it relates to the right
to electoral participation, enunciated in the UDHR and the ICCPR.

The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all
persons equal and effective protection against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth or other
status.

In this context, the principle of non-discrimination requires that laws of general application relating to
elections be applied equally to all persons, regardless of sexual orientation. Although sexual
orientation is not specifically enumerated as a status or ratio for discrimination in Article 26 of the
ICCPR, the ICCPR Human Rights Committee has opined that the reference to "sex" in Article 26
should be construed to include "sexual orientation."48Additionally, a variety of United Nations bodies
have declared discrimination on the basis of sexual orientation to be prohibited under various
international agreements.49

The UDHR provides:

Article 21.

(1) Everyone has the right to take part in the government of his country, directly or through freely
chosen representatives.

Likewise, the ICCPR 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:

(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;

(b) To vote and to be elected at 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;

(c) To have access, on general terms of equality, to public service in his country.

As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation
is elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in
Public Affairs and the Right to Vote) as follows:

1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the
conduct of public affairs, the right to vote and to be elected and the right to have access to public
service. Whatever form of constitution or government is in force, the Covenant requires States to
adopt such legislative and other measures as may be necessary to ensure that citizens have an
effective opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic
government based on the consent of the people and in conformity with the principles of the
Covenant.

xxxx

15. The effective implementation of the right and the opportunity to stand for elective office ensures
that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand
for election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons
who are otherwise eligible to stand for election should not be excluded by unreasonable or
discriminatory requirements such as education, residence or descent, or by reason of political
affiliation. No person should suffer discrimination or disadvantage of any kind because of that
person's candidacy. States parties should indicate and explain the legislative provisions which
exclude any group or category of persons from elective office.50

We stress, however, that although this Court stands willing to assume the responsibility of giving
effect to the Philippines’ international law obligations, the blanket invocation of international law is
not the panacea for all social ills. We refer now to the petitioner’s invocation of the Yogyakarta
Principles (the Application of International Human Rights Law In Relation to Sexual Orientation and
Gender Identity),51 which petitioner declares to reflect binding principles of international law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are
obligatory on the Philippines. There are declarations and obligations outlined in said Principles which
are not reflective of the current state of international law, and do not find basis in any of the sources
of international law enumerated under Article 38(1) of the Statute of the International Court of
Justice.52 Petitioner has not undertaken any objective and rigorous analysis of these alleged
principles of international law to ascertain their true status.

We also hasten to add that not everything that society – or a certain segment of society – wants or
demands is automatically a human right. This is not an arbitrary human intervention that may be
added to or subtracted from at will. It is unfortunate that much of what passes for human rights today
is a much broader context of needs that identifies many social desires as rights in order to further
claims that international law obliges states to sanction these innovations. This has the effect of
diluting real human rights, and is a result of the notion that if "wants" are couched in "rights"
language, then they are no longer controversial. 1avvphi1

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration
formulated by various international law professors, are – at best – de lege ferenda – and do not
constitute binding obligations on the Philippines. Indeed, so much of contemporary international law
is characterized by the "soft law" nomenclature, i.e., international law is full of principles that promote
international cooperation, harmony, and respect for human rights, most of which amount to no more
than well-meaning desires, without the support of either State practice or opinio juris.53

As a final note, we cannot help but observe that the social issues presented by this case are
emotionally charged, societal attitudes are in flux, even the psychiatric and religious communities are
divided in opinion. This Court’s role is not to impose its own view of acceptable behavior. Rather, it is
to apply the Constitution and laws as best as it can, uninfluenced by public opinion, and confident in
the knowledge that our democracy is resilient enough to withstand vigorous debate.
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections
dated November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET
ASIDE. The Commission on Elections is directed to GRANT petitioner’s application for party-list
accreditation.

SO ORDERED.

13
G.R. No. 188456               September 10, 2009

H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. BAGARES, ALLAN JONES F.

LARDIZABAL, GILBERT T. ANDRES, IMMACULADA D. GARCIA, ERLINDA T. MERCADO,
FRANCISCO A. ALCUAZ, MA. AZUCENA P. MACEDA, and ALVIN A. PETERS, Petitioners, 
vs.
COMMISSION ON ELECTIONS, Represented by HON. CHAIRMAN JOSE MELO, COMELEC
SPECIAL BIDS and AWARDS COMMITTEE, represented by its CHAIRMAN HON. FERDINAND
RAFANAN, DEPARTMENT OF BUDGET and MANAGEMENT, represented by HON. ROLANDO
ANDAYA, TOTAL INFORMATION MANAGEMENT CORPORATION and SMARTMATIC
INTERNATIONAL CORPORATION, Respondents.
PETE QUIRINO-QUADRA, Petitioner-in-Intervention.
SENATE OF THE PHILIPPINES, represented by its President, JUAN PONCE ENRILE, Movant-
Intervenor.

DECISION

VELASCO, JR., J.:

In a democratic system of government, the people’s voice is sovereign. Corollarily, choosing through
the ballots the men and women who are to govern the country is perhaps the highest exercise of
democracy. It is thus the interest of the state to insure honest, credible and peaceful elections,
where the sanctity of the votes and the secrecy of the ballots are safeguarded, where the will of the
electorate is not frustrated or undermined. For when the popular will itself is subverted by election
irregularities, then the insidious seeds of doubt are sown and the ideal of a peaceful and smooth
transition of power is placed in jeopardy. To automate, thus breaking away from a manual system of
election, has been viewed as a significant step towards clean and credible elections, unfettered by
the travails of the long wait and cheating that have marked many of our electoral exercises.

The Commission on Elections (Comelec), private respondents, the National Computer Center and
other computer wizards are confident that nationwide automated elections can be successfully
implemented. Petitioners and some skeptics in the information technology (IT) industry have,
however, their reservations, which is quite understandable. To them, the automated election system
and the untested technology Comelec has chosen and set in motion are pregnant with risks and
could lead to a disastrous failure of elections. Comelec, they allege, would not be up to the
challenge. Cheating on a massive scale, but this time facilitated by a machine, is perceived to be a
real possibility.

In this petition for certiorari, prohibition and mandamus with prayer for a restraining order and/or
preliminary injunction, petitioners H. Harry L. Roque, Jr., et al., suing as taxpayers and concerned
citizens, seek to nullify respondent Comelec’s award of the 2010 Elections Automation Project
(automation project) to the joint venture of Total Information Management Corporation (TIM) and
Smartmatic International Corporation (Smartmatic)1 and to permanently prohibit the Comelec, TIM
and Smartmatic from signing and/or implementing the corresponding contract-award.

By Resolution2 of July 14, 2009, the Court directed the respondents as well as the University of the
Philippines (UP) Computer Center, National Computer Center (NCC) and Information Technology
Foundation of the Philippines (Infotech, hereinafter) to submit their collective or separate comments
to the petition on or before July 24, 2009. Before any of the comments could actually be filed, Atty.
Pete Quirino-Quadra sought leave to intervene. In another resolution, the Court allowed the
intervention and admitted the corresponding petition-in-intervention.3

On July 29, 2009, the Court heard the principal parties in oral arguments which was followed by the
submission of their and the resource persons’ instructive, albeit clashing, memoranda. The Senate,
through the Senate President, would later join the fray via a Motion for Leave to Intervene. In a
Resolution of August 25, 2009, the Court admitted the Senate’s comment-in-intervention.

From the petition, the separate comments thereon, with their respective annexes, and other
pleadings, as well as from admissions during the oral arguments, the Court gathers the following
facts:

On December 22, 1997, Congress enacted Republic Act No. (RA) 8436 authorizing the adoption of
an automated election system (AES) in the May 11, 1998 national and local elections and onwards.
The 1998, 2001, and 2004 national and local polls, however, came and went but purely manual
elections were still the order of the day. On January 23, 2007, the amendatory RA 93694 was passed
authorizing anew the Comelec to use an AES. Of particular relevance are Sections 6 and 10 of RA
9369––originally Secs. 5 and 8, respectively of RA 8436, as amended––each defining Comelec’s
specific mandates insofar as automated elections are concerned. The AES was not utilized in the
May 10, 2000 elections, as funds were not appropriated for that purpose by Congress and due to
time constraints.

RA 9369 calls for the creation of the Comelec Advisory Council5 (CAC). CAC is to recommend,
among other functions, the most appropriate, applicable and cost-effective technology to be applied
to the AES.6 To be created by Comelec too is the Technical Evaluation Committee (TEC)7 which is
tasked to certify, through an established international certification committee, not later than three
months before the elections, by categorically stating that the AES, inclusive of its hardware and
software components, is operating properly and accurately based on defined and documented
standards.8

In August 2008, Comelec managed to automate the regional polls in the Autonomous Region of
Muslim Mindanao9(ARMM), using direct recording electronics (DRE) technology10 in the province of
Maguindanao; and the optical mark reader/recording (OMR) system, particularly the Central Count
Optical Scan (CCOS),11 in the rest of ARMM.12What scores hailed as successful automated ARMM
2008 elections paved the way for Comelec, with some prodding from senators,13 to prepare for a
nationwide computerized run for the 2010 national/local polls, with the many lessons learned from
the ARMM experience influencing, according to the NCC, the technology selection for the 2010
automated elections.14

Accordingly, in early March 2009, the Comelec released the Request for Proposal (RFP), also
known as Terms of Reference (TOR), for the nationwide automation of the voting, counting,
transmission, consolidation and canvassing of votes for the May 10, 2010 Synchronized National
and Local Elections. What is referred to also in the RFP and other contract documents as the 2010
Elections Automation Project (Automation Project) consists of three elaborate components, as
follows:

Component 1: Paper-Based AES.15 1-A. Election Management System (EMS); 1-B Precinct-

Count Optic Scan (PCOS) 16 System and 1-C. Consolidation/Canvassing System (CCS);

Component 2: Provision for Electronic Transmission of Election Results using Public

Telecommunications Network; and

Component 3: Overall Project Management

And obviously to address the possibility of systems failure, the RFP required interested bidders to
submit, among other things: a continuity plan17 and a back-up plan. 18

Under the two-envelope system designed under the RFP,19 each participating bidder shall submit, as
part of its bid, an Eligibility Envelope20 that should inter alia establish the bidder’s eligibility to bid. On
the other hand, the second envelope, or the Bid Envelope itself, shall contain two envelopes that, in
turn, shall contain the technical proposal and the financial proposal, respectively.21

Subsequently, the Comelec Special Bids and Awards Committee (SBAC), earlier constituted
purposely for the aforesaid project, caused the publication in different newspapers of the Invitation to
Apply for Eligibility and to Bid22for the procurement of goods and services to be used in the
automation project.23 Meanwhile, Congress enacted RA 9525 appropriating some PhP 11.3 billion as
supplemental budget for the May 10, 2010 automated national and local elections.

Of the ten (10) invitation-responding consortia which obtained the bid documents, only seven (7)
submitted sealed applications for eligibility and bids24 which, per Bid Bulletin No. 24, were to be
opened on a pre-set date, following the convening of the pre-bid conference. Under the RFP, among
those eligible to participate in the bidding are manufacturers, suppliers and/or distributors forming
themselves into a joint venture. A joint venture is defined as a group of two or more manufacturers,
suppliers and/or distributors that intend to be jointly and severally responsible or liable for a
particular contract.25

Among the submitted bids was that of the joint venture (JV) of TIM and Smartmatic, the former
incorporated under the Corporation Code of the Philippines. Smartmatic, on the other hand, was
organized under the laws of Barbados.26 For a stated amount, said JV proposed to undertake the
whole automation project, inclusive of the delivery of 82,200 PCOS machines. After the conclusion
of the eligibility evaluation process, only three consortia27were found and thus declared as eligible.
Further on, following the opening of the passing bidders’ Bid Envelope and evaluating the technical
and financial proposals therein contained, the SBAC, per its Res. No. 09-001, s.-2009, declared the
above-stated bid of the JV of TIM-Smartmatic as the single complying calculated bid.28 As required
by the RFP, the bid envelope contained an outline of the joint venture’s back-up and continuity or
contingency plans,29in case of a systems breakdown or any such eventuality which shall result in the
delay, obstruction or nonperformance of the electoral process.

After declaring TIM-Smartmatic as the best complying bidder, the SBAC then directed the joint
venture to undertake post-qualification screening, and its PCOS prototype machines––the
Smarmatic Auditable Electronic System (SAES) 1800––to undergo end-to-end30 testing to determine
compliance with the pre-set criteria.
In its Memorandum of June 01, 2009, on the Subject: Systems Evaluation Consolidated Report and
Status Report on the Post-Qualification Evaluation Procedures, the SBAC Technical Working Group
(TWG) stated that it was undertaking a 4-day (May 27 to May 30, 2009) test evaluation of TIM and
Smartmatic’s proposed PCOS project machines. Its conclusion: "The demo systems presented
PASSED all tests as required in the 26-item criteria specified in the [RFP]" with 100% accuracy
rating.31 The TWG also validated the eligibility, and technical and financial qualifications of the TIM-
Smartmatic joint venture.

On June 9, 2009, Comelec, upon the recommendation of its SBAC, the CAC and other stakeholders,
issued Resolution No. (Res.) 860832 authorizing the SBAC to issue, subject to well-defined
conditions, the notice of award and notice to proceed in favor of the winning joint venture.

Soon after, TIM wrote Comelec expressing its desire to quit the JV partnership. In time, however, the
parties were able to patch up what TIM earlier described as irreconcilable differences between
partners.

What followed was that TIM and Smartmatic, pursuant to the Joint Venture Agreement
(JVA),33 caused the incorporation of a joint venture corporation (JVC) that would enter into a contract
with the Comelec. On July 8, 2009, the Securities and Exchange Commission issued a certificate of
incorporation in favor of Smartmatic TIM Corporation. Two days after, or on July 10, 2009, Comelec
and Smartmatic TIM Corporation, as provider, executed a contract34 for the lease of goods and
services under the contract for the contract amount of PhP 7,191,484,739.48, payable as the "Goods
and Services are delivered and/or progress is made in accordance [with pre-set] Schedule of
Payments."35 On the same date, a Notice to Proceed36 was sent to, and received by, Smartmatic TIM
Corporation.

Meanwhile, or on July 9, 2009, petitioners interposed the instant recourse which, for all intents and
purposes, impugns the validity and seeks to nullify the July 10, 2009 Comelec-Smartmatic-TIM
Corporation automation contract adverted to. Among others, petitioners pray that respondents be
permanently enjoined from implementing the automation project on the submission that:

PUBLIC RESPONDENTS COMELEC AND COMELEC-SBAC COMMITTED GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AWARDING THE 2010
ELECTIONS AUTOMATION PROJECT TO PRIVATE RESPONDENTS TIM AND SMARTMATIC
FOR THE FOLLOWING REASONS:

x x x COMELEC DID NOT CONDUCT ANY PILOT TESTING OF THE x x x PCOS MACHINES
OFFERED BY PRIVATE RESPONDENTS SMARTMATIC AND TIM, IN VIOLATION OF [RA] 8436
(AS AMENDED BY [RA] 9369)

THE [PCOS] MACHINES [THUS] OFFERED BY PRIVATE RESPONDENTS x x x DO NOT

SATISFY THE MINIMUM SYSTEM CAPABILITIES SET BY [RA] NO. 8436 (AS AMENDED BY [RA]
9369).

PRIVATE RESPONDENTS x x x DID NOT SUBMIT THE REQUIRED DOCUMENTS DURING THE
BIDDING PROCESS THAT SHOULD ESTABLISH THE DUE EXISTENCE, COMPOSITION, AND
SCOPE OF THEIR JOINT VENTURE, IN VIOLATION OF THE SUPREME COURT’S HOLDING
IN INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, vs. COMELEC (G.R. No.
159139, Jan. 13, 2004).

THERE WAS NO VALID JOINT VENTURE AGREEMENT [JVA] BETWEEN PRIVATE

RESPONDENTS SMARTMATIC AND TIM DURING THE BIDDING, IN VIOLATION OF THE
SUPREME COURT’S HOLDING IN INFORMATION TECHNOLOGY FOUNDATION OF THE
PHILIPPINES vs. COMELEC x x x WHICH REQUIRES A JOINT VENTURE TO INCLUDE A COPY
OF ITS [JVA] DURING THE BIDDING.

THE ALLEGED JOINT VENTURE COMPOSED OF PRIVATE RESPONDENTS SMARTMATIC

AND TIM, DOES NOT SATISFY THE SUPREME COURT’S DEFINITION OF A "JOINT VENTURE"
IN INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES vs. COMELEC x x x
WHICH "REQUIRES A COMMUNITY OF INTEREST IN THE PERFORMANCE OF THE SUBJECT
MATTER."

Filed as it was before contract signing, the petition understandably did not implead Smartmatic TIM
Corporation, doubtless an indispensable party to these proceedings, an incident that did not escape
Comelec’s notice.37

As a preliminary counterpoint, either or both public and private respondents question the legal
standing or locus standi of petitioners, noting in this regard that the petition did not even raise an
issue of transcendental importance, let alone a constitutional question.

As an additional point, respondents also urge the dismissal of the petition on the ground of
prematurity, petitioners having failed to avail themselves of the otherwise mandatory built-in
grievance mechanism under Sec. 55 in relation to Sec. 58 of RA 9184, also known as
the Government Procurement Reform Act, as shall be discussed shortly.

PROCEDURAL GROUNDS

The Court is not disposed to dismiss the petition on procedural grounds advanced by respondents.

Locus Standi and Prematurity

It is true, as postulated, that to have standing, one must, as a rule, establish having suffered some
actual or threatened injury as a result of the alleged illegal government conduct; that the injury is
fairly traceable to the challenged action; and that the injury is likely to be redressed by a favorable
action.38 The prescription on standing, however, is a matter of procedure. Hence, it may be relaxed,
as the Court has often relaxed the rule for non-traditional plaintiffs, like ordinary citizens and
taxpayers, when the public interest so requires, such as when the matter is of transcendental
importance, of overarching significance to society, or of paramount public interest.39 As we wrote
in Chavez v. PCGG,40 where issues of public importance are presented, there is no necessity to
show that the suitor has experienced or is in actual danger of suffering direct and personal injury as
the requisite injury is assumed.

Petitioners’ counsel, when queried, hedged on what specific constitutional proscriptions or concepts
had been infringed by the award of the subject automation project to Smartmatic TIM Corporation,
although he was heard to say that "our objection to the system is anchored on the Constitution itself
a violation [sic] of secrecy of voting and the sanctity of the ballot."41 Petitioners also depicted the
covering automation contract as constituting an abdication by the Comelec of its election-related
mandate under the Constitution, which is to enforce and administer all laws relative to the conduct of
elections. Worse still, according to the petitioners, the abdication, with its anti-dummy dimension, is
in favor of a foreign corporation that will be providing the hardware and software requirements.42 And
when pressed further, petitioners came out with the observation that, owing in part to the sheer
length of the ballot, the PCOS would not comply with Art. V, Sec. 2 of the Constitution43 prescribing
secrecy of voting and sanctity of the ballot.44
There is no doubt in our mind, however, about the compelling significance and the transcending
public importance of the one issue underpinning this petition: the success––and the far-reaching
grim implications of the failure––of the nationwide automation project that will be implemented via
the challenged automation contract.

The doctrinal formulation may vary, but the bottom line is that the Court may except a particular case
from the operations of its rules when the demands of justice so require.45 Put a bit differently, rules of
procedure are merely tools designed to facilitate the attainment of justice.46 Accordingly,
technicalities and procedural barriers should not be allowed to stand in the way, if the ends of justice
would not be subserved by a rigid adherence to the rules of procedure.47 This postulate on
procedural technicalities applies to matters of locus standi and the presently invoked principle of
hierarchy of courts, which discourages direct resort to the Court if the desired redress is within the
competence of lower courts to grant. The policy on the hierarchy of courts, which petitioners indeed
failed to observe, is not an iron-clad rule. For indeed the Court has full discretionary power to take
cognizance and assume jurisdiction of special civil actions for certiorari and mandamus filed directly
with it for exceptionally compelling reasons48 or if warranted by the nature of the issues clearly and
specifically raised in the petition.49

The exceptions that justify a deviation from the policy on hierarchy appear to obtain under the
premises. The Court will for the nonce thus turn a blind eye to the judicial structure intended, first
and foremost, to provide an orderly dispensation of justice.

Hierarchy of Courts

At this stage, we shall dispose of another peripheral issue before plunging into the core substantive
issues tendered in this petition.

Respondents contend that petitioners should have availed themselves of the otherwise mandatory
protest mechanism set forth in Sections 55 and 58 of the procurement law (RA 9184) and the
counterpart provisions found in its Implementing Rules and Regulations (IRR)-A before seeking
judicial remedy. Insofar as relevant, Sec. 55 of RA 9184 provides that decisions of the bids and
awards committee (BAC) in all stages of procurement may be protested, via a "verified position
paper," to the head of the procuring agency. On the other hand, the succeeding Sec. 58 states that
court action may be resorted to only after the protest contemplated in Sec. 55 shall have been
completed. Petitioners except. As argued, the requirement to comply with the protest mechanism,
contrary to what may have been suggested in Infotech, is imposed on the bidders.50

Petitioners’ position is correct. As a matter of common sense, only a bidder is entitled to receive a
notice of the protested BAC action. Only a losing bidder would be aggrieved by, and ergo would
have the personality to challenge, such action. This conclusion finds adequate support from the
ensuing provisions of the aforesaid IRR-A:

55.2. The verified position paper shall contain the following documents:

a) The name of bidder;

b) The office address of the bidder x x x.

SUBSTANTIVE ISSUES
We now turn to the central issues tendered in the petition which, in terms of subject matter, revolved
around two concerns, viz: (1) the Joint Venture Agreement (JVA) of Smartmatic and TIM; and (2) the
PCOS machines to be used. Petitioners veritably introduced another issue during the oral
arguments, as amplified in their memorandum, i.e. the constitutionality and statutory flaw of the
automation contract itself. The petition-in-intervention confined itself to certain features of the PCOS
machines.

The Joint Venture Agreement: Its Existence and Submission

The issue respecting the existence and submission of the TIM-Smartmatic JVA does not require an
extended disquisition, as repairing to the records would readily provide a satisfactory answer. We
note in fact that the petitioners do not appear to be earnestly pressing the said issue anymore, as
demonstrated by their counsel’s practically cavalier discussion thereof during the oral argument.
When reminded, for instance, of private respondents’ insistence on having in fact submitted their
JVA dated April 23, 2009, petitioners’ counsel responded as follows: "We knew your honor that there
was, in fact, a joint venture agreement filed. However, because of the belated discovery that [there]
were irreconcilable differences, we then made a view that this joint venture agreement was a sham,
at best pro forma because it did not contain all the required stipulations in order to evidence unity of
interest x x x."51

Indeed, the records belie petitioners’ initial posture that TIM and Smartmatic, as joint venture
partners, did not include in their submitted eligibility envelope a copy of their JVA. The SBAC’s Post
Qualification Evaluation Report (Eligibility) on TIM-Smartmatic, on page 10, shows the following
entry: "Valid Joint Venture Agreement, stating among things, that the members are jointly and
severally liable for the whole obligation, in case of joint venture – Documents verified compliance."52

Contrary to what the petitioners posit, the duly notarized JVA, as couched, explained the nature and
the limited purpose53 of the joint venture and expressly defined, among other things, the composition,
scope, and the 60-40 capital structure of the aggroupment.54 The JVA also contains provisions on
the management55 and division of profits.56 Article 357 of the JVA delineates the respective
participations and responsibilities of the joint venture partners in the automation project.

Given the foregoing perspective, the Court is at a loss to understand how petitioners can assert that
the Smartmatic-TIM consortium has failed to prove its joint venture existence and/or to submit
evidence as would enable the Comelec to know such items as who it is dealing with, which between
the partners has control over the decision-making process, the amount of investment to be
contributed by each partner, the parties’ shares in the profits and like details. Had petitioners only
bothered to undertake the usual due diligence that comes with good judgment and examined the
eligibility envelope of the Smartmatic-TIM joint venture, they would have discovered that their
challenge to and arguments against the joint venture and its JVA have really no factual basis.

It may be, as petitioners observed, that the TIM-Smartmatic joint venture remained an
unincorporated aggroupment during the bid-opening and evaluation stages. It ought to be stressed,
however, that the fact of non-incorporation was without a vitiating effect on the validity of the tender
offers. For the bidding ground rules, as spelled out primarily in the RFP and the clarificatory bid
bulletins, does not require, for bidding purposes, that there be an incorporation of the bidding joint
ventures or consortiums. In fact, Bid Bulletin Nos. 19 and 20 recognize the existence and the
acceptability of proposals of unincorporated joint ventures. In response to a poser, for example,
regarding the 60% Filipino ownership requirement in a joint venture arrangement, the SBAC, in its
Bid Bulletin No. 22, stated: "In an unincorporated joint venture, determination of the required
Filipino participation may be made by examining the terms and conditions of the [JVA] and other
supporting financial documents submitted by the joint venture." (Emphasis ours.) Petitioners, to be
sure, have not shown that incorporation is part of the pass/fail criteria used in determining eligibility.

Petitioners have made much of the Court’s ruling in Information Technology Foundation of the
Philippines [Infotech] v. Comelec,58 arguing in relation thereto that the partnership of Smartmatic and
TIM does not meet the Court’s definition of a joint venture which requires "community of interest in
the performance of the subject matter."

Petitioners’ invocation of Infotech is utterly misplaced. Albeit Infotech and this case are both about
modernizing the election process and bidding joint ventures, the relevant parallelism ends there.
Cast as they are against dissimilar factual milieu, one cannot plausibly set Infotech side with and
contextually apply to this case the ratio of Infotech. Suffice it to delve on the most glaring of
differences. In Infotech, the winning bid pertained to the consortium of Mega Pacific, a purported
joint venture. Extant records, however, do not show the formation of such joint venture, let alone its
composition. To borrow from the ponencia of then Justice, later Chief Justice, Artemio Panganiban,
"there is no sign whatsoever of any [JVA], consortium agreement [or] memorandum agreement x x x
executed among the members of the purported consortium."59 There was in fine no evidence to show
that the alleged joint venture partners agreed to constitute themselves into a single entity solidarily
responsible for the entirety of the automation contract. Unlike the purported Mega Pacific consortium
in Infotech, the existence in this case of the bidding joint venture of Smarmatic and TIM is properly
documented and spread all over the bid documents. And to stress, TIM and Smartmatic, in their
JVA, unequivocally agreed between themselves to perform their respective undertakings. And over
and beyond their commitments to each other, they undertook to incorporate, if called for by the
bidding results, a JVC that shall be solidarily liable with them for any actionable breach of the
automation contract.

In Infotech, the Court chastised the Comelec for dealing with an entity, the full identity of which the
poll body knew nothing about. Taking a cue from this holding, petitioners tag the TIM-Smartmatic
JVA as flawed and as one that would leave the Comelec "hanging" for the non-inclusion, as
members of the joint venture, of three IT providers. The three referred to are Jarltech International,
Inc. (Jarltech), a subsidiary of Smartmatic that manufactures the Smartmatic voting machines;
Dominion Voting Systems (Domino), the inventor of said PCOS machines; and 2GO Transportation
System Corporation (2GO), the subcontractor responsible for the distribution of the PCOS machines
throughout the country.

Petitioners’ beef against the TIM-Smartmatic JVA is untenable. First off, the Comelec knows the very
entities whom they are dealing with, which it can hold solidary liable under the automation contract,
should there be contract violation. Secondly, there is no requirement under either RA 8436, as
amended, or the RFP, that all the suppliers, manufacturers or distributors involved in the transaction
should be part of the joint venture. On the contrary, the Instruction to Bidders––as petitioners
themselves admit60––allows the bidder to subcontract portions of the goods or services under the
automation project.61

To digress a bit, petitioners have insisted on the non-existence of a bona fide JVA between TIM and
Smarmatic. Failing to gain traction for their indefensible posture, they would thrust on the Court the
notion of an invalid joint venture due to the non-inclusion of more companies in the existing TIM-
Smartmatic joint venture. The irony is not lost on the Court.

This brings us to the twin technical issues tendered herein bearing on the PCOS machines of
Smartmatic.
At its most basic, the petition ascribes grave abuse of discretion to the Comelec for, among other
things, awarding the automation project in violation of RA 8436, as amended. Following their line, no
pilot test of the PCOS technology Smartmatic-TIM offered has been undertaken; hence, the
Comelec cannot conduct a nationwide automation of the 2010 polls using the machines thus offered.
Hence, the contract award to Smartmatic-TIM with their untested PCOS machines violated RA 8436,
as amended by RA 9369, which mandates that with respect to the May 2010 elections and onwards,
the system procured must have been piloted in at least 12 areas referred to in Sec. 6 of RA 8436, as
amended. What is more, petitioners assert, private respondents’ PCOS machines do not satisfy the
minimum system capabilities set by the same law envisaged to ensure transparent and credible
voting, counting and canvassing of votes. And as earlier narrated, petitioners would subsequently
add the abdication angle in their bid to nullify the automation contract.

Pilot Testing Not Necessary

Disagreeing, as to be expected, private respondents maintain that there is nothing in the applicable
law requiring, as a pre-requisite for the 2010 election automation project award, that the prevailing
bidder’s automation system, the PCOS in this case, be subjected to pilot testing. Comelec echoes its
co-respondents’ stance on pilot testing, with the added observation that nowhere in the statutory
provision relied upon are the words "pilot testing" used.62 The Senate’s position and its supporting
arguments match those of private respondents.

The respondents’ thesis on pilot testing and the logic holding it together are well taken. There can be
no argument about the phrase "pilot test" not being found in the law. But does it necessarily follow
that a pilot test is absolutely not contemplated in the law? We repair to the statutory provision
petitioners cited as requiring a pilot run, referring to Sec. 6 of RA 8436, as amended by RA 9369,
reading as follows:

Sec. 5. Authority to use an Automated Election System.- To carry out the above stated-policy, the
[Comelec], x x x is hereby authorized to use an automated election system or systems in the same
election in different provinces, whether paper-based or a direct recording electronic election system
as it may deem appropriate and practical for the process of voting, counting of votes and
canvassing/consolidation and transmittal of results of electoral exercises: Provided, that for the
regular national and local elections, which shall be held immediately after the effectivity of this
Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon,
Visayas, and Mindanao to be chosen by the [Comelec]: Provided, further, That local government
units whose officials have been the subject of administrative charges within sixteen (16) month prior
to the May 14, 2007 elections shall not be chosen. Provided, finally, That no area shall be chosen
without the consent of the Sanggunian of the local government unit concerned. The term local
government unit as used in this provision shall refer to a highly urbanized city or province. In
succeeding regular national or local elections, the AES shall be implemented. (Emphasis and
underscoring added.)

RA 9369, which envisages an AES, be it paper-based or direct-recording electronic, took effect in

the second week of February 2007 or thereabout.63 The "regular national and local elections"
referred to after the "effectivity of this Act" can be no other than the May 2007 regular elections,
during which time the AES shall, as the law is worded, be used in at least two highly urbanized cities
and provinces in Luzon, Visayas and Mindanao. The Court takes judicial notice that the May 2007
elections did not deploy AES, evidently due to the mix of time and funding constraints.

To the petitioners, the underscored portion of the aforequoted Sec. 6 of RA 8436 is the pilot-testing
provision that Comelec failed to observe.
We are not persuaded.

From the practical viewpoint, the pilot testing of the technology in question in an actual, scheduled
electoral exercise under harsh conditions would have been the ideal norm in computerized system
implementation. The underscored proviso of Sec. 6 of RA 8436 is not, however, an authority for the
proposition that the pilot testing of the PCOS in the 2007 national elections in the areas thus
specified is an absolute must for the machines’ use in the 2010 national/local elections. The Court
can concede that said proviso, with respect to the May 2007 elections, commands the Comelec to
automate in at least 12 defined areas of the country. But the bottom line is that the required 2007
automation, be it viewed in the concept of a pilot test or not, is not a mandatory requirement for the
choice of system in, or a prerequisite for, the full automation of the May 2010 elections.

As may be noted, Sec. 6 of RA 8436 may be broken into three essential parts, the first partaking of
the nature of a general policy declaration: that Comelec is authorized to automate the entire
elections. The second part states that for the regular national and local elections that shall be held in
May 2007, Comelec shall use the AES, with an option, however, to undertake automation,
regardless of the technology to be selected, in a limited area or, to be more precise, in at least two
highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao to be chosen by
the Comelec. On the other hand, the last part, phrased sans reference to the May 2007 elections,
commands thus: "[I]n succeeding regular national or local elections, the [automated election system]
shall be implemented." Taken in its proper context, the last part is indicative of the legislative intent
for the May 2010 electoral exercise to be fully automated, regardless of whether or not pilot testing
was run in the 2007 polls.

To argue that pilot testing is a condition precedent to a full automation in 2010 would doubtless
undermine the purpose of RA 9369. For, as aptly observed during the oral arguments, if there was
no political exercise in May 2007, the country would theoretically be barred forever from having full
automation.

Sec. 6 of the amended RA 8436, as couched, therefore, unmistakably conveys the idea of
unconditional full automation in the 2010 elections. A construal making pilot testing of the AES a
prerequisite or condition sine qua non to putting the system in operation in the 2010 elections is
tantamount to reading into said section something beyond the clear intention of Congress, as
expressed in the provision itself. We reproduce with approval the following excerpts from the
comment of the Senate itself:

The plain wordings of RA 9369 (that amended RA 8436) commands that the 2010 elections shall be
fully automated, and such full automation is not conditioned on "pilot testing" in the May 2007
elections. Congress merely gave COMELEC the flexibility to partially use the AES in some parts of
the country for the May 2007 elections.64

Lest it be overlooked, an AES is not synonymous to and ought not to be confused with the PCOS.
Sec. 2(a) of RA 8436, as amended, defines an AES as "a system using appropriate technology
which has been demonstrated in the voting, counting, consolidating, canvassing and transmission of
election results, and other electoral processes." On the other hand, PCOS refers to a technology
wherein an optical ballot scanner, into which optical scan paper ballots marked by hand by the voter
are inserted to be counted.65 What may reasonably be deduced from these definitions is that PCOS
is merely one of several automated voting, counting or canvassing technologies coming within the
term AES, implying in turn that the automated election system or technology that the Comelec shall
adopt in future elections need not, as a matter of mandatory arrangement, be piloted in the adverted
two highly urbanized cities and provinces.
In perspective, what may be taken as mandatory prerequisite for the full automation of the 2010
regular national/ local elections is that the system to be procured for that exercise be a technology
tested either here or abroad. The ensuing Section 8 of RA 8436, as amended, says so.

SEC 12. Procurement of Equipment and Materials.– To achieve the purpose of this Act, the
Commission is authorized to procure, xxx, by purchase, lease, rent or other forms of acquisition,
supplies, equipment, materials, software, facilities, and other services, from local or foreign sources
xxx. With respect to the May 10, 2010 elections and succeeding electoral exercises, the system
procured must have demonstrated capability and been successfully used in prior electoral exercise
here or abroad. Participation in the 2007 pilot exercise shall not be conclusive of the system’s
fitness. (Emphasis supplied).

While the underscored portion makes reference to a "2007 pilot exercise," what it really exacts is
that, for the automation of the May 2010 and subsequent elections, the PCOS or any AES to be
procured must have demonstrated its capability and success in either a local or a foreign electoral
exercise. And as expressly declared by the provision, participation in the 2007 electoral exercise is
not a guarantee nor is it conclusive of the system’s fitness. In this regard, the Court is inclined to
agree with private respondents’ interpretation of the underscored portion in question: "The provision
clearly conveys that the [AES] to be used in the 2010 elections need not have been used in the 2007
elections, and that the demonstration of its capability need not be in a previous Philippine election.
Demonstration of the success and capability of the PCOS may be in an electoral exercise in a
foreign jurisdiction."66 As determined by the Comelec, the PCOS system had been successfully
deployed in previous electoral exercises in foreign countries, such as Ontario, Canada; and New
York, USA,67 albeit Smartmatic was not necessarily the system provider. But then, RA 9369 does not
call for the winning bidder of the 2010 automation project and the deploying entity/provider in the
foreign electoral exercise to be one and the same entity. Neither does the law incidentally require
that the system be first used in an archipelagic country or with a topography or a voting population
similar to or approximating that of the Philippines.

At any event, any lingering doubt on the issue of whether or not full automation of the 2010 regular
elections can validly proceed without a pilot run of the AES should be put to rest with the enactment
in March 2009 of RA 9525,68in which Congress appropriated PhP 11.301 billion to automate the
2010 elections, subject to compliance with the transparency and accuracy requirements in selecting
the relevant technology of the machines, thus:

Sec. 2. Use of Funds.– x x x Provided, however, That disbursement of the amounts herein
appropriated or any part thereof shall be authorized only in strict compliance with the Constitution,
the provisions of [RA] No. 9369 and other election laws incorporated in said Act as to ensure the
conduct of a free, orderly, clean, honest and credible election and shall adopt such measures that
will guaranty transparency and accuracy in the selection of the relevant technology of the machines
to be used on May 10, 2010 automated national and local elections. (Emphasis added.)

It may safely be assumed that Congress approved the bill that eventually became RA 9525, fully
aware that the system using the PCOS machines were not piloted in the 2007 electoral exercise.
The enactment of RA 9525 is to us a compelling indication that it was never Congress’ intent to
make the pilot testing of a particular automated election system in the 2007 elections a condition
precedent to its use or award of the 2010 Automation Project. The comment-in-intervention of the
Senate says as much.

Further, the highly charged issue of whether or not the 2008 ARMM elections––covering, as NCC
observed, three conflict-ridden island provinces––may be treated as substantial compliance with the
"pilot test" requirement must be answered in the affirmative. No less than Senator Richard J. Gordon
himself, the author of the law, said that "the system has been tried and tested in the ARMM elections
last year, so we have to proceed with the total implementation of the law."69

We note, though, the conflicting views of the NCC70 and ITFP71 on the matter. Suffice it to state at
this juncture that the system used in the 2008 ARMM election exercise bears, as petitioners to an
extent grudgingly admit, 72 a similarity with the PCOS. The following, lifted from the Comelec’s
comment, is to us a fair description of how the two systems (PCOS and CCOS) work and where the
difference lies:

xxx the elections in the [ARMM] utilized the Counting Center Optical Scan (CCOS), a system which
uses the Optical Mark Reader (OMR), the same technology as the PCOS.

Under the CCOS, the voters cast their votes by shading or marking the circles in the paper ballots
which corresponded to the names of their chosen candidates [like in PCOS]. Thereafter, the ballot
boxes were brought to the counting centers where they were scanned, counted and canvassed.

xxx Under the PCOS, the counting, consolidation and canvassing of the votes are done at the
precinct level. The election results at the precincts are then electronically transmitted to the next
level, and so on. xxx PCOS dispenses with the physical transportation of ballot boxes from the
precincts to the counting centers.73

Moreover, it has been proposed that a partial automation be implemented for the May 2010 elections
in accordance with Section 5 of RA 8436, as amended by RA 9369 instead of full automation. The
Court cannot agree as such proposition has no basis in law. Section 5, as worded, does not allow for
partial automation. In fact, Section 5 clearly states that "the AES shall be implemented
nationwide."74 It behooves this Court to follow the letter and intent of the law for full automation in the
May 2010 elections.

PCOS Meets Minimum Capabilities Standards

As another ground for the nullification of the automation contract, petitioners posit the view that the
PCOS machines do not satisfy the minimum system capabilities prescribed by RA 8436, as
amended. To a specific point, they suggest that the PCOS system offered and accepted lacks the
features that would assure accuracy in the recording and reading of votes, as well as in the
tabulation, consolidation/canvassing, electronic transmission, storage results and accurate ballot
counting.75 In this particular regard, petitioners allege that, based on Smartmatic’s website, the
PCOS has a margin of error of from 2% to 10%, way beyond that of the required 99.99% accuracy in
the counting of votes.76

The minimum system capabilities provision cited is Sec. 7 of RA 8436, as amended, and the missing
features referred to by petitioners are pars. (b) and (j). In full, Sec. 7 of RA 8436, as amended,
reads:

SEC. 6. Minimum System Capabilities. - The automated election system must at least have the
following functional capabilities:

(a) Adequate security against unauthorized access;

(b) Accuracy in recording and reading of votes as well as in the tabulation,

consolidation/canvassing, electronic transmission, and storage of results;
 (c) Error recovery in case of non-catastrophic failure of device;

(d) System integrity which ensures physical stability and functioning of the vote recording
and counting process;

(e) Provision for voter verified paper audit trail;

(f) System auditability which provides supporting documentation for verifying the correctness
of reported election results;

(g) An election management system for preparing ballots and programs for use in the casting
and counting of votes and to consolidate, report and display election result in the shortest
time possible;

(h) Accessibility to illiterates and disabled voters;

(i) Vote tabulating program for election, referendum or plebiscite;

(j) Accurate ballot counters;

(k) Data retention provision;

(l) Provide for the safekeeping, storing and archiving of physical or paper resource used in
the election process;

(m) Utilize or generate official ballots as herein defined;

(a) Provide the voter a system of verification to find out whether or not the machine has
registered his choice; and

(o) Configure access control for sensitive system data and function.

In the procurement of this system, the Commission shall develop and adopt an evaluation system to
ascertain that the above minimum system capabilities are met. The evaluation system shall be
developed with the assistance of an advisory council.

From the records before us, the Court is fairly satisfied that the Comelec has adopted a rigid
technical evaluation mechanism, a set of 26-item/check list criteria, as will be enumerated shortly, to
ensure compliance with the above minimum systems capabilities.

The SBAC Memorandum77 of June 03, 2009, as approved by Comelec Res. 8608,78 categorically
stated that the SBAC-TWG submitted its report that TIM/Smartmatic’s proposed systems and
machines PASSED all the end-to-end demo tests using the aforementioned 26-item criteria,
inclusive of the accuracy rating test of at least 99.955%. As appearing in the SBAC-TWG report, the
corresponding answers/remarks to each of the 26 individual items are as herein indicated:79

ITE
REQUIREMENT REMARK/DESCRIPTION
M

1 Does the system allow manual feeding Yes. The proposed PCOS machine accepted
 of a ballot into the PCOS machine?
2 Does the system scan a ballot sheet at
the speed of at least 2.75 inches per
second?
3 Is the system able to capture and store
in an encrypted format the digital
images of the ballot for at least 2,000
ballot sides (1,000 ballots, with back to
back printing)?
4 Is the system a fully integrated single
device as described in item no. 4 of
Component 1-B?
5 Does the system have a scanning
resolution of at least 200 dpi?
6 Does the system scan in grayscale?
7 Does the system require authorization
and authentication of all operators,
such as, but not limited to, usernames
and passwords, with multiple user
access levels?
8 Does the system have an electronic
display?
the test ballots which were manually fed one
at a time.
Yes. A 30-inch ballot was used in this test.
Scanning the 30-inch ballot took 2.7 seconds,
which translated to 11.11inches per second.
Yes the system captured the images of the
1,000 ballots in encrypted format. Each of the
1,000 images files contained the images of the
front and back sides of the ballot, totaling to
2,000 ballot side.
To verify the captured ballot images,
decrypted copies of the encrypted files were
also provided. The same were found to be
digitized representations of the ballots cast.
Yes. The proposed PCOS is a fully integrated
single device, with built-in printer and built-in
data communications ports (Ethernet and
USB).
Yes. A portion of a filled up marked oval was
blown up using image editor software to reveal
the number of dots per inch. The sample
image showed 200 dpi.
File properties of the decrypted image file also
revealed 200 dpi.
Yes. 30 shades of gray were scanned in the
test PCOS machine, 20 of which were
required, exceeding the required 4-bit/16
levels of gray as specified in the Bid Bulletin
No. 19.
Yes. The system required the use of a security
key with different sets of passwords/PINs for
Administrator and Operator users.
Yes. The PCOS machine makes use of an
LCD display to show information:
 if a ballot may be inserted into the machine;
 if a ballot is being processed; if a ballot is
being rejected;
 on other instructions and information to the
voter/operator.
9 Does the system employ error handling
procedures, including, but not limited to,
the use of error prompts and other
related instructions?
10 Does the system count the voter’s vote
as marked on the ballot with an
accuracy rating of at least 99.995%?
11 Does the system detect and reject fake
or spurious, and previously scanned
ballots?
12 Does the system scan both sides of a
ballot and in any orientation in one
pass?
13 Does the system have necessary
safeguards to determine the
authenticity of a ballot, such as, but not
limited to, the use of bar codes,
holograms, color shifting ink, micro
printing, to be provided on the ballot,
which can be recognized by the
system?
14 Are the names of the candidates pre-
Yes. The PCOS showed error messages on
its screen whenever a ballot is rejected by the
machine and gives instructions to the voter on
what to do next, or when there was a ballot
jam error.
Yes. The two rounds of tests were conducted
for this test using only valid marks/shades on
the ballots. 20,000 marks were required to
complete this test, with only one (1) allowable
reading error.
625 ballots with 32 marks each were used for
this test. During the comparison of the PCOS-
generated results with the manually
prepared/predetermined results, it was found
out that there were seven (7) marks which
were inadvertently missed out during ballot
preparation by the TWG. Although the PCOS-
generated results turned out to be 100%
accurate, the 20,000-mark was not met
thereby requiring the test to be repeated.
To prepare for other possible missed out
marks,650 ballots with (20,800 marks) were
used for the next round of test, which also
yielded 100% accuracy.
Yes. This test made use of one (1)
photocopied ballot and one (1) "re-created"
ballot. Both were rejected by the PCOS.
Yes. Four (4) ballots with valid marks were fed
into the PCOS machine in the four (4) portrait
orientations specified in Bid Bulletin No. 4
(either back or front, upside down or right side
up), and all were accurately captured.
Yes. The system was able to recognize if the
security features on the ballot are "missing".
Aside from the test on the fake or spurious
ballots (Item No. 11), three (3) test ballots with
tampered bar codes and timing marks were
used and were all rejected by the PCOS
machine.
The photocopied ballot in the test for Item No.
11 was not able to replicate the UV ink pattern
on top portion of the ballot causing the
rejection of the ballot.
Yes. The Two sample test ballots of different
 printed on the ballot?
15 Does each side of the ballot sheet
accommodate at least 300 names of
candidates with a minimum font size of
10, in addition to other mandatory
information required by law?
16 Does the system recognize full shade
marks on the appropriate space on the
ballot opposite the name of the
candidate to be voted for?
17 Does the system recognize partial
shade marks on the appropriate space
on the ballot opposite the name of the
candidate to be voted for?
18 Does the system recognize check
(ü)marks on the appropriate space on
the ballot opposite the name of the
candidate to be voted for?
19 Does the system recognize x marks on
the appropriate space on the ballot
lengths were provided: one (1) was 14 inches
long while the other was 30 inches long. Both
were 8.5 inches wide.
The first showed 108 pre-printed candidate
names for the fourteen (14) contests/positions,
including two (2) survey questions on gender
and age group, and a plebiscite question.
The other showed 609 pre-printed candidate
names, also for fourteen (14) positions
including three (3) survey questions.
Yes. The 30-inch ballot, which was used to
test Item No. 2, contained 309 names for the
national positions and 300 names for local
positions. The total pre-printed names on the
ballot totaled 609.
This type of test ballot was also used for test
voting by the public, including members of the
media.
Arial Narrow, font size 10, was used in the
printing of the candidate names.
Yes. The ballots used for the accuracy test
(Item No. 10), which made use of full shade
marks, were also used in this test and were
accurately recognized by the PCOS machine.
Yes. Four (4) test ballots were used with one
(1) mark each per ballot showing the following
pencil marks:
 top half shade;
 bottom half shade;
 left half shade; and
 right half shade
These partial shade marks were all
recognized by the PCOS machine
Yes. One (1) test ballot with one check (ü)
mark, using a pencil, was used for this test.
The mark was recognized successfully.
Yes. One (1) test ballot with one x mark, using
 opposite the name of the candidate to
be voted for?
20 Does the system recognize both pencil
and ink marks on the ballot?
21 In a simulation of a system shut down,
does the system have error recovery
features?
22 Does the system have transmission
and consolidation/canvassing
capabilities?
23 Does the system generate a backup
copy of the generated reports, in a
removable data storage device?
24 Does the system have alternative
power sources, which will enable it to
fully operate for at least 12 hours?
a pencil, was used for this test.
The mark was recognized successfully.
Yes. The 1000 ballots used in the accuracy
test (Item No. 10) were marked using the
proposed marking pen by the bidder.
A separate ballot with one (1) pencil mark was
also tested. This mark was also recognized by
the PCOS machine. Moreover, the tests for
Items No. 17, 18 and 19 were made using
pencil marks on the ballots.
Yes. Five (5) ballots were used in this test.
The power cord was pulled from the PCOS
while the 3rd ballot was in the middle of the
scanning procedure, such that it was left
"hanging" in the ballot reader.
After resumption of regular power supply, the
PCOS machine was able to restart
successfully with notification to the operator
that there were two (2) ballots already cast in
the machine. The "hanging" 3rd ballot was
returned to the operator and was able to be
re-fed into the PCOS machine. The marks on
all five (5) were all accurately recognized.
Yes. The PCOS was able to transmit to the
CCS during the end-to-end demonstration
using GLOBE prepaid Internet kit.
Yes. The PCOS saves a backup copy of the
ERs, ballot images, statistical report and audit
log into a Compact Flash (CF) Card.
Yes. A 12 bolt 18AH battery lead acid was
used in this test. The initial test had to be
repeated due to a short circuit, after seven (7)
hours from start-up without ballot scanning.
This was explained by TIM-Smartmatic to be
caused by non-compatible wiring of the
battery to the PCOS. A smaller wire than what
is required was inadvertently used, likening
the situation to incorrect wiring of a car
battery. Two (2) COMELEC electricians were
called to confirm TIM-Smartmatic’s
explanation. The PCOS machine was
connected to regular power and started
successfully. The following day, the "re-test"
was completed in 12 hours and 40 minutes

25 Is the system capable of generating
and printing reports?
xxx 984 ballots were fed into the machine. The
ER, as generated by the PCOS was
compared with predetermined result, showed
100% accuracy.
Yes. The PCOS prints reports via its built-in
printer which includes:

1. Initialization Report; 2. Election Returns

26 Did the bidder successfully
demonstrate EMS, voting counting,
consolidation/canvassing and
transmission?
(ER); 3. PCOS Statistical Report; 4. Audit Log.
Yes. An end-to-end demonstration of all
proposed systems was presented covering:
importing of election data into the EMS;
creation of election configuration data for the
PCOS and the CCS using EMS; creation of
ballot faces using EMS; configuring the PCOS
and the CCS using the EMS-generated
election configuration file; initialization,
operation, generation of reports and backup
using the PCOS; electronic transmission of
results to the: [1] from the PCOS to
city/municipal CCS and the central server. [2]
from the city/municipal CCS to the provincial
CCS. [3] from the provincial CCS to the
national CCS; receipt and canvass of
transmitted results: [1] by the city/municipal
CCS from the PCOS. [2] by the provincial
CCS from the city/municipal CCS. [3] by the
national CCS from the provincial CCS; receipt
of the transmittal results by the central server
from the PCOS.

Given the foregoing and absent empirical evidence to the contrary, the Court, presuming regularity in
the performance of regular duties, takes the demo-testing thus conducted by SBAC-TWG as a
reflection of the capability of the PCOS machines, although the tests, as Comelec admits,80 were
done literally in the Palacio del Governador building, where a room therein simulated a town, the
adjoining room a city, etc. Perusing the RFP, however, the real worth of the PCOS system and the
machines will of course come after they shall have been subjected to the gamut of acceptance tests
expressly specified in the RFP, namely, the lab test, field test, mock election test, transmission test
and, lastly, the final test and sealing procedure of all PCOS and CCS units using the actual Election
Day machine configuration.81 1avvph!1

Apropos the counting-accuracy feature of the PCOS machines, petitioners no less impliedly admit
that the web page they appended to their petition, showing a 2% to 10% failing rate, is no longer
current.82 And if they bothered to examine the current website of Smartmatic specifically dealing with
its SAES 1800, the PCOS system it offered, they would have readily seen that the advertised
accuracy rating is over "99.99999%."83 Moreover, a careful scrutiny of the old webpage of Smarmatic
reveals that the 2% to 10% failure rate applied to "optical scanners" and not to SAES. Yet the same
page discloses that the SAES has "100%" accuracy. Clearly, the alleged 2% to 10% failing rate is
now irrelevant and the Court need not belabor this and the equally irrelevant estoppel principle
petitioners impose on us.

Intervenor Cuadra’s concern relates to the auditability of the election results. In this regard, it may
suffice to point out that PCOS, being a paper-based technology, affords audit since the voter would
be able, if need be, to verify if the machine had scanned, recorded and counted his vote properly.
Moreover, it should also be noted that the PCOS machine contains an LCD screen, one that can be
programmed or configured to display to the voter his votes as read by the machine. 84

No Abdication of Comelec’s Mandate and Responsibilty

As a final main point, petitioners would have the Comelec-Smartmatic-TIM Corporation automation
contract nullified since, in violation of the Constitution, it constitutes a wholesale abdication of the
poll body’s constitutional mandate for election law enforcement. On top of this perceived aberration,
the mechanism of the PCOS machines would infringe the constitutional right of the people to the
secrecy of the ballot which, according to the petitioners, is provided in Sec. 2, Art. V of the
Constitution.85

The above contention is not well taken.

The first function of the Comelec under the Constitution86––and the Omnibus Election Code for that
matter––relates to the enforcement and administration of all laws and regulations relating to the
conduct of elections to public office to ensure a free, orderly and honest electoral exercise. And how
did petitioners come to their conclusion about their abdication theory? By acceding to Art. 3.3 of the
automation contract, Comelec relinquished, so petitioners claim, supervision and control of the
system to be used for the automated elections. To a more specific point, the loss of control, as may
be deduced from the ensuing exchanges, arose from the fact that Comelec would not be holding
possession of what in IT jargon are the public and private keys pair.

CHIEF JUSTICE: Well, more specifically are you saying that the main course of this lost of control is
the fact that SMARTMATIC holds the public and private keys to the sanctity of this system?

ATTY. ROQUE: Yes, Your Honor, as well as the fact that they control the program embedded in the
key cost that will read their votes by which the electorate may verify that their votes were counted.

CHIEF JUSTICE: You are saying that SMARTMATIC and not its partner TIM who hold these public
and private keys?

ATTY. ROQUE: Yes, Your Honor.

The Court is not convinced. There is to us nothing in Art 3.3 of the automation contract, even if read
separately from other stipulations and the provisions of the bid documents and the Constitution itself,
to support the simplistic conclusion of abdication of control pressed on the Court. Insofar as
pertinent, Art 3.3 reads:

3.3 The PROVIDER shall be liable for all its obligations under this Project and the performance of
portions thereof by other persons or entities not parties to this Contract shall not relieve the
PROVIDER of said obligations and concomitant liabilities.

SMARTMATIC, as the joint venture partner with the greater track record in automated
elections, shall be in charge of the technical aspects of the counting and canvassing
software and hardware, including transmission configuration and system integration.
SMARTMATIC shall also be primarily responsible for preventing and troubleshooting technical
problems that may arise during the elections. (Emphasis added.)

The proviso designating Smartmatic as the joint venture partner in charge of the technical aspect of
the counting and canvassing wares does not to us translate, without more, to ceding control of the
electoral process to Smartmatic. It bears to stress that the aforesaid designation of Smartmatic was
not plucked from thin air, as it was in fact an eligibility requirement imposed, should the bidder be a
joint venture. Part 5, par. 5.4 (e) of the Instruction to Bidders on the subject Eligible Bidders, whence
the second paragraph of aforequoted Art. 3.3 came from, reads:

5.4 A JV of two or more firms as partners shall comply with the following requirements.

xxxx

(e) The JV member with a greater track record in automated elections, shall be in-charge of the
technical aspects of the counting and canvassing software and hardware, including transmission
configuration and system integration

And lest it be overlooked, the RFP, which forms an integral part of the automation contract,87 has put
all prospective bidders on notice of Comelec’s intent to automate and to accept bids that would meet
several needs, among which is "a complete solutions provider… which can provide… effective
overall nationwide project management service… under COMELEC supervision and control, to
ensure effective and successful implementation of the [automation] Project."88 Complementing this
RFP advisory as to control of the election process is Art. 6.7 of the automation contract, providing:

6.7 Subject to the provisions of the General Instructions to be issued by the Commission En Banc,
the entire processes of voting, counting, transmission, consolidation and canvassing of votes shall
be conducted by COMELEC’s personnel and officials, and their performance, completion and final
results according to specifications and within the specified periods shall be the shared responsibility
of COMELEC and the PROVIDER. (Emphasis added.)

But not one to let an opportunity to score points pass by, petitioners rhetorically ask: "Where does
Public Respondent Comelec intend to get this large number of professionals, many of whom are
already gainfully employed abroad?"89 The Comelec, citing Sec. 390 and Sec. 5 of RA 8436,91 as
amended, aptly answered this poser in the following wise:

x x x [P]ublic respondent COMELEC, in the implementation of the automated project, will forge
partnerships with various entities in different fields to bring about the success of the 2010 automated
elections.

Public respondent COMELEC will partner with Smartmatic TIM Corporation for the training and
hiring of the IT personnel as well as for the massive voter-education campaign. There is in fact a
budget allocation x x x for these undertakings. x x x

As regards the requirement of RA 9369 that IT-capable personnel shall be deputized as a member
of the BEI and that another IT-capable person shall assist the BOC, public respondent COMELEC
shall partner with DOST and other agencies and instrumentalities of the government.

In not so many words during the oral arguments and in their respective Memoranda, public and
private respondents categorically rejected outright allegations of abdication by the Comelec of its
constitutional duty. The petitioners, to stress, are strangers to the automation contract. Not one
participated in the bidding conference or the bidding proper or even perhaps examined the bidding
documents and, therefore, none really knows the real intention of the parties. As case law tells us,
the court has to ferret out the real intent of the parties. What is fairly clear in this case, however, is
that petitioners who are not even privy to the bidding process foist upon the Court their own view on
the stipulations of the automation contract and present to the Court what they think are the parties’
true intention. It is a study of outsiders appearing to know more than the parties do, but actually
speculating what the parties intended. The following is self-explanatory:

CHIEF JUSTICE: Why did you say that it did not, did you talk with the Chairman and Commissioners
of COMELEC that they failed to perform this duty, they did not exercise this power of control?

ATTY. ROQUE : Your Honor, I based it on the fact that it was the COMELEC in fact that entered into
this contract ….

CHIEF JUSTICE : Yes, but my question is – did you confront the COMELEC officials that they
forfeited their power of control in over our election process?

ATTY. ROQUE : We did not confront, your Honor. We impugned their acts, Your Honor.92

Just as they do on the issue of control over the electoral process, petitioners also anchor on
speculative reasoning their claim that Smartmatic has possession and control over the public and
private keys pair that will operate the PCOS machines. Consider: Petitioners’ counsel was at the
start cocksure about Smartmatic’s control of these keys and, with its control, of the electoral
process.93

Several questions later, his answers had a qualifying tone:

JUSTICE NACHURA: And can COMELEC under the contract not demand that it have access, that it
be given access to and in fact generate its own keys independently with SMARTMATIC so that it
would be COMELEC and not SMARTMATIC that would have full control of the technology insofar as
the keys are concerned xxx?

ATTY. ROQUE: I do not know if COMELEC will be in a position to generate these keys, xxx. 94

And subsequently, the speculative nature of petitioners’ position as to who would have possession
and control of the keys became apparent.

CHIEF JUSTICE: Yes, but did you check with the COMELEC who will be holding these two keys x x
x did you check with COMELEC whether this system is correct?

ATTY.ROQUE: We have not had occasion to do so, x x x Your Honor.

xxxx

CHIEF JUSTICE: Why do you make that poor conclusion against the COMELEC x x x May not the
COMELEC hire the services of experts in order for the institution to be able to discharge its
constitutional functions?

ATTY. ROQUE: That is true, but x x x there is too much reliance on individuals who do not have the
same kind of accountability as public officers x x x
CHIEF JUSTICE: Are you saying that the COMELEC did not consult with available I.T. experts in the
country before it made the bidding rules before it conducted the bidding and make the other policy
judgments?

ATTY. ROQUE: Your Honor, what I am sure is that they did not confer with the I.T. Foundation x x x.

CHIEF JUSTICE: But is that foundation the only expert, does it have a monopoly of knowledge?95

The Court, to be sure, recognizes the importance of the vote-security issue revolving around the
issuance of the public and private keys pair to the Board of Election Inspectors, including the digital
signatures. The NCC comment on the matter deserves mention, appearing to hew as it does to what
appear on the records. The NCC wrote:

The RFP/TOR used in the recent bidding for the AES to be used in the 2010 elections specifically
mandated the use of public key cryptography. However, it was left to the discretion of the bidder to
propose an acceptable manner of utilization for approval/acceptance of the Comelec. Nowhere in
the RFP/TOR was it indicated that COMELEC would delegate to the winning bidder the full
discretion, supervision and control over the manner of PKI [Public Key Infrastructure] utilization.

With the view we take of the automation contract, the role of Smartmatic TIM Corporation is basically
to supply the goods necessary for the automation project, such as but not limited to the PCOS
machines, PCs, electronic transmission devices and related equipment, both hardware and
software, and the technical services pertaining to their operation. As lessees of the goods and the
back-up equipment, the corporation and its operators would provide assistance with respect to the
machines to be used by the Comelec which, at the end of the day, will be conducting the election
thru its personnel and whoever it deputizes.

And if only to emphasize a point, Comelec’s contract is with Smartmatic TIM Corporation of which
Smartmatic is a 40% minority owner, per the JVA of TIM and Smartmatic and the Articles of
Incorporation of Smartmatic TIM Corporation. Accordingly, any decision on the part or on behalf of
Smartmatic will not be binding on Comelec. As a necessary corollary, the board room voting
arrangement that Smartmatic and TIM may have agreed upon as joint venture partners, inclusive of
the veto vote that one may have power over the other, should really be the least concern of the
Comelec.

Parenthetically, the contention that the PCOS would infringe on the secrecy and sanctity of the ballot
because, as petitioners would put it, the voter would be confronted with a "three feet" long
ballot,96 does not commend itself for concurrence. Surely, the Comelec can put up such
infrastructure as to insure that the voter can write his preference in relative privacy. And as
demonstrated during the oral arguments, the voter himself will personally feed the ballot into the
machine. A voter, if so minded to preserve the secrecy of his ballot, will always devise a way to do
so. By the same token, one with least regard for secrecy will likewise have a way to make his vote
known.

During the oral arguments, the notion of a possible violation of the Anti-Dummy Law cropped up,
given the RFP requirement of a joint venture bidder to be at least be 60% Filipino. On the other
hand, the winning bidder, TIM-Smartmatic joint venture, has Smartmatic, a foreign corporation,
owning 40% of the equity in, first, the joint venture partnership, and then in Smartmatic TIM
Corporation.

The Anti-Dummy Law97 pertinently states:

Section 1. Penalty. In all cases in which any constitutional or legal provision requires Philippine or
any other specific citizenship as a requisite for the exercise or enjoyment of a right, franchise or
privilege, any citizen of the Philippines or of any other specific country who allows his name or
citizenship to be used for the purpose of evading such provision, and any alien or foreigner profiting
thereby, shall be punished by imprisonment xxx and by a fine xxx.

SECTION 2. Simulation of minimum capital stock – In all cases in which a constitutional or legal
provision requires that a corporation or association may exercise or enjoy a right, franchise or
privilege, not less than a certain per centum of its capital must be owned by citizens of the
Philippines or any other specific country, it shall be unlawful to falsely simulate the existence of such
minimum stock or capital as owned by such citizen for the purpose of evading such provision. xxx

SECTION 2-A. Unlawful use, Exploitation or Enjoyment. Any person, corporation, or association
which, having in its name or under its control, a right, franchise, privilege, property or business, the
exercise or enjoyment of which is expressly reserved by the Constitution or the laws to citizens of
the Philippines or of any other specific country, or to corporations or associations at least sixty per
centum of the capital of which is owned by such citizens, permits or allows the use, exploitation or
enjoyment thereof by a person, corporation, or association not possessing the requisites prescribed
by the Constitution or the laws of the Philippines; or leases, or in any other way, transfers or conveys
said right, franchise, privilege, property or business to a person, corporation or association not
otherwise qualified under the Constitution xxx shall be punished by imprisonment xxx (Emphasis
added.)

The Anti-Dummy Law has been enacted to limit the enjoyment of certain economic activities to
Filipino citizens or corporations. For liability for violation of the law to attach, it must be established
that there is a law limiting or reserving the enjoyment or exercise of a right, franchise, privilege, or
business to citizens of the Philippines or to corporations or associations at least 60 per centum of the
capital of which is owned by such citizens. In the case at bench, the Court is not aware of any
constitutional or statutory provision classifying as a nationalized activity the lease or provision of
goods and technical services for the automation of an election. In fact, Sec. 8 of RA 8436, as
amended, vests the Comelec with specific authority to acquire AES from foreign sources, thus:

SEC 12. Procurement of Equipment and Materials.– To achieve the purpose of this Act, the
Commission is authorized to procure, xxx, by purchase, lease, rent or other forms of acquisition,
supplies, equipment, materials, software, facilities, and other services, from local or foreign sources
xxx. (Emphasis added.)

Petitioners cite Executive Order No. (EO) 584,98 Series of 2006, purportedly limiting "contracts for the
supply of materials, goods and commodities to government-owned or controlled corporation,
company, agency or municipal corporation" to corporations that are 60% Filipino. We do not quite
see the governing relevance of EO 584. For let alone the fact that RA 9369 is, in relation to EO 584,
a subsequent enactment and, therefore, enjoys primacy over the executive issuance, the Comelec
does fall under the category of a government-owned and controlled corporation, an agency or a
municipal corporation contemplated in the executive order.

A view has been advanced regarding the susceptibility of the AES to hacking, just like the voting
machines used in certain precincts in Florida, USA in the Gore-Bush presidential contests. However,
an analysis of post-election reports on the voting system thus used in the US during the period
material and the AES to be utilized in the 2010 automation project seems to suggest stark
differences between the two systems. The first relates to the Source Code, defined in RA 9369 as
"human readable instructions that define what the computer equipment will do."99 The Source Code
for the 2010 AES shall be available and opened for review by political parties, candidates and the
citizens’ arms or their representatives;100 whereas in the US precincts aforementioned, the Source
Code was alleged to have been kept secret by the machine manufacture company, thus keeping the
American public in the dark as to how exactly the machines counted their votes. And secondly, in the
AES, the PCOS machines found in the precincts will also be the same device that would tabulate
and canvass the votes; whereas in the US, the machines in the precincts did not count the votes.
Instead the votes cast appeared to have been stored in a memory card that was brought to a
counting center at the end of the day. As a result, the hacking and cheating may have possibly
occurred at the counting center.

Additionally, with the AES, the possibility of system hacking is very slim. The PCOS machines are
only online when they transmit the results, which would only take around one to two minutes. In
order to hack the system during this tiny span of vulnerability, a super computer would be required.
Noteworthy also is the fact that the memory card to be used during the elections is encrypted and
read-only––meaning no illicit program can be executed or introduced into the memory card.

Therefore, even though the AES has its flaws, Comelec and Smartmatic have seen to it that the
system is well-protected with sufficient security measures in order to ensure honest elections.

And as indicated earlier, the joint venture provider has formulated and put in place a continuity and
back-up plans that would address the understandable apprehension of a failure of elections in case
the machines falter during the actual election. This over-all fall-back strategy includes the provisions
for 2,000 spare PCOS machines on top of the 80,000 units assigned to an equal number precincts
throughout the country. The continuity and back-up plans seek to address the following
eventualities: (1) The PCOS fails to scan ballots; (2) The PCOS scans the ballots, but fails to print
election returns (ERs); and/or (3) The PCOS prints but fails to transmit the ERs. In the event item #1
occurs, a spare PCOS, if available, will be brought in or, if not available, the PCOS of another
precinct (PCOS 2 for clarity), after observing certain defined requirements,101 shall be used. Should
all the PCOS machines in the entire municipality/city fail, manual counting of the paper ballots and
the manual accomplishment of ERs shall be resorted to in accordance with Comelec promulgated
rules on appreciation of automated ballots.102 In the event item #2 occurs where the PCOS machines
fail to print ERs, the use of spare PCOS and the transfer of PCOS-2 shall be effected. Manual
counting of ERs shall be resorted to also if all PCOS fails in the entire municipality. And should
eventuality #3 transpire, the following back-up options, among others, may be availed of: bringing
PCOS-1 to the nearest precinct or polling center which has a functioning transmission facility;
inserting transmission cable of functioning transmission line to PCOS-1 and transmitting stored data
from PCOS-1 using functioning transmission facility.

The disruption of the election process due to machine breakdown or malfunction may be limited to a
precinct only or could affect an entire municipal/city. The worst case scenario of course would be the
wholesale breakdown of the 82,000 PCOS machines. Nonetheless, even in this most extreme case,
failure of all the machines would not necessarily translate into failure of elections. Manual count
tabulation and transmission, as earlier stated, can be done, PCOS being a paper-ballot technology.
If the machine fails for whatever reason, the paper ballots would still be there for the hand counting
of the votes, manual tabulation and transmission of the ERs. Failure of elections consequent to
voting machines failure would, in fine, be a very remote possibility.

A final consideration.

The first step is always difficult. Hardly anything works, let alone ends up perfectly the first time
around. As has often been said, if one looks hard enough, he will in all likelihood find a glitch in any
new system. It is no wonder some IT specialists and practitioners have considered the PCOS as
unsafe, not the most appropriate technology for Philippine elections, and "easily hackable," even.
And the worst fear expressed is that disaster is just waiting to happen, that PCOS would not work on
election day.

Congress has chosen the May 2010 elections to be the maiden run for full automation. And judging
from what the Court has heard and read in the course of these proceedings, the choice of PCOS by
Comelec was not a spur-of-moment affair, but the product of honest-to-goodness studies,
consultations with CAC, and lessons learned from the ARMM 2008 automated elections. With the
backing of Congress by way of budgetary support, the poll body has taken this historic, if not
ambitious, first step. It started with the preparation of the RFP/TOR, with a list of voluminous
annexes embodying in specific detail the bidding rules and expectations from the bidders. And after
a hotly contested and, by most accounts, a highly transparent public bidding exercise, the joint
venture of a Filipino and foreign corporation won and, after its machine hurdled the end-to-end
demonstration test, was eventually awarded the contract to undertake the automation project. Not
one of the losing or disqualified bidders questioned, at least not before the courts, the bona fides of
the bidding procedures and the outcome of the bidding itself.

Assayed against the provisions of the Constitution, the enabling automation law, RA 8436, as
amended by RA 9369, the RFP and even the Anti-Dummy Law, which petitioners invoked as an
afterthought, the Court finds the project award to have complied with legal prescriptions, and the
terms and conditions of the corresponding automation contract in question to be valid. No grave
abuse of discretion, therefore, can be laid on the doorsteps of respondent Comelec. And surely, the
winning joint venture should not be faulted for having a foreign company as partner.

The Comelec is an independent constitutional body with a distinct and pivotal role in our scheme of
government. In the discharge of its awesome functions as overseer of fair elections, administrator
and lead implementor of laws relative to the conduct of elections, it should not be stymied with
restrictions that would perhaps be justified in the case of an organization of lesser responsibility.103 It
should be afforded ample elbow room and enough wherewithal in devising means and initiatives that
would enable it to accomplish the great objective for which it was created––to promote free, orderly,
honest and peaceful elections. This is as it should be for, too often, Comelec has to make decisions
under difficult conditions to address unforeseen events to preserve the integrity of the election and in
the process the voice of the people. Thus, in the past, the Court has steered away from interfering
with the Comelec’s exercise of its power which, by law and by the nature of its office properly pertain
to it. Absent, therefore, a clear showing of grave abuse of discretion on Comelec’s part, as here, the
Court should refrain from utilizing the corrective hand of certiorari to review, let alone nullify, the acts
of that body. This gem, while not on all fours with, is lifted from, the Court’s holding in an old but oft-
cited case:

x x x We may not agree fully with [the Comelec’s] choice of means, but unless these are clearly
illegal or constitute gross abuse of discretion, this court should not interfere. Politics is a practical
matter, and political questions must be dealt with realistically––not from the standpoint of pure theory
[or speculation]. x x x

xxxx

There are no ready-made formulas for solving public problems. Time and experience are necessary
to evolve patterns that will serve the ends of good government. In the matter of the administration of
the laws relative to the conduct of elections, x x x we must not by any excessive zeal take away from
the [Comelec] the initiative which by constitutional and legal mandates properly belongs to it. Due
regard to the independent character of the Commission x x x requires that the power of this court to
review the acts of that body should, as a general proposition, be used sparingly, but firmly in
appropriate cases.104 x x x
The Court, however, will not indulge in the presumption that nothing would go wrong, that a
successful automation election unmarred by fraud, violence, and like irregularities would be the
order of the moment on May 10, 2010. Neither will it guarantee, as it cannot guarantee, the
effectiveness of the voting machines and the integrity of the counting and consolidation software
embedded in them. That task belongs at the first instance to Comelec, as part of its mandate to
ensure clean and peaceful elections. This independent constitutional commission, it is true,
possesses extraordinary powers and enjoys a considerable latitude in the discharge of its functions.
The road, however, towards successful 2010 automation elections would certainly be rough and
bumpy. The Comelec is laboring under very tight timelines. It would accordingly need the help of all
advocates of orderly and honest elections, of all men and women of goodwill, to smoothen the way
and assist Comelec personnel address the fears expressed about the integrity of the system. Like
anyone else, the Court would like and wish automated elections to succeed, credibly.

WHEREFORE, the instant petition is hereby DENIED.

SO ORDERED.

14
G.R. No. 127325 March 19, 1997

MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL

ONGPIN, petitioners, 
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA,
in their capacities as founding members of the People's Initiative for Reforms, Modernization
and Action (PIRMA), respondents.

SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK),

MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC.
(MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG
PILIPINO (LABAN), petitioners-intervenors.

DAVIDE, JR., J.:

The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the
Rules of Court is the right of the people to directly propose amendments to the Constitution through
the system of initiative under Section 2 of Article XVII of the 1987 Constitution. Undoubtedly, this
demands special attention, as this system of initiative was unknown to the people of this country,
except perhaps to a few scholars, before the drafting of the 1987 Constitution. The 1986
Constitutional Commission itself, through the original proponent  and the main sponsor  of the
1 2

proposed Article on Amendments or Revision of the Constitution, characterized this system as

"innovative".  Indeed it is, for both under the 1935 and 1973 Constitutions, only two methods of
3

proposing amendments to, or revision of, the Constitution were recognized, viz., (1) by Congress
upon a vote of three-fourths of all its members and (2) by a constitutional convention.  For this and
4

the other reasons hereafter discussed, we resolved to give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent
Commission on Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift Term
Limits of Elective Officials, by People's Initiative" (hereafter, Delfin Petition)  wherein Delfin asked the
5

COMELEC for an order

1. Fixing the time and dates for signature gathering all over the country;

2. Causing the necessary publications of said Order and the attached "Petition for
Initiative on the 1987 Constitution, in newspapers of general and local circulation;

3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist

Petitioners and volunteers, in establishing signing stations at the time and on the
dates designated for the purpose.

Delfin alleged in his petition that he is a founding member of the Movement for People's Initiative,  a 6

group of citizens desirous to avail of the system intended to institutionalize people power; that he
and the members of the Movement and other volunteers intend to exercise the power to directly
propose amendments to the Constitution granted under Section 2, Article XVII of the Constitution;
that the exercise of that power shall be conducted in proceedings under the control and supervision
of the COMELEC; that, as required in COMELEC Resolution No. 2300, signature stations shall be
established all over the country, with the assistance of municipal election registrars, who shall verify
the signatures affixed by individual signatories; that before the Movement and other volunteers can
gather signatures, it is necessary that the time and dates to be designated for the purpose be first
fixed in an order to be issued by the COMELEC; and that to adequately inform the people of the
electoral process involved, it is likewise necessary that the said order, as well as the Petition on
which the signatures shall be affixed, be published in newspapers of general and local circulation,
under the control and supervision of the COMELEC.

The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of
Article VI, Section 4 of Article VII,  and Section 8 of Article X  of the Constitution. Attached to the
7 8 9

petition is a copy of a "Petition for Initiative on the 1987 Constitution"   embodying the proposed
10

amendments which consist in the deletion from the aforecited sections of the provisions concerning
term limits, and with the following proposition:

DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE

GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND
7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X
OF THE 1987 PHILIPPINE CONSTITUTION?

According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is
signed by at least twelve per cent of the total number of registered voters in the country it will be
formally filed with the COMELEC.

Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037
(INITIATIVE), the COMELEC, through its Chairman, issued an Order   (a) directing Delfin "to cause
11

the publication of the petition, together with the attached Petition for Initiative on the 1987
Constitution (including the proposal, proposed constitutional amendment, and the signature form),
and the notice of hearing in three (3) daily newspapers of general circulation at his own expense" not
later than 9 December 1996; and (b) setting the case for hearing on 12 December 1996 at 10:00
a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty.
Pete Q. Quadra; representatives of the People's Initiative for Reforms, Modernization and Action
(PIRMA); intervenor-oppositor Senator Raul S. Roco, together with his two other lawyers, and
representatives of, or counsel for, the Integrated Bar of the Philippines (IBP), Demokrasya-
Ipagtanggol ang Konstitusyon (DIK), Public Interest Law Center, and Laban ng Demokratikong
Pilipino (LABAN).   Senator Roco, on that same day, filed a Motion to Dismiss the Delfin Petition on
12

the ground that it is not the initiatory petition properly cognizable by the COMELEC.

After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their
"memoranda and/or oppositions/memoranda" within five days.  13

On 18 December 1996, the petitioners herein — Senator Miriam Defensor Santiago, Alexander
Padilla, and Maria Isabel Ongpin — filed this special civil action for prohibition raising the following
arguments:

(1) The constitutional provision on people's initiative to amend the Constitution can

only be implemented by law to be passed by Congress. No such law has been
passed; in fact, Senate Bill No. 1290 entitled An Act Prescribing and Regulating
Constitution Amendments by People's Initiative, which petitioner Senator Santiago
filed on 24 November 1995, is still pending before the Senate Committee on
Constitutional Amendments.

(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely,
initiative on the Constitution, on statutes, and on local legislation. However, it failed to
provide any subtitle on initiative on the Constitution, unlike in the other modes of
initiative, which are specifically provided for in Subtitle II and Subtitle III. This
deliberate omission indicates that the matter of people's initiative to amend the
Constitution was left to some future law. Former Senator Arturo Tolentino stressed
this deficiency in the law in his privilege speech delivered before the Senate in 1994:
"There is not a single word in that law which can be considered as implementing [the
provision on constitutional initiative]. Such implementing provisions have been
obviously left to a separate law.

(3) Republic Act No. 6735 provides for the effectivity of the law after publication in
print media. This indicates that the Act covers only laws and not constitutional
amendments because the latter take effect only upon ratification and not after
publication.

(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the
conduct of initiative on the Constitution and initiative and referendum on national and
local laws, is ultra vires insofar as initiative on amendments to the Constitution is
concerned, since the COMELEC has no power to provide rules and regulations for
the exercise of the right of initiative to amend the Constitution. Only Congress is
authorized by the Constitution to pass the implementing law.

(5) The people's initiative is limited to amendments to the Constitution, not

to revision thereof. Extending or lifting of term limits constitutes a revision and is,
therefore, outside the power of the people's initiative.

(6) Finally, Congress has not yet appropriated funds for people's initiative; neither the
COMELEC nor any other government department, agency, or office has realigned
funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in
the event the COMELEC grants the Delfin Petition, the people's initiative spearheaded by PIRMA
would entail expenses to the national treasury for general re-registration of voters amounting to at
least P180 million, not to mention the millions of additional pesos in expenses which would be
incurred in the conduct of the initiative itself. Hence, the transcendental importance to the public and
the nation of the issues raised demands that this petition for prohibition be settled promptly and
definitely, brushing aside technicalities of procedure and calling for the admission of a taxpayer's and
legislator's suit.   Besides, there is no other plain, speedy, and adequate remedy in the ordinary
14

course of law.

On 19 December 1996, this Court (a) required the respondents to comment on the petition within a
non-extendible period of ten days from notice; and (b) issued a temporary restraining order, effective
immediately and continuing until further orders, enjoining public respondent COMELEC from
proceeding with the Delfin Petition, and private respondents Alberto and Carmen Pedrosa from
conducting a signature drive for people's initiative to amend the Constitution.

On 2 January 1997, private respondents, through Atty Quadra, filed their Comment   on the petition.
15

They argue therein that:

1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL

TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT
LEAST PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00)" IF THE
"COMELEC GRANTS THE PETITION FILED BY RESPONDENT DELFIN BEFORE
THE COMELEC.

2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL

GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF RESPONDENT
DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING ARE ALL FOR THE
ACCOUNT OF RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR
PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO THE
COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF THE
SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE GATHERING TO BE
DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS
P2,571,200.00;

3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE

SIGNATURE GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO
SUPERVISE CLOSELY" PURSUANT TO ITS "INITIATORY JURISDICTION"
UPHELD BY THE HONORABLE COURT IN ITS RECENT SEPTEMBER 26, 1996
DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY
VS. COMELEC, ET AL. G.R. NO. 125416;

4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW
IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE
AMENDMENTS TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S
SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE ALREADY
PROVIDED FOR IN REP. ACT NO. 6735;

5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991

PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN
THE RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY
METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE
 THE HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS CAN DO
NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES
AND RULES FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF
THESE LAWS."

6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290

CONTAINS A PROVISION DELEGATING TO THE COMELEC THE POWER TO
"PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO
CARRY OUT THE PURPOSES OF THIS ACT." (SEC. 12, S.B. NO. 1290,
ENCLOSED AS ANNEX E, PETITION);

7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE

OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION"
OF THE CONSTITUTION. IT IS ONLY AN AMENDMENT. "AMENDMENT
ENVISAGES AN ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF
THE CONSTITUTION. REVISION CONTEMPLATES A RE-EXAMINATION OF THE
ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT SHOULD
BE ALTERED." (PP. 412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY
JOAQUIN G. BERNAS, S.J.).

Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment   which starts
16

off with an assertion that the instant petition is a "knee-jerk reaction to a draft 'Petition for Initiative on
the 1987 Constitution'. . . which is not formally filed yet." What he filed on 6 December 1996 was an
"Initiatory Pleading" or "Initiatory Petition," which was legally necessary to start the signature
campaign to amend the Constitution or to put the movement to gather signatures under COMELEC
power and function. On the substantive allegations of the petitioners, Delfin maintains as follows:

(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which
governs the conduct of initiative to amend the Constitution. The absence therein of a
subtitle for such initiative is not fatal, since subtitles are not requirements for the
validity or sufficiency of laws.

(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in
an initiative to amend the Constitution approved by the majority of the votes cast in
the plebiscite shall become effective as of the day of the plebiscite.

(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a)
Section 2, Article IX-C of the Constitution, which grants the COMELEC the power to
enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A. 6735, which
empowers the COMELEC to promulgate such rules and regulations as may be
necessary to carry out the purposes of the Act.

(4) The proposed initiative does not involve a revision of, but mere amendment to,
the Constitution because it seeks to alter only a few specific provisions of the
Constitution, or more specifically, only those which lay term limits. It does not seek to
reexamine or overhaul the entire document.

As to the public expenditures for registration of voters, Delfin considers petitioners' estimate of P180
million as unreliable, for only the COMELEC can give the exact figure. Besides, if there will be a
plebiscite it will be simultaneous with the 1997 Barangay Elections. In any event, fund requirements
for initiative will be a priority government expense because it will be for the exercise of the sovereign
power of the people.

In the Comment   for the public respondent COMELEC, filed also on 2 January 1997, the Office of
17

the Solicitor General contends that:

(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the Constitution.
Its Section 2 on Statement of Policy explicitly affirms, recognizes, and guarantees
that power; and its Section 3, which enumerates the three systems of initiative,
includes initiative on the Constitution and defines the same as the power to propose
amendments to the Constitution. Likewise, its Section 5 repeatedly
mentions initiative on the Constitution.

(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No.
6735 because, being national in scope, that system of initiative is deemed included in
the subtitle on National Initiative and Referendum; and Senator Tolentino simply
overlooked pertinent provisions of the law when he claimed that nothing therein was
provided for initiative on the Constitution.

(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No.
6735 does not deal with initiative on the Constitution.

(4) Extension of term limits of elected officials constitutes a mere amendment to the
Constitution, not a revision thereof.

(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No.
6735 and under the Omnibus Election Code. The rule-making power of the
COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by this
Court in Subic Bay Metropolitan Authority vs. COMELEC.

On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b)
noted the aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by
private respondents through Atty. Quadra, as well as the latter's Manifestation stating that he is the
counsel for private respondents Alberto and Carmen Pedrosa only and the Comment he filed was for
the Pedrosas; and (c) granted the Motion for Intervention filed on 6 January 1997 by Senator Raul
Roco and allowed him to file his Petition in Intervention not later than 20 January 1997; and (d) set
the case for hearing on 23 January 1997 at 9:30 a.m.

On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of

Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention.
Attached to the motion was their Petition in Intervention, which was later replaced by an Amended
Petition in Intervention wherein they contend that:

(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the
Constitution because, in the words of Fr. Joaquin Bernas, S.J.,   it would involve a
18

change from a political philosophy that rejects unlimited tenure to one that accepts
unlimited tenure; and although the change might appear to be an isolated one, it can
affect other provisions, such as, on synchronization of elections and on the State
policy of guaranteeing equal access to opportunities for public service and prohibiting
political dynasties.   A revision cannot be done by initiative which, by express
19

provision of Section 2 of Article XVII of the Constitution, is limited to amendments.

 (2) The prohibition against reelection of the President and the limits provided for all
other national and local elective officials are based on the philosophy of governance,
"to open up the political arena to as many as there are Filipinos qualified to handle
the demands of leadership, to break the concentration of political and economic
powers in the hands of a few, and to promote effective proper empowerment for
participation in policy and decision-making for the common good"; hence, to remove
the term limits is to negate and nullify the noble vision of the 1987 Constitution.

(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a
conflict-of-interest situation. Initiative is intended as a fallback position that may be
availed of by the people only if they are dissatisfied with the performance of their
elective officials, but not as a premium for good performance.  20

(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law
that implements the people's initiative on amendments to the Constitution. It fails to
state (a) the proper parties who may file the petition, (b) the appropriate agency
before whom the petition is to be filed, (c) the contents of the petition, (d) the
publication of the same, (e) the ways and means of gathering the signatures of the
voters nationwide and 3% per legislative district, (f) the proper parties who may
oppose or question the veracity of the signatures, (g) the role of the COMELEC in the
verification of the signatures and the sufficiency of the petition, (h) the appeal from
any decision of the COMELEC, (I) the holding of a plebiscite, and (g) the
appropriation of funds for such people's initiative. Accordingly, there being no
enabling law, the COMELEC has no jurisdiction to hear Delfin's petition.

(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC
Resolution No. 2300, since the COMELEC is without authority to legislate the
procedure for a people's initiative under Section 2 of Article XVII of the Constitution.
That function exclusively pertains to Congress. Section 20 of R.A. No. 6735 does not
constitute a legal basis for the Resolution, as the former does not set a sufficient
standard for a valid delegation of power.

On 20 January 1997, Senator Raul Roco filed his Petition in

Intervention.   He avers that R.A. No. 6735 is the enabling law that implements the people's right to
21

initiate constitutional amendments. This law is a consolidation of Senate Bill No. 17 and House Bill
No. 21505; he co-authored the House Bill and even delivered a sponsorship speech thereon. He
likewise submits that the COMELEC was empowered under Section 20 of that law to promulgate
COMELEC Resolution No. 2300. Nevertheless, he contends that the respondent Commission is
without jurisdiction to take cognizance of the Delfin Petition and to order its publication because the
said petition is not the initiatory pleading contemplated under the Constitution, Republic Act No.
6735, and COMELEC Resolution No. 2300. What vests jurisdiction upon the COMELEC in an
initiative on the Constitution is the filing of a petition for initiative which is signed by the required
number of registered voters. He also submits that the proponents of a constitutional amendment
cannot avail of the authority and resources of the COMELEC to assist them is securing the required
number of signatures, as the COMELEC's role in an initiative on the Constitution is limited to the
determination of the sufficiency of the initiative petition and the call and supervision of a plebiscite, if
warranted.

On 20 January 1997, LABAN filed a Motion for Leave to Intervene.

The following day, the IBP filed a Motion for Intervention to which it attached a Petition in
Intervention raising the following arguments:
 (1) Congress has failed to enact an enabling law mandated under Section 2, Article
XVII of the 1987 Constitution.

(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing
law on the initiative to amend the Constitution.

(3) The Petition for Initiative suffers from a fatal defect in that it does not have the
required number of signatures.

(4) The petition seeks, in effect a revision of the Constitution, which can be proposed
only by Congress or a constitutional convention.  22

On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by
the DIK and MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b)
admitting the Amended Petition in Intervention of DIK and MABINI, and the Petitions in Intervention
of Senator Roco and of the IBP; (c) requiring the respondents to file within a nonextendible period of
five days their Consolidated Comments on the aforesaid Petitions in Intervention; and (d) requiring
LABAN to file its Petition in Intervention within a nonextendible period of three days from notice, and
the respondents to comment thereon within a nonextendible period of five days from receipt of the
said Petition in Intervention.

At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues,
which the Court formulated in light of the allegations and arguments raised in the pleadings so far
filed:

1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, was intended to include or
cover initiative on amendments to the Constitution; and if so, whether the Act, as
worded, adequately covers such initiative.

2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and
Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and
Referendum on National and Local Laws) regarding the conduct of initiative on
amendments to the Constitution is valid, considering the absence in the law of
specific provisions on the conduct of such initiative.

3. Whether the lifting of term limits of elective national and local officials, as proposed
in the draft "Petition for Initiative on the 1987 Constitution," would constitute a
revision of, or an amendment to, the Constitution.

4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition
solely intended to obtain an order (a) fixing the time and dates for signature
gathering; (b) instructing municipal election officers to assist Delfin's movement and
volunteers in establishing signature stations; and (c) directing or causing the
publication of, inter alia, the unsigned proposed Petition for Initiative on the 1987
Constitution.

5. Whether it is proper for the Supreme Court to take cognizance of the petition when
there is a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit simultaneously their respective
memoranda within twenty days and requested intervenor Senator Roco to submit copies of the
deliberations on House Bill No. 21505.

On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and
arguments in the main Petition. It further submits that the COMELEC should have dismissed the
Delfin Petition for failure to state a sufficient cause of action and that the Commission's failure or
refusal to do so constituted grave abuse of discretion amounting to lack of jurisdiction.

On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record
of the House of Representatives relating to the deliberations of House Bill No. 21505, as well as the
transcripts of stenographic notes on the proceedings of the Bicameral Conference Committee,
Committee on Suffrage and Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate
Bill No. 17.

Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the
Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP.   The parties thereafter filed, in
23

due time, their separate memoranda.  24

As we stated in the beginning, we resolved to give due course to this special civil action.

For a more logical discussion of the formulated issues, we shall first take up the fifth issue which
appears to pose a prejudicial procedural question.

THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF

THE DELFIN PETITION.

Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth
issue, i.e., whether it is proper for this Court to take cognizance of this special civil action when there
is a pending case before the COMELEC. The petitioners provide an affirmative answer. Thus:

28. The Comelec has no jurisdiction to take cognizance of the petition filed by private
respondent Delfin. This being so, it becomes imperative to stop the Comelec from
proceeding any further, and under the Rules of Court, Rule 65, Section 2, a petition
for prohibition is the proper remedy.

29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of
superior jurisdiction and directed to an inferior court, for the purpose of preventing
the inferior tribunal from usurping a jurisdiction with which it is not legally vested.
(People v. Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of
the highly divisive and adverse environmental consequences on the body politic of
the questioned Comelec order. The consequent climate of legal confusion and
political instability begs for judicial statesmanship.

30. In the final analysis, when the system of constitutional law is threatened by the
political ambitions of man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the Constitution.  25
It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin
Petition on the ground that the COMELEC has no jurisdiction or authority to entertain the
petition.   The COMELEC made no ruling thereon evidently because after having heard the
26

arguments of Delfin and the oppositors at the hearing on 12 December 1996, it required them to
submit within five days their memoranda or oppositions/memoranda.   Earlier, or specifically on 6
27

December 1996, it practically gave due course to the Delfin Petition by ordering Delfin to cause the
publication of the petition, together with the attached Petition for Initiative, the signature form, and
the notice of hearing; and by setting the case for hearing. The COMELEC's failure to act on Roco's
motion to dismiss and its insistence to hold on to the petition rendered ripe and viable the instant
petition under Section 2 of Rule 65 of the Rules of Court, which provides:

Sec. 2. Petition for prohibition. — Where the proceedings of any tribunal, corporation,
board, or person, whether exercising functions judicial or ministerial, are without or in
excess of its or his jurisdiction, or with grave abuse of discretion, and there is no
appeal or any other plain, speedy and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified petition in the proper court
alleging the facts with certainty and praying that judgment be rendered commanding
the defendant to desist from further proceedings in the action or matter specified
therein.

It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the
Delfin Petition because the said petition is not supported by the required minimum number of
signatures of registered voters. LABAN also asserts that the COMELEC gravely abused its
discretion in refusing to dismiss the Delfin Petition, which does not contain the required number of
signatures. In light of these claims, the instant case may likewise be treated as a special civil action
for certiorari under Section I of Rule 65 of the Rules of Court.

In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush
aside technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr.  28

A party's standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, set aside in view of the importance of issues raised. In the
landmark Emergency Powers Cases, this Court brushed aside this technicality
because the transcendental importance to the public of these cases demands that
they be settled promptly and definitely, brushing aside, if we must, technicalities of
procedure.

II

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS

TO THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT
SYSTEM.

Section 2 of Article XVII of the Constitution provides:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the

people through initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented
by at least three per centum of the registered voters therein. No amendment under
this section shall be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.

This provision is not self-executory. In his book,   Joaquin Bernas, a member of the 1986
29

Constitutional Commission, stated:

Without implementing legislation Section 2 cannot operate. Thus, although this mode
of amending the Constitution is a mode of amendment which bypasses
congressional action, in the last analysis it still is dependent on congressional action.

Bluntly stated, the right of the people to directly propose amendments to the Constitution
through the system of initiative would remain entombed in the cold niche of the Constitution
until Congress provides for its implementation. Stated otherwise, while the Constitution has
recognized or granted that right, the people cannot exercise it if Congress, for whatever
reason, does not provide for its implementation.

This system of initiative was originally included in Section 1 of the draft Article on Amendment or
Revision proposed by the Committee on Amendments and Transitory Provisions of the 1986
Constitutional Commission in its Committee Report No. 7 (Proposed Resolution No. 332).   That 30

section reads as follows:

Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:

(a) by the National Assembly upon a vote of three-fourths of all its members; or

(b) by a constitutional convention; or

(c) directly by the people themselves thru initiative as provided for in Article___
Section ___of the Constitution.  31

After several interpellations, but before the period of amendments, the Committee submitted
a new formulation of the concept of initiative which it denominated as Section 2; thus:

MR. SUAREZ. Thank you, Madam President. May we respectfully

call attention of the Members of the Commission that pursuant to the
mandate given to us last night, we submitted this afternoon a
complete Committee Report No. 7 which embodies the proposed
provision governing the matter of initiative. This is now covered by
Section 2 of the complete committee report. With the permission of
the Members, may I quote Section 2:

The people may, after five years from the date of the last plebiscite held, directly
propose amendments to this Constitution thru initiative upon petition of at least ten
percent of the registered voters.

This completes the blanks appearing in the original Committee Report No. 7.  32

The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the
legislature. Thus:

FR. BERNAS. Madam President, just two simple, clarificatory

questions.
First, on Section 1 on the matter of initiative upon petition of at least
10 percent, there are no details in the provision on how to carry this
out. Do we understand, therefore, that we are leaving this matter to
the legislature?

MR. SUAREZ. That is right, Madam President.

FR. BERNAS. And do we also understand, therefore, that for as long

as the legislature does not pass the necessary implementing law on
this, this will not operate?

MR. SUAREZ. That matter was also taken up during the committee
hearing, especially with respect to the budget appropriations which
would have to be legislated so that the plebiscite could be called. We
deemed it best that this matter be left to the legislature. The
Gentleman is right. In any event, as envisioned, no amendment
through the power of initiative can be called until after five years from
the date of the ratification of this Constitution. Therefore, the first
amendment that could be proposed through the exercise of this
initiative power would be after five years. It is reasonably expected
that within that five-year period, the National Assembly can come up
with the appropriate rules governing the exercise of this power.

FR. BERNAS. Since the matter is left to the legislature — the details
on how this is to be carried out — is it possible that, in effect, what
will be presented to the people for ratification is the work of the
legislature rather than of the people? Does this provision exclude that
possibility?

MR. SUAREZ. No, it does not exclude that possibility because even
the legislature itself as a body could propose that amendment, maybe
individually or collectively, if it fails to muster the three-fourths vote in
order to constitute itself as a constituent assembly and submit that
proposal to the people for ratification through the process of an
initiative.

x x x           x x x          x x x

MS. AQUINO. Do I understand from the sponsor that the intention in

the proposal is to vest constituent power in the people to amend the
Constitution?

MR. SUAREZ. That is absolutely correct, Madam President.

MS. AQUINO. I fully concur with the underlying precept of the

proposal in terms of institutionalizing popular participation in the
drafting of the Constitution or in the amendment thereof, but I would
have a lot of difficulties in terms of accepting the draft of Section 2, as
written. Would the sponsor agree with me that in the hierarchy of
legal mandate, constituent power has primacy over all other legal
mandates?
 MR. SUAREZ. The Commissioner is right, Madam President.

MS. AQUINO. And would the sponsor agree with me that in the
hierarchy of legal values, the Constitution is source of all legal
mandates and that therefore we require a great deal of
circumspection in the drafting and in the amendments of the
Constitution?

MR. SUAREZ. That proposition is nondebatable.

MS. AQUINO. Such that in order to underscore the primacy of

constituent power we have a separate article in the constitution that
would specifically cover the process and the modes of amending the
Constitution?

MR. SUAREZ. That is right, Madam President.

MS. AQUINO. Therefore, is the sponsor inclined, as the provisions

are drafted now, to again concede to the legislature the process or
the requirement of determining the mechanics of amending the
Constitution by people's initiative?

MR. SUAREZ. The matter of implementing this could very well be

placed in the hands of the National Assembly, not unless we can
incorporate into this provision the mechanics that would adequately
cover all the conceivable situations.  33

It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals
to AMEND — not to REVISE — the Constitution; thus:

MR. SUAREZ. . . . This proposal was suggested on the theory that

this matter of initiative, which came about because of the
extraordinary developments this year, has to be separated from the
traditional modes of amending the Constitution as embodied in
Section 1. The committee members felt that this system of initiative
should not extend to the revision of the entire Constitution, so we
removed it from the operation of Section 1 of the proposed Article on
Amendment or Revision.  34

x x x           x x x          x x x

MS. AQUINO. In which case, I am seriously bothered by providing

this process of initiative as a separate section in the Article on
Amendment. Would the sponsor be amenable to accepting an
amendment in terms of realigning Section 2 as another subparagraph
(c) of Section 1, instead of setting it up as another separate section
as if it were a self-executing provision?

MR. SUAREZ. We would be amenable except that, as we clarified a

while ago, this process of initiative is limited to the matter of
amendment and should not expand into a revision which
 contemplates a total overhaul of the Constitution. That was the sense
that was conveyed by the Committee.

MS. AQUINO. In other words, the Committee was attempting to

distinguish the coverage of modes (a) and (b) in Section 1 to include
the process of revision; whereas the process of initiation to amend,
which is given to the public, would only apply to amendments?

MR. SUAREZ. That is right. Those were the terms envisioned in the
Committee.  35

Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G.
Davide, Jr., which the Committee accepted. Thus:

MR. DAVIDE. Thank you Madam President. I propose to substitute

the entire Section 2 with the following:

MR. DAVIDE. Madam President, I have modified the proposed

amendment after taking into account the modifications submitted by
the sponsor himself and the honorable Commissioners Guingona,
Monsod, Rama, Ople, de los Reyes and Romulo. The modified
amendment in substitution of the proposed Section 2 will now read as
follows: "SECTION 2. — AMENDMENTS TO THIS CONSTITUTION
MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE
THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE
PERCENT OF THE TOTAL NUMBER Of REGISTERED VOTERS,
OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER
THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR
OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE

IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.

MR. SUAREZ. Madam President, considering that the proposed

amendment is reflective of the sense contained in Section 2 of our
completed Committee Report No. 7, we accept the proposed
amendment.  36

The interpellations which ensued on the proposed modified amendment to Section 2 clearly
showed that it was a legislative act which must implement the exercise of the right. Thus:

MR. ROMULO. Under Commissioner Davide's amendment, is it

possible for the legislature to set forth certain procedures to carry out
the initiative. . .?

MR. DAVIDE. It can.

x x x           x x x          x x x
 MR. ROMULO. But the Commissioner's amendment does not
prevent the legislature from asking another body to set the
proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the

implementation of this particular right would be subject to legislation,
provided the legislature cannot determine anymore the percentage of
the requirement.

MR. ROMULO. But the procedures, including the determination of

the proper form for submission to the people, may be subject to
legislation.

MR. DAVIDE. As long as it will not destroy the substantive right to

initiate. In other words, none of the procedures to be proposed by the
legislative body must diminish or impair the right conceded here.

MR. ROMULO. In that provision of the Constitution can the

procedures which I have discussed be legislated?

MR. DAVIDE. Yes.  37

Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to
AMENDMENTS to — NOT REVISION of — the Constitution. Thus:

MR. DAVIDE. With pleasure, Madam President.

MR. MAAMBONG. My first question: Commissioner Davide's

proposed amendment on line 1 refers to "amendment." Does it not
cover the word "revision" as defined by Commissioner Padilla when
he made the distinction between the words "amendments" and
"revision"?

MR. DAVIDE. No, it does not, because "amendments" and "revision"

should be covered by Section 1. So insofar as initiative is concerned,
it can only relate to "amendments" not "revision."  38

Commissioner Davide further emphasized that the process of proposing amendments

through initiative must be more rigorous and difficult than the initiative on legislation. Thus:

MR. DAVIDE. A distinction has to be made that under this proposal,

what is involved is an amendment to the Constitution. To amend a
Constitution would ordinarily require a proposal by the National
Assembly by a vote of three-fourths; and to call a constitutional
convention would require a higher number. Moreover, just to submit
the issue of calling a constitutional convention, a majority of the
National Assembly is required, the import being that the process of
amendment must be made more rigorous and difficult than probably
initiating an ordinary legislation or putting an end to a law proposed
by the National Assembly by way of a referendum. I cannot agree to
reducing the requirement approved by the Committee on the
 Legislative because it would require another voting by the
Committee, and the voting as precisely based on a requirement of 10
percent. Perhaps, I might present such a proposal, by way of an
amendment, when the Commission shall take up the Article on the
Legislative or on the National Assembly on plenary sessions.  39

The Davide modified amendments to Section 2 were subjected to amendments, and the final
version, which the Commission approved by a vote of 31 in favor and 3 against, reads as follows:

MR. DAVIDE. Thank you Madam President. Section 2, as amended,

reads as follows: "AMENDMENT TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE
THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE
PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS,
OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER
THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR
OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE

FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS
RIGHT.  40

The entire proposed Article on Amendments or Revisions was approved on second reading
on 9 July 1986.  Thereafter, upon his motion for reconsideration, Commissioner Gascon was
41

allowed to introduce an amendment to Section 2 which, nevertheless, was withdrawn. In

view thereof, the Article was again approved on Second and Third Readings on 1 August
1986. 42

However, the Committee on Style recommended that the approved Section 2 be amended by
changing "percent" to "per centum" and "thereof" to "therein" and deleting the phrase "by law" in the
second paragraph so that said paragraph reads: The Congress   shall provide for the
43

implementation of the exercise of this right.   This amendment was approved and is the text of the
44

present second paragraph of Section 2.

The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under
Section 2 of Article XVII of the Constitution is not self-executory.

Has Congress "provided" for the implementation of the exercise of this right? Those who answer the
question in the affirmative, like the private respondents and intervenor Senator Roco, point to us
R.A. No. 6735.

There is, of course, no other better way for Congress to implement the exercise of the right than
through the passage of a statute or legislative act. This is the essence or rationale of the last minute
amendment by the Constitutional Commission to substitute the last paragraph of Section 2 of Article
XVII then reading:

The Congress   shall by law provide for the implementation of the exercise of this
45

right.
 with

The Congress shall provide for the implementation of the exercise of this right.

This substitute amendment was an investiture on Congress of a power to provide for the
rules implementing the exercise of the right. The "rules" means "the details on how [the right]
is to be carried out." 
46

We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose
amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill
No. 17. The former was prepared by the Committee on Suffrage and Electoral Reforms of the House
of Representatives on the basis of two House Bills referred to it, viz., (a) House Bill No. 497,   which
47

dealt with the initiative and referendum mentioned

in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988,   which dealt with
48

the subject matter of House Bill No. 497, as well as with initiative and referendum under Section 3 of
Article X (Local Government) and initiative provided for in Section 2 of Article XVII of the
Constitution. Senate Bill No. 17   solely dealt with initiative and referendum concerning ordinances
49

or resolutions of local government units. The Bicameral Conference Committee consolidated Senate
Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8 June
1989 by the Senate   and by the House of Representatives.   This approved bill is now R.A. No.
50 51

6735.

But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the
implementation of the exercise of the right?"

A careful scrutiny of the Act yields a negative answer.

First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not
suggest an initiative on amendments to the Constitution. The said section reads:

Sec. 2. Statement and Policy. — The power of the people under a system of initiative
and referendum to directly propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed, recognized and
guaranteed. (Emphasis supplied).

The inclusion of the word "Constitution" therein was a delayed afterthought. That word is
neither germane nor relevant to said section, which exclusively relates to initiative and
referendum on national laws and local laws, ordinances, and resolutions. That section is
silent as to amendments on the Constitution. As pointed out earlier, initiative on the
Constitution is confined only to proposals to AMEND. The people are not accorded the
power to "directly propose, enact, approve, or reject, in whole or in part, the Constitution"
through the system of initiative. They can only do so with respect to "laws, ordinances, or
resolutions."

The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1
of Senate Bill No. 17, which solely referred to a statement of policy on local initiative and referendum
and appropriately used the phrases "propose and enact," "approve or reject" and "in whole or in
part." 
52
Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to
the Constitution and mentions it as one of the three systems of initiative, and that Section 5
(Requirements) restates the constitutional requirements as to the percentage of the registered voters
who must submit the proposal. But unlike in the case of the other systems of initiative, the Act does
not provide for the contents of a petition for initiative on the Constitution. Section 5, paragraph (c)
requires, among other things, statement of the proposed law sought to be enacted, approved or
rejected, amended or repealed, as the case may be. It does not include, as among the contents of
the petition, the provisions of the Constitution sought to be amended, in the case of initiative on the
Constitution. Said paragraph (c) reads in full as follows:

(c) The petition shall state the following:

c.1 contents or text of the proposed law sought to be enacted, approved or rejected,

amended or repealed, as the case may be;

c.2 the proposition;

c.3 the reason or reasons therefor;

c.4 that it is not one of the exceptions provided therein;

c.5 signatures of the petitioners or registered voters; and

c.6 an abstract or summary proposition is not more than one hundred (100) words
which shall be legibly written or printed at the top of every page of the petition.
(Emphasis supplied).

The use of the clause "proposed laws sought to be enacted, approved or rejected, amended
or repealed" only strengthens the conclusion that Section 2, quoted earlier, excludes
initiative on amendments to the Constitution.

Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for
Local Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution.
This conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and
referendum on national and local laws. If Congress intended R.A. No. 6735 to fully provide for the
implementation of the initiative on amendments to the Constitution, it could have provided for a
subtitle therefor, considering that in the order of things, the primacy of interest, or hierarchy of
values, the right of the people to directly propose amendments to the Constitution is far more
important than the initiative on national and local laws.

We cannot accept the argument that the initiative on amendments to the Constitution is subsumed
under the subtitle on National Initiative and Referendum because it is national in scope. Our reading
of Subtitle II (National Initiative and Referendum) and Subtitle III (Local Initiative and Referendum)
leaves no room for doubt that the classification is not based on the scope of the initiative involved,
but on its nature and character. It is "national initiative," if what is proposed to be adopted or enacted
is a national law, or a law which only Congress can pass. It is "local initiative" if what is proposed to
be adopted or enacted is a law, ordinance, or resolution which only the legislative bodies of the
governments of the autonomous regions, provinces, cities, municipalities, and barangays can pass.
This classification of initiative into national and local is actually based on Section 3 of the Act, which
we quote for emphasis and clearer understanding:
 Sec. 3. Definition of terms —

x x x           x x x          x x x

There are three (3) systems of initiative, namely:

a.1 Initiative on the Constitution which refers to a petition proposing amendments to

the Constitution;

a.2 Initiative on Statutes which refers to a petition proposing to enact a national

legislation; and

a.3 Initiative on local legislation which refers to a petition proposing to enact a

regional, provincial, city, municipal, or barangay law, resolution or ordinance.
(Emphasis supplied).

Hence, to complete the classification under subtitles there should have been a subtitle on initiative
on amendments to the Constitution.  53

A further examination of the Act even reveals that the subtitling is not accurate. Provisions not
germane to the subtitle on National Initiative and Referendum are placed therein, like (1) paragraphs
(b) and (c) of Section 9, which reads:

(b) The proposition in an initiative on the Constitution approved by the majority of the
votes cast in the plebiscite shall become effective as to the day of the plebiscite.

(c) A national or local initiative proposition approved by majority of the votes cast in

an election called for the purpose shall become effective fifteen (15) days after
certification and proclamation of the Commission. (Emphasis supplied).

(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative
bodies of local governments; thus:

Sec. 11. Indirect Initiative. — Any duly accredited people's organization, as defined
by law, may file a petition for indirect initiative with the House of Representatives,
and other legislative bodies. . . .

and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings
of sufficiency or insufficiency of the petition for initiative or referendum, which could be
petitions for both national and local initiative and referendum.

Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative and
Referendum is misplaced,   since the provision therein applies to both national and local initiative
54

and referendum. It reads:

Sec. 18. Authority of Courts. — Nothing in this Act shall prevent or preclude the
proper courts from declaring null and void any proposition approved pursuant to this
Act for violation of the Constitution or want of capacity of the local legislative body to
enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in
the implementation of initiative and referendum on national and local legislation thereby giving them
special attention, it failed, rather intentionally, to do so on the system of initiative on amendments to
the Constitution. Anent the initiative on national legislation, the Act provides for the following:

(a) The required percentage of registered voters to sign the petition and the contents of the petition;

(b) The conduct and date of the initiative;

(c) The submission to the electorate of the proposition and the required number of votes for its
approval;

(d) The certification by the COMELEC of the approval of the proposition;

(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general
circulation in the Philippines; and

(f) The effects of the approval or rejection of the proposition.  55

As regards local initiative, the Act provides for the following:

(a) The preliminary requirement as to the number of signatures of registered voters for the petition;

(b) The submission of the petition to the local legislative body concerned;

(c) The effect of the legislative body's failure to favorably act thereon, and the invocation of the
power of initiative as a consequence thereof;

(d) The formulation of the proposition;

(e) The period within which to gather the signatures;

(f) The persons before whom the petition shall be signed;

(g) The issuance of a certification by the COMELEC through its official in the local government unit
concerned as to whether the required number of signatures have been obtained;

(h) The setting of a date by the COMELEC for the submission of the proposition to the registered
voters for their approval, which must be within the period specified therein;

(i) The issuance of a certification of the result;

(j) The date of effectivity of the approved proposition;

(k) The limitations on local initiative; and

(l) The limitations upon local legislative bodies.  56

Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its
twenty-three sections, merely (a) mentions, the word "Constitution" in Section 2; (b) defines "initiative
on the Constitution" and includes it in the enumeration of the three systems of initiative in Section 3;
(c) speaks of "plebiscite" as the process by which the proposition in an initiative on the Constitution
may be approved or rejected by the people; (d) reiterates the constitutional requirements as to the
number of voters who should sign the petition; and (e) provides for the date of effectivity of the
approved proposition.

There was, therefore, an obvious downgrading of the more important or the paramount system of
initiative. RA. No. 6735 thus delivered a humiliating blow to the system of initiative on amendments
to the Constitution by merely paying it a reluctant lip service. 
57

The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting
in essential terms and conditions insofar as initiative on amendments to the Constitution is
concerned. Its lacunae on this substantive matter are fatal and cannot be cured by "empowering" the
COMELEC "to promulgate such rules and regulations as may be necessary to carry out the
purposes of [the] Act. 58

The rule is that what has been delegated, cannot be delegated or as expressed in a Latin
maxim: potestas delegata non delegari potest.   The recognized exceptions to the rule are as
59

follows:

(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;

(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the
Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies. 60

Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to

promulgate rules and regulations is a form of delegation of legislative authority under no. 5 above.
However, in every case of permissible delegation, there must be a showing that the delegation itself
is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be
executed, carried out, or implemented by the delegate; and (b) fixes a standard — the limits of which
are sufficiently determinate and determinable — to which the delegate must conform in the
performance of his functions.   A sufficient standard is one which defines legislative policy, marks its
61

limits, maps out its boundaries and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be effected.  62

Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735
miserably failed to satisfy both requirements in subordinate legislation. The delegation of the power
to the COMELEC is then invalid.

III

COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND

REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement
the exercise of the right of the people to directly propose amendments to the Constitution through
the system of initiative. It does not have that power under R.A. No. 6735. Reliance on the
COMELEC's power under Section 2(1) of Article IX-C of the Constitution is misplaced, for the laws
and regulations referred to therein are those promulgated by the COMELEC under (a) Section 3 of
Article IX-C of the Constitution, or (b) a law where subordinate legislation is authorized and which
satisfies the "completeness" and the "sufficient standard" tests.

IV

COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION

IN ENTERTAINING THE DELFIN PETITION.

Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress
to implement the right to initiate constitutional amendments, or that it has validly vested upon the
COMELEC the power of subordinate legislation and that COMELEC Resolution No. 2300 is valid,
the COMELEC acted without jurisdiction or with grave abuse of discretion in entertaining the Delfin
Petition.

Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for
initiative on the Constitution must be signed by at least 12% of the total number of registered voters
of which every legislative district is represented by at least 3% of the registered voters therein. The
Delfin Petition does not contain signatures of the required number of voters. Delfin himself admits
that he has not yet gathered signatures and that the purpose of his petition is primarily to obtain
assistance in his drive to gather signatures. Without the required signatures, the petition cannot be
deemed validly initiated.

The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then
is the initiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc.
The only participation of the COMELEC or its personnel before the filing of such petition are (1) to
prescribe the form of the petition;   (2) to issue through its Election Records and Statistics Office a
63

certificate on the total number of registered voters in each legislative district;   (3) to assist, through
64

its election registrars, in the establishment of signature stations;   and (4) to verify, through its
65

election registrars, the signatures on the basis of the registry list of voters, voters' affidavits, and
voters' identification cards used in the immediately preceding election.  66

Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution
No. 2300, it cannot be entertained or given cognizance of by the COMELEC. The respondent
Commission must have known that the petition does not fall under any of the actions or proceedings
under the COMELEC Rules of Procedure or under Resolution No. 2300, for which reason it did not
assign to the petition a docket number. Hence, the said petition was merely entered as UND,
meaning, undocketed. That petition was nothing more than a mere scrap of paper, which should not
have been dignified by the Order of 6 December 1996, the hearing on 12 December 1996, and the
order directing Delfin and the oppositors to file their memoranda or oppositions. In so dignifying it,
the COMELEC acted without jurisdiction or with grave abuse of discretion and merely wasted its
time, energy, and resources.

The foregoing considered, further discussion on the issue of whether the proposal to lift the term
limits of elective national and local officials is an amendment to, and not a revision of, the
Constitution is rendered unnecessary, if not academic.

CONCLUSION
This petition must then be granted, and the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted to provide for the implementation of the system.

We feel, however, that the system of initiative to propose amendments to the Constitution should no
longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should
not tarry any longer in complying with the constitutional mandate to provide for the implementation of
the right of the people under that system.

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the
Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing
rules and regulations on the conduct of initiative or amendments to the Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-
037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the
Commission on Elections, but is LIFTED as against private respondents.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.

15
G.R. No. 195229               October 9, 2012

EFREN RACEL ARA TEA, Petitioner, 

vs.
COMMISSiON ON ELECTIONS and ESTELA D. ANTlPOLO, Respondents.

DECISION

CARPIO, J.:

The Case

This is a special civil action for certiorari seeking to review and nullify the
1 

Resolution dated 2 February 2011 and the Order dated 12 January 2011 of the Commission on
2  3 

Elections (COMELEC) En Banc in Dra. Sigrid S. Rodolfo v. Romeo D. Lonzanida, docketed as SPA

No. 09-158 (DC). The petition asserts that the COMELEC issued the Resolution and Order with
grave abuse of discretion amounting to lack or excess of jurisdiction.
The Facts

Romeo D. Lonzanida (Lonzanida) and Estela D. Antipolo (Antipolo) were candidates for Mayor of
San Antonio, Zambales in the May 2010 National and Local Elections. Lonzanida filed his certificate
of candidacy on 1 December 2009. On 8 December 2009, Dra. Sigrid S. Rodolfo (Rodolfo) filed a
4 

petition under Section 78 of the Omnibus Election Code to disqualify Lonzanida and to deny due
course or to cancel Lonzanida’s certificate of candidacy on the ground that Lonzanida was elected,
and had served, as mayor of San Antonio, Zambales for four (4) consecutive terms immediately prior
to the term for the May 2010 elections. Rodolfo asserted that Lonzanida made a false material
representation in his certificate of candidacy when Lonzanida certified under oath that he was
eligible for the office he sought election. Section 8, Article X of the 1987 Constitution and Section
5 

43(b) of the Local Government Code both prohibit a local elective official from being elected and
6 

serving for more than three consecutive terms for the same position.

The COMELEC Second Division rendered a Resolution on 18 February 2010 cancelling Lonzanida’s
7 

certificate of candidacy. Pertinent portions of the 18 February 2010 Resolution read:

Respondent Lonzanida never denied having held the office of mayor of San Antonio, Zambales for
more than nine consecutive years. Instead he raised arguments to forestall or dismiss the petition on
the grounds other than the main issue itself. We find such arguments as wanting. Respondent
Lonzanida, for holding the office of mayor for more than three consecutive terms, went against the
three-term limit rule; therefore, he could not be allowed to run anew in the 2010 elections. It is time
to infuse new blood in the political arena of San Antonio.

WHEREFORE, premises considered, the instant petition is hereby GRANTED. The Certificate of
Candidacy of Respondent Romeo D. Lonzanida for the position of mayor in the municipality of San
Antonio, Zambales is hereby CANCELLED. His name is hereby ordered STRICKEN OFF the list of
Official Candidates for the position of Mayor of San Antonio, Zambales in May 10, 2010 elections.

SO ORDERED. 8

Lonzanida’s motion for reconsideration before the COMELEC En Banc remained pending during the
May 2010 elections. Lonzanida and Efren Racel Aratea (Aratea) garnered the highest number of
votes and were respectively proclaimed Mayor and Vice-Mayor.

Aratea took his oath of office as Acting Mayor before Regional Trial Court (RTC) Judge Raymond C.
Viray of Branch 75, Olongapo City on 5 July 2010. On the same date, Aratea wrote the Department
9 

of Interior and Local Government (DILG) and requested for an opinion on whether, as Vice-Mayor,
he was legally required to assume the Office of the Mayor in view of Lonzanida’s disqualification.
DILG Legal Opinion No. 117, S. 2010 stated that Lonzanida was disqualified to hold office by
10 

reason of his criminal conviction. As a consequence of Lonzanida’s disqualification, the Office of the
Mayor was deemed permanently vacant. Thus, Aratea should assume the Office of the Mayor in an
acting capacity without prejudice to the COMELEC’s resolution of Lonzanida’s motion for
reconsideration. In another letter dated 6 August 2010, Aratea requested the DILG to allow him to
take the oath of office as Mayor of San Antonio, Zambales. In his response dated 24 August 2010,
then Secretary Jesse M. Robredo allowed Aratea to take an oath of office as "the permanent
Municipal Mayor of San Antonio, Zambales without prejudice however to the outcome of the cases
pending before the [COMELEC]." 11

On 11 August 2010, the COMELEC En Banc issued a Resolution disqualifying Lonzanida from
12 

running for Mayor in the May 2010 elections. The COMELEC En Banc’s resolution was based on
two grounds: first, Lonzanida had been elected and had served as Mayor for more than three
consecutive terms without interruption; and second, Lonzanida had been convicted by final judgment
of ten (10) counts of falsification under the Revised Penal Code. Lonzanida was sentenced for each
count of falsification to imprisonment of four (4) years and one (1) day of prisión correccional as
minimum, to eight (8) years and one (1) day of prisión mayor as maximum. The judgment of
conviction became final on 23 October 2009 in the Decision of this Court in Lonzanida v.
People, before Lonzanida filed his certificate of candidacy on 1 December 2009. Pertinent portions
13 

of the 11 August 2010 Resolution read:

Prescinding from the foregoing premises, Lonzanida, for having served as Mayor of San Antonio,
Zambales for more than three (3) consecutive terms and for having been convicted by a final
judgment of a crime punishable by more than one (1) year of imprisonment, is clearly disqualified to
run for the same position in the May 2010 Elections.

WHEREFORE, in view of the foregoing, the Motion for Reconsideration is hereby DENIED.

SO ORDERED. 14

On 25 August 2010, Antipolo filed a Motion for Leave to Intervene and to Admit Attached Petition-in-
Intervention. She claimed her right to be proclaimed as Mayor of San Antonio, Zambales because
15

Lonzanida ceased to be a candidate when the COMELEC Second Division, through its 18 February
2010 Resolution, ordered the cancellation of his certificate of candidacy and the striking out of his
name from the list of official candidates for the position of Mayor of San Antonio, Zambales in the
May 2010 elections.

In his Comment filed on 26 January 2011, Aratea asserted that Antipolo, as the candidate who
received the second highest number of votes, could not be proclaimed as the winning candidate.
Since Lonzanida’s disqualification was not yet final during election day, the votes cast in his favor
could not be declared stray. Lonzanida’s subsequent disqualification resulted in a permanent
vacancy in the Office of Mayor, and Aratea, as the duly-elected Vice-Mayor, was mandated by
Section 44 of the Local Government Code to succeed as Mayor.
16 

The COMELEC’s Rulings

The COMELEC En Banc issued an Order dated 12 January 2011, stating:

Acting on the "Motion for Leave to Intervene and to Admit Attached Petition-in-Intervention" filed by
Estela D. Antipolo (Antipolo) and pursuant to the power of this Commission to suspend its Rules or
any portion thereof in the interest of justice, this Commission hereby RESOLVES to:

1. GRANT the aforesaid Motion;

2. ADMIT the Petition-in-Intervention filed by Antipolo;

3. REQUIRE the Respondent, ROMEO DUMLAO LONZANIDA, as well as EFREN RACEL

ARATEA, proclaimed Vice-Mayor of San Antonio, Zambales, to file their respective Comments on
the Petition-in- Intervention within a non-extendible period of five (5) days from receipt thereof;

4. SET the above-mentioned Petition-in-Intervention for hearing on January 26, 2011 at 10:00 a.m.
COMELEC Session Hall, 8th Floor, Palacio del Gobernador, Intramuros, Manila.

WHEREFORE, furnish copies hereof the parties for their information and compliance.
SO ORDERED. 17

In its Resolution dated 2 February 2011, the COMELEC En Banc no longer considered Lonzanida’s
qualification as an issue: "It is beyond cavil that Lonzanida is not eligible to hold and discharge the
functions of the Office of the Mayor of San Antonio, Zambales. The sole issue to be resolved at this
juncture is how to fill the vacancy resulting from Lonzanida’s disqualification." The Resolution further
18 

stated:

We cannot sustain the submission of Oppositor Aratea that Intervenor Antipolo could never be
proclaimed as the duly elected Mayor of Antipolo [sic] for being a second placer in the elections. The
teachings in the cases of Codilla vs. De Venecia and Nazareno and Domino vs. COMELEC, et al.,
while they remain sound jurisprudence find no application in the case at bar. What sets this case
apart from the cited jurisprudence is that the notoriety of Lonzanida’s disqualification and ineligibility
to hold public office is established both in fact and in law on election day itself. Hence, Lonzanida’s
name, as already ordered by the Commission on February 18, 2010 should have been stricken off
from the list of official candidates for Mayor of San Antonio, Zambales.

WHEREFORE, in view of the foregoing, the Commission hereby:

1. Declares NULL and VOID the proclamation of respondent ROMEO D. LONZANIDA;

2. GRANTS the Petition for Intervention of Estela D. Antipolo;

3. Orders the immediate CONSTITUTION of a Special Municipal Board of Canvassers to

PROCLAIM Intervenor Estela D. Antipolo as the duly elected Mayor of San Antonio, Zambales;

4. Orders Vice-Mayor Efren Racel Aratea to cease and desist from discharging the functions of the
Office of the Mayor, and to cause a peaceful turn-over of the said office to Antipolo upon her
proclamation; and

5. Orders the Office of the Executive Director as well as the Regional Election Director of Region III
to cause the implementation of this Resolution and disseminate it to the Department of Interior and
Local Government.

SO ORDERED. 19

Aratea filed the present petition on 9 February 2011.

The Issues

The manner of filling up the permanent vacancy in the Office of the Mayor of San Antonio, Zambales
is dependent upon the determination of Lonzanida’s removal. Whether Lonzanida was disqualified
under Section 68 of the Omnibus Election Code, or made a false material representation under
Section 78 of the same Code that resulted in his certificate of candidacy being void ab initio, is
determinative of whether Aratea or Antipolo is the rightful occupant to the Office of the Mayor of San
Antonio, Zambales.

The dissenting opinions reverse the COMELEC’s 2 February 2011 Resolution and 12 January 2011
Order. They hold that Aratea, the duly elected Vice-Mayor of San Antonio, Zambales, should be
declared Mayor pursuant to the Local Government Code’s rule on succession.
The dissenting opinions make three grave errors: first, they ignore prevailing jurisprudence that a
false representation in the certificate of candidacy as to eligibility in the number of terms elected and
served is a material fact that is a ground for a petition to cancel a certificate of candidacy under
Section 78; second, they ignore that a false representation as to eligibility to run for public office due
to the fact that the candidate suffers from perpetual special disqualification is a material fact that is a
ground for a petition to cancel a certificate of candidacy under Section 78; and third, they resort to a
strained statutory construction to conclude that the violation of the three-term limit rule cannot be a
ground for cancellation of a certificate of candidacy under Section 78, even when it is clear and plain
that violation of the three-term limit rule is an ineligibility affecting the qualification of a candidate to
elective office.

The dissenting opinions tread on dangerous ground when they assert that a candidate’s eligibility to
the office he seeks election must be strictly construed to refer only to the details, i.e., age,
citizenship, or residency, among others, which the law requires him to state in his COC, and which
he must swear under oath to possess. The dissenting opinions choose to view a false certification of
a candidate’s eligibility on the three-term limit rule not as a ground for false material representation
under Section 78 but as a ground for disqualification under Section 68 of the same Code. This is
clearly contrary to well-established jurisprudence.

The Court’s Ruling

We hold that Antipolo, the alleged "second placer," should be proclaimed Mayor because
Lonzanida’s certificate of candidacy was void ab initio. In short, Lonzanida was never a candidate at
all. All votes for Lonzanida were stray votes. Thus, Antipolo, the only qualified candidate, actually
garnered the highest number of votes for the position of Mayor.

Qualifications and Disqualifications

Section 65 of the Omnibus Election Code points to the Local Government Code for the qualifications
of elective local officials. Paragraphs (a) and (c) of Section 39 and Section 40 of the Local
Government Code provide in pertinent part:

Sec. 39. Qualifications. ‒ (a) An elective local official must be a citizen of the Philippines; a
registered voter in the barangay, municipality, city or province x x x; a resident therein for at least
one (1) year immediately preceding the day of the election; and able to read and write Filipino or any
other local language or dialect.

xxxx

(c) Candidates for the position of mayor or vice-mayor of independent component cities, component
cities, or municipalities must be at least twenty-one (21) years of age on election day.

xxxx

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

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

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

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or non-political cases here or abroad;

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

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

Section 12 of the Omnibus Election Code provides:

Sec. 12. Disqualification. — Any person who has been declared by competent authority insane or
incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for
any offense for which he was 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 office,
unless he has been given plenary pardon or granted amnesty.

The disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed or after the
expiration of a period of five years from his service of sentence, unless within the same period he
again becomes disqualified. (Emphasis supplied)

The grounds for disqualification for a petition under Section 68 of the Omnibus Election Code are
specifically enumerated:

Sec. 68. Disqualifications. ‒ Any candidate who, in an action or protest in which he is a party is

declared by final decision by a competent court guilty of, or found by the Commission of having (a)
given money or other material consideration to influence, induce or corrupt the voters or
public officials performing electoral functions; (b) committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an amount in excess of that allowed by this
Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96,
97 and 104; (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc,
subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected,
from holding the office. Any person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under this Code, unless said person has
waived his status as permanent resident or immigrant of a foreign country in accordance with the
residence requirement provided for in the election laws. (Emphasis supplied)

A petition for disqualification under Section 68 clearly refers to "the commission of prohibited acts
and possession of a permanent resident status in a foreign country." All the offenses mentioned
20 

in Section 68 refer to election offenses under the Omnibus Election Code, not to violations of
other penal laws. There is absolutely nothing in the language of Section 68 that would justify
including violation of the three-term limit rule, or conviction by final judgment of the crime of
falsification under the Revised Penal Code, as one of the grounds or offenses covered under
Section 68. In Codilla, Sr. v. de Venecia, this Court ruled:
21 
[T]he jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section
68 of the Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC
jurisdiction. They are criminal and not administrative in nature. x x x

Clearly, the violation by Lonzanida of the three-term limit rule, or his conviction by final judgment of
the crime of falsification under the Revised Penal Code, does not constitute a ground for a petition
under Section 68.

False Material Representation

Section 78 of the Omnibus Election Code states that a certificate of candidacy may be denied or
cancelled when there is false material representation of the contents of the certificate of
candidacy:

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. ‒ A verified petition
seeking to deny due course or to cancel a certificate of candidacy may be filed by the
person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false. The petition may be filed at any time not later than
twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after
due notice and hearing, not later than fifteen days before the election. (Emphasis supplied)

Section 74 of the Omnibus Election Code details the contents of the certificate of candidacy:

Sec. 74. Contents of certificate of candidacy. ‒ The certificate of candidacy shall state that the
person filing it is announcing his candidacy for the office stated therein and that he is eligible for
said office; if for Member of the Batasang Pambansa, the province, including its component cities,
highly urbanized city or district or sector which he seeks to represent; the political party to which he
belongs; civil status; his date of birth; residence; his post office address for all election purposes; his
profession or occupation; that he will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees
promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a
foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental
reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to
the best of his knowledge.

x x x x (Emphasis supplied)

A candidate for mayor in the 2010 local elections was thus required to provide 12 items of
information in the certificate of candidacy: name; nickname or stage name; gender; age; place of
22 

birth; political party that nominated the candidate; civil status; residence/address; profession or
occupation; post office address for election purposes; locality of which the candidate is a registered
voter; and period of residence in the Philippines before 10 May 2010. The candidate also certifies
four statements: a statement that the candidate is a natural born or naturalized Filipino citizen; a
statement that the candidate is not a permanent resident of, or immigrant to, a foreign country; a
statement that the candidate is eligible for the office he seeks election; and a statement of the
candidate’s allegiance to the Constitution of the Republic of the Philippines. The certificate of
23 

candidacy should also be under oath, and filed within the period prescribed by law.

The conviction of Lonzanida by final judgment, with the penalty of prisión mayor, disqualifies him
perpetually from holding any public office, or from being elected to any public office. This
perpetual disqualification took effect upon the finality of the judgment of conviction, before
Lonzanida filed his certificate of candidacy. The pertinent provisions of the Revised Penal Code
are as follows:

Art. 27. Reclusion perpetua. — x x x

Prisión mayor and temporary disqualification. — The duration of the penalties of prisión
mayor and temporary disqualification shall be from six years and one day to twelve years,
except when the penalty of disqualification is imposed as an accessory penalty, in which
case, it shall be that of the principal penalty.

xxxx

Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. — The penalties
of perpetual or temporary absolute disqualification for public office shall produce the following
effects:

1. The deprivation of the public offices and employments which the offender may have held,
even if conferred by popular election.

2. The deprivation of the right to vote in any election for any popular elective office or to be
elected to such office.

3. The disqualification for the offices or public employments and for the exercise of any of
the rights mentioned.

In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of

this article shall last during the term of the sentence.

4. The loss of all rights to retirement pay or other pension for any office formerly held.

Art. 31. Effects of the penalties of perpetual or temporary special disqualification. — The penalties
of perpetual or temporary special disqualification for public office, profession or calling shall
produce the following effects:

1. The deprivation of the office, employment, profession or calling affected.

2. The disqualification for holding similar offices or employments either perpetually or during the term
of the sentence, according to the extent of such disqualification.

Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of
the right of suffrage. — The perpetual or temporary special disqualification for the exercise of
the right of suffrage shall deprive the offender perpetually or during the term of the sentence,
according to the nature of said penalty, of the right to vote in any popular election for any public
office or to be elected to such office. Moreover, the offender shall not be permitted to hold any
public office during the period of his disqualification.

Art. 42. Prisión mayor — Its accessory penalties. — The penalty of prision mayor shall carry with it
that of temporary absolute disqualification and that of perpetual special disqualification from
the right of suffrage which the offender shall suffer although pardoned as to the principal penalty,
unless the same shall have been expressly remitted in the pardon. (Emphasis supplied)
The penalty of prisión mayor automatically carries with it, by operation of law, the accessory
24 

penalties of temporary absolute disqualification and perpetual special disqualification. Under

Article 30 of the Revised Penal Code, temporary absolute disqualification produces the effect of
"deprivation of the right to vote in any election for any popular elective office or to be elected to such
office.” The duration of temporary absolute disqualification is the same as that of the principal
penalty of prisión mayor. On the other hand, under Article 32 of the Revised Penal Code, perpetual
special disqualification means that "the offender shall not be permitted to hold any public
office during the period of his disqualification,” which is perpetually. Both temporary absolute
disqualification and perpetual special disqualification constitute ineligibilities to hold elective public
office. A person suffering from these ineligibilities is ineligible to run for elective public office,
and commits a false material representation if he states in his certificate of candidacy that he
is eligible to so run.

In Lacuna v. Abes (Lacuna), the Court, speaking through Justice J.B.L. Reyes, explained the import
25 

of the accessory penalty of perpetual special disqualification:

On the first defense of respondent-appellee Abes, it must be remembered that appellee’s conviction
of a crime penalized with prision mayor which carried the accessory penalties of temporary absolute
disqualification and perpetual special disqualification from the right of suffrage (Article 42, Revised
Penal Code); and Section 99 of the Revised Election Code disqualifies a person from voting if he
had been sentenced by final judgment to suffer one year or more of imprisonment.

The accessory penalty of temporary absolute disqualification disqualifies the convict for public office
and for the right to vote, such disqualification to last only during the term of the sentence (Article 27,
paragraph 3, & Article 30, Revised Penal Code) that, in the case of Abes, would have expired on 13
October 1961.

But this does not hold true with respect to the other accessory penalty of perpetual special
disqualification for the exercise of the right of suffrage. This accessory penalty deprives the convict
of the right to vote or to be elected to or hold public office perpetually, as distinguished from
temporary special disqualification, which lasts during the term of the sentence. Article 32, Revised
Penal Code, provides:

Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of
the right of suffrage. — The perpetual or temporary special disqualification for the exercise of the
right of suffrage shall deprive the offender perpetually or during the term of the sentence, according
to the nature of said penalty, of the right to vote in any popular election for any public office or to be
elected to such office. Moreover, the offender shall not be permitted to hold any public office during
the period of disqualification.

The word "perpetually" and the phrase "during the term of the sentence" should be applied
distributively to their respective antecedents; thus, the word "perpetually" refers to the perpetual kind
of special disqualification, while the phrase "during the term of the sentence" refers to the temporary
special disqualification. The duration between the perpetual and the temporary (both special) are
necessarily different because the provision, instead of merging their durations into one period, states
that such duration is "according to the nature of said penalty" — which means according to whether
the penalty is the perpetual or the temporary special disqualification. (Emphasis supplied)

Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives

the convict of the right to vote or to be elected to or hold public office perpetually.”
The accessory penalty of perpetual special disqualification takes effect immediately once the
judgment of conviction becomes final. The effectivity of this accessory penalty does not depend
on the duration of the principal penalty, or on whether the convict serves his jail sentence or not. The
last sentence of Article 32 states that "the offender shall not be permitted to hold any public office
during the period of his [perpetual special] disqualification." Once the judgment of conviction
becomes final, it is immediately executory. Any public office that the convict may be holding at the
time of his conviction becomes vacant upon finality of the judgment, and the convict becomes
ineligible to run for any elective public office perpetually. In the case of Lonzanida, he
became ineligible perpetually to hold, or to run for, any elective public office from the time
the judgment of conviction against him became final. The judgment of conviction was
promulgated on 20 July 2009 and became final on 23 October 2009, before Lonzanida filed
his certificate of candidacy on 1 December 2009 .  26

Perpetual special disqualification is a ground for a petition under Section 78 of the Omnibus
Election Code because this accessory penalty is an ineligibility, which means that the convict is not
eligible to run for public office, contrary to the statement that Section 74 requires him to state under
oath in his certificate of candidacy. As this Court held in Fermin v. Commission on Elections, the 27 

false material representation may refer to "qualifications or eligibility.” One who suffers from
perpetual special disqualification is ineligible to run for public office. If a person suffering from
perpetual special disqualification files a certificate of candidacy stating under oath that "he is eligible
to run for (public) office," as expressly required under Section 74, then he clearly makes a false
material representation that is a ground for a petition under Section 78. As this Court explained
in Fermin:

Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on
the lack of qualifications but on a finding that the candidate made a material representation that is
false, which may relate to the qualifications required of the public office he/she is running
for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office
he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional
and statutory provisions on qualifications or eligibility for public office. If the candidate
subsequently states a material representation in the CoC that is false, the COMELEC,
following the law, is empowered to deny due course to or cancel such certificate. Indeed, the
Court has already likened a proceeding under Section 78 to a quo warranto proceeding under
Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with
the distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a
petition for quo warranto is filed after proclamation of the winning candidate. (Emphasis supplied)
28

Latasa, Rivera and Ong:

The Three-Term Limit Rule as a Ground for Ineligibility

Section 74 requires the candidate to certify that he is eligible for the public office he seeks
election. Thus, Section 74 states that "the certificate of candidacy shall state that the person
filing x x x is eligible for said office.” The three-term limit rule, enacted to prevent the
establishment of political dynasties and to enhance the electorate’s freedom of choice, is found both
29 

in the Constitution and the law. After being elected and serving for three consecutive terms, an
30  31 

elective local official cannot seek immediate reelection for the same office in the next regular
election because he is ineligible. One who has an ineligibility to run for elective public office is not
32 

"eligible for [the] office." As used in Section 74, the word "eligible" means having the right to run for
33 

elective public office, that is, having all the qualifications and none of the ineligibilities to run for the
public office.
In Latasa v. Commission on Elections, petitioner Arsenio Latasa was elected mayor of the
34 

Municipality of Digos, Davao del Sur in 1992, 1995, and 1998. The Municipality of Digos was
converted into the City of Digos during Latasa’s third term. Latasa filed his certificate of candidacy
for city mayor for the 2001 elections. Romeo Sunga, Latasa’s opponent, filed before the COMELEC
a "petition to deny due course, cancel certificate of candidacy and/or disqualification" under Section
78 on the ground that Latasa falsely represented in his certificate of candidacy that he is eligible to
run as mayor of Digos City. Latasa argued that he did not make any false representation. In his
certificate of candidacy, Latasa inserted a footnote after the phrase "I am eligible" and indicated
"*Having served three (3) term[s] as municipal mayor and now running for the first time as city
mayor." The COMELEC First Division cancelled Latasa’s certificate of candidacy for violation of the
three-term limit rule but not for false material representation. This Court affirmed the COMELEC En
Banc’s denial of Latasa’s motion for reconsideration.

We cancelled Marino Morales’ certificate of candidacy in Rivera III v. Commission on

Elections (Rivera). We held that Morales exceeded the maximum three-term limit, having been
35 

elected and served as Mayor of Mabalacat for four consecutive terms (1995 to 1998, 1998 to 2001,
2001 to 2004, and 2004 to 2007). We declared him ineligible as a candidate for the same position for
the 2007 to 2010 term. Although we did not explicitly rule that Morales’ violation of the three-term
limit rule constituted false material representation, we nonetheless granted the petition to cancel
Morales’ certificate of candidacy under Section 78. We also affirmed the cancellation of Francis
Ong’s certificate of candidacy in Ong v. Alegre, where the "petition to disqualify, deny due course
36 

and cancel" Ong’s certificate of candidacy under Section 78 was predicated on the violation of the
three-term limit rule.

Loong, Fermin and Munder:

When Possession of a Disqualifying Condition

is Not a Ground for a Petition for Disqualification

It is obvious from a reading of the laws and jurisprudence that there is an overlap in the grounds for
eligibility and ineligibility vis-à-vis qualifications and disqualifications. For example, a candidate may
represent that he is a resident of a particular Philippine locality when he is actually a permanent
37 

resident of another country. In cases of such overlap, the petitioner should not be constrained in his
38 

choice of remedy when the Omnibus Election Code explicitly makes available multiple
remedies. Section 78 allows the filing of a petition to deny due course or to cancel a certificate of
39 

candidacy before the election, while Section 253 allows the filing of a petition for quo warranto after
the election. Despite the overlap of the grounds, one should not confuse a petition for disqualification
using grounds enumerated in Section 68 with a petition to deny due course or to cancel a certificate
of candidacy under Section 78.

The distinction between a petition under Section 68 and a petition under Section 78 was discussed
in Loong v. Commission on Elections with respect to the applicable prescriptive period. Respondent
40 

Nur Hussein Ututalum filed a petition under Section 78 to disqualify petitioner Benjamin Loong for
the office of Regional Vice-Governor of the Autonomous Government of Muslim Mindanao for false
representation as to his age. The petition was filed 16 days after the election, and clearly beyond the
prescribed 25 day period from the last day of filing certificates of candidacy. This Court ruled that
Ututalum’s petition was one based on false representation under Section 78, and not for
disqualification under Section 68. Hence, the 25-day prescriptive period provided in Section 78
should be strictly applied. We recognized the possible gap in the law:

It is true that the discovery of false representation as to material facts required to be stated in a
certificate of candidacy, under Section 74 of the Code, may be made only after the lapse of the 25-
day period prescribed by Section 78 of the Code, through no fault of the person who discovers such
misrepresentations and who would want the disqualification of the candidate committing the
misrepresentations. It would seem, therefore, that there could indeed be a gap between the time of
the discovery of the misrepresentation, (when the discovery is made after the 25-day period under
Sec. 78 of the Code has lapsed) and the time when the proclamation of the results of the election is
made. During this so-called "gap" the would-be petitioner (who would seek the disqualification of the
candidate) is left with nothing to do except to wait for the proclamation of the results, so that he could
avail of a remedy against the misrepresenting candidate, that is, by filing a petition for quo warranto
against him. Respondent Commission sees this "gap" in what it calls a procedural gap which,
according to it, is unnecessary and should be remedied.

At the same time, it can not be denied that it is the purpose and intent of the legislative branch of the
government to fix a definite time within which petitions of protests related to eligibility of candidates
for elective offices must be filed, as seen in Sections 78 and 253 of the Code. Respondent
Commission may have seen the need to remedy this so-called “procedural gap", but it is not for it to
prescribe what the law does not provide, its function not being legislative. The question of whether
the time to file these petitions or protests is too short or ineffective is one for the Legislature to
decide and remedy. 41

In Fermin v. Commission on Elections, the issue of a candidate’s possession of the required one-
42 

year residency requirement was raised in a petition for disqualification under Section 68 instead of a
petition to deny due course or to cancel a certificate of candidacy under Section 78. Despite the
question of the one-year residency being a proper ground under Section 78, Dilangalen, the
petitioner before the COMELEC in Fermin, relied on Section 5(C)(1) and 5(C)(3)(a)(4) of COMELEC
Resolution No. 7800 and filed the petition under Section 68. In Fermin, we ruled that "a COMELEC
43 

rule or resolution cannot supplant or vary legislative enactments that distinguish the grounds for
disqualification from those of ineligibility, and the appropriate proceedings to raise the said
grounds." A petition for disqualification can only be premised on a ground specified in Section 12 or
44 

68 of the Omnibus Election Code or Section 40 of the Local Government Code. Thus, a petition
questioning a candidate’s possession of the required one-year residency requirement, as
distinguished from permanent residency or immigrant status in a foreign country, should be filed
under Section 78, and a petition under Section 68 is the wrong remedy.

In Munder v. Commission on Elections, petitioner Alfais Munder filed a certificate of candidacy for
45 

Mayor of Bubong, Lanao del Sur on 26 November 2009. Respondent Atty. Tago Sarip filed a petition
for Munder’s disqualification on 13 April 2010. Sarip claimed that Munder misrepresented that he
was a registered voter of Bubong, Lanao del Sur, and that he was eligible to register as a voter in
2003 even though he was not yet 18 years of age at the time of the voter’s registration. Moreover,
Munder’s certificate of candidacy was not accomplished in full as he failed to indicate his precinct
and did not affix his thumb-mark. The COMELEC Second Division dismissed Sarip’s petition and
declared that his grounds are not grounds for disqualification under Section 68 but for denial or
cancellation of Munder’s certificate of candidacy under Section 78. Sarip’s petition was filed out of
time as he had only 25 days after the filing of Munder’s certificate of candidacy, or until 21 December
2009, within which to file his petition.

The COMELEC En Banc, however, disqualified Munder. In reversing the COMELEC Second
Division, the COMELEC En Banc did not rule on the propriety of Sarip’s remedy but focused on the
question of whether Munder was a registered voter of Bubong, Lanao del Sur. This Court reinstated
the COMELEC Second Division’s resolution. This Court ruled that the ground raised in the petition,
lack of registration as voter in the locality where he was running as a candidate, is inappropriate for a
petition for disqualification. We further declared that with our ruling in Fermin, we had already
rejected the claim that lack of substantive qualifications of a candidate is a ground for a petition for
disqualification under Section 68. The only substantive qualification the absence of which is a
ground for a petition under Section 68 is the candidate’s permanent residency or immigrant status in
a foreign country.

The dissenting opinions place the violation of the three-term limit rule as a disqualification under
Section 68 as the violation allegedly is "a status, circumstance or condition which bars him from
running for public office despite the possession of all the qualifications under Section 39 of the [Local
Government Code]." In so holding the dissenting opinions write in the law what is not found in the
law. Section 68 is explicit as to the proper grounds for disqualification under said Section. The
grounds for filing a petition for disqualification under Section 68 are specifically enumerated in said
Section. However, contrary to the specific enumeration in Section 68 and contrary to prevailing
jurisprudence, the dissenting opinions add to the enumerated grounds the violation of the three-term
limit rule and falsification under the Revised Penal Code, which are obviously not found in the
enumeration in Section 68.

The dissenting opinions equate Lonzanida’s possession of a disqualifying condition (violation of the
three-term limit rule) with the grounds for disqualification under Section 68. Section 68 is explicit as
to the proper grounds for disqualification: the commission of specific prohibited acts under the
Omnibus Election Code and possession of a permanent residency or immigrant status in a foreign
country. Any other false representation regarding a material fact should be filed under Section 78,
specifically under the candidate’s certification of his eligibility. In rejecting a violation of the three-
term limit as a condition for eligibility, the dissenting opinions resort to judicial legislation, ignoring
the verba legis doctrine and well-established jurisprudence on this very issue.

In a certificate of candidacy, the candidate is asked to certify under oath his eligibility, and thus
qualification, to the office he seeks election. Even though the certificate of candidacy does not
specifically ask the candidate for the number of terms elected and served in an elective position,
such fact is material in determining a candidate’s eligibility, and thus qualification for the office.
Election to and service of the same local elective position for three consecutive terms renders a
candidate ineligible from running for the same position in the succeeding elections. Lonzanida
misrepresented his eligibility because he knew full well that he had been elected, and had served, as
mayor of San Antonio, Zambales for more than three consecutive terms yet he still certified that he
was eligible to run for mayor for the next succeeding term. Thus, Lonzanida’s representation that he
was eligible for the office that he sought election constitutes false material representation as to his
qualification or eligibility for the office.

Legal Duty of COMELEC

to Enforce Perpetual Special Disqualification

Even without a petition under Section 78 of the Omnibus Election Code, the COMELEC is under a
legal duty to cancel the certificate of candidacy of anyone suffering from perpetual special
disqualification to run for public office by virtue of a final judgment of conviction. The final judgment
of conviction is judicial notice to the COMELEC of the disqualification of the convict from running for
public office. The law itself bars the convict from running for public office, and the disqualification is
part of the final judgment of conviction. The final judgment of the court is addressed not only to the
Executive branch, but also to other government agencies tasked to implement the final judgment
under the law.

Whether or not the COMELEC is expressly mentioned in the judgment to implement the
disqualification, it is assumed that the portion of the final judgment on disqualification to run for
elective public office is addressed to the COMELEC because under the Constitution the COMELEC
is duty bound to "enforce and administer all laws and regulations relative to the conduct of an
election." The disqualification of a convict to run for elective public office under the Revised Penal
46 

Code, as affirmed by final judgment of a competent court, is part of the enforcement and

administration of "all the laws" relating to the conduct of elections.

Effect of a Void Certificate of Candidacy

A cancelled certificate of candidacy void ab initio cannot give rise to a valid candidacy, and much
less to valid votes. We quote from the COMELEC’s 2 February 2011 Resolution with approval:
47 

As early as February 18, 2010, the Commission speaking through the Second Division had already
ordered the cancellation of Lonzanida’s certificate of candidacy, and had stricken off his name in the
list of official candidates for the mayoralty post of San Antonio, Zambales. Thereafter, the
Commission En Banc in its resolution dated August 11, 2010 unanimously affirmed the resolution
disqualifying Lonzanida. Our findings were likewise sustained by the Supreme Court no less. The
disqualification of Lonzanida is not simply anchored on one ground. On the contrary, it was
emphasized in our En Banc resolution that Lonzanida’s disqualification is two-pronged: first, he
violated the constitutional fiat on the three-term limit; and second, as early as December 1, 2009, he
is known to have been convicted by final judgment for ten (10) counts of Falsification under Article
171 of the Revised Penal Code. In other words, on election day, respondent Lonzanida’s
disqualification is notoriously known in fact and in law. Ergo, since respondent Lonzanida was never
a candidate for the position of Mayor [of] San Antonio, Zambales, the votes cast for him should be
considered stray votes. Consequently, Intervenor Antipolo, who remains as the sole qualified
candidate for the mayoralty post and obtained the highest number of votes, should now be
proclaimed as the duly elected Mayor of San Antonio, Zambales. (Boldfacing and underscoring in
48 

the original; italicization supplied)

Lonzanida's certificate of candidacy was cancelled because he was ineligible or not qualified to run
for Mayor. Whether his certificate of candidacy is cancelled before or after the elections is immaterial
1âwphi1

because the cancellation on such ground means he was never a candidate from the very beginning,
his certificate of candidacy being void ab initio. There was only one qualified candidate for Mayor in
the May 201 0 elections - Anti polo, who therefore received the highest number of votes.

WHEREFORE, the petition is DISMISSED. The Resolution dated 2 February 2011 and the Order
dated 12 January 2011 of the COMELEC En Bane in SPA No. 09-158 (DC) are AFFIRMED. The
COMELEC En Bane is DIRECTED to constitute a Special Municipal Board of Canvassers to
proclaim Estela D. Antipolo as the duly elected Mayor of San Antonio, Zambales. Petitioner Efren
Racel Aratea is ORDERED to cease and desist from discharging the functions of the Office of the
Mayor of San Antonio, Zambales.

SO ORDERED.

16
G.R. No. 192221               November 13, 2012

CASIMIRA S. DELA CRUZ, Petitioner, 

vs.
COMMISSION ON ELECTIONS and JOHN LLOYD M. PACETE, Respondents.

DECISION
VILLARAMA, JR., J.:

With the adoption of automated election system in our country, one of the emerging concerns is the
application of the law on nuisance candidates under a new voting system wherein voters indicate
their choice of candidates by shading the oval corresponding to the name of their chosen candidate
printed on the ballots, instead of writing the candidate's name on the appropriate space provided in
the ballots as in previous manual elections. If the name of a nuisance candidate whose certificate of
candidacy had been cancelled by the Commission on Elections (COMELEC) was still included or
printed in the official ballots on election day,should the votes cast for such nuisance candidate be
considered stray or counted in favor of the bona fide candidate?

The Case

In this petition for certiorari with prayer for injunctive relief/s under Rule 65 in conjunction with
Section 2, Rule 64 of the 1997 Rules of Civil Procedure, as amended, filed on May 31, 2010,
Casimira S. Dela Cruz (petitioner) assails COMELEC Resolution No. 8844 considering as stray the
1 

votes cast in favor of certain candidates who were either disqualified or whose COCs had been
cancelled/denied due course but whose names still appeared in the official ballots or certified lists of
candidates for the May 10, 2010 elections.

Petitioner prays for the following reliefs:

1. Upon the filing of the instant Petition, a Temporary Restraining Order and/or Writ of
Preliminary Injunction be issued enjoining the taking of oath and assumption into office of
Private Respondent John Lloyd Pacete as Vice-Mayor of the Municipality of Bugasong;

2. After the Petition is submitted for resolution, a decision be rendered granting the instant
Petition and:

(a) declaring as null and void the portion of COMELEC Resolution No. 8844
considering as stray the votes cast in favor of the disqualified nuisance candidate
Aurelio N. Dela Cruz;

(b) ordering that the votes cast in favor of Aurelio N. Dela Cruz be counted and tallied
in favor of Petitioner Casimira S. Dela Cruz pursuant to COMELEC Resolution No.
4116; and

(c) requiring the Regional Trial Court of the Province of Antique where the
Petitioner’s Election Protest is pending to proclaim as Vice-Mayor of the Municipality
of Bugasong the candidate who obtained the highest number of votes after the votes
in favor of nuisance candidate Aurelio N. Dela Cruz is counted and tallied to the
votes garnered by Petitioner Casimira S. Dela Cruz.

3. Permanently enjoining the taking of oath and assumption into office of Private Respondent
if Petitioner is proclaimed as the Vice-Mayor of the Municipality of Bugasong, Province of
Antique.

Other just and equitable reliefs are likewise prayed for. 2

Factual Antecedents
In the 2001, 2004 and 2007 elections, petitioner ran for and was elected member of the
Sangguniang Bayan(SB) of Bugasong, Antique. On November 28, 2009, petitioner filed her
certificate of candidacy for the position of Vice-Mayor of the Municipality of Bugasong, Province of
3 

Antique under the ticket of the National People’s Coalition (NPC). Subsequently, Aurelio N. Dela
Cruz (Aurelio) also filed a certificate of candidacy for the same position.
4 

On December 6, 2009, petitioner filed a petition to declare Aurelio a nuisance candidate on the
5 

ground that he filed his certificate of candidacy for the vice-mayoralty position to put the election
process in mockery and to cause confusion among voters due to the similarity of his surname with
petitioner’s surname. Petitioner emphasized that she is considered a very strong candidate for the
said position having been elected as member of the SB for three consecutive terms under the ticket
of the NPC and obtained the fifth (2001), fourth (2004) and third (2007) highest number of votes. In
contrast, Aurelio is an unknown in the political scene with no prior political experience as an elective
official and no political party membership. Being a retiree and having no known business, Aurelio
has no sufficient source of income but since the 2007 elections petitioner’s opponents have been
prodding him to run for the same position as petitioner in order to sow confusion and thwart the will
of the voters of Bugasong. Petitioner further cited Aurelio’s miserable showing in the previous local
elections when he ran and garnered only 126 and 6 votes forthe positionsof SB member (May 2007)
and barangay captain of Barangay Maray, Bugasong (November 2007), respectively. Citing Bautista
v. COMELEC, petitioner asserted that these circumstances clearly demonstrate Aurelio’s lack of a
6 

bona fide intention and capability to run for the position of Vice-Mayor, thus preventing a faithful
determination of the true will of the electorate.

On January 29, 2010, the COMELEC First Division issued a Resolution declaring Aurelio as a
7 

nuisance candidate and cancelling his certificate of candidacy for the vice-mayoralty position in
Bugasong.

Despite the declaration of Aurelio as a nuisance candidate, however, his name was not deleted in
the Certified List of Candidates and Official Sample Ballot issued by the COMELEC. The names of
8  9 

the candidates for Vice-Mayor, including Aurelio and respondent John Lloyd M. Pacete, appeared on
the Official Sample Ballot as follows:

VICE-MAYOR
Vote for not more than 1

O 1. DELA CRUZ, O 2. DELA CRUZ, O 3. PACETE, John Lloyd  
Aurelio N. Casimira M.
"REL" (IND.) S. "MIRAY" (NPC) "BINGBING" (NP)

Consequently, petitioner filed on March 23, 2010, an Urgent Ex-Parte Omnibus Motion praying,
10 

among other things, that COMELEC issue an order directing the deletion of Aurelio’s name from the
Official List of Candidates for the position of Vice-Mayor, the Official Ballots, and other election
paraphernalia to be used in Bugasong for the May 2010 elections. She also prayed that in the event
Aurelio’s name can no longer be deleted in time for the May 10, 2010 elections, the COMELEC
issue an order directing that all votes cast in favor of Aurelio be credited in her favor, in accordance
with COMELEC Resolution No. 4116 dated May 7, 2001.

On May 1, 2010, the COMELEC En Banc issued Resolution No. 8844 listing the names of
11 

disqualified candidates, including Aurelio, and disposing as follows:

NOW THEREFORE, the Commission RESOLVED, as it hereby RESOLVES, as follows:

 1. to delete the names of the foregoing candidates from the certified list of candidates; and

2. to consider stray the votes of said candidates, if voted upon. (Emphasis supplied)
12 

On May 10, 2010, the first automated national and local elections proceeded as scheduled. Aurelio’s
name remained in the official ballots.

During the canvassing of the votes by the Municipal Board of Canvassers (MBOC) of Bugasong on
May 13, 2010, petitioner insisted that the votes cast in favor of Aurelio be counted in her favor.
However, the MBOC refused, citing Resolution No. 8844. The Statement of Votes by Precinct for
Vice-Mayor of Antique-Bugasong showed the following results of the voting:
13 

TOTAL RANK

DELA CRUZ, AURELIO N. 532 3

DELA CRUZ, CASIMIRA S. 6389 2

PACETE, JOHN LLOYD M. 6428 1

Consequently, on May 13, 2010, private respondent John Lloyd M. Pacete was proclaimed Vice-
Mayor of Bugasong by the MBOC of Bugasong. 14

On May 21, 2010, petitioner filed with the Regional Trial Court of the Province of Antique an election
protest praying for (1) the tallying in her favor of the 532 votes cast for Aurelio; (2) the annulment of
respondent Pacete’s proclamation as Vice-Mayor of Bugasong; and (3) her proclamation as winning
candidate for the position of Vice-Mayor of Bugasong.

Petitioner’s Arguments

Considering that private respondent won by a margin of only thirty-nine (39) votes over petitioner’s
6,389 votes, petitioner contends that she would have clearly won the elections for Vice-Mayor of
Bugasong had the MBOC properly tallied or added the votes cast for Aurelio to her votes. Thus,
petitioner insists she would have garnered a total of 6,921 votes as against the 6,428 votes of
private respondent. By issuing a directive to consider the votes cast for Aurelio as stray votes
instead of counting the same in favor of petitioner in accordance with COMELEC Resolution No.
4116, the COMELEC’s First Division gravely abused its discretion.

Petitioner argues that Resolution No. 8844 violates her constitutional right to equal protection of the
laws because there is no substantial difference between the previous manual elections and the
automated elections conducted in 2010 to justify non-observance of Resolution No. 4116 issued in
2001,particularly on the matter of votes cast for a candidate who was declared a nuisance candidate
in a final judgment where such nuisance candidate has the same name with that of the bona fide
candidate. Moreover, in contrast to the assailed resolution, COMELEC Resolution No. 4116 properly
recognized the substantial distinctions between and among (a) disqualified candidates, (b) nuisance
candidates whose names are similar to those of the bona fide candidates, (c) nuisance candidates
who do not have similar names with those of the bona fide candidates, and (d) candidates who had
voluntarily withdrawn their certificates of candidacy. As a result of the failure of the COMELEC’s First
Division to make these important distinctions when it issued Resolution No. 8844 that applies to
disqualified candidates, nuisance candidates and all other candidates whose certificates of
candidacy had been cancelled or denied course, petitioner’s right to due process was clearly
violated, and only made possible the very evil that is sought to be corrected by the former rule not to
consider the votes cast for the nuisance candidate as stray but count them in favor of the bona fide
candidate.

Respondents’ Arguments

COMELEC maintains that there is a presumption of validity with respect to its exercise of
supervisory or regulatory authority in the conduct of elections. Also, the time-honored rule is that a
statute is presumed to be constitutional and that the party assailing it must discharge the burden of
clearly and convincingly proving its invalidity. Thus, to strike down a law as unconstitutional, there
must be a clear and unequivocal showing that what the law prohibits, the statute permits. In this
case, petitioner miserably failed to prove a clear breach of the Constitution; she merely invokes a
violation of the equal protection clause and due process of law without any basis.

On the claim of equal protection violation, COMELEC contends that there is a substantial distinction
between a manual election where Resolution No. 4116 applies, and an automated election governed
by Resolution No. 8844. While the votes for the nuisance candidate were not considered stray but
counted in favor of the bona fide candidate, this is no longer the rule for automated elections.
COMELEC cites the following factors which changed the previous rule: (1) the official ballots in
automated elections now contain the full names of the official candidates so that when a voter
shaded an oval, it was presumed that he carefully read the name adjacent to it and voted for that
candidate, regardless of whether said candidate was later declared disqualified or nuisance; (2)
since the names of the candidates are clearly printed on the ballots, unlike in manual elections when
these were only listed in a separate sheet of paper attached to the ballot secrecy folder, the voter’s
intention is clearly to vote for the candidate corresponding to the shaded oval; (3) the rules on
appreciation of ballots under Section 211, Article XVIII of the Omnibus Election Code apply only to
elections where the names of candidates are handwritten in the ballots; and (4) with the use of the
automated election system where the counting of votes is delegated to the Precinct Count Optical
Scan (PCOS) machines, pre-proclamation controversies, including complaints regarding the
appreciation of ballots and allegations of misreading the names of the candidates written, were flaws
which the automation rectified. Aside from being germane to the purpose of our election laws,
Resolution No. 8844 is not limited to existing conditions as it is applicable to all persons of the same
class even in succeeding elections, and covered all disqualified and nuisance candidates without
distinction.

Lastly, COMELEC asserts there is no violation of the right to due process. For public office is not a
property right and no one has a vested right to any public office.

On his part, private respondent Pacete asserts that petitioner cannot validly claim the votes cast for
Aurelio in view of the rule provided in Section 211 (24) of Batas Pambansa Blg. 881, which cannot
be supplanted by Resolution No. 4116. He also cites an annotation on election law, invoking this
15 

Court’s ruling in Kare v. COMELEC that the aforesaid provision when read together with Section 72,
16 

are understood to mean that "any vote cast in favor of a candidate, whose disqualification has
already been declared final regardless of the ground therefor, shall be considered stray."

Private respondent also points out the fact that on May 4, 2010, COMELEC caused the publication
of Resolution No. 8844 in two newspapers of general circulation in the country. There was thus an
earnest effort on the part of COMELEC to disseminate the information, especially to the voters in
Bugasong, Antique, that the name of Aurelio was printed on the official ballots as one of the
candidates for Vice-Mayor. Said voters were amply forewarned about the status of Aurelio’s
candidacy and the consequences that will obtain should he still be voted for. Additionally, the
petitioner and Aurelio bear different first names, female and male, respectively; petitioner and her
political party engaged in a massive voter education during the campaign period, emphasizing to her
supporters that she was given the corresponding number ("2") in the official ballots, and the voters
should be very circumspect in filling up their ballots because in case of error in filling up the same,
they will not be given replacement ballots. As to the Judicial Affidavits of those who voted for
petitioner attesting to the fact of mistakenly shading the oval beside the name of Aurelio in the
ballots, which was attached to the petition, petitioner in effect would want this Court to sit in
judgment as trier of facts.

Ruling of the Court

The petition is meritorious.

The only question that may be raised in a petition for certiorari under Section 2, Rule 64 of the
Revised Rules of Court is whether or not the COMELEC acted with grave abuse of discretion
amounting to lack or excess of jurisdiction. For a petition for certiorari to prosper, there must be a
17 

clear showing of caprice and arbitrariness in the exercise of discretion. There is also grave abuse of
discretion when there is a contravention of the Constitution, the law or existing jurisprudence. 18

COMELEC being a specialized agency tasked with the supervision of elections all over the country,
its factual findings, conclusions, rulings and decisions rendered on matters falling within its
competence shall not be interfered with by this Court in the absence of grave abuse of discretion or
any jurisdictional infirmity or error of law. In this case, Resolution No. 8844 issued by COMELEC
19 

clearly contravened existing law and jurisprudence on the legal effect of declaration of a candidate
as a nuisance candidate, especially in the case of nuisance candidates who have the same
surnames as those of bona fide candidates.

Private respondent argues that no grave abuse of discretion can be imputed on COMELEC when it
issued Resolution No. 8844 which is simply consistent with the rule laid down in Section 211 (24),
Article XVIII and Section 72, Article IX of Batas Pambansa Blg. 881, otherwise known as the
Omnibus Election Code (OEC). Said provisions state:

SEC. 72. Effects of Disqualification cases and priority. -- The Commission and the courts shall give
priority to cases of disqualification by reason of violation of this Act to the end that a final decision
shall be rendered not later than seven days before the election in which the disqualification is
sought.Any candidate who has been declared by final judgment to be disqualified shall not be voted
for, and the votes cast for him shall not be counted. Nevertheless, 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, his violation of the provisions of the preceding sections
shall not prevent his proclamation and assumption of office.

SEC. 211. Rules for the appreciation of ballots. – In the reading and appreciation of ballots, every
ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection. The
board of election inspectors shall observe the following rules, bearing in mind that the object of the
election is to obtain the expression of the voter’s will:

xxxx

24. Any vote cast in favor of a candidate who has been disqualified by final judgment shall be
considered as stray and shall not be counted but it shall not invalidate the ballot.
Private respondent cites the case of Kare v. COMELEC where this Court, construing the above
20 

provisions, stated:

According to the Comelec, Section 211 (24) of the OEC is a clear legislative policy that is contrary to
the rule that the second placer cannot be declared winner.

We disagree.

The provision that served as the basis of Comelec’s Decision to declare the second placer as winner
in the mayoral race should be read in relation with other provisions of the OEC. Section 72 thereof,
as amended by RA 6646, provides as follows:

xxxx

When read together,these provisions are understood to mean that any vote cast in favor of a
candidate, whose disqualification has already been declared final regardless of the ground therefor,
shall be considered stray. The Comelec misconstrued this provision by limiting it only to
disqualification by conviction in a final judgment.

Obviously, the disqualification of a candidate is not only by conviction in a final judgment; the law
lists other grounds for disqualification. It escapes us why the Comelec insists that Section 211(24) of
the OEC is strictly for those convicted by a final judgment. Such an interpretation is clearly
inconsistent with the other provisions of the election code. (Emphasis supplied; italics not ours)
21 

Private respondent thus suggests that regardless of the ground for disqualification, the votes cast for
the disqualified candidate should result in considering the votes cast for him as stray as explicitly
mandated by Section 211(24) in relation to Section 72 of the OEC.

We disagree.

It bears to stress that Sections 211 (24) and 72 applies to all disqualification cases and not to
petitions to cancel or deny due course to a certificate of candidacy such as Sections 69 (nuisance
candidates) and 78 (material representation shown to be false). Notably, such facts indicating that a
certificate of candidacy has been filed "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
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" are not among those grounds enumerated in Section
68 (giving money or material consideration to influence or corrupt voters or public officials performing
electoral functions, election campaign overspending and soliciting, receiving or making prohibited
contributions) of the OEC or Section 40 of Republic Act No. 7160 (Local Government Code of
22 

1991).

In Fermin v. COMELEC, this Court distinguished a petition for disqualification under Section 68 and
23 

a petition to cancel or deny due course to a certificate of candidacy (COC) under Section 78. Said
proceedings are governed by different rules and have distinct outcomes.

At this point, we must stress that a "Section 78" petition ought not to be interchanged or confused
with a "Section 68" petition. They are different remedies, based on different grounds, and resulting in
different eventualities. Private respondent’s insistence, therefore, that the petition it filed before the
COMELEC in SPA No. 07-372 is in the nature of a disqualification case under Section 68, as it is in
fact captioned a "Petition for Disqualification," does not persuade the Court.

xxxx

To emphasize, a petition for disqualification, on the one hand, can be premised on Section 12 or 68
of the OEC, or Section 40 of the LGC. On the other hand, a petition to deny due course to or cancel
a CoC can only be grounded on a statement of a material representation in the said certificate that is
false. The petitions also have different effects. While a person who is disqualified under Section 68 is
merely prohibited to continue as a candidate, the person whose certificate is cancelled or denied due
course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC. Thus, in
Miranda v. Abaya, this Court made the distinction that a candidate who is disqualified under Section
68 can validly be substituted under Section 77 of the OEC because he/she remains a candidate until
disqualified; but a person whose CoC has been denied due course or cancelled under Section 78
cannot be substituted because he/she is never considered a candidate. (Additional emphasis
24 

supplied)

Clearly, a petition to cancel or deny due course to a COC under Section 69 as in Section 78 cannot
be treated in the same manner as a petition to disqualify under Section 68 as what COMELEC did
when it applied the rule provided in Section 72 that the votes cast for a disqualified candidate be
considered stray, to those registered candidates whose COC’s had been cancelled or denied due
course. Strictly speaking, a cancelled certificate cannot give rise to a valid candidacy, and much less
to valid votes. Said votes cannot be counted in favor of the candidate whose COC was cancelled as
he/she is not treated as a candidate at all, as if he/she never filed a COC. But should these votes
cast for the candidate whose COC was cancelled or denied due course be considered stray?

COMELEC Resolution No. 4116 issued in relation to the finality of resolutions or decisions in special
action cases, provides:

This pertains to the finality of decisions or resolutions of the commission en banc or division,
particularly on special actions (disqualification cases).

special action cases refer to the following:

(a) petition to deny due course to a certificate of candidacy;

(b) petition to declare a candidate as a nuisance candidate;

(c) petition to disqualify a candidate; and

(d) petition to postpone or suspend an election.

Considering the foregoing and in order to guide field officials on the finality of decisions or
resolutions on special action cases (disqualification cases) the Commission, RESOLVES, as it is
hereby RESOLVED, as follows:

(1) the decision or resolution of the En Banc of the Commission on disqualification cases shall
become final and executory after five (5) days from its promulgation unless restrained by the
Supreme Court;

xxx
(4) the decision or resolution of the En Banc on nuisance candidates, particularly whether the
nuisance candidate has the same name as the bona fide candidate shall be immediately executory;

(5) the decision or resolution of a DIVISION on nuisance candidate, particularly where the nuisance
candidate has the same name as the bona fide candidate shall be immediately executory after the
lapse of five (5) days unless a motion for reconsideration is seasonably filed. In which case, the
votes cast shall not be considered stray but shall be counted and tallied for the bona fide candidate.

All resolutions, orders and rules inconsistent herewith are hereby modified or repealed. (Emphasis
supplied)25

The foregoing rule regarding the votes cast for a nuisance candidate declared as such under a final
judgment was applied by this Court in Bautista v. COMELEC where the name of the nuisance
26 

candidate Edwin Bautista (having the same surname with the bona fide candidate) still appeared on
the ballots on election day because while the COMELEC rendered its decision to cancel Edwin
Bautista’s COC on April 30, 1998, it denied his motion for reconsideration only on May 13, 1998 or
three days after the election. We said that the votes for candidates for mayor separately tallied on
orders of the COMELEC Chairman was for the purpose of later counting the votes and hence are
not really stray votes. These separate tallies actually made the will of the electorate determinable
despite the apparent confusion caused by a potential nuisance candidate.

But since the COMELEC decision declaring Edwin Bautista a nuisance candidate was not yet final
on electionday, this Court also considered those factual circumstances showing that the votes
mistakenly deemed as "stray votes" refer to only the legitimate candidate (petitioner Efren Bautista)
and could not have been intended for Edwin Bautista. We further noted that the voters had
constructive as well as actual knowledge of the action of the COMELEC delisting Edwin Bautista as
a candidate for mayor.

A stray vote is invalidated because there is no way of determining the real intention of the voter. This
is, however, not the situation in the case at bar. Significantly, it has also been established that by
virtue of newspaper releases and other forms of notification, the voters were informed of the
COMELEC’s decision to declare Edwin Bautista a nuisance candidate. 27

In the more recent case of Martinez III v. House of Representatives Electoral Tribunal, this Court
28 

likewise applied the rule in COMELEC Resolution No. 4116 not to consider the votes cast for a
nuisance candidate stray but to count them in favor of the bona fide candidate notwithstanding that
the decision to declare him as such was issued only after the elections.

As illustrated in Bautista, the pendency of proceedings against a nuisance candidate on election day
inevitably exposes the bona fide candidate to the confusion over the similarity of names that affects
the voter’s will and frustrates the same. It may be that the factual scenario in Bautista is not exactly
the same as in this case, mainly because the Comelec resolution declaring Edwin Bautista a
nuisance candidate was issued before and not after the elections, with the electorate having been
informed thereof through newspaper releases and other forms of notification on the day of election.
Undeniably, however, the adverse effect on the voter’s will was similarly present in this case, if not
worse, considering the substantial number of ballots with only "MARTINEZ" or

"C. MARTINEZ" written on the line for Representative - over five thousand - which have been
declared as stray votes, the invalidated ballots being more than sufficient to overcome private
respondent’s lead of only 453 votes after the recount. 29
Here, Aurelio was declared a nuisance candidate long before the May 10, 2010 elections. On the
basis of Resolution No. 4116, the votes cast for him should not have been considered stray but
counted in favor of petitioner. COMELEC’s changing of the rule on votes cast for nuisance
candidates resulted in the invalidation of significant number of votes and the loss of petitioner to
private respondent by a slim margin. We observed in Martinez:

Bautista upheld the basic rule that the primordial objective of election laws is to give effect to, rather
than frustrate, the will of the voter. The inclusion of nuisance candidates turns the electoral exercise
into an uneven playing field where the bona fide candidate is faced with the prospect of having a
significant number of votes cast for him invalidated as stray votes by the mere presence of another
candidate with a similar surname. Any delay on the part of the COMELEC increases the probability
of votes lost in this manner. While political campaigners try to minimize stray votes by advising the
electorate to write the full name of their candidate on the ballot, still, election woes brought by
nuisance candidates persist.

The Court will not speculate on whether the new automated voting system to be implemented in the
May 2010 elections will lessen the possibility of confusion over the names of candidates. What
needs to be stressed at this point is the apparent failure of the HRET to give weight to relevant
circumstances that make the will of the electorate determinable, following the precedent in Bautista.
xxx 30

COMELEC justified the issuance of Resolution No. 8844 to amend the former rule in Resolution No.
4116 by enumerating those changes brought about by the new automated election system to the
form of official ballots, manner of voting and counting of votes. It said that the substantial distinctions
between manual and automated elections validly altered the rules on considering the votes cast for
the disqualified or nuisance candidates. As to the rulings in Bautista and Martinez III, COMELEC
opines that these find no application in the case at bar because the rules on appreciation of
ballotsapply only to elections where the names of candidates are handwritten in the ballots.

The Court is not persuaded.

In Martinez III, we took judicial notice of the reality that, especially in local elections, political rivals or
operators benefited from the usually belated decisions by COMELEC on petitions to cancel or deny
due course to COCs of potential nuisance candidates. In such instances, political campaigners try to
minimize stray votes by advising the electorate to write the full name of their candidate on the ballot,
but still, election woes brought by nuisance candidates persist. 31

As far as COMELEC is concerned, the confusion caused by similarity of surnames of candidates for
the same position and putting the electoral process in mockery or disrepute, had already been
rectified by the new voting system where the voter simply shades the oval corresponding to the
name of their chosen candidate. However, as shown in this case, COMELEC issued Resolution No.
8844 on May 1, 2010, nine days before the elections, with sufficient time to delete the names of
disqualified candidates not just from the Certified List of Candidates but also from the Official Ballot.
Indeed, what use will it serve if COMELEC orders the names of disqualified candidates to be deleted
from list of official candidates if the official ballots still carry their names?

We hold that the rule in Resolution No. 4116 considering the votes cast for a nuisance candidate
declared as such in a final judgment, particularly where such nuisance candidate has the same
surname as that of the legitimate candidate, notstray but counted in favor of the latter, remains a
good law. As earlier discussed, a petition to cancel or deny a COC under Section 69 of the OEC
should be distinguished from a petition to disqualify under Section 68. Hence, the legal effect of such
cancellation of a COC of a nuisance candidate cannot be equated with a candidate disqualified on
grounds provided in the OEC and Local Government Code.

Moreover, private respondent admits that the voters were properly informed of the cancellation of
COC of Aurelio because COMELEC published the same before election day. As we pronounced in
Bautista, the voters’ constructive knowledge of such cancelled candidacy made their will more
determinable, as it is then more logical to conclude that the votes cast for Aurelio could have been
intended only for the legitimate candidate, petitioner. The possibility of confusion in names of
candidates if the names of nuisance candidates remained on the ballots on election day, cannot be
discounted or eliminated, even under the automated voting system especially considering that voters
who mistakenly shaded the oval beside the name of the nuisance candidate instead of the bona fide
candidate they intended to vote for could no longer ask for replacement ballots to correct the same. 1âwphi1

Finally, upholding the former rule in Resolution No. 4116 is more consistent with the rule well-
ensconced in our jurisprudence that laws and statutes governing election contests especially
appreciation of ballots must be liberally construed to the end that the will of the electorate in the
choice of public officials may not be defeated by technical infirmities. Indeed, as our electoral
32 

experience had demonstrated, such infirmities and delays in the delisting of nuisance candidates
from both the Certified List of Candidates and Official Ballots only made possible the very evil sought
to be prevented by the exclusion of nuisance candidates during elections.

WHEREFORE, the petition is hereby GIVEN DUE COURSE and the writ prayed for, accordingly
GRANTED. COMELEC Resolution No. 8844 dated May 1, 2010 insofar as it orders that the votes
cast for candidates listed therein, who were declared nuisance candidates and whose certificates of
candidacy have been either cancelled or set aside, be considered stray, is hereby declared NULL
and VOID. Consequently, the 532 votes cast for Aurelio N. Del a Cruz during the elections of May
10, 2010 should have been counted in favor of Casimira S. Dela Cruz and not considered stray
votes, making her total garnered votes 6,921 as against the 6,428 votes of private respondent John
Lloyd M. Pacete who was the declared winner.

Petitioner Casimira S. Dela Cruz is hereby DECLARED the duly elected Vice-Mayor of the
Municipality of Bugasong, Province of Antique in the May 10, 2010 elections.

This Decision is immediately executory.

Let a copy of this Decision be served personally upon the parties and the Commission on Elections.

No pronouncement as to costs.

SO ORDERED.

17
G.R. No. 201716               January 8, 2013

MAYOR ABELARDO ABUNDO, SR., Petitioner, 

vs.
COMMISSION ON ELECTIONS and ERNESTO R. VEGA, Respondents.

DECISION
VELASCO, JR., J.:

The Case

In this Petition for Certiorari under Rule 65, petitioner Abelardo Abundo, Sr. (Abundo) assails and
seeks to nullify (1) the February 8, 2012 Resolution1 of the Second Division, Commission on
Elections (COMELEC), in EAC (AE) No. A-25-2010 and (2) the May 10, 2012 Resolution2 of the
COMELEC en banc affirming that division’s disposition. The assailed issuances, in turn, affirmed the
Decision of the Regional Trial Court (RTC) of Virac, Catanduanes, Branch 43, dated August 9, 2010,
in Election Case No. 55 declaring Abundo as ineligible, under the three-term limit rule, to run in the
2010 elections for the position of, and necessarily to sit as, Mayor of Viga, Catanduanes.

The antecedent facts are undisputed.

For four (4) successive regular elections, namely, the 2001, 2004, 2007 and 2010 national and local
elections, Abundo vied for the position of municipal mayor of Viga, Catanduanes. In both the 2001
and 2007 runs, he emerged and was proclaimed as the winning mayoralty candidate and
accordingly served the corresponding terms as mayor. In the 2004 electoral derby, however, the
Viga municipal board of canvassers initially proclaimed as winner one Jose Torres (Torres), who, in
due time, performed the functions of the office of mayor. Abundo protested Torres’ election and
proclamation. Abundo was eventually declared the winner of the 2004 mayoralty electoral contest,
paving the way for his assumption of office starting May 9, 2006 until the end of the 2004-2007 term
on June 30, 2007, or for a period of a little over one year and one month.

Then came the May 10, 2010 elections where Abundo and Torres again opposed each other. When
Abundo filed his certificate of candidacy3 for the mayoralty seat relative to this electoral contest,
Torres lost no time in seeking the former’s disqualification to run, the corresponding
petition,4 docketed as SPA Case No. 10-128 (DC), predicated on the three-consecutive term limit
rule. On June 16, 2010, the COMELEC First Division issued a Resolution5 finding for Abundo, who in
the meantime bested Torres by 219 votes6 and was accordingly proclaimed 2010 mayor-elect of
Viga, Catanduanes.

Meanwhile, on May 21, 2010, or before the COMELEC could resolve the adverted disqualification
case Torres initiated against Abundo, herein private respondent Ernesto R. Vega (Vega)
commenced a quo warranto7 action before the RTC-Br. 43 in Virac, Catanduanes, docketed as
Election Case No. 55, to unseat Abundo on essentially the same grounds Torres raised in his
petition to disqualify.

The Ruling of the Regional Trial Court

By Decision8 of August 9, 2010 in Election Case No. 55, the RTC declared Abundo ineligible to serve
as municipal mayor, disposing as follows:

WHEREFORE, Decision is, hereby, rendered GRANTING the petition and declaring Abelardo
Abundo, Sr. ineligible to serve as municipal mayor of Viga, Catanduanes.

SO ORDERED.9

In so ruling, the trial court, citing Aldovino, Jr. v. COMELEC,10 found Abundo to have already served
three consecutive mayoralty terms, to wit, 2001-2004, 2004-2007 and 2007-2010, and, hence,
disqualified for another, i.e., fourth, consecutive term. Abundo, the RTC noted, had been declared
winner in the aforesaid 2004 elections consequent to his protest and occupied the position of and
actually served as Viga mayor for over a year of the remaining term, i.e., from May 9, 2006 to June
30, 2007, to be exact. To the RTC, the year and a month service constitutes a complete and full
service of Abundo’s second term as mayor.

Therefrom, Abundo appealed to the COMELEC, his recourse docketed as EAC (AE) No. A-25-2010.

The Ruling of the COMELEC

On February 8, 2012, in EAC (AE) No. A-25-2010, the COMELEC’s Second Division rendered the
first assailed Resolution, the dispositive portion of which reads as follows:

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court Branch 73, Virac,
Catanduanes is AFFIRMED and the appeal is DISMISSED for lack of merit.

SO ORDERED.11

Just like the RTC, the COMELEC’s Second Division ruled against Abundo on the strength of
Aldovino, Jr. and held that service of the unexpired portion of a term by a protestant who is declared
winner in an election protest is considered as service for one full term within the contemplation of the
three-term limit rule.

In time, Abundo sought but was denied reconsideration by the COMELEC en banc per its equally
assailed Resolution of May 10, 2012. The fallo of the COMELEC en banc’s Resolution reads as
follows:

WHEREFORE, premises considered, the motion for reconsideration is DENIED for lack of merit. The
Resolution of the Commission (Second Division) is hereby AFFIRMED.

SO ORDERED.12

In affirming the Resolution of its Second Division, the COMELEC en banc held in essence the
following: first, there was no involuntary interruption of Abundo’s 2004-2007 term service which
would be an exception to the three-term limit rule as he is considered never to have lost title to the
disputed office after he won in his election protest; and second, what the Constitution prohibits is for
an elective official to be in office for the same position for more than three consecutive terms and not
to the service of the term.

Hence, the instant petition with prayer for the issuance of a temporary restraining order (TRO) and/or
preliminary injunction.

Intervening Events

In the meantime, following the issuance by the COMELEC of its May 10, 2012 Resolution denying
Abundo’s motion for reconsideration, the following events transpired:

1. On June 20, 2012, the COMELEC issued an Order13 declaring its May 10, 2012 Resolution
final and executory. The following day, June 21, 2012, the COMELEC issued an Entry of
Judgment.14
 2. On June 25, 2012, Vega filed a Motion for Execution15 with the RTC-Br. 43 in Virac,
Catanduanes.

3. On June 27, 2012, the COMELEC, acting on Vega’s counsel’s motion16 filed a day earlier,
issued an Order17 directing the bailiff of ECAD (COMELEC) to personally deliver the entire
records to said RTC.

On June 29, 2012, the COMELEC ECAD Bailiff personally delivered the entire records of the
instant case to, and were duly received by, the clerk of court of RTC-Br. 43.

4. On June 29, 2012, or on the same day of its receipt of the case records, the RTC-Br. 43 in
Virac, Catanduanes granted Vega’s Motion for Execution through an Order18 of even date.
And a Writ of Execution19 was issued on the same day.

5. On July 2, 2012, Sheriff Q. Tador, Jr. received the Writ of Execution and served the same
at the office of Mayor Abundo on the same day via substituted service.

6. On July 3, 2012, the Court issued a TRO20 enjoining the enforcement of the assailed
COMELEC Resolutions.

7. On July 4, 2012, Vega received the Court’s July 3, 2012 Resolution21 and a copy of the
TRO. On the same day, Vice-Mayor Emeterio M. Tarin and First Councilor Cesar O.
Cervantes of Viga, Catanduanes took their oaths of office22 as mayor and vice-mayor of Viga,
Catanduanes, respectively.

8. On July 5, 2012, Vega received a copy of Abundo’s Seventh (7th) Most Extremely Urgent
Manifestation and Motion23 dated June 28, 2012 praying for the issuance of a TRO and/or
status quo ante Order. On the same day, Vice-Mayor Emeterio M. Tarin and First Councilor
Cesar O. Cervantes––who had taken their oaths of office the day before—assumed the
posts of mayor and vice-mayor of Viga, Catanduanes.24

9. On July 6, 2012, Vega interposed a Motion (To Admit Attached Manifestation)25 and

Manifestation with Leave to Admit26 dated July 5, 2012 stating that the TRO thus issued by
the Court has become functus officio owing to the execution of the RTC’s Decision in
Election Case No. 55.

10. On July 10, 2012, Vega filed his Comment/Opposition with Leave to the Petitioner’s
Prayer for the Issuance of a Status Quo Ante Order27 reiterating the argument that since
Vice-Mayor Emeterio M. Tarin and First Councilor Cesar O. Cervantes already assumed the
posts of Mayor and Vice-Mayor of Viga, Catanduanes, then a Status Quo Ante Order would
serve no purpose.

11. On July 12, 2012, Abundo filed his Most Urgent Manifestation and Motion to Convert the
July 3, 2012 TRO into a Status Quo Ante Order (In View of the Unreasonable and
Inappropriate Progression of Events).28

It is upon the foregoing backdrop of events that Abundo was dislodged from his post as incumbent
mayor of Viga, Catanduanes. To be sure, the speed which characterized Abundo’s ouster despite
the supervening issuance by the Court of a TRO on July 3, 2012 is not lost on the Court. While it is
not clear whether Vice-Mayor Tarin and First Councilor Cervantes knew of or put on notice about the
TRO either before they took their oaths of office on July 4, 2012 or before assuming the posts of
mayor and vice-mayor on July 5, 2012, the confluence of events following the issuance of the
assailed COMELEC en banc irresistibly tends to show that the TRO––issued as it were to maintain
the status quo, thus averting the premature ouster of Abundo pending this Court’s resolution of his
appeal––appears to have been trivialized.

On September 11, 2012, Vega filed his Comment on Abundo’s petition, followed not long after by
public respondent COMELEC’s Consolidated Comment.29

The Issues

Abundo raises the following grounds for the allowance of the petition:

6.1 The Commission En Banc committed grave abuse of discretion amounting to lack or
excess of jurisdiction when it declared the arguments in Abundo’s motion for reconsideration
as mere rehash and reiterations of the claims he raised prior to the promulgation of the
Resolution.

6.2 The Commission En Banc committed grave abuse of discretion amounting to lack or
excess of jurisdiction when it declared that Abundo has consecutively served for three terms
despite the fact that he only served the remaining one year and one month of the second
term as a result of an election protest.30

First Issue:

Arguments in Motion for Reconsideration Not Mere Reiteration

The COMELEC en banc denied Abundo’s motion for reconsideration on the basis that his arguments
in said motion are mere reiterations of what he already brought up in his appeal Brief before the
COMELEC Second Division. In this petition, petitioner claims otherwise.

Petitioner’s assertion is devoid of merit.

A comparison of Abundo’s arguments in the latter’s Brief vis-à-vis those in his Motion for
Reconsideration (MR) reveals that the arguments in the MR are elucidations and amplications of the
same issues raised in the brief. First, in his Brief, Abundo raised the sole issue of lack of jurisdiction
of the RTC to consider the quo warranto case since the alleged violation of the three-term limit has
already been rejected by the COMELEC First Division in SPA Case No. 10-128 (DC), while in his
MR, Abundo raised the similar ground of the conclusiveness of the COMELEC’s finding on the issue
of his qualification to run for the current term. Second, in his Brief, Abundo assailed RTC’s reliance
on Aldovino, Jr., while in his MR, he argued that the Court’s pronouncement in Aldovino, Jr., which
dealt with preventive suspension, is not applicable to the instant case as it involves only a partial
service of the term. Abundo argued in his Brief that his situation cannot be equated with the case of
preventive suspension as held in Aldovino, Jr., while in his MR, he argued before that the almost two
years which he did not sit as mayor during the 2004-2007 term is an interruption in the continuity of
his service for the full term.

Thus, COMELEC did not err in ruling that the issues in the MR are a rehash of those in the Brief.

Core Issue:

Whether or not Abundo is deemed to have served three consecutive terms

The pivotal determinative issue then is whether the service of a term less than the full three years by
an elected official arising from his being declared as the duly elected official upon an election protest
is considered as full service of the term for purposes of the application of the three consecutive term
limit for elective local officials.

On this core issue, We find the petition meritorious. The consecutiveness of what otherwise would
have been Abundo’s three successive, continuous mayorship was effectively broken during the
2004-2007 term when he was initially deprived of title to, and was veritably disallowed to serve and
occupy, an office to which he, after due proceedings, was eventually declared to have been the
rightful choice of the electorate.

The three-term limit rule for elective local officials, a disqualification rule, is found in Section 8, Article
X of the 1987 Constitution, which provides:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was elected. (Emphasis
supplied.)

and is reiterated in Sec. 43(b) of Republic Act No. (RA) 7160, or the Local Government Code (LGC)
of 1991, thusly:

Sec. 43. Term of Office. —

xxxx

(b) No local elective official shall serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which the elective official concerned was
elected. (Emphasis Ours.)

To constitute a disqualification to run for an elective local office pursuant to the aforequoted
constitutional and statutory provisions, the following requisites must concur:

(1) that the official concerned has been elected for three consecutive terms in the same local
government post; and

(2) that he has fully served three consecutive terms.31

Judging from extant jurisprudence, the three-term limit rule, as applied to the different factual
milieus, has its complicated side. We shall revisit and analyze the various holdings and relevant
pronouncements of the Court on the matter.

As is clearly provided in Sec. 8, Art. X of the Constitution as well as in Sec. 43(b) of the LGC,
voluntary renunciation of the office by the incumbent elective local official for any length of time shall
NOT, in determining service for three consecutive terms, be considered an interruption in the
continuity of service for the full term for which the elective official concerned was elected. In
Aldovino, Jr., however, the Court stated the observation that the law "does not textually state that
voluntary renunciation is the only actual interruption of service that does not affect ‘continuity of
service for a full term’ for purposes of the three-term limit rule."32
As stressed in Socrates v. Commission on Elections,33 the principle behind the three-term limit rule
covers only consecutive terms and that what the Constitution prohibits is a consecutive fourth term.
Put a bit differently, an elective local official cannot, following his third consecutive term, seek
immediate reelection for a fourth term,34albeit he is allowed to seek a fresh term for the same
position after the election where he could have sought his fourth term but prevented to do so by
reason of the prohibition.

There has, in fine, to be a break or interruption in the successive terms of the official after his or her
third term. An interruption usually occurs when the official does not seek a fourth term, immediately
following the third. Of course, the basic law is unequivocal that a "voluntary renunciation of the office
for any length of time shall NOT be considered an interruption in the continuity of service for the full
term for which the elective official concerned was elected." This qualification was made as a
deterrent against an elective local official intending to skirt the three-term limit rule by merely
resigning before his or her third term ends. This is a voluntary interruption as distinguished from
involuntary interruption which may be brought about by certain events or causes.

While appearing to be seemingly simple, the three-term limit rule has engendered a host of disputes
resulting from the varying interpretations applied on local officials who were elected and served for
three terms or more, but whose terms or service was punctuated by what they view as involuntary
interruptions, thus entitling them to a, but what their opponents perceive as a proscribed, fourth term.
Involuntary interruption is claimed to result from any of these events or causes: succession or
assumption of office by operation of law, preventive suspension, declaration of the defeated
candidate as the winner in an election contest, declaration of the proclaimed candidate as the losing
party in an election contest, proclamation of a non-candidate as the winner in a recall election,
removal of the official by operation of law, and other analogous causes.

This brings us to an examination of situations and jurisprudence wherein such consecutive terms
were considered or not considered as having been "involuntarily interrupted or broken."

(1) Assumption of Office by Operation of Law

In Borja, Jr. v. Commission on Elections and Jose T. Capco, Jr.35 (1998) and Montebon v.
Commission on Elections36 (2008), the Court delved on the effects of "assumption to office by
operation of law" on the three-term limit rule. This contemplates a situation wherein an elective local
official fills by succession a higher local government post permanently left vacant due to any of the
following contingencies, i.e., when the supposed incumbent refuses to assume office, fails to qualify,
dies, is removed from office, voluntarily resigns or is otherwise permanently incapacitated to
discharge the functions of his office.37

In Borja, Jr., Jose T. Capco, Jr. (Capco) was elected vice-mayor of Pateros on January 18, 1988 for
a term ending June 30, 1992. On September 2, 1989, Capco became mayor, by operation of law,
upon the death of the incumbent mayor, Cesar Borja. Capco was then elected and served as mayor
for terms 1992-1995 and 1995-1998. When Capco expressed his intention to run again for the
mayoralty position during the 1998 elections, Benjamin U. Borja, Jr., who was then also a candidate
for mayor, sought Capco’s disqualification for violation of the three-term limit rule.

Finding for Capco, the Court held that for the disqualification rule to apply, "it is not enough that an
individual has served three consecutive terms in an elective local office, he must also have been
elected to the same position for the same number of times before the disqualification can
apply."38 There was, the Court ruled, no violation of the three-term limit, for Capco "was not elected
to the office of the mayor in the first term but simply found himself thrust into it by operation of
law"39 when a permanent vacancy occurred in that office.
The Court arrived at a parallel conclusion in the case of Montebon. There, Montebon had been
elected for three consecutive terms as municipal councilor of Tuburan, Cebu in 1998-2001, 2001-
2004, and 2004-2007. However, in January 2004, or during his second term, Montebon succeeded
and assumed the position of vice-mayor of Tuburan when the incumbent vice-mayor retired. When
Montebon filed his certificate of candidacy again as municipal councilor, a petition for disqualification
was filed against him based on the three-term limit rule. The Court ruled that Montebon’s assumption
of office as vice-mayor in January 2004 was an interruption of his continuity of service as councilor.
The Court emphasized that succession in local government office is by operation of law and as such,
it is an involuntary severance from office. Since the law no less allowed Montebon to vacate his post
as councilor in order to assume office as vice-mayor, his occupation of the higher office cannot,
without more, be deemed as a voluntary renunciation of his position as councilor.

(2) Recall Election

With reference to the effects of recall election on the continuity of service, Adormeo v. Commission
on Elections40(2002) and the aforementioned case of Socrates (2002) provide guidance.

In Adormeo, Ramon Talaga, Jr. (Talaga) was elected and served as mayor of Lucena City during
terms 1992-1995 and 1995-1998. During the 1998 elections, Talaga lost to Bernard G. Tagarao.
However, before Tagarao’s 1998-2001 term ended, a recall election was conducted in May 2000
wherein Talaga won and served the unexpired term of Tagarao until June 2001. When Talaga ran
for mayor in 2001, his candidacy was challenged on the ground he had already served as mayor for
three consecutive terms for violation of the three term-limit rule. The Court held therein that the
remainder of Tagarao’s term after the recall election during which Talaga served as mayor should
not be considered for purposes of applying the three-term limit rule. The Court emphasized that the
continuity of Talaga’s mayorship was disrupted by his defeat during the 1998 elections.

A similar conclusion was reached by the Court in Socrates. The petitioners in that case assailed the
COMELEC Resolution which declared Edward Hagedorn qualified to run for mayor in a recall
election. It appeared that Hagedorn had been elected and served as mayor of Puerto Princesa City
for three consecutive terms: in 1992-1995, 1995-1998 and 1998-2001. Obviously aware of the three-
term limit principle, Hagedorn opted not to vie for the same mayoralty position in the 2001 elections,
in which Socrates ran and eventually won. However, midway into his term, Socrates faced recall
proceedings and in the recall election held, Hagedorn run for the former’s unexpired term as mayor.
Socrates sought Hagedorn’s disqualification under the three-term limit rule.

In upholding Hagedorn’s candidacy to run in the recall election, the Court ruled:

x x x After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the
recall election of September 24, 2002 when he won by 3,018 votes over his closest opponent,
Socrates.

From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa
was Socrates. During the same period, Hagedorn was simply a private citizen. This period is clearly
an interruption in the continuity of Hagedorn’s service as mayor, not because of his voluntary
renunciation, but because of a legal prohibition.41

The Court likewise emphasized in Socrates that "an elective local official cannot seek immediate
reelection for a fourth term. The prohibited election refers to the next regular election for the same
office following the end of the third consecutive term and, hence, any subsequent election, like recall
election, is no longer covered x x x."42
(3) Conversion of a Municipality into a City

On the other hand, the conversion of a municipality into a city does not constitute an interruption of
the incumbent official’s continuity of service. The Court said so in Latasa v. Commission on
Elections43 (2003).

Latasa is cast against the ensuing backdrop: Arsenio A. Latasa was elected and served as mayor of
the Municipality of Digos, Davao del Sur for terms 1992-1995, 1995-1998, and 1998-2001. During
his third term, Digos was converted into a component city, with the corresponding cityhood law
providing the holdover of elective officials. When Latasa filed his certificate of candidacy as mayor
for the 2001 elections, the Court declared Latasa as disqualified to run as mayor of Digos City for
violation of the three-term limit rule on the basis of the following ratiocination:

This Court believes that (Latasa) did involuntarily relinquish his office as municipal mayor since the
said office has been deemed abolished due to the conversion. However, the very instant he vacated
his office as municipal mayor, he also assumed office as city mayor. Unlike in Lonzanida, where
petitioner therein, for even just a short period of time, stepped down from office, petitioner Latasa
never ceased from acting as chief executive of the local government unit. He never ceased from
discharging his duties and responsibilities as chief executive of Digos.

(Emphasis supplied.)

(4) Period of Preventive Suspension

In 2009, in the case Aldovino Jr., the Court espoused the doctrine that the period during which a
local elected official is under preventive suspension cannot be considered as an interruption of the
continuity of his service. The Court explained why so:

Strict adherence to the intent of the three-term limit rule demands that preventive suspension should
not be considered an interruption that allows an elective official’s stay in office beyond three terms. A
preventive suspension cannot simply be a term interruption because the suspended official
continues to stay in office although he is barred from exercising the functions and prerogatives of the
office within the suspension period. The best indicator of the suspended official’s continuity in office
is the absence of a permanent replacement and the lack of the authority to appoint one since no
vacancy exists.44 (Emphasis supplied.)

(5) Election Protest

With regard to the effects of an election protest vis-à-vis the three-term limit rule, jurisprudence
presents a more differing picture. The Court’s pronouncements in Lonzanida v. Commission on
Elections45 (1999), Ong v. Alegre46(2006), Rivera III v. Commission on Elections47 (2007) and Dizon v.
Commission on Elections48 (2009), all protest cases, are illuminating.

In Lonzanida, Romeo Lonzanida was elected and had served as municipal mayor of San Antonio,
Zambales in terms 1989-1992, 1992-1995 and 1995-1998. However, his proclamation relative to the
1995 election was protested and was eventually declared by the RTC and then by COMELEC null
and void on the ground of failure of elections. On February 27, 1998, or about three months before
the May 1998 elections, Lonzanida vacated the mayoralty post in light of a COMELEC order and writ
of execution it issued. Lonzanida’s opponent assumed office for the remainder of the term. In the
May 1998 elections, Lonzanida again filed his certificate of candidacy. His opponent, Efren Muli, filed
a petition for disqualification on the ground that Lonzanida had already served three consecutive
terms in the same post. The Court, citing Borja Jr., reiterated the two (2) conditions which must
concur for the three-term limit to apply: "1) that the official concerned has been elected for three
consecutive terms in the same local government post and 2) that he has fully served three
consecutive terms."49

In view of Borja, Jr., the Court ruled that the foregoing requisites were absent in the case of
Lonzanida. The Court held that Lonzanida cannot be considered as having been duly elected to the
post in the May 1995 elections since his assumption of office as mayor "cannot be deemed to have
been by reason of a valid election but by reason of a void proclamation." And as a corollary point,
the Court stated that Lonzanida did not fully serve the 1995-1998 mayoral term having been ordered
to vacate his post before the expiration of the term, a situation which amounts to an involuntary
relinquishment of office.This Court deviated from the ruling in Lonzanida in Ong v. Alegre50 owing to
a variance in the factual situations attendant.

In that case, Francis Ong (Ong) was elected and served as mayor of San Vicente, Camarines Norte
for terms 1995-1998, 1998-2001, and 2001-2004. During the 1998 mayoralty elections, or during his
supposed second term, the COMELEC nullified Ong’s proclamation on the postulate that Ong lost
during the 1998 elections. However, the COMELEC’s decision became final and executory on July
4, 2001, when Ong had fully served the 1998-2001 mayoralty term and was in fact already starting to
serve the 2001-2004 term as mayor-elect of the municipality of San Vicente. In 2004, Ong filed his
certificate of candidacy for the same position as mayor, which his opponent opposed for violation of
the three-term limit rule.

Ong invoked the ruling in Lonzanida and argued that he could not be considered as having served
as mayor from 1998-2001 because he was not duly elected to the post and merely assumed office
as a "presumptive winner." Dismissing Ong’s argument, the Court held that his assumption of office
as mayor for the term 1998-2001 constitutes "service for the full term" and hence, should be counted
for purposes of the three-term limit rule. The Court modified the conditions stated in Lonzanida in the
sense that Ong’s service was deemed and counted as service for a full term because Ong’s
proclamation was voided only after the expiry of the term. The Court noted that the COMELEC
decision which declared Ong as not having won the 1998 elections was "without practical and legal
use and value" promulgated as it was after the contested term has expired. The Court further
reasoned:

Petitioner Francis Ong’s contention that he was only a presumptive winner in the 1998 mayoralty
derby as his proclamation was under protest did not make him less than a duly elected mayor. His
proclamation as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of
office and his continuous exercise of the functions thereof from start to finish of the term, should
legally be taken as service for a full term in contemplation of the three-term rule.

The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view
would mean that Alegre would – under the three-term rule - be considered as having served a term
by virtue of a veritably meaningless electoral protest ruling, when another actually served such term
pursuant to a proclamation made in due course after an election.51 (Emphasis supplied.)

The Court did not apply the ruling in Lonzanida and ruled that the case of Ong was different, to wit:

The difference between the case at bench and Lonzanida is at once apparent. For one, in
Lonzanida, the result of the mayoralty election was declared a nullity for the stated reason of "failure
of election", and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was
nullified, followed by an order for him to vacate the office of mayor. For another, Lonzanida did not
fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result
of legal processes. In fine, there was an effective interruption of the continuity of
service.52 (Emphasis supplied.)

Ong’s slight departure from Lonzanida would later find reinforcement in the consolidated cases of
Rivera III v. Commission on Elections53 and Dee v. Morales.54 Therein, Morales was elected mayor of
Mabalacat, Pampanga for the following consecutive terms: 1995-1998, 1998-2001 and 2001-2004.
In relation to the 2004 elections, Morales again ran as mayor of the same town, emerged as
garnering the majority votes and was proclaimed elective mayor for term commencing July 1, 2004
to June 30, 2007. A petition for quo warranto was later filed against Morales predicated on the
ground that he is ineligible to run for a "fourth" term, having served as mayor for three consecutive
terms. In his answer, Morales averred that his supposed 1998-2001 term cannot be considered
against him, for, although he was proclaimed by the Mabalacat board of canvassers as elected
mayor vis-à-vis the 1998 elections and discharged the duties of mayor until June 30, 2001, his
proclamation was later nullified by the RTC of Angeles City and his closest rival, Anthony Dee,
proclaimed the duly elected mayor. Pursuing his point, Morales parlayed the idea that he only served
as a mere caretaker.

The Court found Morales’ posture untenable and held that the case of Morales presents a factual
milieu similar with Ong, not with Lonzanida. For ease of reference, the proclamation of Francis Ong,
in Ong, was nullified, but after he, like Morales, had served the three-year term from the start to the
end of the term. Hence, the Court concluded that Morales exceeded the three-term limit rule, to wit:

Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the
position. He served as mayor until June 30, 2001. He was mayor for the entire period
notwithstanding the Decision of the RTC in the electoral protest case filed by petitioner Dee ousting
him (respondent) as mayor. To reiterate, as held in Ong v. Alegre, such circumstance does not
constitute an interruption in serving the full term.

xxxx

Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously
without any break since July 1, 1995. In just over a month, by June 30, 2007, he will have been
mayor of Mabalacat for twelve (12) continuous years.55 (Emphasis supplied.)

The Court ruled in Rivera that the fact of being belatedly ousted, i.e., after the expiry of the term,
cannot constitute an interruption in Morales’ service of the full term; neither can Morales, as he
argued, be considered merely a "caretaker of the office" or a mere "de facto officer" for purposes of
applying the three-term limit rule.

In a related 2009 case of Dizon v. Commission on Elections,56 the Court would again find the same
Mayor Morales as respondent in a disqualification proceeding when he ran again as a mayoralty
candidate during the 2007 elections for a term ending June 30, 2010. Having been unseated from
his post by virtue of this Court’s ruling in Rivera, Morales would argue this time around that the
three-term limit rule was no longer applicable as to his 2007 mayoralty bid. This time, the Court ruled
in his favor, holding that for purposes of the 2007 elections, the three-term limit rule was no longer a
disqualifying factor as against Morales. The Court wrote:

Our ruling in the Rivera case served as Morales’ involuntary severance from office with respect to
the 2004-2007 term. Involuntary severance from office for any length of time short of the full term
provided by law amounts to an interruption of continuity of service. Our decision in the Rivera case
was promulgated on 9 May 2007 and was effective immediately. The next day, Morales notified the
vice mayor’s office of our decision. The vice mayor assumed the office of the mayor from 17 May
2007 up to 30 June 2007. The assumption by the vice mayor of the office of the mayor, no matter
how short it may seem to Dizon, interrupted Morales’ continuity of service. Thus, Morales did not
hold office for the full term of 1 July 2004 to 30 June 2007.57 (Emphasis supplied)

To summarize, hereunder are the prevailing jurisprudence on issues affecting consecutiveness of

terms and/or involuntary interruption, viz:

1. When a permanent vacancy occurs in an elective position and the official merely assumed
the position pursuant to the rules on succession under the LGC, then his service for the
unexpired portion of the term of the replaced official cannot be treated as one full term as
contemplated under the subject constitutional and statutory provision that service cannot be
counted in the application of any term limit (Borja, Jr.). If the official runs again for the same
position he held prior to his assumption of the higher office, then his succession to said
position is by operation of law and is considered an involuntary severance or interruption
(Montebon).

2. An elective official, who has served for three consecutive terms and who did not seek the
elective position for what could be his fourth term, but later won in a recall election, had an
interruption in the continuity of the official’s service. For, he had become in the interim, i.e.,
from the end of the 3rd term up to the recall election, a private citizen (Adormeo and
Socrates).

3. The abolition of an elective local office due to the conversion of a municipality to a city
does not, by itself, work to interrupt the incumbent official’s continuity of service (Latasa).

4. Preventive suspension is not a term-interrupting event as the elective officer’s continued

stay and entitlement to the office remain unaffected during the period of suspension,
although he is barred from exercising the functions of his office during this period (Aldovino,
Jr.).

5. When a candidate is proclaimed as winner for an elective position and assumes office, his
term is interrupted when he loses in an election protest and is ousted from office, thus
disenabling him from serving what would otherwise be the unexpired portion of his term of
office had the protest been dismissed (Lonzanida and Dizon). The break or interruption need
not be for a full term of three years or for the major part of the 3-year term; an interruption for
any length of time, provided the cause is involuntary, is sufficient to break the continuity of
service (Socrates, citing Lonzanida).

6. When an official is defeated in an election protest and said decision becomes final after
said official had served the full term for said office, then his loss in the election contest does
not constitute an interruption since he has managed to serve the term from start to finish. His
full service, despite the defeat, should be counted in the application of term limits because
the nullification of his proclamation came after the expiration of the term (Ong and Rivera).

The Case of Abundo

Abundo argues that the RTC and the COMELEC erred in uniformly ruling that he had already served
three consecutive terms and is, thus, barred by the constitutional three-term limit rule to run for the
current 2010-2013 term. In gist, Abundo arguments run thusly:
 1. Aldovino, Jr. is not on all fours with the present case as the former dealt with preventive
suspension which does not interrupt the continuity of service of a term;

2. Aldovino, Jr. recognizes that the term of an elected official can be interrupted so as to
remove him from the reach of the constitutional three-term limitation;

3. The COMELEC misinterpreted the meaning of "term" in Aldovino, Jr. by its reliance on a
mere portion of the Decision and not on the unified logic in the disquisition;

4. Of appropriate governance in this case is the holding in Lonzanida58 and Rivera III v.

Commission on Elections.59

5. The COMELEC missed the point when it ruled that there was no interruption in the service
of Abundo since what he considered as an "interruption" of his 2004-2007 term occurred
before his term started; and

6. To rule that the term of the protestee (Torres) whose proclamation was adjudged invalid
was interrupted while that of the protestant (Abundo) who was eventually proclaimed winner
was not so interrupted is at once absurd as it is illogical.

Both respondents Vega and the COMELEC counter that the ratio decidendi of Aldovino, Jr. finds
application in the instant case. The COMELEC ruled that Abundo did not lose title to the office as his
victory in the protest case confirmed his entitlement to said office and he was only unable to
temporarily discharge the functions of the office during the pendency of the election protest.

We note that this present case of Abundo deals with the effects of an election protest, for which the
rulings in Lonzanida, Ong, Rivera and Dizon appear to be more attuned than the case of Aldovino
Jr., the interrupting effects of the imposition of a preventive suspension being the very lis mota in the
Aldovino, Jr. case. But just the same, We find that Abundo’s case presents a different factual
backdrop.

Unlike in the abovementioned election protest cases wherein the individuals subject of
disqualification were candidates who lost in the election protest and each declared loser during the
elections, Abundo was the winner during the election protest and was declared the rightful holder of
the mayoralty post. Unlike Mayor Lonzanida and Mayor Morales, who were both unseated toward
the end of their respective terms, Abundo was the protestant who ousted his opponent and had
assumed the remainder of the term.

Notwithstanding, We still find this Court’s pronouncements in the past as instructive, and consider
several doctrines established from the 1998 case of Borja, Jr. up to the most recent case of Aldovino
Jr. in 2009, as potent aids in arriving at this Court’s conclusion.

The intention behind the three-term limit rule was not only to abrogate the "monopolization of political
power" and prevent elected officials from breeding "proprietary interest in their position"60 but also to
"enhance the people’s freedom of choice."61 In the words of Justice Vicente V. Mendoza, "while
people should be protected from the evils that a monopoly of power may bring about, care should be
taken that their freedom of choice is not unduly curtailed."62

In the present case, the Court finds Abundo’s case meritorious and declares that the two-year period
during which his opponent, Torres, was serving as mayor should be considered as an interruption,
which effectively removed Abundo’s case from the ambit of the three-term limit rule.
It bears to stress at this juncture that Abundo, for the 2004 election for the term starting July 1, 2004
to June 30, 2007, was the duly elected mayor. Otherwise how explain his victory in his election
protest against Torres and his consequent proclamation as duly elected mayor. Accordingly, the first
requisite for the application of the disqualification rule based on the three-term limit that the official
has been elected is satisfied.

This thus brings us to the second requisite of whether or not Abundo had served for "three
consecutive terms," as the phrase is juridically understood, as mayor of Viga, Catanduanes
immediately before the 2010 national and local elections. Subsumed to this issue is of course the
question of whether or not there was an effective involuntary interruption during the three three-year
periods, resulting in the disruption of the continuity of Abundo’s mayoralty.

The facts of the case clearly point to an involuntary interruption during the July 2004-June 2007
term.

There can be no quibbling that, during the term 2004-2007, and with the enforcement of the decision
of the election protest in his favor, Abundo assumed the mayoralty post only on May 9, 2006 and
served the term until June 30, 2007 or for a period of a little over one year and one month.
Consequently, unlike Mayor Ong in Ong and Mayor Morales in Rivera, it cannot be said that Mayor
Abundo was able to serve fully the entire 2004-2007 term to which he was otherwise entitled.

A "term," as defined in Appari v. Court of Appeals,63 means, in a legal sense, "a fixed and definite
period of time which the law describes that an officer may hold an office."64 It also means the "time
during which the officer may claim to hold office as a matter of right, and fixes the interval after which
the several incumbents shall succeed one another."65 It is the period of time during which a duly
elected official has title to and can serve the functions of an elective office. From paragraph (a) of
Sec. 43, RA 7160,66 the term for local elected officials is three (3) years starting from noon of June
30 of the first year of said term.

In the present case, during the period of one year and ten months, or from June 30, 2004 until May
8, 2006, Abundo cannot plausibly claim, even if he wanted to, that he could hold office of the mayor
as a matter of right. Neither can he assert title to the same nor serve the functions of the said
elective office. The reason is simple: during that period, title to hold such office and the
corresponding right to assume the functions thereof still belonged to his opponent, as proclaimed
election winner. Accordingly, Abundo actually held the office and exercised the functions as mayor
only upon his declaration, following the resolution of the protest, as duly elected candidate in the
May 2004 elections or for only a little over one year and one month. Consequently, since the legally
contemplated full term for local elected officials is three (3) years, it cannot be said that Abundo fully
served the term 2004-2007. The reality on the ground is that Abundo actually served less.

Needless to stress, the almost two-year period during which Abundo’s opponent actually served as
Mayor is and ought to be considered an involuntary interruption of Abundo’s continuity of service. An
involuntary interrupted term, cannot, in the context of the disqualification rule, be considered as one
term for purposes of counting the three-term threshold.67

The notion of full service of three consecutive terms is related to the concepts of interruption of
service and voluntary renunciation of service. The word interruption means temporary cessation,
intermission or suspension.68To interrupt is to obstruct, thwart or prevent.69 When the Constitution
and the LGC of 1991 speak of interruption, the reference is to the obstruction to the continuance of
the service by the concerned elected official by effectively cutting short the service of a term or
giving a hiatus in the occupation of the elective office. On the other hand, the word "renunciation"
connotes the idea of waiver or abandonment of a known right. To renounce is to give up, abandon,
decline or resign.70 Voluntary renunciation of the office by an elective local official would thus mean
to give up or abandon the title to the office and to cut short the service of the term the concerned
elected official is entitled to.

In its assailed Resolution, the COMELEC en banc, applying Aldovino, Jr.,71 held:

It must be stressed that involuntary interruption of service which jurisprudence deems an exception
to the three-term limit rule, implies that the service of the term has begun before it was interrupted.
Here, the respondent did not lose title to the office. As the assailed Resolution states:

In the case at bar, respondent cannot be said to have lost his title to the office. On the contrary, he
actively sought entitlement to the office when he lodged the election protest case. And respondent-
appellant’s victory in the said case is a final confirmation that he was validly elected for the mayoralty
post of Viga, Catanduanes in 2004-2007. At most, respondent-appellant was only unable to
temporarily discharge the functions of the office to which he was validly elected during the pendency
of the election protest, but he never lost title to the said office.72 (Emphasis added.)

The COMELEC’s Second Division, on the other hand, pronounced that the actual length of service
by the public official in a given term is immaterial by reckoning said service for the term in the
application of the three-term limit rule, thus:

As emphasized in the case of Aldovino, "this formulation—no more than three consecutive terms—is
a clear command suggesting the existence of an inflexible rule." Therefore we cannot subscribe to
the argument that since respondent Abundo served only a portion of the term, his 2004-2007 "term"
should not be considered for purposes of the application of the three term limit rule. When the
framers of the Constitution drafted and incorporated the three term limit rule, it is clear that reference
is to the term, not the actual length of the service the public official may render. Therefore, one’s
actual service of term no matter how long or how short is immaterial.73

In fine, the COMELEC ruled against Abundo on the theory that the length of the actual service of the
term is immaterial in his case as he was only temporarily unable to discharge his functions as mayor.

The COMELEC’s case disposition and its heavy reliance on Aldovino, Jr. do not commend
themselves for concurrence. The Court cannot simply find its way clear to understand the poll body’s
determination that Abundo was only temporarily unable to discharge his functions as mayor during
the pendency of the election protest.

As previously stated, the declaration of being the winner in an election protest grants the local
elected official the right to serve the unexpired portion of the term. Verily, while he was declared
winner in the protest for the mayoralty seat for the 2004-2007 term, Abundo’s full term has been
substantially reduced by the actual service rendered by his opponent (Torres). Hence, there was
actual involuntary interruption in the term of Abundo and he cannot be considered to have served
the full 2004-2007 term.

This is what happened in the instant case. It cannot be overemphasized that pending the favorable
resolution of his election protest, Abundo was relegated to being an ordinary constituent since his
opponent, as presumptive victor in the 2004 elections, was occupying the mayoralty seat. In other
words, for almost two years or from July 1, 2004—the start of the term—until May 9, 2006 or during
which his opponent actually assumed the mayoralty office, Abundo was a private citizen warming his
heels while awaiting the outcome of his protest. Hence, even if declared later as having the right to
serve the elective position from July 1, 2004, such declaration would not erase the fact that prior to
the finality of the election protest, Abundo did not serve in the mayor’s office and, in fact, had no
legal right to said position.

Aldovino Jr. cannot possibly lend support to respondent’s cause of action, or to COMELEC’s
resolution against Abundo. In Aldovino Jr., the Court succinctly defines what temporary inability or
disqualification to exercise the functions of an elective office means, thus:

On the other hand, temporary inability or disqualification to exercise the functions of an elective post,
even if involuntary, should not be considered an effective interruption of a term because it does not
involve the loss of title to office or at least an effective break from holding office; the office holder,
while retaining title, is simply barred from exercising the functions of his office for a reason provided
by law.74

We rule that the above pronouncement on preventive suspension does not apply to the instant case.
Verily, it is erroneous to say that Abundo merely was temporarily unable or disqualified to exercise
the functions of an elective post. For one, during the intervening period of almost two years,
reckoned from the start of the 2004-2007 term, Abundo cannot be said to have retained title to the
mayoralty office as he was at that time not the duly proclaimed winner who would have the legal
right to assume and serve such elective office. For another, not having been declared winner yet,
Abundo cannot be said to have lost title to the office since one cannot plausibly lose a title which, in
the first place, he did not have. Thus, for all intents and purposes, even if the belated declaration in
the election protest accords him title to the elective office from the start of the term, Abundo was not
entitled to the elective office until the election protest was finally resolved in his favor.
1âwphi1

Consequently, there was a hiatus of almost two years, consisting of a break and effective
interruption of his service, until he assumed the office and served barely over a year of the remaining
term. At this juncture, We observe the apparent similarities of Mayor Abundo’s case with the cases
of Mayor Talaga in Adormeo and Mayor Hagedorn in Socrates as Mayors Talaga and Hagedorn
were not proclaimed winners since they were non-candidates in the regularelections. They were
proclaimed winners during the recall elections and clearly were not able to fully serve the terms of
the deposed incumbent officials. Similar to their cases where the Court deemed their terms as
involuntarily interrupted, Abundo also became or was a private citizen during the period over which
his opponent was serving as mayor. If in Lonzanida, the Court ruled that there was interruption in
Lonzanida’s service because of his subsequent defeat in the election protest, then with more reason,
Abundo’s term for 2004-2007 should be declared interrupted since he was not proclaimed winner
after the 2004 elections and was able to assume the office and serve only for a little more than a
year after winning the protest.

As aptly stated in Latasa, to be considered as interruption of service, the "law contemplates a rest
period during which the local elective official steps down from office and ceases to exercise power or
authority over the inhabitants of the territorial jurisdiction of a particular local government
unit."75 Applying the said principle in the present case, there is no question that during the pendency
of the election protest, Abundo ceased from exercising power or authority over the good people of
Viga, Catanduanes.

Consequently, the period during which Abundo was not serving as mayor should be considered as a
rest period or break in his service because, as earlier stated, prior to the judgment in the election
protest, it was Abundo’s opponent, Torres, who was exercising such powers by virtue of the still then
valid proclamation.

As a final note, We reiterate that Abundo’s case differs from other cases involving the effects of an
election protest because while Abundo was, in the final reckoning, the winning candidate, he was the
one deprived of his right and opportunity to serve his constituents. To a certain extent, Abundo was
a victim of an imperfect election system. While admittedly the Court does not possess the mandate
to remedy such imperfections, the Constitution has clothed it with enough authority to establish a
fortress against the injustices it may bring.

In this regard, We find that a contrary ruling would work damage and cause grave injustice to
Abundo––an elected official who was belatedly declared as the winner and assumed office for only a
short period of the term. If in the cases of Lonzanida and Dizon, this Court ruled in favor of a losing
candidate––or the person who was adjudged not legally entitled to hold the contested public office
but held it anyway––We find more reason to rule in favor of a winning candidate-protestant who, by
popular vote, deserves title to the public office but whose opportunity to hold the same was halted by
an invalid proclamation.

Also, more than the injustice that may be committed against Abundo is the injustice that may
likewise be committed against the people of Viga, Catanduanes by depriving them of their right to
choose their leaders. Like the framers of the Constitution, We bear in mind that We "cannot arrogate
unto ourselves the right to decide what the people want"76 and hence, should, as much as possible,
"allow the people to exercise their own sense of proportion and rely on their own strength to curtail
the power when it overreaches itself."77 For democracy draws strength from the choice the people
make which is the same choice We are likewise bound to protect.

WHEREFORE, the instant petition is PARTLY GRANTED. Accordingly, the assailed February 8,
2012 Resolution of the Commission on Elections Second Division and May 10, 2012 Resolution of
the Commission on Elections en banc in EAC (AE) No. A-25-2010 and the Decision of the Regional
Trial Court (RTC) of Virac, Catanduanes, Branch 43, dated August 9, 2010, in Election Case No. 55,
are hereby REVERSED and SET ASIDE.

Petitioner Abelardo Abundo, Sr. is DECLARED ELIGIBLE for the position of Mayor of Viga,
Catanduanes to which he was duly elected in the May 2010 elections and is accordingly ordered
IMMEDIATELY REINSTATED to said position. Withal, Emeterio M. Tarin and Cesar O. Cervantes
are ordered to immediately vacate the positions of Mayor and Vice-Mayor of Viga, Catanduanes,
respectively, and shall revert to their original positions of Vice-Mayor and First Councilor,
respectively, upon receipt of this Decision.

The TRO issued by the Court on July 3, 2012 is hereby LIFTED.

This Decision is immediately executory.

SO ORDERED.

18
G.R. No. 199612               January 22, 2013

RENATO M. FEDERICO, Petitioner, 
vs.
COMMISSION ON ELECTIONS, COMELEC EXECUTIVE DIRECTOR and OSMUNDO M.
MALIGAYA,Respondents.

DECISION
MENDOZA, J.:

This is a petition for certiorari under Rule 65, in relation to Rule 64, of the Rules of Court, assailing
the December 21, 2011 Resolution1 of the Commission on Elections (Comelec) En Bane. in SPC No.
10-082, entitled In Re: Petition to Annul the Proclamation of Respondent Renato M. Federico,
Osmundo M. Maligaya v. Renato M. Federico and the Municipal Board of Canvassers of Santo
Tomas, Batangas.

The Facts

Edna Sanchez (Edna) and private respondent Osmundo M. Maligaya (Maligaya) were candidates for
the position of municipal mayor of Sto. Tomas, Batangas, in the May 10, 2010 Automated National
and Local Elections. Maligaya was the Liberal Party’s official mayoralty candidate.2

On April 27, 2010, Armando Sanchez, husband of Edna and the gubernatorial candidate for the
province of Batangas, died. Two days later, or on April 29, 2010,3 Edna withdrew her Certificate of
Candidacy (COC) for the position of mayor. She then filed a new COC and the corresponding
Certificate of Nomination and Acceptance (CONA) for the position of governor as substitute
candidate for her deceased husband.

On May 5, 2010, petitioner Renato M. Federico (Federico) filed with the Office of the Election Officer
of Sto. Tomas, Batangas, his COC4 and CONA5 as official candidate of the Nationalista Party and as
substitute candidate for mayor, in view of the withdrawal of Edna.

On May 7, 2010, the Comelec Law Department referred the Affidavit of Withdrawal, the COC and
the CONA of Edna, as substitute candidate for her late husband, and those of Federico, as
substitute candidate for her, to the Comelec En Banc for its consideration.6

On the same day, May 7, 2010, Maligaya filed his Petition to Deny Due Course and to Cancel
Certificate of Candidacy7 of Federico before the Comelec, docketed as SPA No. 10-137 (DC).
Maligaya sought to have Federico declared ineligible to run as substitute candidate for Edna
because the period to file the COC for substitute candidates had already lapsed after December 14,
2009, pursuant to Section 13 of Comelec Resolution No. 8678.8

In Resolution No. 8889,9 dated May 8, 2010, the COMELEC En Banc gave due course to the COC
of Edna as substitute gubernatorial candidate in the Batangas province and to that of Federico as
substitute mayoralty candidate in Sto. Tomas.

By that time, however, the official ballots had already been printed. Expectedly, on May 10, 2010,
the day of elections, the name "SANCHEZ, Edna P." was retained in the list of candidates for Mayor
of Sto. Tomas, and garnered the highest number of votes - 28,389 against Maligaya’s 22,577
votes.10

On May 11, 2010, the Municipal Board of Canvassers (MBOC) printed the Certificate of Canvass of
Votes and Proclamation of Winning Candidates11 (COCVP) showing "SANCHEZ Edna P." as the
winning mayoralty candidate. The printed COCVP, reads:

WE, THE UNDERSIGNED MEMBERS of the CITY/MUNICIPAL BOARD OF CANVASSERS do

hereby certify under oath that we have duly canvassed the votes cast in 81 precincts in the
city/municipality for the Candidates therein for city/municipality offices in the elections held on May
10, 2010. Attached hereto and forming part hereof is a Statement of Votes by Precinct (CEF No. 20-
A-1) obtained by each candidate for the offices of Mayor and Vice-Mayor.

That after such canvass, it appears that SANCHEZ, Edna P. obtained 28389 votes for the office of
City/Municipality Mayor, the same being the highest number of votes legally cast for said office; and
SILVA, Armenius O. obtained 25532 votes for the office of City/Municipality Vice Mayor, the same
being the highest number of votes legally cast for said office.

ON THE BASIS OF THE FOREGOING, we hereby proclaim the above candidates as the duly
elected City/Municipality Mayor and City/Municipality Vice Mayor.

IN WITNESS WHEREOF, we have signed these presents in SANTO TOMAS, Province of Batangas
this Tue May 11, 14:09:55 PHT 2010.

[Emphases and underscoring supplied]

This action of MBOC prompted Maligaya to file his Petition to Annul Proclamation of Respondent
Edna Sanchez,12docketed as SPC No. 10-022, on May 20, 2010. This petition was, however, later
withdrawn, as agreed upon by the parties, and the case was dismissed by the Comelec First
Division.13

A second print-out14 of the COCVP was issued by the MBOC bearing the same time and date with
the same number of votes garnered by Edna being credited to Federico. The second print-out reads:

WE, THE UNDERSIGNED MEMBERS of the CITY/MUNICIPAL BOARD OF CANVASSERS do

hereby certify under oath that we have duly canvassed the votes cast in 81 precincts in the
city/municipality for the Candidates therein for city/municipality offices in the elections held on May
10, 2010. Attached hereto and forming part hereof is a Statement of Votes by Precinct (CEF No. 20-
A-1) obtained by each candidate for the offices of Mayor and Vice-Mayor.

That after such canvass, it appears that FEDERICO, Renato M. obtained 28389 votes for the office
of City/Municipality Mayor, the same being the highest number of votes legally cast for said office;
and SILVA, Armenius O. obtained 25532 votes for the office of City/Municipality Vice Mayor, the
same being the highest number of votes legally cast for said office.

ON THE BASIS OF THE FOREGOING, we hereby proclaim the above candidates as the duly
elected City/Municipality Mayor and City/Municipality Vice Mayor.

IN WITNESS WHEREOF, we have signed these presents in SANTO TOMAS, Province of Batangas
this Tue May 11, 14:09:55 PHT 2010.

[Emphases and underscoring supplied]

On June 1, 2010, upon learning of the proclamation of Federico as the winning mayoralty candidate
by the MBOC, Maligaya filed his Petition to Annul Proclamation of Respondent Renato M.
Federico15 as mayor of Sto. Tomas, Batangas, docketed as SPC No. 10-082. The petition was
predicated on the alleged illegal act of the MBOC in issuing a falsified and patently antedated
second COCVP in the name of Federico without reconvening, without due notice, and without
annulling the first COCVP issued in favor of Edna.
In his answer to the petition, Federico raised, among others, the defenses that the petition was an
erroneous remedy, having no basis under the rules; that it was not based on valid grounds; and that
it should not have been given due course as it was belatedly filed.16

The members of the MBOC likewise filed an answer, claiming good faith when they proclaimed
Federico as winner considering that the substitutions of Edna and Federico were valid under
Comelec Resolution No. 8889.17

Meanwhile, Maligaya’s petition to deny due course and to cancel the COC of Federico was denied
by the Comelec Second Division in its Resolution,18 dated October 19, 2010. It gave due course to
Federico’s COC and CONA on the basis of the Comelec En Banc’s Resolution No. 8889 which
upheld Federico’s substitution.

In its Resolution,19 dated June 21, 2011, the Comelec First Division denied Maligaya’s petition to
annul the proclamation of Federico for having been filed out of time, as it was filed beyond the ten
(10) day period from the day of proclamation as provided for under Section 6, Rule 4 of Comelec
Resolution 8804.20 Further, it held that Federico’s filing of candidacy for mayor, vice Edna, was valid.

Maligaya then filed his Verified Partial Motion for Reconsideration,21 dated June 27, 2011, insisting
that his petition had not yet prescribed and that Federico’s substitution was null and void with his
COC and CONA filed after December 14, 2009, the deadline provided for under Section 13 of
Comelec Resolution No. 8678. He further claimed that the generation of a second print-out of the
COCVP bearing the same time and date with the same number of votes garnered by Edna being
credited to Federico was questionable for it was impossible for Federico to be proclaimed as the
winning candidate because the Canvassing and Consolidating System (CCS) had already printed a
COCVP with the name of Edna, as the winner.

The said partial motion for reconsideration was elevated to the Comelec En Banc for proper
disposition.

In his Comment22 on Maligaya’s partial motion for reconsideration, Federico pointed out that his
substitution of Edna had already been upheld with finality and, thus, could no longer be questioned.
He prayed for the dismissal of the case.

In the hearing of August 25, 2011, the Comelec En Banc considered the case submitted for
resolution.

On August 31, 2011, Federico filed a motion for reconsideration23 of the Comelec En Banc’s Order
given in the August 25, 2011 hearing, claiming that the case was barred by forum shopping and litis
pendentia. Pending his motion, he elevated the matter to the Supreme Court on September 9, 2011
by way of a Petition for Certiorari and Prohibition, docketed as G.R. No. 198283. This petition was
subsequently dismissed by the Court on October 4, 2011 for being premature in view of the
pendency of the partial motion for reconsideration before the Comelec En Banc.24

On December 21, 2011, the Comelec En Banc issued the assailed Resolution granting Maligaya’s
partial motion for reconsideration. Thus:

WHEREFORE, in view of the foregoing, the instant Partial Motion for Reconsideration is GRANTED.
The proclamation of respondent Federico is hereby ANNULLED. Accordingly:
 1. The Executive Director is ordered to constitute a Special Municipal Board of Canvassers
for the municipality of Sto. Tomas, Batangas;

2. The Special Municipal Board of Canvassers is ordered to immediately notify the parties,
reconvene and proclaim petitioner OSMUNDO M. MALIGAYA as the duly elected Mayor of
Sto. Tomas, Batangas; and

3. The Law Department is directed to conduct an investigation on the members of the (Old)
Municipal Board of Canvassers of Sto. Tomas, Batangas for possible violation of Section 32
pars. (c) and (f) Article VI of COMELEC Resolution No. 8809.

Let the Executive Director implement this resolution.

SO ORDERED.25

The Comelec En Banc ruled that the petition for the annulment of Federico’s proclamation filed on
June 1, 2011 was within the prescribed ten (10) day period. It explained that the period for the filing
of the said petition should be reckoned from May 27, 2011, when Maligaya discovered the existence
of the second COCVP and not on May 11, 2011, the proclamation date. The Comelec En Banc was
of the view that the annulment of Federico’s proclamation was in order because of his invalid
substitution of Edna, as his substitute COC was filed beyond the deadline and due to the illegality of
the proceedings of the MBOC in generating the second COCVP without authority from the Comelec
and without notice to the parties, in violation of Comelec Resolution No. 8804.

Hence, Federico filed the present Petition for Certiorari with Prayer for Writ of Preliminary Injunction
and/or Temporary Restraining Order, dated December 23, 2011, before this Court anchored on the
following

GROUNDS

(I)

The validity of Petitioner’s substitution as mayoralty candidate is already a settled fact.

A. Petitioner validly substituted Edna Sanchez pursuant to Section 77 of the Omnibus

Election Code.

B. The validity of Petitioner’s substitution was already decided with finality by the Comelec.

C. Resolution No. 8889 is valid. The Comelec, in issuing Resolution No. 8889, passed upon
all matters and issues laid before it in the case. Moreover, after Resolution No. 8889 was
issued, it was in force and had to be complied with.

(II)

The proclamation of Petitioner was regular and done in accordance with law.

A. The votes cast for "SANCHEZ, Edna P." were legally considered votes for Petitioner.

B. The petition to annul Petitioner’s proclamation was filed out of time.

 (III)

Private Respondent cannot validly be proclaimed as elected mayor because he was the losing
candidate.26

In the meantime, on December 29, 2011, the Comelec En Banc issued Minute Resolution No. 11-
1306 constituting the special MBOC pursuant to its December 21, 2011 Resolution.27

On January 16, 2012, the Comelec En Banc issued a Writ of Execution ordering Federico to vacate
the position as mayor and to cease and desist from performing the functions of the said office.28

On January 17, 2012, the Special MBOC issued a notice to convene on January 24, 2012 at the
Comelec’s Session Hall for the purpose of proclaiming Maligaya as the duly elected mayor.29

In its Resolution, dated January 17, 2012, the Court required the respondents in this case to
comment on Federico’s petition for certiorari within ten (10) days from notice, to which Maligaya and
the Comelec complied. In the same Resolution, the Court issued a Temporary Restraining Order
(TRO) enjoining the Comelec from constituting and reconvening the Special MBOC and from
proclaiming Maligaya as mayor of Sto. Tomas, Batangas.30

Pending resolution of the case, on February 28, 2012, Vice-Mayor Armenius Silva (Intervenor Silva)
of Sto. Tomas, Batangas, filed his Motion for Leave to Intervene,31 praying essentially that as
Federico failed to qualify, he should be adjudged as his legal successor as mayor, under Section 44
of the Local Government Code32 (LGC).

Both the Office of the Solicitor General (OSG) and Maligaya opposed the motion to intervene, both
arguing that he (Maligaya) was the only mayoralty candidate left to be voted for given the withdrawal
of Edna and Federico’s invalid substitution. Maligaya, then, was not a second placer but the sole and
only placer in the elections. Hence, the doctrine of the second-placer would not apply to him.

The Issues

From the pleadings of the parties, the principal issues presented for resolution are: (1) whether
Federico could validly substitute Edna who withdrew her candidacy for the mayoralty position; (2)
whether Maligaya’s Petition to Annul Proclamation of Federico as mayor of Sto. Tomas, Batangas,
docketed as SPC No. 10-082, was filed on time; and (3) granting that Federico was disqualified,
whether he should be succeeded by Intervenor Silva under the LGC or replaced by Maligaya.

Essentially, the issue thrust upon the Court is whether the Comelec gravely abused its discretion
when it annulled Federico’s proclamation as the winning candidate on the ground that his
substitution as mayoralty candidate was void.

Federico insists that his substitution of Edna was valid and had long been final in view of Comelec
Resolution No. 8889. He likewise argues that his proclamation as mayor of Sto. Tomas, Batangas,
was valid and regular and, hence, it must be upheld.

The Court’s Ruling

The Court agrees with the position taken by the OSG representing public respondent Comelec En
Banc. The electoral commission committed no grave abuse of discretion when it came out with its
December 21, 2011 Resolution,33 in SPC No. 10-082, granting Maligaya’s partial motion for
reconsideration. The Court shall discuss the issues in seriatim.

Federico’s substitution of Edna Sanchez

as mayoralty candidate was not valid

In its assailed December 21, 2011 Resolution, the Comelec En Banc annulled Federico’s
proclamation as mayor of Sto. Tomas, Batangas, on the ground that his substitution of Edna was
invalid, the substitute COC and CONA having been filed after the December 14, 2009 deadline
provided for under Section 13 of Comelec Resolution No. 8678.

Federico argues that Comelec Resolution No. 8678 cannot prevail over the provisions of Section 77
of Batas Pambansa Bilang 881, the Omnibus Election Code (OEC), prescribing 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 his COC. The law 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 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 the 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 a candidate, or, in the
case of candidates to be voted for by the entire electorate of the country, with the Commission.
(Emphasis supplied)

Federico posits that he timely filed his COC as it was not later than midday of the day of the election.
He argues that the law makes no distinction between the different causes for substitution – death,
disqualification or withdrawal. Regardless of the cause of substitution, the deadline for the filing of a
substitute COC is "not later than mid-day of the election." Accordingly, he asserts that he validly
substituted Edna having filed his COC and CONA on May 5, 2010 or five (5) days before the
elections and having complied with all the procedural requirements for a valid substitution.

Federico’s argument is not well-taken.

The Comelec is empowered by law to prescribe such rules so as to make efficacious and successful
the conduct of the first national automated election.

On January 23, 2007, Congress enacted Republic Act (R.A.) No. 9369, An Act Amending Republic
Act No. 8436, Entitled ‘An Act Authorizing The Commission On Elections To Use An Automated
Election System In The May 11, 1998 National Or Local Elections And In Subsequent National And
Local Electoral Exercises,’ To Encourage Transparency, Credibility, Fairness And Accuracy Of
Elections, Amending For The Purpose Batas Pambansa Blg. 881, As Amended, Republic Act No.
7166 And Other Related Elections Laws, Providing Funds Therefor And For Other Purposes.
Section 13 of said law partially provides:

SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows:
SEC.15. Official Ballot. - The Commission shall prescribe the format of the electronic display and/or
the size and form of the official ballot, which shall contain the titles of the position to be filled and/or
the proposition to be voted upon in an initiative, referendum or plebiscite. Where practicable,
electronic displays must be constructed to present the names of all candidates for the same position
in the same page or screen, otherwise, the electronic displays must be constructed to present the
entire ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of the
ballot options on all pages before completing his or her vote and to allow the voter to review and
change all ballot choices prior to completing and casting his or her ballot.

Under each position to be filled, the names of candidates shall be arranged alphabetically by
surname and uniformly indicated using the same type size. The maiden or married name shall be
listed in the official ballot, as preferred by the female candidate. Under each proposition to be vote
upon, the choices should be uniformly indicated using the same font and size.

A fixed space where the chairman of the board of election inspector shall affix her/her signature to
authenticate the official ballot shall be provided.

For this purpose, the Commission shall set the deadline for the filing of certificate of
candidacy/petition of registration/manifestation to participate in the election. Any person who files his
certificate of candidacy within this period shall only be considered as a candidate at the start of the
campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or
omissions applicable to a candidate shall effect only upon that start of the aforesaid campaign
period: Provided, finally, That any person holding a public appointive office or position, including
active members of the armed forces, and officers, and employees in government-owned or-
controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate
the same at the start of the day of the filing of his/her certification of candidacy. (Emphasis supplied)

Under said provision, "the Comelec, which has the constitutional mandate to enforce and administer
all laws and regulations relative to the conduct of an election,"34 has been empowered to set the
dates for certain pre-election proceedings. In the exercise of such constitutional and legislated
power, especially to safeguard and improve on the Automated Election System (AES), Comelec
came out with Resolution No. 8678.

As automated elections had been mandated by law, there was a need for the early printing of the
ballots. So that all candidates would be accommodated in the ballots, the early filing of COCs was
necessary. If there would be late filing and approval of COCs, the names of aspiring candidates
would not be included in the ballot, the only document to be read by the Precinct Count Optical Scan
(PCOS) machines.

The Law, Rules and Regulations

on Substitution

With regard to substitutions, Congress and the Comelec came out with laws and rules addressing
anticipated problems in such cases. Thus, under Section 12 of R.A. No. 9006, in order to obviate
confusion, the name of the substitute candidate should, as much as possible, bear the same
surname as that of the substituted candidate. Section 12 reads:

Section 12. Substitution of Candidates. – In case of valid substitutions after the official ballots have
been printed, the votes cast for the substituted candidates shall be considered as stray votes but
shall not invalidate the whole ballot. For this purpose, the official ballots shall provide spaces where
the voters may write the name of the substitute candidates if they are voting for the latter: Provided,
however, That if the substitute candidate of the same family name, this provision shall not apply.
[Emphases supplied]

Regarding the May 10, 2010 automated elections, the Comelec came out with Resolution No. 8678.
On substitution, Section 13 thereof provides:

SEC. 13. Substitution of Candidates, in case of death, disqualification or withdrawal of another. - If

after the last day for the filing of certificate of candidacy, an official candidate of a registered political
party dies, withdraws or is disqualified for any cause, he may be substituted by a candidate
belonging to, and nominated by, the same political party. No substitute shall be allowed for any
independent candidate.

The substitute for a candidate who withdrew may file his certificate of candidacy as herein provided
for the office affected not later than December 14, 2009.

The substitute for a candidate who died or suffered permanent incapacity or disqualified by final
judgment, may file his certificate of candidacy up to mid-day of election day. If the death or
permanent disability should occur between the day before the election and mid-day of election day,
the substitute candidate may file the certificate with any board of election inspectors in the political
subdivision where he is a candidate, or in the case of a candidate for President, Vice-President or
Senator, with the Law Department of the Commission on Elections in Manila.

No person who has withdrawn his candidacy for a position shall be eligible as substitute candidate
for any other position after the deadline for filing of certificates of candidacy. [Emphasis and
underscoring supplied]

As correctly pointed out by the OSG, it is clear from the foregoing that different deadlines were set to
govern the specific circumstances that would necessitate the substitution of a candidate due to
death, disqualification or withdrawal. In case of death or disqualification, the substitute had until
midday of the election day to file the COC. In case of withdrawal, which is the situation at bench, the
substitute should have filed a COC by December 14, 2009.

The reason for the distinction can easily be divined. Unlike death or disqualification, withdrawal is
voluntary. Generally, a candidate has sufficient time to ponder on his candidacy and to withdraw
while the printing has not yet started. If a candidate withdraws after the printing, the name of the
substitute candidate can no longer be accommodated in the ballot and a vote for the substitute will
just be wasted.

When Batangas Governor Armando Sanchez died on April 27, 2010, Edna withdrew her candidacy
as mayor and substituted her late husband as gubernatorial candidate for the province on April 29,
2010. The party actually had the option to substitute another candidate for Governor aside from
Edna. By fielding Edna as their substitute candidate for Governor, the party knew that she had to
withdraw her candidacy for Mayor. Considering that the deadline for substitution in case of
withdrawal had already lapsed, no person could substitute her as mayoralty candidate. The sudden
death of then Governor Armando Sanchez and the substitution by his widow in the gubernatorial
race could not justify a belated substitution in the mayoralty race.

Comelec Resolution No. 8889

not binding on Maligaya
Federico asserts that Resolution No. 8889, which gave due course to the COC of Edna, as
gubernatorial candidate; and his COC, as mayoralty candidate, was valid as the Comelec passed
upon all matters and issues laid before it in the case. According to him, the legal presumption was
that official duty had been regularly performed. The resolution was an operative fact by which the
Comelec denied Maligaya’s petition to deny due course to the COC of Federico, and on the basis of
which the MBOC counted the votes for Edna as votes cast for Federico.

As far as Maligaya is concerned, the resolution was void as it lacked legal basis as Federico’s
substitution was invalid, his COC having been filed only on May 5, 2010, or after December 14,
2009, the deadline provided for under Section 13 of Comelec Resolution No. 8678. No reason was
mentioned in the resolution why his COC was given due course except that the withdrawal "merely
caused a vacuum in mayoralty contest."35 The resolution reads:

Mrs. Edna P. Sanchez is qualified to substitute for her deceased husband. And this substitution is
not contrary to law or our rules. She is stepping up from her candidacy as Mayor to Governor, and
such action merely caused a vacuum in mayoralty contest. The rule being cited by the Law
Department that the substitute for a candidate who withdrew may file his certificate of candidacy as
herein provided for the office affected not later than December 14, 2009, is far from germane
considering that the vacancy arose by reason of the death of Governor Sanchez.

To stress, the vacancy in the mayoralty race in Sto. Tomas, Batangas, was due to the withdrawal of
Edna as mayoralty candidate, not due to the death of Armando Sanchez.

Accordingly, the Court agrees with the OSG that Resolution No. 8889 was void as it was in
contravention of the guidelines set forth under Resolution No. 8678. With respect to Federico, it
cannot be regarded as a valid source of any right, like the right to be voted for public office. Indeed,
a void judgment can never be final and executory and may be assailed at any time.36

"Where a proclamation is null and void, the proclamation is no proclamation at all and the proclaimed
candidate's assumption of office cannot deprive the Comelec of the power to declare such nullity and
annul the proclamation."37

More importantly, Resolution No. 8889 was merely an administrative issuance, based on documents
forwarded to the Comelec. It was not a result of an adversarial proceeding, where the parties were
heard and allowed to adduce evidence. In issuing Resolution No. 8889, the Comelec did not bother
to notify the parties who would have been affected. It was, thus, not a decision in an actual case or
controversy which ripened into finality.

Unquestionably, parties who had no participation therein were not bound by the resolution. Federico
cannot invoke res judicata, one of the requirements of which is identity of parties. Stated differently,
as Maligaya was not a party in the said proceeding, Resolution No. 8889 was not binding on him.

The second COCVP in favor of

Federico had no legal basis.

Without question, the votes garnered by Edna could not be credited to Federico as he was never a
legitimate candidate. As there was an invalid substitution, there could not be a valid proclamation. In
effect, the second COCVP in his name had no legal basis. Granting that those who voted for Edna
had in mind to vote for Federico, nonetheless, the fact that there was no compliance with the rules
cannot be ignored.
x x x. In a choice between provisions on material qualifications of elected officials, on the one hand,
and the will of the electorate in any given locality, on the other, we believe and so hold that we
cannot choose the electorate will. The balance must always tilt in favor of upholding and enforcing
the law. To rule otherwise is to slowly gnaw at the rule of law.38

It was alleged that the MBOC of Sto. Tomas, Batangas, raised the hands of Federico as the winner.
As correctly pointed out by Maligaya, however, this was impossible because the CCS printed the
name of Edna Sanchez as the winner on the first COCVP. Thereafter, the MBOC came out with a
second COCVP, this time, with the name of Federico on it with the same number of votes as that of
Edna, and generated on the very same date and the very same time as the first COCVP - a physical
impossibility.

Maligaya’s Petition to Annul

the Proclamation of Federico
was filed on time

Maligaya became aware of the issuance of the second COCVP in favor of Federico only on May 27,
2010. From that day, he had ten (10) days to question the dubious proceeding in the MBOC under
Section 6 of Resolution No. 8804. Considering that Maligaya filed his petition to annul Federico’s
May 10, 2010 proclamation on June 1, 2010, it was indeed filed on time.

It has been argued that there is no evidence that Maligaya became aware of the issuance of the
second COCVP in favor of Federico only on May 27, 2010. In this regard, the Court believes that the
actions taken by Maligaya after the elections and the separate proclamations of Edna and Federico
strongly indicate that he was telling the truth. Indeed, there is no rhyme or reason why he should file
a petition questioning the proclamation of Edna if he had knowledge of the subsequent proclamation
of Federico. The Court adopts with approbation his reasoning on the matter. Thus:

5.35. Private respondent pursued and prosecuted this case with the knowledge that it was
Edna Sanchez who was proclaimed, until he came to know of the alleged proclamation of
respondent Federico on May 27, 2010. Consequently, he filed another petition on June 1,
2010, this time against Federico, to annul his proclamation. The June 1, 2010 petition was
filed within ten days from the knowledge of the alleged proclamation of Federico.

5.36. The filing of SPC NO. 10-022 demonstrates that private respondent Maligaya believed
in good faith that it was Edna Sanchez that was proclaimed and that he did not initially know
that there was a COCVP in the name of Federico. SPC No. 10-022 is also a proof that
petitioner did not dilly dally in protecting his rights. There simply is no reason and it runs
counter to human conduct for Maligaya to file a petition for annulment of proclamation of
Edna Sanchez if he knew all along that it was Federico who was proclaimed.

5.37. In the same manner, the filing of the present petition against Federico shows that the
proclamation of Federico was fraudulent or at least made surreptitiously. Had Maligaya
known of the proclamation of Federico, he should have outrightly filed the petition for
annulment of proclamation against Federico. But because it was made without any notice to
the herein private respondent, he only knew of it on May 27, 2010, thus, the petition on June
1, 2010. Private respondent did not certainly sleep on his rights as he filed the proper petition
within the prescribed period. He could not be penalized for belated filing when, as shown
above, the COCVP of Federico was surreptitiously accomplished. Thus, the Comelec En
Banc did not commit grave abuse of discretion in upholding the interest of herein private
respondent Maligaya.39 [Emphasis and underscoring in the original]
Accordingly, the Comelec did not abuse its discretion when it annulled the actions of the MBOC and
the proclamation of Federico. Such exercise is within its powers under the law to administer and
enforce election laws.

x x x, The statutory power of supervision and control by the COMELEC over the boards of
canvassers includes the power to revise or reverse the action of the boards, as well as to do what
the boards should have done. Such power includes the authority to initiate motu propio such steps or
actions as may be required pursuant to law, like reviewing the actions of the board; conducting an
inquiry affecting the genuineness of election returns beyond the election records of the polling places
involved; annulling canvass or proclamations based on incomplete returns or on incorrect or
tampered returns; invalidating a canvass or proclamation made in an unauthorized meeting of the
board of canvassers either because it lacked a quorum or because the board did not meet at all;
requiring the board to convene.40 1âwphi1

There being no valid substitution,

the candidate with the highest number
of votes should be proclaimed as the
duly elected mayor

As Federico's substitution was not valid, there was only one qualified candidate in the mayoralty race
in Sto. Tomas, Batangas Maligaya. Being the only candidate, he received the highest number of
votes. Accordingly, he should be proclaimed as the duly elected mayor in the May 10,2010
elections.41

Considering that Maligaya was the winner, the position of Intervenor Silva that he be considered the
legal successor of Federico, whom he claims failed to qualify, has no legal basis. There is simply no
vacancy. When there is no vacancy, the rule on succession under Section 4442 of the LGC cannot be
invoked.

WHEREFORE, the petition is DENIED.

The Motion for Leave to Intervene filed by Armenius Silva is DENIED.

The Temporary Restraining Order issued by the Court is ordered lifted.

SO ORDERED.

19
G.R. No. 204637               April 16, 2013

LIWAYWAY VINZONS-CHATO, Petitioner, 
vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and ELMER E.
PANOTES, Respondents.

RESOLUTION

REYES, J.:
Before us is a Petition for Certiorari and Prohibition with Prayer for the Issuance of a Temporary
Restraining Order and/or Writ of Prohibitory Injunction1 assailing the Decision2 rendered on October
15, 2012 and Resolution3 issued on December 3, 2012 by the House of Representatives Electoral
Tribunal (HRET) in HRET Case No. 10-040 (EP). The Decision dated October 15, 2012 and
Resolution dated December 3, 2012 denied herein petitioner Liwayway Vinzons-Chato’s (Chato)
electoral protest filed before the HRET to challenge the proclamation of herein respondent, Elmer
Panotes (Panotes), as the duly elected Representative of the Second District of Camarines Norte.

In the May 10, 2010 elections, Chato and Panotes both ran for the congressional seat to represent
the Second District of Camarines Norte. On May 12, 2010, Panotes was proclaimed as the winner
for having garnered 51,704 votes. The votes cast for Chato totalled 47,822.

On May 24, 2010, Chato filed an electoral protest claiming that in four of the seven
municipalities4 comprising the Second District of Camarines Norte, the following irregularities
occurred: (a) the Precinct Count Optical Scan (PCOS) machines rejected and failed to count the
votes, which if manually counted and visually appreciated, were in fact validly cast for her; (b) the
PCOS machines broke down in some clustered precincts (CPs) and the ballots were inserted in
contingency machines at later times rendering uncertain the actual inclusion of the votes in the final
tally; (c) the protocols prescribed by the Commission on Elections (COMELEC) relative to the
installation of the PCOS machines and Canvassing and Consolidation System (CCS), counting of
ballots, canvassing and transmission of results, and closing of the voting were either not followed or
modified making it possible for the tampering and manipulation of the election results; (d) several
compact flash (CF) cards in the PCOS machines were reconfigured on the eve of the May 10, 2010
elections; (e) there were errors or lapses in transmitting results from several PCOS machines to the
CCS of the Municipal Boards of Canvassers (MBOCs) resulting to the need to manually insert CF
cards into the CCS, but in some instances, the insertions were made after significant and
unaccounted lapse of time in cases where before transporting the CF cards to the MBOCs, the
members of the Boards of Election Inspectors (BEIs) went home first or did private business; and (f)
after the closing of the polls, some CF cards failed to show recorded results.5

On March 21, 2011, the HRET started the initial revision of ballots in 25% of the pilot protested CPs.
The revision ended on March 24, 2011. Per physical count, Chato’s votes increased by 518, while
those cast for Panotes decreased by 2,875 votes. The detailed results follow:6

VOTES FOR CHATO VOTES FOR PANOTES

Municipalities Per   Gain Per Per Physical Gain or

Election or Election
Per Count (Loss)
Returns Physical (Loss) Returns

(ERs) Count

Basud 1,735 1,891 156 3,067 2,242 (825)

Daet 3,337 3,704 367 5,229 3,186 (2,043)

Mercedes 779 779 0 1,573 1,573 0

Vinzons 1,628 1,623 (5) 3,224 3,217 (7)

Total 7,479 7,997 518 13,093 10,218 (2,875)

Panotes filed an Urgent Motion to Suspend Proceedings with Motion for Preliminary Hearing to
Determine the Integrity of the Ballots and Ballot Boxes Used in the May 10, 2010 Elections in the
Contested Precincts of the Second District of Camarines Norte and to Direct the Printing of the
Picture Images of the Ballots of the Subject Precincts.7 Panotes claimed that in Daet and Basud: (a)
the top cover of some of the ballot boxes were loose, and ballots, Minutes of Voting (MOV) and ERs
can be taken out; (b) when keys were inserted into the padlocks of the ballot boxes, the upper
portion of the locks disconnected from the bodies indicating tampering; (c) the packing tape seals,
which he was able to put in some of the ballot boxes, were broken or cut, leading to the conclusion
that the boxes had been opened prior to the initial revision; (d) some self-locking security seals were
not properly attached; and (e) the contents of some of the ballot boxes, such as the MOV and ERs
were either missing or in disarray, with the ballots unnecessarily folded or crumpled in the CPs,
where the votes cast for him substantially decreased as per physical count when compared to the
figures found in the ERs.

On March 22, 2012, the HRET issued Resolution No. 12-079 directing the continuance of the
revision of ballots in 75% of the contested CPs. The proceeding commenced on May 2, 2012 and
ended on May 9, 2012. The results were:8

VOTES FOR CHATO VOTES FOR PANOTES

Municipalities Per   Gain Per Per Physical Gain or

Election or Election
Per Count (Loss)
Returns Physical (Loss) Returns

(ERs) Count

Basud 4,792 5,259 467 4,812 3,163 (1,649)

Daet 12,569 13,312 743 12,856 9,029 (3,827)

Mercedes 8,553 8,554 1 6,166 6,166 0

Vinzons 5,085 5,087 2 4,883 4,883 0

Total 30,999 32,212 1,213 28,717 23,241 (5,476)

As shown above, there was a substantial discrepancy between the figures indicated in the
ERs/Statements of Votes by Precinct (SOVPs) on one hand, and the results of the physical count
during the revision, on the other. Thereafter, the HRET issued Resolution No. 11-208 directing the
decryption and copying of the picture image files of ballots (PIBs). The proceeding was conducted
within the COMELEC premises. However, Chato alleged that the back-up CF card for CP No. 44 of
the Municipality of Daet and the CF card for CP No. 29 of the Municipality of Mercedes did not
contain the PIBs. Chato filed before the HRET an Urgent Motion to Prohibit the Use by Protestee of
the Decrypted and Copied Ballot Images. The HRET denied Chato’s motion through Resolution No.
11-321 issued on June 8, 2011.

Panotes filed before us a petition9 assailing HRET Resolution No. 12-079. On her part, Chato
instituted a petition10challenging HRET Resolution No. 11-321. We ordered the consolidation of the
two petitions, and both were dismissed in a decision which we rendered on January 22, 2013.
Panotes’ petition was moot and academic since revision was in fact completed. Chato, on the other
hand, was not able to present sufficient evidence to prove that the integrity of the CF cards was not
preserved.

Going back to HRET Case No. 10-040 (EP), in the 160 protested CPs, there were substantial
variances in the figures per machine count as indicated in the ERs, on one hand, and per physical
count, on the other, in a total of 69 CPs, 23 of which were in Basud and 46 in Daet. The HRET then
tediously compared the paper ballots that were fed to the PCOS machine in these 69 CPs with the
corresponding PIBs in the CF cards to resolve the discrepancies. The bar codes at the bottom right
of the PIBs were compared with those indicated in the paper ballots. However, the HRET found that
while the name of Chato was shaded in some of the paper ballots objected to by Panotes, there
were no votes (NV) for congressional representative reflected in the PIBs.11 Notably, the number of
ballots gained by Chato during the physical count of votes is directly proportional with the number of
paper ballots for her objected to by Panotes with NV on the congressional representative line per
PIBs.12 The HRET likewise observed that per physical count, there was a substantial increase in the
number of stray votes by reason of over voting (OV) for congressional representative. The
decryption and copying of the PIBs revealed that there were only a few PIBs with OV for the said
position.13 Panotes’ loss per physical count is more or less proportionate with the number of ballots,
which Chato claimed as having exhibited stray over voting for the congressional representative line.14

Chato and Panotes presented their respective evidence before the HRET.

Among the evidence offered by Chato were: (a) certified true copies of the Transcript of
Stenographic Notes (TSN) of the testimony of Atty. Anne A. Romero-Cortez15 (Atty. Cortez) on June
2, 2010 when she explicitly said before the Congress, acting as the Presidential and Vice
Presidential Board of Canvassers, that "for the municipalities of Labo, Vinzons and Basud, there
were CF cards that had to be replaced because they were defective"; (b) the testimony of Angel
Averia (Averia),16 who, during the decryption and copying of the PIBs in the COMELEC premises on
April 26, 2011, had allegedly heard COMELEC Director Esther Roxas (Director Roxas) admit that
there was no inventory of the CF cards; (c) Panotes’ own admission in his Opposition to the Motion
to Reiterate the Continuation of Revision, dated March 22, 2011, to the effect that "the main CF card
for CP 44 of the Municipality of Daet is missing and it would appear that the Election Officer
submitted the back-up CF card in lieu thereof" but the "back-up CF card did not contain the picture
image of the ballots"; and (d) Panotes’ admission in the aforesaid Opposition that "in the Municipality
of Mercedes, the BEI re-zeroed the results of the elections in CP No. 29," and consequently, the
PIBs for these precincts were erased from the CF card’s memory.17

Following are among Panotes’ claims to establish that in order to tilt the results of the electoral
protest in Chato’s favor, the paper ballots were tampered after the canvassing, counting and
transmission of the voting results in the May 10, 2010 elections were completed: (a) the testimonies
of Philip Fabia and Danilo Sibbaluca that "the ballot boxes used in the May 10, 2010 elections could
be turned upside down and the bottom portion of the ballot box could be lifted so that the contents
could be taken out";18 (b) the reports of the HRET Revision Committees stating that in Daet and
Basud, some of the padlocks and self-locking security seals in the ballot boxes were either missing
or not properly attached, and the MOVs and ERs were likewise nowhere to be found;19 (c) the
testimony of Benjamina Camino that during the revision, in the matched paper ballots and PIBs, the
votes were identical except those for the position of congressional representative;20 (d) testimony of
Florivida Mago21 indicating that in the Random Manual Audit (RMA) conducted on the same day right
after the closing of the polls, the team found that out of 420 valid votes counted by the PCOS
machine, there was none with an over-vote for the congressional seat line, and there was only a
single difference between the automated result and the manual count;22 (e) in direct contrast with the
RMA team’s findings, in the revision report for CP No. 23 of Basud, 99 ballots reflected over-votes
for the congressional seat line;23 (f) the main CF card for CP No. 44 of Daet had already been
retrieved from the ballot box of the municipality’s MBOC and its contents decrypted;24 (g) even
granting for argument’s sake that in Mercedes, the BEI re-zeroed the results of the elections in CP
No. 29, this has no bearing since the physical count of the ballots jived with the results indicated in
the ER;25 (h) Chato took out of context Atty. Cortez’s testimony before the Congress because what
the latter stated was that the defective CF cards were replaced with working ones on May 10, 2010
and not after;26 and (i) Atty. Cortez and Director Roxas were not presented as witnesses before the
HRET, hence, the statements ascribed to them by Chato do not bear weight.27

The HRET found that out of the 160 contested CPs, there were 91 without substantial variances
between the results of the automatic and the manual count. However, in 69 CPs in Basud and Daet,
the variances were glaring.

On October 15, 2012, the HRET rendered the herein assailed decision dismissing Chato’s electoral
protest based on the following grounds:

The settled rule in election contests is that the ballots themselves constitute the best evidence of the
will of the voters, but the ballots lose this character and give way to the acceptance of the election
returns when it has been shown that they have been the subject of tampering, either by substituting
them with other official or fake ballots, or by substantially altering or changing their contents.

Consequently, the votes determined after the revision in the foregoing 69 CPs in Basud and Daet,
which yielded a reversal of votes, cannot be relied upon, as they do not reflect the true will of the
electorate. Hence, the Tribunal has to rely on what is reflected in the election returns and/or
statement of votes by precinct[,] the same being the best evidence of the results of the election in
said precincts in lieu of the altered ballots.

xxxx

The votes of the parties per physical count in all the 120 [sic] protested CPs in the concerned district
are 40,209 for protestant Chato and 33,459 for protestee Panotes.

Considering that 69 CPs have substantial variances, the Tribunal decided to disregard the ballots
therein, i.e., 18,535 for protestant and 10,858 for protestee, and to consider, instead, the results in
the election returns, i.e., 16,802 for protestant and 19,202 for protestee.

Hence, only the ballots in the 91 CPs without substantial variances, i.e., 21,674 for protestant and
22,601 for protestee, had undergone appreciation of ballots. Of the ballots appreciated, the Tribunal
rejected two (2) ballots for protestant and two (2) ballots for protestee, while it admitted 176 ballots
claimed by the protestant and 183 claimed by the protestee.

The votes of the parties in the uncontested municipalities are 9,338 for protestant and 9,894 for
protestee.

Accordingly, the parties’ votes, after recount and appreciation and examination of the evidence
presented in the 160 protested CPs as well as in the uncontested municipalities, are summarized
below:

  [Chato] [Panotes]

Votes in the 91 revised 21,674 22,601

protested CPs without SV

[substantial variance] per

recount and appreciation

Add: Votes per ER/SOVP 16,802 19,202

in 69 revised protested

CPs with SV

Less: Rejected Ballots (2) (2)

Objected to in the 91

revised protested CPs

without SV

Add: Admitted PCOS 176 183

Rejected Ballots Claimed

in the 91 revised protested

CPs without SV

Add: Votes in the 9,338 9,894

uncontested

municipalities

Equals: Total votes of the 47,988 51,878

parties in the

congressional district

Winning Margin of   3,890

Protestee

The foregoing results of revision and appreciation of ballots in the protested CPs, and the evidence
of the parties indicate that protestee’s proclamation margin of 3,882 votes increased by eight
(8).28 (Citations omitted)
On December 3, 2012, the HRET denied Chato’s motion for reconsideration to the Decision dated
October 15, 2012.

Central to the resolution of the instant petition are the issues of whether or not the HRET committed
grave abuse of discretion when it:

(a) disregarded the results of the physical count in the 69 CPs when the HRET had previously held
that the integrity of the ballot boxes was preserved and that the results of the revision proceedings
can be the bases to overturn those reflected in the election returns;

(b) resorted to the PIBs, regarded them as the equivalent of the paper ballots, and thereafter ruled
that the integrity of the latter was doubtful;

(c) held that Chato had failed to prove by substantial evidence that the CF cards used in the May 10,
2010 elections were not preserved.

In support of the instant petition, Chato reiterates her allegations in the proceedings before the
HRET. She stresses that in the Order29 issued on April 10, 2012, the HRET ruled that as regards the
conditions of the ballot boxes in Basud and Daet, the self-locking security seals and padlocks were
attached and locked, hence, "there was substantial compliance with statutory safety measures to
prevent reasonable opportunity for tampering with their contents x x x."30 Chato likewise argues that
under Republic Act (R.A.) No. 9369,31 the May 10, 2010 Automated Election System was paper-
based32 and the PIBs are not the official ballots. Further, under Section 15 of R.A. No. 8436, what
should be regarded as the official ballots are those printed by the National Printing Office (NPO)
and/or the Bangko Sentral ng Pilipinas (BSP), or by private printers contracted by the COMELEC in
the event that the NPO and the BSP both certify that they cannot meet the printing requirements.
Chato once again referred to the statements allegedly made by Atty. Cortez, Averia and Panotes
himself to prove that serious doubt exists relative to the integrity of the CF cards used in the May 10,
2010 elections.

Panotes refutes the foregoing in his Comment33 to the instant petition. He points out that in Liwayway
Vinzons-Chato v. HRET and Elmer Panotes,34 we sustained the PIBs as the functional equivalent of
paper ballots, thus, they may be used for revision purposes. Further, the HRET had categorically
ruled in the herein assailed decision that the physical ballots were altered or tampered, hence, not
reflective of the true will of the electorate. Besides, Chato’s electoral protest was flimsily anchored on
the alleged missing CF card in CP No. 44 of Daet. Panotes emphasizes that the CF card had
already been retrieved. Even if it were not found, there are 14 CPs in Daet and one incident of a
missing CF card cannot create a strong presumption that all such cards in the entire Second District
of Camarines Norte had been tampered.

There is no merit in the instant petition.

Chato posits that since the HRET, in its Order dated April 10, 2012, had already considered the
conditions of the ballot boxes as indicative of having substantially complied with "statutory safety
measures to prevent reasonable opportunity for tampering with their contents",35 its subsequent
disregard of the results of the physical count in the 69 CPs in Daet and Basud was tainted with grave
abuse of discretion.

We do not agree.
It bears stressing that the HRET’s Order dated April 10, 2012 was issued to resolve Panotes’ motion
to suspend the continuance of the revision proceedings in 75% of the contested CPs. The HRET’s
findings then anent the integrity of the ballot boxes were at the most, preliminary in nature. The
HRET was in no way estopped from subsequently holding otherwise after it had the opportunity to
exhaustively observe and examine in the course of the entire revision proceedings the conditions of
all the ballot boxes and their contents, including the ballots themselves, the MOV, SOVs and ERs.

We need not belabor the second and third issues raised herein as the same had been resolved in
the following wise in Liwayway Vinzons-Chato v. HRET and Elmer Panotes36 and Elmer E. Panotes
v. HRET and Liwayway Vinzons-Chato:37

Section 2(3) of R.A. No. 9369 defines "official ballot" where AES (Automated Election System) is
utilized as the "paper ballot, whether printed or generated by the technology applied, that faithfully
captures or represents the votes cast by a voter recorded or to be recorded in electronic form."

xxxx

The May 10, 2010 elections used a paper-based technology that allowed voters to fill out an official
paper ballot by shading the oval opposite the names of their chosen candidates. Each voter was
then required to personally feed his ballot into the Precinct Count Optical Scan (PCOS) machine
which scanned both sides of the ballots simultaneously, meaning, in just one pass. As established
during the required demo tests, the system captured the images of the ballots in encrypted format
which, when decrypted for verification, were found to be digitized representations of the ballots cast.

As such, the printouts thereof PIBs are the functional equivalent of the paper ballots filled out by the
voters and, thus, may be used for purposes of revision of votes in an electoral protest.

xxxx

x x x The HRET found Chato’s evidence insufficient. The testimonies of the witnesses she presented
were declared irrelevant and immaterial as they did not refer to the CF cards used in the 20
precincts in the Municipalities of Basud and Daet with substantial variances x x x.

To substitute our own judgment to the findings of the HRET will doubtless constitute an intrusion into
its domain and a curtailment of its power to act of its own accord on its evaluation of the evidentiary
weight of testimonies presented before it. Thus, for failure of Chato to discharge her burden of
proving that the integrity of the questioned cards had not been preserved, no further protestations to
the use of the picture images of the ballots as stored in the CF cards should be entertained.
(Citations omitted)

Chato attempts to convince us that the integrity of the physical ballots was preserved, while that of
the CF cards was not. As mentioned above, the integrity of the CF cards is already a settled matter.
Anent that of the physical ballots, this is a factual issue which calls for a re-calibration of evidence.
Generally, we do not resolve factual questions unless the decision, resolution or order brought to us
for review can be shown to have been rendered or issued with grave abuse of discretion.

In Dueñas, Jr. v. HRET,38 we defined grave abuse of discretion, viz:

It is such capricious and whimsical exercise of judgment which is tantamount to lack of jurisdiction.
Ordinary abuse of discretion is insufficient. The abuse of discretion must be grave, that is, the power
is exercised in an arbitrary or despotic manner by reason of passion or personal hostility. It must be
so patent and gross as to amount to evasion of positive duty or to a virtual refusal to perform the
duty enjoined by or to act at all in contemplation of the law. In other words, for a petition for certiorari
to prosper, there must be a clear showing of caprice and arbitrariness in the exercise of discretion.
There is also grave abuse of discretion when there is a contravention of the Constitution, the law or
existing jurisprudence. x x x.39 (Citation omitted)

In the case at bar, the HRET disposed of Chato’s electoral protest without grave abuse of discretion.
The herein assailed decision and resolution were rendered on the bases of existing evidence and
records presented before the HRET.

WHEREFORE, IN VIEW OF THE FOREGOING, the instant petition is DISMISSED for lack of merit.
The Decision dated October 15, 2012 and Resolution dated December 3, 2012 of the House of
Representatives Electoral Tribunal in HRET Case No. 10-040 (EP) are AFFIRMED.

SO ORDERED.

20
G.R. No. 205033               June 18, 2013

ROMEO G. JALOSJOS, Petitioner, 
vs.
THE COMMISSION ON ELECTIONS, MARIA ISABELLE G. CLIMACO-SALAZAR, ROEL B.
NATIVIDAD, ARTURO N. ONRUBIA, AHMAD NARZAD K. SAMPANG, JOSE L. LOBREGAT,
ADELANTE ZAMBOANGA PARTY, AND ELBERT C. ATILANO, Respondents.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for certiorari1 file under Rule 64 in relation to Rule 65 of the Rules of Court is
the Commission on Elections' (COMELEC) En Bane Resolution No. 96132 dated January 15, 2013,
ordering the denial of due course to and/or cancellation of petitioner Romeo G. Jalosjos' certificate of
candidacy (CoC) as a mayoralty candidate for Zamboanga City.

The Facts

On November 16, 2001, the Court promulgated its Decision in G.R. Nos. 132875-76, entitled
"People of the Philippines v. Romeo G. Jalosjos," convicting petitioner by final judgment of two (2)
counts of statutory rape and six (6) counts of acts of lasciviousness.4 Consequently, he was
sentenced to suffer the principal penalties of reclusion perpetua and reclusion temporal5 for each
count, respectively, which carried the accessory penalty of perpetual absolute disqualification
pursuant to Article 41 of the Revised Penal Code (RPC).6 On April 30, 2007, then President Gloria
Macapagal Arroyo issued an order commuting his prison term to sixteen (16) years, three (3) months
and three (3) days (Order of Commutation). After serving the same, he was issued a Certificate of
Discharge From Prison on March 18, 2009.7

On April 26, 2012,8 petitioner applied to register as a voter in Zamboanga City. However, because of
his previous conviction, his application was denied by the Acting City Election Officer of the Election
Registration Board (ERB), prompting him to file a Petition for Inclusion in the Permanent List of
Voters (Petition for Inclusion) before the Municipal Trial Court in Cities of Zamboanga City, Branch 1
(MTCC).9 Pending resolution of the same, he filed a CoC10 on October 5, 2012, seeking to run as
mayor for Zamboanga City in the upcoming local elections scheduled on May 13, 2013 (May 2013
Elections). In his CoC, petitioner stated, inter alia, that he is eligible for the said office and that he is
a registered voter of Barangay Tetuan, Zamboanga City.

On October 18, 2012,11 the MTCC denied his Petition for Inclusion on account of his perpetual
absolute disqualification which in effect, deprived him of the right to vote in any election. Such denial
was affirmed by the Regional Trial Court of Zamboanga City, Branch 14 (RTC) in its October 31,
2012 Order12 which, pursuant to Section 13813 of Batas Pambansa Bilang 881, as amended,
otherwise known as the "Omnibus Election Code" (OEC), was immediately final and executory.

Meanwhile, five (5) petitions were lodged before the COMELEC’s First and Second Divisions
(COMELEC Divisions), praying for the denial of due course to and/or cancellation of petitioner’s
CoC. Pending resolution, the COMELEC En Banc issued motu proprio Resolution No. 961314 on
January 15, 2013, resolving "to CANCEL and DENY due course the Certificate of Candidacy filed by
Romeo G. Jalosjos as Mayor of Zamboanga City in the May 13, 2013 National and Local Elections"
due to his perpetual absolute disqualification as well as his failure to comply with the voter
registration requirement. As basis, the COMELEC En Banc relied on the Court’s pronouncement in
the consolidated cases of Dominador Jalosjos, Jr. v. COMELEC and Agapito Cardino v.
COMELEC15 (Jalosjos, Jr. and Cardino).

Hence, the instant petition.

Issues Before the Court

Submitted for the Court’s determination are the following issues: (a) whether the COMELEC En
Banc acted beyond its jurisdiction when it issued motu proprio Resolution No. 9613 and in so doing,
violated petitioner’s right to due process; and (b) whether petitioner’s perpetual absolute
disqualification to run for elective office had already been removed by Section 40(a) of Republic Act
No. 7160, otherwise known as the "Local Government Code of 1991" (LGC).

The Court’s Ruling

The petition is bereft of merit.

At the outset, the Court observes that the controversy in this case had already been mooted by the
exclusion of petitioner in the May 2013 Elections. Nevertheless, in view of the doctrinal value of the
issues raised herein, which may serve to guide both the bench and the bar in the future, the Court
takes this opportunity to discuss on the same.

A. Nature and validity of motu

proprio issuance of Resolution No.
9613.

Petitioner claims that the COMELEC En Banc usurped the COMELEC Divisions’ jurisdiction by
cancelling motu proprio petitioner’s CoC through Resolution No. 9613, contrary to Section 3, Article
IX-C of the 1987 Philippine Constitution (Constitution) which reads:

SEC. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its
rules of procedure in order to expedite disposition of election cases, including pre-proclamation
controversies. All such election cases shall be heard and decided in division, provided that motions
for reconsideration of decisions shall be decided by the Commission en banc. (Emphasis and
underscoring supplied)

Concomitantly, he also claims that his right to procedural due process had been violated by the
aforementioned issuance.

The Court is not persuaded.

The above-cited constitutional provision requiring a motion for reconsideration before the COMELEC
En Banc may take action is confined only to cases where the COMELEC exercises its quasi-judicial
power. It finds no application, however, in matters concerning the COMELEC’s exercise of
administrative functions. The distinction between the two is well-defined. As illumined in Villarosa v.
COMELEC:16

The term ‘administrative’ connotes, or pertains, to ‘administration, especially management, as by

managing or conducting, directing or superintending, the execution, application, or conduct of
persons or things. It does not entail an opportunity to be heard, the production and weighing of
evidence, and a decision or resolution thereon. While a ‘quasi-judicial function’ is a term which
applies to the action, discretion, etc., of public administrative officers or bodies, who are required to
investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them,
as a basis for their official action and to exercise discretion of a judicial nature. (Emphasis and
underscoring supplied)

Crucial therefore to the present disquisition is the determination of the nature of the power exercised
by the COMELEC En Banc when it promulgated Resolution No. 9613.

The foregoing matter is not without established precedent. In Jalosjos, Jr. and Cardino, the Court
held that the COMELEC’s denial of due course to and/or cancellation of a CoC in view of a
candidate’s disqualification to run for elective office based on a final conviction is subsumed under
its mandate to enforce and administer all laws relating to the conduct of elections. Accordingly, in
such a situation, it is the COMELEC’s duty to cancel motu proprio the candidate’s CoC,
notwithstanding the absence of any petition initiating a quasi-judicial proceeding for the resolution of
the same. Thus, the Court stated:17

Even without a petition under either Section 12 or Section 78 of the Omnibus Election Code, or
under Section 40 of the Local Government Code, the COMELEC is under a legal duty to cancel the
certificate of candidacy of anyone suffering from the accessory penalty of perpetual special
disqualification to run for public office by virtue of a final judgment of conviction. The final judgment
of conviction is notice to the COMELEC of the disqualification of the convict from running for public
office. The law itself bars the convict from running for public office, and the disqualification is part of
the final judgment of conviction. The final judgment of the court is addressed not only to the
Executive branch, but also to other government agencies tasked to implement the final judgment
under the law.

Whether or not the COMELEC is expressly mentioned in the judgment to implement the
disqualification, it is assumed that the portion of the final judgment on disqualification to run for
elective public office is addressed to the COMELEC because under the Constitution the COMELEC
is duty bound to "enforce and administer all laws and regulations relative to the conduct of an
election." The disqualification of a convict to run for public office under the Revised Penal Code, as
affirmed by final judgment of a competent court, is part of the enforcement and administration of "all
laws" relating to the conduct of elections.
To allow the COMELEC to wait for a person to file a petition to cancel the certificate of candidacy of
one suffering from perpetual special disqualification will result in the anomaly that these cases so
grotesquely exemplify. Despite a prior perpetual special disqualification, Jalosjos was elected and
served twice as mayor. The COMELEC will be grossly remiss in its constitutional duty to "enforce
and administer all laws" relating to the conduct of elections if it does not motu proprio bar from
running for public office those suffering from perpetual special disqualification by virtue of a final
judgment. (Emphasis and underscoring supplied)

In Aratea v. COMELEC (Aratea),18 the Court similarly pronounced that the disqualification of a

convict to run for public office, as affirmed by final judgment of a competent court, is part of the
enforcement and administration of all laws relating to the conduct of elections.19

Applying these principles to the case at bar, it is clear that the COMELEC En Banc did not exercise
its quasi-judicial functions when it issued Resolution No. 9613 as it did not assume jurisdiction over
any pending petition or resolve any election case before it or any of its divisions. Rather, it merely
performed its duty to enforce and administer election laws in cancelling petitioner’s CoC on the basis
of his perpetual absolute disqualification, the fact of which had already been established by his final
conviction. In this regard, the COMELEC En Banc was exercising its administrative functions,
dispensing with the need for a motion for reconsideration of a division ruling under Section 3, Article
IX-C of the Constitution, the same being required only in quasi-judicial proceedings.

Lest it be misunderstood, while the denial of due course to and/or cancellation of one’s CoC
generally necessitates the exercise of the COMELEC’s quasi-judicial functions commenced through
a petition based on either Sections 1220 or 7821 of the OEC, or Section 4022 of the LGC, when the
grounds therefor are rendered conclusive on account of final and executory judgments – as when a
candidate’s disqualification to run for public office is based on a final conviction – such exercise falls
within the COMELEC’s administrative functions, as in this case.

In this light, there is also no violation of procedural due process since the COMELEC En Banc would
be acting in a purely administrative manner. Administrative power is concerned with the work of
applying policies and enforcing orders as determined by proper governmental organs.23 As
petitioner’s disqualification to run for public office had already been settled in a previous case and
now stands beyond dispute, it is incumbent upon the COMELEC En Banc to cancel his CoC as a
matter of course, else it be remiss in fulfilling its duty to enforce and administer all laws and
regulations relative to the conduct of an election.

Equally compelling is the fact that the denial of petitioner’s Petition for Inclusion as a registered voter
in Zamboanga City had already attained finality by virtue of the RTC’s Order dated October 31,
2012. In this accord, petitioner’s non-compliance with the voter registration requirement under
Section 39(a) of the LGC24 is already beyond question and likewise provides a sufficient ground for
the cancellation of his CoC altogether.

B. Petitioner’s right to run for

elective office.

It is petitioner’s submission that Article 30 of the RPC was partially amended by Section 40(a) of the
LGC and thus, claims that his perpetual absolute disqualification had already been removed.

The argument is untenable.

Well-established is the rule that every new statute should be construed in connection with those
already existing in relation to the same subject matter and all should be made to harmonize and
stand together, if they can be done by any fair and reasonable interpretation.25

On the one hand, Section 40(a) of the LGC, applicable as it is to local elective candidates, provides:

SEC. 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;
(Emphasis and underscoring supplied)

And on the other hand, Article 30 of the RPC reads:

ART. 30. Effects of the penalties of perpetual or temporary absolute disqualification. - The penalties
of perpetual or temporary absolute disqualification for public office shall produce the following
effects:

1. The deprivation of the public offices and employments which the offender may have held,
even if conferred by popular election.

2. The deprivation of the right to vote in any election for any popular office or to be elected to
such office.

3. The disqualification for the offices or public employments and for the exercise of any of the
rights mentioned.

In case of temporary disqualification, such disqualification as is comprised in paragraphs 2

and 3 of this Article shall last during the term of the sentence.

4. The loss of all rights to retirement pay or other pension for any office formerly held.
(Emphasis and underscoring supplied)

Keeping with the above-mentioned statutory construction principle, the Court observes that the
conflict between these provisions of law may be properly reconciled. In particular, while Section
40(a) of the LGC allows a prior convict to run for local elective office after the lapse of two (2) years
from the time he serves his sentence, the said provision should not be deemed to cover cases
wherein the law26 imposes a penalty, either as principal or accessory,27 which has the effect of
disqualifying the convict to run for elective office. An example of this would be Article 41 of the RPC,
which imposes the penalty of perpetual28 absolute29 disqualification as an accessory to the principal
penalties of reclusion perpetua and reclusion temporal:

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. (Emphasis and underscoring supplied)

In this relation, Article 30 of the RPC, as earlier cited, provides that the penalty of perpetual absolute
disqualification has the effect of depriving the convicted felon of the privilege to run for elective
office. To note, this penalty, as well as other penalties of similar import, is based on the presumptive
rule that one who is rendered infamous by conviction of a felony, or other base offense indicative of
moral turpitude, is unfit to hold public office,30 as the same partakes of a privilege which the State
grants only to such classes of persons which are most likely to exercise it for the common good.31

Pertinently, it is observed that the import of Article 41 in relation to Article 30 of the RPC is more
direct and specific in nature – insofar as it deprives the candidate to run for elective office due to his
conviction – as compared to Section 40(a) of the LGC which broadly speaks of offenses involving
moral turpitude and those punishable by one (1) year or more of imprisonment without any
consideration of certain disqualifying effects to one’s right to suffrage. Accordingly, Section 40(a) of
the LGC should be considered as a law of general application and therefore, must yield to the more
definitive RPC provisions in line with the principle of lex specialis derogat generali – general
legislation must give way to special legislation on the same subject, and generally is so interpreted
as to embrace only cases in which the special provisions are not applicable. In other words, where
two statutes are of equal theoretical application to a particular case, the one specially designed
therefor should prevail.32

In the present case, petitioner was sentenced to suffer the principal penalties of reclusion perpetua
and reclusion temporal which, pursuant to Article 41 of the RPC, carried with it the accessory penalty
of perpetual absolute disqualification and in turn, pursuant to Article 30 of the RPC, disqualified him
to run for elective office. As discussed, Section 40(a) of the LGC would not apply to cases wherein a
penal provision – such as Article 41 in this case – directly and specifically prohibits the convict from
running for elective office. Hence, despite the lapse of two (2) years from petitioner’s service of his
commuted prison term, he remains bound to suffer the accessory penalty of perpetual absolute
disqualification which consequently, disqualifies him to run as mayor for Zamboanga City.

Notably, Article 41 of the RPC expressly states that one who is previously convicted of a crime
punishable by reclusion perpetua or reclusion temporal continues to suffer the accessory penalty of
perpetual absolute disqualification even though pardoned as to the principal penalty, unless the said
accessory penalty shall have been expressly remitted in the pardon.33 In this case, the same
accessory penalty had not been expressly remitted in the Order of Commutation or by any
subsequent pardon and as such, petitioner’s disqualification to run for elective office is deemed to
subsist.

Further, it is well to note that the use of the word "perpetual" in the aforementioned accessory
penalty connotes a lifetime restriction and in this respect, does not depend on the length of the
prison term which is imposed as its principal penalty. Instructive on this point is the Court’s ruling in
Lacuna v. Abes,34 where the court explained the meaning of the term "perpetual" as applied to the
penalty of disqualification to run for public office:

The accessory penalty of temporary absolute disqualification disqualifies the convict for public office
and for the right to vote, such disqualification to last only during the term of the sentence (Article 27,
paragraph 3, & Article 30, Revised Penal Code) that, in the case of Abes, would have expired on 13
October 1961.

But this does not hold true with respect to the other accessory penalty of perpetual special
disqualification for the exercise of the right of suffrage. This accessory penalty deprives the convict
of the right to vote or to be elected to or hold public office perpetually, as distinguished from
temporary special disqualification, which lasts during the term of the sentence. (Emphasis and
underscoring supplied)
Likewise, adopting the Lacuna ruling, the Court, in the more recent cases of Aratea,35 Jalosjos, Jr.
and Cardino,36held:

Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives
the convict of the right to vote or to be elected to or hold public office perpetually."

The accessory penalty of perpetual special disqualification takes effect immediately once the
judgment of conviction becomes final. The effectivity of this accessory penalty does not depend on
the duration of the principal penalty, or on whether the convict serves his jail sentence or not. The
last sentence of Article 32 states that "the offender shall not be permitted to hold any public office
during the period of his [perpetual special] disqualification." Once the judgment of conviction
becomes final, it is immediately executory. Any public office that the convict may be holding at the
time of his conviction becomes vacant upon finality of the judgment, and the convict becomes
ineligible to run for any elective public office perpetually. (Emphasis underscoring supplied)

All told, applying the established principles of statutory construction, and more significantly,
considering the higher interests of preserving the sanctity of our elections, the Court holds that
Section 40(a) of the LGC has not removed the penalty of perpetual absolute disqualification which
petitioner continues to suffer.  Thereby, he remains disqualified to run for any elective office
1âwphi1

pursuant to Article 30 of the RPC.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

21
G.R. No. 207264               June 25, 2013

REGINA ONGSIAKO REYES, Petitioner, 

vs.
COMMISSION ON ELECTIONS and JOSEPH SOCORRO B. TAN, Respondents.

RESOLUTION

PEREZ, J.:

Before the Court is a Petition for Certiorari with Prayer for Temporary Restraining Order and/or
Preliminary Injunction and/or Status Quo Ante Order dated 7 June 2013 filed by petitioner Regina
Ongsiako Reyes, assailing the Resolutions dated 27 March 2013 and 14 May 2013 issued by public
respondent Commission on Elections (COMELEC) in SPA No. 13-053. The assailed Resolutions
ordered the cancellation of the Certificate of Candidacy of petitioner for the position of
Representative of the lone district of Marinduque.

On 31 October 2012, respondent Joseph Socorro Tan, a registered voter and resident of the
Municipality of Torrijos, Marinduque, filed before the COMELEC an Amended Petition to Deny Due
Course or to Cancel the Certificate of Candidacy (COC) of petitioner on the ground that it contained
material misrepresentations, specifically: (1) that she is single when she is married to Congressman
Herminaldo I. Mandanas of Batangas;1 (2) that she is a resident of Brgy. Lupac, Boac, Marinduque
when she is a resident of Bauan, Batangas which is the residence of her husband, and at the same
time, when she is also a resident of 135 J.P. Rizal, Brgy. Milagrosa, Quezon City as admitted in the
Directory of Congressional Spouses of the House of Representatives;2 (3) that her date of birth is 3
July 1964 when other documents show that her birthdate is either 8 July 1959 or 3 July 1960;3 (4)
that she is not a permanent resident of another country when she is a permanent resident or an
immigrant4 of the United States of America;5and (5) that she is a Filipino citizen when she is, in fact,
an American citizen.6

In her Answer, petitioner countered that, while she is publicly known to be the wife of Congressman
Herminaldo I. Mandanas (Congressman Mandanas), there is no valid and binding marriage between
them. According to petitioner, although her marriage with Congressman Mandanas was solemnized
in a religious rite, it did not comply with certain formal requirements prescribed by the Family Code,
rendering it void ab initio.7 Consequently, petitioner argues that as she is not duty-bound to live with
Congressman Mandanas, then his residence cannot be attributed to her.8 As to her date of birth, the
Certificate of Live Birth issued by the National Statistics Office shows that it was on 3 July
1964.9 Lastly, petitioner notes that the allegation that she is a permanent resident and/or a citizen of
the United States of America is not supported by evidence.10

During the course of the proceedings, on 8 February 2013, respondent filed a "Manifestation with
Motion to Admit Newly Discovered Evidence and Amended List of Exhibits"11 consisting of, among
others: (1) a copy of an article published on the internet on 8 January 2013 entitled "Seeking and
Finding the Truth about Regina O. Reyes" with an Affidavit of Identification and Authenticity of
Document executed by its author Eliseo J. Obligacion, which provides a database record of the
Bureau of Immigration indicating that petitioner is an American citizen and a holder of a U.S.
passport; (2) a Certification of Travel Records of petitioner, issued by Simeon Sanchez, Acting Chief,
Verification and Certification Unit of the Bureau of Immigration which indicates that petitioner used a
U.S. Passport in her various travels abroad.

On 27 March 2013, the COMELEC First Division issued a Resolution12 cancelling petitioner’s COC,
to wit:

WHEREFORE, in view of the foregoing, the instant Petition is GRANTED. Accordingly, the
Certificate of Candidacy of respondent REGINA ONGSIAKO REYES is hereby CANCELLED.

The COMELEC First Division found that, contrary to the declarations that she made in her COC,
petitioner is not a citizen of the Philippines because of her failure to comply with the requirements of
Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003, namely:
(1) to take an oath of allegiance to the Republic of the Philippines; and (2) to make a personal and
sworn renunciation of her American citizenship before any public officer authorized to administer an
oath. In addition, the COMELEC First Division ruled that she did not have the oneyear residency
requirement under Section 6, Article VI of the 1987 Constitution.13 Thus, she is ineligible to run for
the position of Representative for the lone district of Marinduque.

Not agreeing with the Resolution of the COMELEC First Division, petitioner filed a Motion for
Reconsideration14 on 8 April 2013 claiming that she is a natural-born Filipino citizen and that she has
not lost such status by simply obtaining and using an American passport. Additionally, petitioner
surmised that the COMELEC First Division relied on the fact of her marriage to an American citizen
in concluding that she is a naturalized American citizen. Petitioner averred, however, that such
marriage only resulted into dual citizenship, thus there is no need for her to fulfill the twin
requirements under R.A. No. 9225. Still, petitioner attached an Affidavit of Renunciation of Foreign
Citizenship sworn to before a Notary Public on 24 September 2012. As to her alleged lack of the
one-year residency requirement prescribed by the Constitution, she averred that, as she never
became a naturalized citizen, she never lost her domicile of origin, which is Boac, Marinduque.
On 14 May 2013, the COMELEC En Banc, promulgated a Resolution15 denying petitioner’s Motion
for Reconsideration for lack of merit.

Four days thereafter or on 18 May 2013, petitioner was proclaimed winner of the 13 May 2013
Elections.

On 5 June 2013, the COMELEC En Banc issued a Certificate of Finality16 declaring the 14 May 2013
Resolution of the COMELEC En Banc final and executory, considering that more than twenty-one
(21) days have elapsed from the date of promulgation with no order issued by this Court restraining
its execution.17

On same day, petitioner took her oath of office18 before Feliciano R. Belmonte Jr., Speaker of the
House of Representatives.

Petitioner has yet to assume office, the term of which officially starts at noon of 30 June 2013.

In the present Petition for Certiorari with Prayer for Temporary Restraining Order and/or Preliminary
Injunction and/or Status Quo Ante Order, petitioner raises the following issues:19

31) Whether or not Respondent Comelec is without jurisdiction over Petitioner who is a duly
proclaimed winner and who has already taken her oath of office for the position of Member of
the House of Representatives for the lone congressional district of Marinduque.

32) Whether or not Respondent Comelec committed grave abuse of discretion amounting to
lack or excess of jurisdiction when it took cognizance of Respondent Tan’s alleged "newly-
discovered evidence" without the same having been testified on and offered and admitted in
evidence which became the basis for its Resolution of the case without giving the petitioner
the opportunity to question and present controverting evidence, in violation of Petitioner’s
right to due process of law.

33) Whether or not Respondent Comelec committed grave abuse of discretion amounting to
lack or excess of jurisdiction when it declared that Petitioner is not a Filipino citizen and did
not meet the residency requirement for the position of Member of the House of
Representatives.

34) Whether or not Respondent Commission on Elections committed grave abuse of

discretion amounting to lack or excess of jurisdiction when, by enforcing the provisions of
Republic Act No. 9225, it imposed additional qualifications to the qualifications of a Member
of the House of Representatives as enumerated in Section 6 of Article VI of the 1987
Constitution of the Philippines.

The petition must fail.

At the outset, it is observed that the issue of jurisdiction of respondent COMELEC vis-a-vis that of
House of Representatives Electoral Tribunal (HRET) appears to be a non-issue. Petitioner is taking
an inconsistent, if not confusing, stance for while she seeks remedy before this Court, she is
asserting that it is the HRET which has jurisdiction over her. Thus, she posits that the issue on her
eligibility and qualifications to be a Member of the House of Representatives is best discussed in
another tribunal of competent jurisdiction. It appears then that petitioner’s recourse to this Court was
made only in an attempt to enjoin the COMELEC from implementing its final and executory judgment
in SPA No. 13-053.
Nevertheless, we pay due regard to the petition, and consider each of the issues raised by
petitioner. The need to do so, and at once, was highlighted during the discussion En Banc on 25
June 2013 where and when it was emphasized that the term of office of the Members of the House
of Representatives begins on the thirtieth day of June next following their election.

According to petitioner, the COMELEC was ousted of its jurisdiction when she was duly
proclaimed20 because pursuant to Section 17, Article VI of the 1987 Constitution, the HRET has the
exclusive jurisdiction to be the "sole judge of all contests relating to the election, returns and
qualifications" of the Members of the House of Representatives.

Contrary to petitioner’s claim, however, the COMELEC retains jurisdiction for the following reasons:

First, the HRET does not acquire jurisdiction over the issue of petitioner’s qualifications, as well as
over the assailed COMELEC Resolutions, unless a petition is duly filed with said tribunal. Petitioner
has not averred that she has filed such action.

Second, the jurisdiction of the HRET begins only after the candidate is considered a Member of the
House of Representatives, as stated in Section 17, Article VI of the 1987 Constitution:

Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal
which shall be the sole judge of all contests relating to the election, returns, and qualifications of their
respective Members. x x x

As held in Marcos v. COMELEC,21 the HRET does not have jurisdiction over a candidate who is not
a member of the House of Representatives, to wit:

As to the House of Representatives Electoral Tribunal’s supposed assumption of jurisdiction over the
issue of petitioner’s qualifications after the May 8, 1995 elections, suffice it to say that HRET’s
jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of
members of Congress begins only after a candidate has become a member of the House of
Representatives. Petitioner not being a member of the House of Representatives, it is obvious that
the HRET at this point has no jurisdiction over the question. (Emphasis supplied.)

The next inquiry, then, is when is a candidate considered a Member of the House of
Representatives?

In Vinzons-Chato v. COMELEC,22 citing Aggabao v. COMELEC23 and Guerrero v. COMELEC,24 the

Court ruled that:

The Court has invariably held that once a winning candidate has been proclaimed, taken his oath,
and assumed office as a Member of the House of Representatives, the COMELEC’s jurisdiction over
election contests relating to his election, returns, and qualifications ends, and the HRET’s own
jurisdiction begins. (Emphasis supplied.)

This pronouncement was reiterated in the case of Limkaichong v. COMELEC,25 wherein the Court,
referring to the jurisdiction of the COMELEC vis-a-vis the HRET, held that:

The Court has invariably held that once a winning candidate has been proclaimed, taken his oath,
and assumed office as a Member of the House of Representatives, the COMELEC's jurisdiction over
election contests relating to his election, returns, and qualifications ends, and the HRET's own
jurisdiction begins. (Emphasis supplied.)
This was again affirmed in Gonzalez v. COMELEC,26 to wit:

After proclamation, taking of oath and assumption of office by Gonzalez, jurisdiction over the matter
of his qualifications, as well as questions regarding the conduct of election and contested returns –
were transferred to the HRET as the constitutional body created to pass upon the same. (Emphasis
supplied.)

From the foregoing, it is then clear that to be considered a Member of the House of Representatives,
there must be a concurrence of the following requisites: (1) a valid proclamation, (2) a proper oath,
and (3) assumption of office.

Indeed, in some cases, this Court has made the pronouncement that once a proclamation has been
made, COMELEC’s jurisdiction is already lost and, thus, its jurisdiction over contests relating to
elections, returns, and qualifications ends, and the HRET’s own jurisdiction begins. However, it must
be noted that in these cases, the doctrinal pronouncement was made in the context of a proclaimed
candidate who had not only taken an oath of office, but who had also assumed office.

For instance, in the case of Dimaporo v. COMELEC,27 the Court upheld the jurisdiction of the HRET
against that of the COMELEC only after the candidate had been proclaimed, taken his oath of office
before the Speaker of the House, and assumed the duties of a Congressman on 26 September
2007, or after the start of his term on 30 June 2007, to wit:

On October 8, 2007, private respondent Belmonte filed his comment in which he brought to Our
attention that on September 26, 2007, even before the issuance of the status quo ante order of the
Court, he had already been proclaimed by the PBOC as the duly elected Member of the House of
Representatives of the First Congressional District of Lanao del Norte. On that very same day, he
had taken his oath before Speaker of the House Jose de Venecia, Jr. and assumed his duties
accordingly.

In light of this development, jurisdiction over this case has already been transferred to the House of
Representatives Electoral Tribunal (HRET). (Emphasis supplied.)

Apparently, the earlier cases were decided after the questioned candidate had already assumed
office, and hence, was already considered a Member of the House of Representatives, unlike in the
present case.

Here, the petitioner cannot be considered a Member of the House of Representatives because,
primarily, she has not yet assumed office. To repeat what has earlier been said, the term of office of
a Member of the House of Representatives begins only "at noon on the thirtieth day of June next
following their election."28 Thus, until such time, the COMELEC retains jurisdiction.

In her attempt to comply with the second requirement, petitioner attached a purported Oath Of Office
taken before Hon. Feliciano Belmonte Jr. on 5 June 2013. However, this is not the oath of office
which confers membership to the House of Representatives.

Section 6, Rule II (Membership) of the Rules of the House of Representatives provides:

Section 6. Oath or Affirmation of Members. – Members shall take their oath or affirmation either
collectively or individually before the Speaker in open session.
Consequently, before there is a valid or official taking of the oath it must be made (1) before the
Speaker of the House of Representatives, and (2) in open session. Here, although she made the
oath before Speaker Belmonte, there is no indication that it was made during plenary or in open
session and, thus, it remains unclear whether the required oath of office was indeed complied with.

More importantly, we cannot disregard a fact basic in this controversy – that before the proclamation
of petitioner on 18 May 2013, the COMELEC En Banc had already finally disposed of the issue of
petitioner’s lack of Filipino citizenship and residency via its Resolution dated 14 May 2013. After 14
May 2013, there was, before the COMELEC, no longer any pending case on petitioner’s
qualifications to run for the position of Member of the House of Representative. We will inexcusably
disregard this fact if we accept the argument of the petitioner that the COMELEC was ousted of
jurisdiction when she was proclaimed, which was four days after the COMELEC En Banc decision.
The Board of Canvasser which proclaimed petitioner cannot by such act be allowed to render
nugatory a decision of the COMELEC En Banc which affirmed a decision of the COMELEC First
Division.

Indeed, the assailed Resolution of the COMELEC First Division which was promulgated on 27 March
2013, and the assailed Resolution of the COMELEC En Banc which was promulgated on 14 May
2013, became final and executory on 19 May 2013 based on Section 3, Rule 37 of the COMELEC
Rules of Procedure which provides:

Section 3. Decisions Final after five days. Decisions in pre-proclamation cases and petitions to deny
due course to or cancel certificates of candidacy, to declare nuisance candidate or to disqualify a
candidate, and to postpone or suspend elections shall become final and executory after the lapse of
five (5) days from their promulgation unless restrained by the Supreme Court.

To prevent the assailed Resolution dated 14 May 2013 from becoming final and executory, petitioner
should have availed herself of Section 1, Rule 3729 of the COMELEC Rules of Procedure or Rule
6430 of the Rules of Court by filing a petition before this Court within the 5-day period, but she failed
to do so. She would file the present last hour petition on 10 June 2013. Hence, on 5 June 2013,
respondent COMELEC rightly issued a Certificate of Finality.

As to the issue of whether petitioner failed to prove her Filipino citizenship, as well as her one-year
residency in Marinduque, suffice it to say that the COMELEC committed no grave abuse of
discretion in finding her ineligible for the position of Member of the House of Representatives.

Petitioner alleges that the COMELEC gravely abused its discretion when it took cognizance of
"newly-discovered evidence" without the same having been testified on and offered and admitted in
evidence. She assails the admission of the blog article of Eli Obligacion as hearsay and the
photocopy of the Certification from the Bureau of Immigration. She likewise contends that there was
a violation of her right to due process of law because she was not given the opportunity to question
and present controverting evidence.

Her contentions are incorrect.

It must be emphasized that the COMELEC is not bound to strictly adhere to the technical rules of
procedure in the presentation of evidence. Under Section 2 of Rule I, the COMELEC Rules of
Procedure "shall be liberally construed in order x xx to achieve just, expeditious and inexpensive
determination and disposition of every action and proceeding brought before the Commission." In
view of the fact that the proceedings in a petition to deny due course or to cancel certificate of
candidacy are summary in nature, then the "newly discovered evidence" was properly admitted by
respondent COMELEC.
Furthermore, there was no denial of due process in the case at bar as petitioner was given every
opportunity to argue her case before the COMELEC. From 10 October 2012 when Tan’s petition
was filed up to 27 March 2013 when the First Division rendered its resolution, petitioner had a period
of five (5) months to adduce evidence. Unfortunately, she did not avail herself of the opportunity
given her.

Also, in administrative proceedings, procedural due process only requires that the party be given the
opportunity or right to be heard. As held in the case of Sahali v. COMELEC:31

The petitioners should be reminded that due process does not necessarily mean or require a
hearing, but simply an opportunity or right to be heard. One may be heard, not solely by verbal
presentation but also, and perhaps many times more creditably and predictable than oral argument,
through pleadings. In administrative proceedings moreover, technical rules of procedure and
evidence are not strictly applied; administrative process cannot be fully equated with due process in
its strict judicial sense. Indeed, deprivation of due process cannot be successfully invoked where a
party was given the chance to be heard on his motion for reconsideration. (Emphasis supplied)

As to the ruling that petitioner is ineligible to run for office on the ground of citizenship, the
COMELEC First Division, discoursed as follows:

"x x x for respondent to reacquire her Filipino citizenship and become eligible for public office, the
law requires that she must have accomplished the following acts: (1) take the oath of allegiance to
the Republic of the Philippines before the Consul-General of the Philippine Consulate in the USA;
and (2) make a personal and sworn renunciation of her American citizenship before any public
officer authorized to administer an oath.

In the case at bar, there is no showing that respondent complied with the aforesaid requirements.
Early on in the proceeding, respondent hammered on petitioner’s lack of proof regarding her
American citizenship, contending that it is petitioner’s burden to present a case. She, however,
specifically denied that she has become either a permanent resident or naturalized citizen of the
USA.

Due to petitioner’s submission of newly-discovered evidence thru a Manifestation dated February 7,

2013, however, establishing the fact that respondent is a holder of an American passport which she
continues to use until June 30, 2012, petitioner was able to substantiate his allegations. The burden
now shifts to respondent to present substantial evidence to prove otherwise. This, the respondent
utterly failed to do, leading to the conclusion inevitable that respondent falsely misrepresented in her
COC that she is a natural-born Filipino citizen. Unless and until she can establish that she had
availed of the privileges of RA 9225 by becoming a dual Filipino-American citizen, and thereafter,
made a valid sworn renunciation of her American citizenship, she remains to be an American citizen
and is, therefore, ineligible to run for and hold any elective public office in the
Philippines."32 (Emphasis supplied.)

Let us look into the events that led to this petition: In moving for the cancellation of petitioner’s COC,
respondent submitted records of the Bureau of Immigration showing that petitioner is a holder of a
US passport, and that her status is that of a "balikbayan." At this point, the burden of proof shifted to
petitioner, imposing upon her the duty to prove that she is a natural-born Filipino citizen and has not
lost the same, or that she has reacquired such status in accordance with the provisions of R.A. No.
9225. Aside from the bare allegation that she is a natural-born citizen, however, petitioner submitted
no proof to support such contention. Neither did she submit any proof as to the inapplicability of R.A.
No. 9225 to her.
Notably, in her Motion for Reconsideration before the COMELEC En Banc, petitioner admitted that
she is a holder of a US passport, but she averred that she is only a dual Filipino-American citizen,
thus the requirements of R.A. No. 9225 do not apply to her.33 Still, attached to the said motion is an
Affidavit of Renunciation of Foreign Citizenship dated 24 September 2012.34 Petitioner explains that
she attached said Affidavit "if only to show her desire and zeal to serve the people and to comply
with rules, even as a superfluity."35 We cannot, however, subscribe to petitioner’s explanation. If
petitioner executed said Affidavit "if only to comply with the rules," then it is an admission that R.A.
No. 9225 applies to her. Petitioner cannot claim that she executed it to address the observations by
the COMELEC as the assailed Resolutions were promulgated only in 2013, while the Affidavit was
executed in September 2012.

Moreover, in the present petition, petitioner added a footnote to her oath of office as Provincial
Administrator, to this effect: "This does not mean that Petitioner did not, prior to her taking her oath
of office as Provincial Administrator, take her oath of allegiance for purposes of reacquisition of
natural-born Filipino status, which she reserves to present in the proper proceeding. The reference
to the taking of oath of office is in order to make reference to what is already part of the records and
evidence in the present case and to avoid injecting into the records evidence on matters of fact that
was not previously passed upon by Respondent COMELEC."36 This statement raises a lot of
questions – Did petitioner execute an oath of allegiance for re-acquisition of natural-born Filipino
status? If she did, why did she not present it at the earliest opportunity before the COMELEC? And
is this an admission that she has indeed lost her natural-born Filipino status?

To cover-up her apparent lack of an oath of allegiance as required by R.A. No. 9225, petitioner
contends that, since she took her oath of allegiance in connection with her appointment as Provincial
Administrator of Marinduque, she is deemed to have reacquired her status as a natural-born Filipino
citizen.

This contention is misplaced. For one, this issue is being presented for the first time before this
Court, as it was never raised before the COMELEC. For another, said oath of allegiance cannot be
considered compliance with Sec. 3 of R.A. No. 9225 as certain requirements have to be met as
prescribed by Memorandum Circular No. AFF-04-01, otherwise known as the Rules Governing
Philippine Citizenship under R.A. No. 9225 and Memorandum Circular No. AFF-05-002 (Revised
Rules) and Administrative Order No. 91, Series of 2004 issued by the Bureau of Immigration. Thus,
petitioner’s oath of office as Provincial Administrator cannot be considered as the oath of allegiance
in compliance with R.A. No. 9225.

These circumstances, taken together, show that a doubt was clearly cast on petitioner’s citizenship.
Petitioner, however, failed to clear such doubt.

As to the issue of residency, proceeding from the finding that petitioner has lost her natural-born
status, we quote with approval the ruling of the COMELEC First Division that petitioner cannot be
considered a resident of Marinduque:

"Thus, a Filipino citizen who becomes naturalized elsewhere effectively abandons his domicile of
origin. Upon re-acquisition of Filipino citizenship pursuant to RA 9225, he must still show that he
chose to establish his domicile in the Philippines through positive acts, and the period of his
residency shall be counted from the time he made it his domicile of choice.

In this case, there is no showing whatsoever that petitioner had already re-acquired her Filipino
citizenship pursuant to RA 9225 so as to conclude that she has regained her domicile in the
Philippines. There being no proof that petitioner had renounced her American citizenship, it follows
that she has not abandoned her domicile of choice in the USA.
The only proof presented by petitioner to show that she has met the one-year residency requirement
of the law and never abandoned her domicile of origin in Boac, Marinduque is her claim that she
served as Provincial Administrator of the province from January 18, 2011 to July 13, 2011. But such
fact alone is not sufficient to prove her one-year residency. For, petitioner has never regained her
domicile in Marinduque as she remains to be an American citizen. No amount of her stay in the said
locality can substitute the fact that she has not abandoned her domicile of choice in the
USA."37 (Emphasis supplied.)

All in all, considering that the petition for denial and cancellation of the COC is summary in nature,
the COMELEC is given much discretion in the evaluation and admission of evidence pursuant to its
principal objective of determining of whether or not the COC should be cancelled. We held in
Mastura v. COMELEC:38

The rule that factual findings of administrative bodies will not be disturbed by courts of justice except
when there is absolutely no evidence or no substantial evidence in support of such findings should
be applied with greater force when it concerns the COMELEC, as the framers of the Constitution
intended to place the COMELEC — created and explicitly made independent by the Constitution
itself — on a level higher than statutory administrative organs. The COMELEC has broad powers to
ascertain the true results of the election by means available to it. For the attainment of that end, it is
not strictly bound by the rules of evidence.1âwphi1

Time and again, We emphasize that the "grave abuse of discretion" which warrants this Court’s
exercise of certiorari jurisdiction has a welldefined meaning. Guidance is found in Beluso v.
Commission on Elections39 where the Court held:

x x x A petition for certiorari will prosper only if grave abuse of discretion is alleged and proved to
exist. "Grave abuse of discretion," under Rule 65, has a specific meaning. It is the arbitrary or
despotic 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 struck down as having been
done with grave abuse of discretion, the abuse of discretion must be patent and gross. (Emphasis
supplied.)

Here, this Court finds that petitioner failed to adequately and substantially show that grave abuse of
discretion exists.

Lastly, anent the proposition of petitioner that the act of the COMELEC in enforcing the provisions of
R.A. No. 9225, insofar as it adds to the qualifications of Members of the House of Representatives
other than those enumerated in the Constitution, is unconstitutional, We find the same meritless.

The COMELEC did not impose additional qualifications on candidates for the House of
Representatives who have acquired foreign citizenship. It merely applied the qualifications
prescribed by Section 6, Article VI of the 1987 Constitution that the candidate must be a natural-born
citizen of the Philippines and must have one-year residency prior to the date of elections. Such being
the case, the COMELEC did not err when it inquired into the compliance by petitioner of Sections 3
and 5 of R.A. No. 9225 to determine if she reacquired her status as a natural-born Filipino citizen. It
simply applied the constitutional provision and nothing more.

IN VIEW OF THE FOREGOING, the instant petition is DISMISSED, finding no grave abuse of
discretion on the part of the Commission on Elections. The 14 May 2013 Resolution of the
COMELEC En Bane affirming the 27 March 2013 Resolution of the COMELEC First Division is
upheld.
SO ORDERED.

22
G.R. No. 191618               November 23, 2010

ATTY. ROMULO B. MACALINTAL, Petitioner, 

vs.
PRESIDENTIAL ELECTORAL TRIBUNAL, Respondent.

DECISION

NACHURA, J.:

Confronting us is an undesignated petition1 filed by Atty. Romulo B. Macalintal (Atty. Macalintal), that

questions the constitution of the Presidential Electoral Tribunal (PET) as an illegal and unauthorized
progeny of Section 4,2 Article VII of the Constitution:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President, and may promulgate its rules for the
purpose.

While petitioner concedes that the Supreme Court is "authorized to promulgate its rules for the
purpose," he chafes at the creation of a purportedly "separate tribunal" complemented by a budget
allocation, a seal, a set of personnel and confidential employees, to effect the constitutional
mandate. Petitioner’s averment is supposedly supported by the provisions of the 2005 Rules of the
Presidential Electoral Tribunal (2005 PET Rules),3 specifically:

(1) Rule 3 which provides for membership of the PET wherein the Chief Justice and the
Associate Justices are designated as "Chairman and Members," respectively;

(2) Rule 8(e) which authorizes the Chairman of the PET to appoint employees and
confidential employees of every member thereof;

(3) Rule 9 which provides for a separate "Administrative Staff of the Tribunal" with the
appointment of a Clerk and a Deputy Clerk of the Tribunal who, at the discretion of the PET,
may designate the Clerk of Court (en banc) as the Clerk of the Tribunal; and

(4) Rule 11 which provides for a "seal" separate and distinct from the Supreme Court seal.

Grudgingly, petitioner throws us a bone by acknowledging that the invoked constitutional provision
does allow the "appointment of additional personnel."

Further, petitioner highlights our decision in Buac v. COMELEC4 which peripherally declared that
"contests involving the President and the Vice-President fall within the exclusive original jurisdiction
of the PET, x x x in the exercise of quasi-judicial power." On this point, petitioner reiterates that the
constitution of the PET, with the designation of the Members of the Court as Chairman and Members
thereof, contravenes Section 12, Article VIII of the Constitution, which prohibits the designation of
Members of the Supreme Court and of other courts established by law to any agency performing
quasi-judicial or administrative functions.

The Office of the Solicitor General (OSG), as directed in our Resolution dated April 6, 2010, filed a
Comment5thereon. At the outset, the OSG points out that the petition filed by Atty. Macalintal is
unspecified and without statutory basis; "the liberal approach in its preparation x x x is a violation of
the well known rules of practice and pleading in this jurisdiction."

In all, the OSG crystallizes the following issues for resolution of the Court:

WHETHER x x x PETITIONER HAS LOCUS STANDI TO FILE THE INSTANT PETITION.

II

WHETHER x x x THE CREATION OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS

UNCONSTITUTIONAL FOR BEING A VIOLATION OF PARAGRAPH 7, SECTION 4 OF ARTICLE
VII OF THE 1987 CONSTITUTION.

III

WHETHER x x x THE DESIGNATION OF MEMBERS OF THE SUPREME COURT AS MEMBERS

OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS UNCONSTITUTIONAL FOR BEING A
VIOLATION OF SECTION 12, ARTICLE VIII OF THE 1987 CONSTITUTION.6

In his Reply,7 petitioner maintains that:

1. He has legal standing to file the petition given his averment of transcendental importance
of the issues raised therein;

2. The creation of the PET, a separate tribunal from the Supreme Court, violates Section 4,
Article VII of the Constitution; and

3. The PET, being a separate tribunal, exercises quasi-judicial functions contrary to Section
12, Article VIII of the Constitution.

We winnow the meanderings of petitioner into the singular issue of whether the constitution of the
PET, composed of the Members of this Court, is unconstitutional, and violates Section 4, Article VII
and Section 12, Article VIII of the Constitution.

But first, we dispose of the procedural issue of whether petitioner has standing to file the present
petition.

The issue of locus standi is derived from the following requisites of a judicial inquiry:

1. There must be an actual case or controversy;

2. The question of constitutionality must be raised by the proper party;

 3. The constitutional question must be raised at the earliest possible opportunity; and

4. The decision of the constitutional question must be necessary to the determination of the
case itself.8

On more than one occasion we have characterized a proper party as one who has sustained or is in
immediate danger of sustaining an injury as a result of the act complained of.9 The dust has long
settled on the test laid down in Baker v. Carr:10 "whether the party has alleged such a personal stake
in the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
questions."11 Until and unless such actual or threatened injury is established, the complainant is not
clothed with legal personality to raise the constitutional question.

Our pronouncements in David v. Macapagal-Arroyo12 illuminate:

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the general
public. He may be a person who is affected no differently from any other person. He could be suing
as a "stranger," or in the category of a "citizen," or "taxpayer." In either case, he has to adequately
show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient
interest in the vindication of the public order and the securing of relief as a" citizen" or "taxpayer."

xxxx

However, to prevent just about any person from seeking judicial interference in any official policy or
act with which he disagreed with, and thus hinders the activities of governmental agencies engaged
in public service, the United States Supreme Court laid down the more stringent "direct injury" test in
Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that for a private
individual to invoke the judicial power to determine the validity of an executive or legislative action,
he must show that he has sustained a direct injury as a result of that action, and it is not sufficient
that he has a general interest common to all members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the person
who impugns the validity of a statute must have "a personal and substantial interest in the case such
that he has sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a
litany of cases, such as, Custodio v. President of the Senate, Manila Race Horse Trainers’
Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the
Philippines v. Felix.

However, being a mere procedural technicality, the requirement of locus standi may be waived by
the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases,
Araneta v. Dinglasan, where the "transcendental importance" of the cases prompted the Court to act
liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec, this Court resolved
to pass upon the issues raised due to the "far-reaching implications" of the petition notwithstanding
its categorical statement that petitioner therein had no personality to file the suit. Indeed, there is a
chain of cases where this liberal policy has been observed, allowing ordinary citizens, members of
Congress, and civic organizations to prosecute actions involving the constitutionality or validity of
laws, regulations and rulings.

xxxx
By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided
that the following requirements are met:

(1) cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in
question;

(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon
their prerogatives as legislators.

Contrary to the well-settled actual and direct injury test, petitioner has simply alleged a generalized
interest in the outcome of this case, and succeeds only in muddling the issues. Paragraph 2 of the
petition reads:

2. x x x Since the creation and continued operation of the PET involves the use of public funds and
the issue raised herein is of transcendental importance, it is petitioner’s humble submission that, as
a citizen, a taxpayer and a member of the BAR, he has the legal standing to file this petition.

But even if his submission is valid, petitioner’s standing is still imperiled by the white elephant in the
petition, i.e., his appearance as counsel for former President Gloria Macapagal-Arroyo (Macapagal-
Arroyo) in the election protest filed by 2004 presidential candidate Fernando Poe, Jr. before the
Presidential Electoral Tribunal,13 because judicial inquiry, as mentioned above, requires that the
constitutional question be raised at the earliest possible opportunity.14Such appearance as counsel
before the Tribunal, to our mind, would have been the first opportunity to challenge the
constitutionality of the Tribunal’s constitution.

Although there are recognized exceptions to this requisite, we find none in this instance. Petitioner is
unmistakably estopped from assailing the jurisdiction of the PET before which tribunal he had
ubiquitously appeared and had acknowledged its jurisdiction in 2004. His failure to raise a
seasonable constitutional challenge at that time, coupled with his unconditional acceptance of the
Tribunal’s authority over the case he was defending, translates to the clear absence of an
indispensable requisite for the proper invocation of this Court’s power of judicial review. Even on this
score alone, the petition ought to be dismissed outright.

Prior to petitioner’s appearance as counsel for then protestee Macapagal-Arroyo, we had occasion
to affirm the grant of original jurisdiction to this Court as a Presidential Electoral Tribunal in the
auspicious case of Tecson v. Commission on Elections.15 Thus -

Petitioners Tecson, et al., in G.R. No. 161434, and Velez, in G.R. No. 161634, invoke the provisions
of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the
COMELEC when it took cognizance of SPA No. 04-003 and in urging the Supreme Court to instead
take on the petitions they directly instituted before it. The Constitutional provision cited reads:
"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President, and may promulgate its rules for the
purpose."

The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973
Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential
contests, has constrained this Court to declare, in Lopez vs. Roxas, as "not (being) justiciable"
controversies or disputes involving contests on the elections, returns and qualifications of the
President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact
Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try,
Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-President-
Elect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793
designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of
the tribunal. Although the subsequent adoption of the parliamentary form of government under the
1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up,
nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987
Constitution.

Former Chief Justice Reynato S. Puno, in his separate opinion, was even more categorical:

The Court is unanimous on the issue of jurisdiction. It has no jurisdiction on the Tecson and Valdez
petitions. Petitioners cannot invoke Article VII, Section 4, par. 7 of the Constitution which provides:

"The Supreme Court, sitting en banc shall be the sole judge of all contests relating to the election,
returns and qualifications of the President or Vice President and may promulgate its rules for the
purpose."

The word "contest" in the provision means that the jurisdiction of this Court can only be invoked after
the election and proclamation of a President or Vice President. There can be no "contest" before a
winner is proclaimed.16

Similarly, in her separate opinion, Justice Alicia Austria-Martinez declared:

G.R. Nos. 161434 and 161634 invoke the Court’s exclusive jurisdiction under the last paragraph of
Section 4, Article VII of the 1987 Constitution. I agree with the majority opinion that these petitions
should be dismissed outright for prematurity. The Court has no jurisdiction at this point of time to
entertain said petitions.

The Supreme Court, as a Presidential Electoral Tribunal (PET), the Senate Electoral Tribunal (SET)
and House of Representatives Electoral Tribunal (HRET) are electoral tribunals, each specifically
and exclusively clothed with jurisdiction by the Constitution to act respectively as "sole judge of all
contests relating to the election, returns, and qualifications" of the President and Vice-President,
Senators, and Representatives. In a litany of cases, this Court has long recognized that these
electoral tribunals exercise jurisdiction over election contests only after a candidate has already
been proclaimed winner in an election. Rules 14 and 15 of the Rules of the Presidential Electoral
Tribunal provide that, for President or Vice-President, election protest or quo warranto may be
filed after the proclamation of the winner.17

Petitioner, a prominent election lawyer who has filed several cases before this Court involving
constitutional and election law issues, including, among others, the constitutionality of certain
provisions of Republic Act (R.A.) No. 9189 (The Overseas Absentee Voting Act of 2003),18 cannot
claim ignorance of: (1) the invocation of our jurisdiction under Section 4, Article VII of the
Constitution; and (2) the unanimous holding thereon. Unquestionably, the overarching framework
affirmed in Tecson v. Commission on Elections19 is that the Supreme Court has original jurisdiction to
decide presidential and vice-presidential election protests while concurrently acting as an
independent Electoral Tribunal.

Despite the foregoing, petitioner is adamant on his contention that the provision, as worded, does
not authorize the constitution of the PET. And although he concedes that the Supreme Court may
promulgate its rules for this purpose, petitioner is insistent that the constitution of the PET is
unconstitutional. However, petitioner avers that it allows the Court to appoint additional personnel for
the purpose, notwithstanding the silence of the constitutional provision.

Petitioner’s pastiche arguments are all hurled at the Court, hopeful that at least one might possibly
stick. But these arguments fail to elucidate on the scope of the rules the Supreme Court is allowed to
promulgate. Apparently, petitioner’s concept of this adjunct of judicial power is very restrictive.
Fortunately, thanks in no part to petitioner’s opinion, we are guided by well-settled principles of
constitutional construction.

Verba legis dictates that wherever possible, the words used in the Constitution must be given their
ordinary meaning except where technical terms are employed, in which case the significance thus
attached to them prevails. This Court, speaking through former Chief Justice Enrique Fernando, in
J.M. Tuason & Co., Inc. v. Land Tenure Administration20 instructs:

As the Constitution is not primarily a lawyer’s document, it being essential for the rule of law to
obtain that it should ever be present in the people’s consciousness, its language as much as
possible should be understood in the sense they have in common use. What it says according to the
text of the provision to be construed compels acceptance and negates the power of the courts to
alter it, based on the postulate that the framers and the people mean what they say. Thus these are
cases where the need for construction is reduced to a minimum.

However, where there is ambiguity or doubt, the words of the Constitution should be interpreted in
accordance with the intent of its framers or ratio legis et anima. A doubtful provision must be
examined in light of the history of the times, and the condition and circumstances surrounding the
framing of the Constitution.21 In following this guideline, courts should bear in mind the object sought
to be accomplished in adopting a doubtful constitutional provision, and the evils sought to be
prevented or remedied.22 Consequently, the intent of the framers and the people ratifying the
constitution, and not the panderings of self-indulgent men, should be given effect.

Last, ut magis valeat quam pereat – the Constitution is to be interpreted as a whole. We intoned thus
in the landmark case of Civil Liberties Union v. Executive Secretary:23

It is a well-established rule in constitutional construction that no one provision of the Constitution is

to be separated from all the others, to be considered alone, but that all the provisions bearing upon a
particular subject are to be brought into view and to be so interpreted as to effectuate the great
purposes of the instrument. Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution and one section is not to
be allowed to defeat another, if by any reasonable construction, the two can be made to stand
together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the words idle
and nugatory.
We had earlier expounded on this rule of construction in Chiongbian v. De Leon, et al., 24 to wit:

[T]he members of the Constitutional Convention could not have dedicated a provision of our
Constitution merely for the benefit of one person without considering that it could also affect others.
When they adopted subsection 2, they permitted, if not willed, that said provision should function to
the full extent of its substance and its terms, not by itself alone, but in conjunction with all other
provisions of that great document.

On its face, the contentious constitutional provision does not specify the establishment of the PET.
But neither does it preclude, much less prohibit, otherwise. It entertains divergent interpretations
which, though unacceptable to petitioner, do not include his restrictive view – one which really does
not offer a solution.

Section 4, Article VII of the Constitution, the provision under scrutiny, should be read with other
related provisions of the Constitution such as the parallel provisions on the Electoral Tribunals of the
Senate and the House of Representatives.

Before we resort to the records of the Constitutional Commission, we discuss the framework of
judicial power mapped out in the Constitution. Contrary to petitioner’s assertion, the Supreme
Court’s constitutional mandate to act as sole judge of election contests involving our country’s
highest public officials, and its rule-making authority in connection therewith, is not restricted; it
includes all necessary powers implicit in the exercise thereof.

We recall the unprecedented and trailblazing case of Marcos v. Manglapus:25

The 1987 Constitution has fully restored the separation of powers of the three great branches of
government. To recall the words of Justice Laurel in Angara v. Electoral Commission, "the
Constitution has blocked but with deft strokes and in bold lines, allotment of power to the executive,
the legislative and the judicial departments of the government." Thus, the 1987 Constitution explicitly
provides that "[t]he legislative power shall be vested in the Congress of the Philippines" [Art. VI, Sec.
1], "[t]he executive power shall be vested in the President of the Philippines" [Art. VII, Sec. 1], and
"[t]he judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law" [Art. VIII, Sec. 1]. These provisions not only establish a separation of powers by
actual division but also confer plenary legislative, executive and judicial powers subject only to
limitations provided in the Constitution. For as the Supreme Court in Ocampo v. Cabangis pointed
out "a grant of the legislative power means a grant of all legislative power; and a grant of the judicial
power means a grant of all the judicial power which may be exercised under the government."

The Court could not have been more explicit then on the plenary grant and exercise of judicial
power. Plainly, the abstraction of the Supreme Court acting as a Presidential Electoral Tribunal from
the unequivocal grant of jurisdiction in the last paragraph of Section 4, Article VII of the Constitution
is sound and tenable.

The mirabile dictu of the grant of jurisdiction to this Court, albeit found in the Article on the executive
branch of government, and the constitution of the PET, is evident in the discussions of the
Constitutional Commission. On the exercise of this Court’s judicial power as sole judge of
presidential and vice-presidential election contests, and to promulgate its rules for this purpose, we
find the proceedings in the Constitutional Commission most instructive:

MR. DAVIDE. On line 25, after the words "Vice-President," I propose to add AND MAY
PROMULGATE ITS RULES FOR THE PURPOSE. This refers to the Supreme Court sitting en banc.
This is also to confer on the Supreme Court exclusive authority to enact the necessary rules while
acting as sole judge of all contests relating to the election, returns and qualifications of the President
or Vice-President.

MR. REGALADO. My personal position is that the rule-making power of the Supreme Court with
respect to its internal procedure is already implicit under the Article on the Judiciary; considering,
however, that according to the Commissioner, the purpose of this is to indicate the sole power of the
Supreme Court without intervention by the legislature in the promulgation of its rules on this
particular point, I think I will personally recommend its acceptance to the Committee.26

xxxx

MR. NOLLEDO. x x x.

With respect to Sections 10 and 11 on page 8, I understand that the Committee has also created an
Electoral Tribunal in the Senate and a Commission on Appointments which may cover membership
from both Houses. But my question is: It seems to me that the committee report does not indicate
which body should promulgate the rules that shall govern the Electoral Tribunal and the Commission
on Appointments. Who shall then promulgate the rules of these bodies?

MR. DAVIDE. The Electoral Tribunal itself will establish and promulgate its rules because it is a body
distinct and independent already from the House, and so with the Commission on Appointments
also. It will have the authority to promulgate its own rules.27

On another point of discussion relative to the grant of judicial power, but equally cogent, we listen to
former Chief Justice Roberto Concepcion:

MR. SUAREZ. Thank you.

Would the Commissioner not consider that violative of the doctrine of separation of powers?

MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two
parties. This is a judicial power.

MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to declare
who will be the President of our country, which to me is a political action.

MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are
essentially justiciable questions.

MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the
time of the Supreme Court sitting en banc would be occupied with it considering that they will be
going over millions and millions of ballots or election returns, Madam President.28

Echoing the same sentiment and affirming the grant of judicial power to the Supreme Court, Justice
Florenz D. Regalado29 and Fr. Joaquin Bernas30 both opined:

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

I am not sure whether Commissioner Suarez has expressed his point. On page 2, the fourth
paragraph of Section 4 provides:
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns and qualifications of the President or Vice-President.

May I seek clarification as to whether or not the matter of determining the outcome of the contests
relating to the election returns and qualifications of the President or Vice-President is purely a
political matter and, therefore, should not be left entirely to the judiciary. Will the above-quoted
provision not impinge on the doctrine of separation of powers between the executive and the judicial
departments of the government?

MR. REGALADO. No, I really do not feel that would be a problem. This is a new provision
incidentally. It was not in the 1935 Constitution nor in the 1973 Constitution.

MR. VILLACORTA. That is right.

MR. REGALADO. We feel that it will not be an intrusion into the separation of powers guaranteed to
the judiciary because this is strictly an adversarial and judicial proceeding.

MR. VILLACORTA. May I know the rationale of the Committee because this supersedes Republic
Act 7950 which provides for the Presidential Electoral Tribunal?

FR. BERNAS. Precisely, this is necessary. Election contests are, by their nature, judicial. Therefore,
they are cognizable only by courts. If, for instance, we did not have a constitutional provision on an
electoral tribunal for the Senate or an electoral tribunal for the House, normally, as composed, that
cannot be given jurisdiction over contests.

So, the background of this is really the case of Roxas v. Lopez. The Gentleman will remember that
in that election, Lopez was declared winner. He filed a protest before the Supreme Court because
there was a republic act which created the Supreme Court as the Presidential Electoral Tribunal.
The question in this case was whether new powers could be given the Supreme Court by law. In
effect, the conflict was actually whether there was an attempt to create two Supreme Courts and the
answer of the Supreme Court was: "No, this did not involve the creation of two Supreme Courts, but
precisely we are giving new jurisdiction to the Supreme Court, as it is allowed by the Constitution.
Congress may allocate various jurisdictions."

Before the passage of that republic act, in case there was any contest between two presidential
candidates or two vice-presidential candidates, no one had jurisdiction over it. So, it became
necessary to create a Presidential Electoral Tribunal. What we have done is to constitutionalize what
was statutory but it is not an infringement on the separation of powers because the power being
given to the Supreme Court is a judicial power.31

Unmistakable from the foregoing is that the exercise of our power to judge presidential and vice-
presidential election contests, as well as the rule-making power adjunct thereto, is plenary; it is not
as restrictive as petitioner would interpret it. In fact, former Chief Justice Hilario G. Davide, Jr., who
proposed the insertion of the phrase, intended the Supreme Court to exercise exclusive authority to
promulgate its rules of procedure for that purpose. To this, Justice Regalado forthwith assented and
then emphasized that the sole power ought to be without intervention by the legislative department.
Evidently, even the legislature cannot limit the judicial power to resolve presidential and vice-
presidential election contests and our rule-making power connected thereto.
To foreclose all arguments of petitioner, we reiterate that the establishment of the PET simply
constitutionalized what was statutory before the 1987 Constitution. The experiential context of the
PET in our country cannot be denied.32

Consequently, we find it imperative to trace the historical antecedents of the PET.

Article VII, Section 4, paragraph 7 of the 1987 Constitution is an innovation. The precursors of the
present Constitution did not contain similar provisions and instead vested upon the legislature all
phases of presidential and vice-presidential elections – from the canvassing of election returns, to
the proclamation of the president-elect and the vice-president elect, and even the determination, by
ordinary legislation, of whether such proclamations may be contested. Unless the legislature
enacted a law creating an institution that would hear election contests in the Presidential and Vice-
Presidential race, a defeated candidate had no legal right to demand a recount of the votes cast for
the office involved or to challenge the ineligibility of the proclaimed candidate. Effectively,
presidential and vice-presidential contests were non-justiciable in the then prevailing milieu.

The omission in the 1935 Constitution was intentional. It was mainly influenced by the absence of a
similar provision in its pattern, the Federal Constitution of the United States. Rather, the creation of
such tribunal was left to the determination of the National Assembly. The journal of the 1935
Constitutional Convention is crystal clear on this point:

Delegate Saguin. – For an information. It seems that this Constitution does not contain any provision
with respect to the entity or body which will look into the protests for the positions of the President
and Vice-President.

President Recto. – Neither does the American constitution contain a provision over the subject.

Delegate Saguin. – But then, who will decide these protests?

President Recto. – I suppose that the National Assembly will decide on that.33

To fill the void in the 1935 Constitution, the National Assembly enacted R.A. No. 1793, establishing
an independent PET to try, hear, and decide protests contesting the election of President and Vice-
President. The Chief Justice and the Associate Justices of the Supreme Court were tasked to sit as
its Chairman and Members, respectively. Its composition was extended to retired Supreme Court
Justices and incumbent Court of Appeals Justices who may be appointed as substitutes for ill,
absent, or temporarily incapacitated regular members.

The eleven-member tribunal was empowered to promulgate rules for the conduct of its proceedings.
It was mandated to sit en banc in deciding presidential and vice-presidential contests and authorized
to exercise powers similar to those conferred upon courts of justice, including the issuance of
subpoena, taking of depositions, arrest of witnesses to compel their appearance, production of
documents and other evidence, and the power to punish contemptuous acts and bearings. The
tribunal was assigned a Clerk, subordinate officers, and employees necessary for the efficient
performance of its functions.

R.A. No. 1793 was implicitly repealed and superseded by the 1973 Constitution which replaced the
bicameral legislature under the 1935 Constitution with the unicameral body of a parliamentary
government.
With the 1973 Constitution, a PET was rendered irrelevant, considering that the President was not
directly chosen by the people but elected from among the members of the National Assembly, while
the position of Vice-President was constitutionally non-existent.

In 1981, several modifications were introduced to the parliamentary system. Executive power was
restored to the President who was elected directly by the people. An Executive Committee was
formed to assist the President in the performance of his functions and duties. Eventually, the
Executive Committee was abolished and the Office of Vice-President was installed anew.

These changes prompted the National Assembly to revive the PET by enacting, on December 3,
1985, Batas Pambansa Bilang (B.P. Blg.) 884, entitled "An Act Constituting an Independent
Presidential Electoral Tribunal to Try, Hear and Decide Election Contests in the Office of the
President and Vice-President of the Philippines, Appropriating Funds Therefor and For Other
Purposes." This tribunal was composed of nine members, three of whom were the Chief Justice of
the Supreme Court and two Associate Justices designated by him, while the six were divided equally
between representatives of the majority and minority parties in the Batasang Pambansa.

Aside from the license to wield powers akin to those of a court of justice, the PET was permitted to
recommend the prosecution of persons, whether public officers or private individuals, who in its
opinion had participated in any irregularity connected with the canvassing and/or accomplishing of
election returns.

The independence of the tribunal was highlighted by a provision allocating a specific budget from the
national treasury or Special Activities Fund for its operational expenses. It was empowered to
appoint its own clerk in accordance with its rules. However, the subordinate officers were strictly
employees of the judiciary or other officers of the government who were merely designated to the
tribunal.

After the historic People Power Revolution that ended the martial law era and installed Corazon
Aquino as President, civil liberties were restored and a new constitution was formed.

With R.A. No. 1793 as framework, the 1986 Constitutional Commission transformed the then
statutory PET into a constitutional institution, albeit without its traditional nomenclature:

FR. BERNAS. x x x.

x x x. So it became necessary to create a Presidential Electoral Tribunal. What we have done is to

constitutionalize what was statutory but it is not an infringement on the separation of powers
because the power being given to the Supreme Court is a judicial power.34

Clearly, petitioner’s bete noire of the PET and the exercise of its power are unwarranted. His
arguments that: (1) the Chief Justice and Associate Justices are referred to as "Chairman" and
"Members," respectively; (2) the PET uses a different seal; (3) the Chairman is authorized to appoint
personnel; and (4) additional compensation is allocated to the "Members," in order to bolster his
claim of infirmity in the establishment of the PET, are too superficial to merit further attention by the
Court.

Be that as it may, we hasten to clarify the structure of the PET as a legitimate progeny of Section 4,
Article VII of the Constitution, composed of members of the Supreme Court, sitting en banc. The
following exchange in the 1986 Constitutional Commission should provide enlightenment:
MR. SUAREZ. Thank you. Let me proceed to line 23, page 2, wherein it is provided, and I quote:

The Supreme Court, sitting en banc[,] shall be the sole judge of all contests relating to the election,
returns and qualifications of the President or Vice-President.

Are we not giving enormous work to the Supreme Court especially when it is directed to sit en banc
as the sole judge of all presidential and vice-presidential election contests?

MR. SUMULONG. That question will be referred to Commissioner Concepcion.

MR. CONCEPCION. This function was discharged by the Supreme Court twice and the Supreme
Court was able to dispose of each case in a period of one year as provided by law. Of course, that
was probably during the late 1960s and early 1970s. I do not know how the present Supreme Court
would react to such circumstances, but there is also the question of who else would hear the election
protests.

MR. SUAREZ. We are asking this question because between lines 23 to 25, there are no rules
provided for the hearings and there is not time limit or duration for the election contest to be decided
by the Supreme Court. Also, we will have to consider the historical background that when R.A. 1793,
which organized the Presidential Electoral Tribunal, was promulgated on June 21, 1957, at least
three famous election contests were presented and two of them ended up in withdrawal by the
protestants out of sheer frustration because of the delay in the resolution of the cases. I am referring
to the electoral protest that was lodged by former President Carlos P. Garcia against our "kabalen"
former President Diosdado Macapagal in 1961 and the vice-presidential election contest filed by the
late Senator Gerardo Roxas against Vice-President Fernando Lopez in 1965.

MR. CONCEPCION. I cannot answer for what the protestants had in mind. But when that protest of
Senator Roxas was withdrawn, the results were already available. Senator Roxas did not want to
have a decision adverse to him. The votes were being counted already, and he did not get what he
expected so rather than have a decision adverse to his protest, he withdrew the case.

xxxx

MR. SUAREZ. I see. So the Commission would not have any objection to vesting in the Supreme
Court this matter of resolving presidential and vice-presidential contests?

MR. CONCEPCION. Personally, I would not have any objection.

MR. SUAREZ. Thank you.

Would the Commissioner not consider that violative of the doctrine of separation of powers?

MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two
parties. This is a judicial power.

MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to declare
who will be the President of our country, which to me is a political action.

MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are
essentially justiciable questions.
MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the
time of the Supreme Court sitting en banc would be occupied with it considering that they will be
going over millions and millions of ballots or election returns, Madam President.

MR. CONCEPCION. The time consumed or to be consumed in this contest for President is
dependent upon they key number of teams of revisors. I have no experience insofar as contests in
other offices are concerned.

MR. SUAREZ. Although there is a requirement here that the Supreme Court is mandated to sit en
banc?

MR. CONCEPCION. Yes.

MR. SUAREZ. I see.

MR. CONCEPCION. The steps involved in this contest are: First, the ballot boxes are opened before
teams of three, generally, a representative each of the court, of the protestant and of the "protestee."
It is all a questions of how many teams are organized. Of course, that can be expensive, but it would
be expensive whatever court one would choose. There were times that the Supreme Court, with
sometimes 50 teams at the same time working, would classify the objections, the kind of problems,
and the court would only go over the objected votes on which the parties could not agree. So it is not
as awesome as it would appear insofar as the Court is concerned. What is awesome is the cost of
the revision of the ballots because each party would have to appoint one representative for every
team, and that may take quite a big amount.

MR. SUAREZ. If we draw from the Commissioner’s experience which he is sharing with us, what
would be the reasonable period for the election contest to be decided?

MR. CONCEPCION. Insofar as the Supreme Court is concerned, the Supreme Court always
manages to dispose of the case in one year.

MR. SUAREZ. In one year. Thank you for the clarification.35

Obvious from the foregoing is the intent to bestow independence to the Supreme Court as the PET,
to undertake the Herculean task of deciding election protests involving presidential and vice-
presidential candidates in accordance with the process outlined by former Chief Justice Roberto
Concepcion. It was made in response to the concern aired by delegate Jose E. Suarez that the
additional duty may prove too burdensome for the Supreme Court. This explicit grant of
independence and of the plenary powers needed to discharge this burden justifies the budget
allocation of the PET.

The conferment of additional jurisdiction to the Supreme Court, with the duty characterized as an
"awesome" task, includes the means necessary to carry it into effect under the doctrine of necessary
implication.36 We cannot overemphasize that the abstraction of the PET from the explicit grant of
power to the Supreme Court, given our abundant experience, is not unwarranted.

A plain reading of Article VII, Section 4, paragraph 7, readily reveals a grant of authority to the
Supreme Court sitting en banc. In the same vein, although the method by which the Supreme Court
exercises this authority is not specified in the provision, the grant of power does not contain any
limitation on the Supreme Court’s exercise thereof. The Supreme Court’s method of deciding
presidential and vice-presidential election contests, through the PET, is actually a derivative of the
exercise of the prerogative conferred by the aforequoted constitutional provision. Thus, the
subsequent directive in the provision for the Supreme Court to "promulgate its rules for the purpose."

The conferment of full authority to the Supreme Court, as a PET, is equivalent to the full authority
conferred upon the electoral tribunals of the Senate and the House of Representatives, i.e., the
Senate Electoral Tribunal (SET) and the House of Representatives Electoral Tribunal
(HRET),37 which we have affirmed on numerous occasions.38

Particularly cogent are the discussions of the Constitutional Commission on the parallel provisions of
the SET and the HRET. The discussions point to the inevitable conclusion that the different electoral
tribunals, with the Supreme Court functioning as the PET, are constitutional bodies, independent of
the three departments of government – Executive, Legislative, and Judiciary – but not separate
therefrom.

MR. MAAMBONG. x x x.

My questions will be very basic so we can go as fast as we can. In the case of the electoral tribunal,
either of the House or of the Senate, is it correct to say that these tribunals are constitutional
creations? I will distinguish these with the case of the Tanodbayan and the Sandiganbayan which
are created by mandate of the Constitution but they are not constitutional creations. Is that a good
distinction?

xxxx

MR. MAAMBONG. Could we, therefore, say that either the Senate Electoral Tribunal or the House
Electoral Tribunal is a constitutional body?

MR. AZCUNA. It is, Madam President.

MR. MAAMBONG. If it is a constitutional body, is it then subject to constitutional restrictions?

MR. AZCUNA. It would be subject to constitutional restrictions intended for that body.

MR. MAAMBONG. I see. But I want to find out if the ruling in the case of Vera v. Avelino, 77 Phil.
192, will still be applicable to the present bodies we are creating since it ruled that the electoral
tribunals are not separate departments of the government. Would that ruling still be valid?

MR. AZCUNA. Yes, they are not separate departments because the separate departments are the
legislative, the executive and the judiciary; but they are constitutional bodies.39

The view taken by Justices Adolfo S. Azcuna40 and Regalado E. Maambong41 is schooled by our
holding in Lopez v. Roxas, et al.:42

Section 1 of Republic Act No. 1793, which provides that:

"There shall be an independent Presidential Electoral Tribunal x x x which shall be the sole judge of
all contests relating to the election, returns, and qualifications of the president-elect and the vice-
president-elect of the Philippines."

has the effect of giving said defeated candidate the legal right to contest judicially the election of the
President-elect of Vice-President-elect and to demand a recount of the votes case for the office
involved in the litigation, as well as to secure a judgment declaring that he is the one elected
president or vice-president, as the case may be, and that, as such, he is entitled to assume the
duties attached to said office. And by providing, further, that the Presidential Electoral Tribunal "shall
be composed of the Chief Justice and the other ten Members of the Supreme Court," said legislation
has conferred upon such Court an additional original jurisdiction of an exclusive character.

Republic Act No. 1793 has not created a new or separate court. It has merely conferred upon the
Supreme Court the functions of a Presidential Electoral Tribunal. The result of the enactment may be
likened to the fact that courts of first instance perform the functions of such ordinary courts of first
instance, those of court of land registration, those of probate courts, and those of courts of juvenile
and domestic relations. It is, also, comparable to the situation obtaining when the municipal court of
a provincial capital exercises its authority, pursuant to law, over a limited number of cases which
were previously within the exclusive jurisdiction of courts of first instance.

In all of these instances, the court (court of first instance or municipal court) is only one, although the
functions may be distinct and, even, separate. Thus the powers of a court of first instance, in the
exercise of its jurisdiction over ordinary civil cases, are broader than, as well as distinct and separate
from, those of the same court acting as a court of land registration or a probate court, or as a court of
juvenile and domestic relations. So too, the authority of the municipal court of a provincial capital,
when acting as such municipal court, is, territorially more limited than that of the same court when
hearing the aforementioned cases which are primary within the jurisdiction of courts of first instance.
In other words, there is only one court, although it may perform the functions pertaining to several
types of courts, each having some characteristics different from those of the others.

Indeed, the Supreme Court, the Court of Appeals and courts of first instance, are vested with original
jurisdiction, as well as with appellate jurisdiction, in consequence of which they are both trial courts
and, appellate courts, without detracting from the fact that there is only one Supreme Court, one
Court of Appeals, and one court of first instance, clothed with authority to discharge said dual
functions. A court of first instance, when performing the functions of a probate court or a court of
land registration, or a court of juvenile and domestic relations, although with powers less broad than
those of a court of first instance, hearing ordinary actions, is not inferior to the latter, for one cannot
be inferior to itself. So too, the Presidential Electoral Tribunal is not inferior to the Supreme Court,
since it is the same Court although the functions peculiar to said Tribunal are more limited in scope
than those of the Supreme Court in the exercise of its ordinary functions. Hence, the enactment of
Republic Act No. 1793, does not entail an assumption by Congress of the power of appointment
vested by the Constitution in the President. It merely connotes the imposition of additional duties
upon the Members of the Supreme Court.

By the same token, the PET is not a separate and distinct entity from the Supreme Court, albeit it
has functions peculiar only to the Tribunal. It is obvious that the PET was constituted in
implementation of Section 4, Article VII of the Constitution, and it faithfully complies – not unlawfully
defies – the constitutional directive. The adoption of a separate seal, as well as the change in the
nomenclature of the Chief Justice and the Associate Justices into Chairman and Members of the
Tribunal, respectively, was designed simply to highlight the singularity and exclusivity of the
Tribunal’s functions as a special electoral court.

As regards petitioner’s claim that the PET exercises quasi-judicial functions in contravention of
Section 12, Article VIII of the Constitution, we point out that the issue in Buac v.
COMELEC43 involved the characterization of the enforcement and administration of a law relative to
the conduct of a plebiscite which falls under the jurisdiction of the Commission on Elections.
However, petitioner latches on to the enumeration in Buac which declared, in an obiter, that
"contests involving the President and the Vice-President fall within the exclusive original jurisdiction
of the PET, also in the exercise of quasi-judicial power."

The issue raised by petitioner is more imagined than real. Section 12, Article VIII of the Constitution
reads:

SEC. 12. The Members of the Supreme Court and of other courts established by law shall not be
designated to any agency performing quasi-judicial or administrative functions.

The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution which
provides that the power "shall be vested in one Supreme Court and in such lower courts as may be
established by law." Consistent with our presidential system of government, the function of "dealing
with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that
are legally demandable and enforceable" 44 is apportioned to courts of justice. With the advent of the
1987 Constitution, judicial power was expanded to include "the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government."45 The power was
expanded, but it remained absolute.

The set up embodied in the Constitution and statutes characterizes the resolution of electoral
contests as essentially an exercise of judicial power. 1avvphi1

At the barangay and municipal levels, original and exclusive jurisdiction over election contests is
vested in the municipal or metropolitan trial courts and the regional trial courts, respectively.

At the higher levels – city, provincial, and regional, as well as congressional and senatorial –
exclusive and original jurisdiction is lodged in the COMELEC and in the House of Representatives
and Senate Electoral Tribunals, which are not, strictly and literally speaking, courts of law. Although
not courts of law, they are, nonetheless, empowered to resolve election contests which involve, in
essence, an exercise of judicial power, because of the explicit constitutional empowerment found in
Section 2(2), Article IX-C (for the COMELEC) and Section 17, Article VI (for the Senate and House
Electoral Tribunals) of the Constitution. Besides, when the COMELEC, the HRET, and the SET
decide election contests, their decisions are still subject to judicial review – via a petition for certiorari
filed by the proper party – if there is a showing that the decision was rendered with grave abuse of
discretion tantamount to lack or excess of jurisdiction.46

It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or vice-
presidential election contest, it performs what is essentially a judicial power. In the landmark case of
Angara v. Electoral Commission,47Justice Jose P. Laurel enucleated that "it would be inconceivable if
the Constitution had not provided for a mechanism by which to direct the course of government
along constitutional channels." In fact, Angara pointed out that "[t]he Constitution is a definition of the
powers of government." And yet, at that time, the 1935 Constitution did not contain the expanded
definition of judicial power found in Article VIII, Section 1, paragraph 2 of the present Constitution.

With the explicit provision, the present Constitution has allocated to the Supreme Court, in
conjunction with latter’s exercise of judicial power inherent in all courts,48 the task of deciding
presidential and vice-presidential election contests, with full authority in the exercise thereof. The
power wielded by PET is a derivative of the plenary judicial power allocated to courts of law,
expressly provided in the Constitution. On the whole, the Constitution draws a thin, but,
nevertheless, distinct line between the PET and the Supreme Court.
If the logic of petitioner is to be followed, all Members of the Court, sitting in the Senate and House
Electoral Tribunals would violate the constitutional proscription found in Section 12, Article VIII.
Surely, the petitioner will be among the first to acknowledge that this is not so. The Constitution
which, in Section 17, Article VI, explicitly provides that three Supreme Court Justices shall sit in the
Senate and House Electoral Tribunals, respectively, effectively exempts the Justices-Members
thereof from the prohibition in Section 12, Article VIII. In the same vein, it is the Constitution itself, in
Section 4, Article VII, which exempts the Members of the Court, constituting the PET, from the same
prohibition.

We have previously declared that the PET is not simply an agency to which Members of the Court
were designated. Once again, the PET, as intended by the framers of the Constitution, is to be an
institution independent, but not separate, from the judicial department, i.e., the Supreme Court.
McCulloch v. State of Maryland49 proclaimed that "[a] power without the means to use it, is a nullity."
The vehicle for the exercise of this power, as intended by the Constitution and specifically mentioned
by the Constitutional Commissioners during the discussions on the grant of power to this Court, is
the PET. Thus, a microscopic view, like the petitioner’s, should not constrict an absolute and
constitutional grant of judicial power.

One final note. Although this Court has no control over contrary people and naysayers, we reiterate
a word of caution against the filing of baseless petitions which only clog the Court’s docket. The
petition in the instant case belongs to that classification.

WHEREFORE, the petition is DISMISSED. Costs against petitioner.

SO ORDERED.

23
G.R. Nos. 140850-51 May 4, 2000

EUGENIO "JING-JING" FAELNAR, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, HON. RAMON CODILLA, in his capacity as Presiding Judge of
the RTC, Branch 19, Cebu City, and COMMISSION ON ELECTIONS, respondents.

MENDOZA, J.:

This is a petition for certiorari to set aside the order, dated July 29, 1999, of the Regional Trial Court,
Branch 19, Cebu City, denying petitioner's motion to quash in Criminal Cases Nos. CBU-49941 and 1 

49942, and the order, dated October 4, 1999, denying petitioner's motion for reconsideration.
2 

The facts are as follows:

On April 8, 1997, petitioner Eugenio Faelnar filed a certificate of candidacy for the position of
Barangay Chairman of Barangay Guadalupe, Cebu City in the May 12, 1997 barangay elections.
The following day, on April 9, 1997, a basketball tournament, dubbed the "2nd JING-JING
FAELNAR'S CUP," opened at the Guadalupe Sports Complex and lasted up to April 30, 1997. This
gave rise to a complaint for electioneering filed against petitioner and Cecilio Gillamac by Antonio
Luy. The complaint alleged that the basketball tournament was actually a campaign gimmick staged
outside the campaign period which officially started on May 1, 1997, in violation of the Omnibus
Election Code. Luy alleged that: (1) during the tournament, a streamer bearing petitioner's name was
placed on the facade of the Guadalupe Sports Complex; (2) petitioner's name was repeatedly
mentioned over the microphone during the games; (3) the tournament was widely published in the
local newspaper; and (4) a raffle sponsored by Cecilio Gillamac was held with home appliances
given away as prizes.

Petitioner denied participation in the tournament and claimed that its major sponsor was Gillamac
Marketing, Inc. He contended that the same was purely a sporting event for the benefit of the youth.

The complaint was investigated by Atty. Edwin Cadungog, election officer of Cebu City, who later
recommended the dismissal of the charges against petitioner and Gillamac. On the other hand, the
Law Department of the COMELEC recommended the filing of a case against petitioner and Gillamac
for violation of §80, in relation to §262, of the Omnibus Election Code, and §50 of COMELEC
3  4 

Resolution No. 2888, in relation to §12 of Republic Act No. 6679. 5

In its Resolution No. 97-3040, dated September 16, 1997, the COMELEC en banc resolved to
dismiss the case. However, on motion of Antonio Luy, the COMELEC reconsidered its action and
ordered the filing of the necessary Informations against petitioner and Gillamac.

Accordingly, petitioner and Gillamac were formally charged in the Regional Trial Court, Cebu City
under two Informations in Criminal Cases Nos. CBU-49941 and CBU-49942.

Petitioner moved to quash the information or, in the alternative, for reinvestigation of the case,
contending that Resolution No. 97-3040, which dismissed the complaint against him, was
immediately executory and could no longer be reconsidered.

Petitioner's motion was denied by the trial court in an order dated July 29, 1999. He moved for
reconsideration, but his motion was likewise denied by the court in its order, dated October 4, 1999.
Hence this petition.

Petitioner reiterates his argument in the trial court that COMELEC Resolution No. 97-3040, which
dismissed the complaint against him, can no longer be reconsidered by the COMELEC. He contends
that under the Rules of Procedure of the COMELEC, the dismissal of the complaint was immediately
final and executory. Additionally, he avers that Antonio Luy's Motion for Reconsideration of
Resolution No. 97-3040 is a prohibited pleading under the Commission's Rules of Procedure. He
avers that since the resolution in question was immediately final and executory, it was no longer
within the power of the COMELEC to reconsider. Consequently, Resolution No. 98-2914, in directing
the filing of charges in court, was "ultra-vires," and the Informations filed against him should have
been quashed. 6

The petition is without merit.

First. While the instant petition challenges the trial court's orders denying petitioner's motion to
quash the complaints in Criminal Cases Nos. CBU-49941 and 49942, the grounds relied upon by
petitioner are directed at the validity of Resolution No. 98-2914 of the COMELEC. Thus, petitioner
prays that said resolution be declared null and void.7

This petition is nothing but an attempt to circumvent a final resolution of the COMELEC.
Resolution No. 98-2914 was promulgated by the COMELEC en banc on October 29, 1998.
Petitioner's remedy was to seek its annulment by way of a special civil action of certiorari under Rule
65 of the Rules of Court. Rule 64, §2 provides:

Sec. 2. Mode of Review. — A judgment or final order or resolution of the Commission

on Elections and the Commission on Audit may be brought by the aggrieved party to
the Supreme Court on certiorariunder Rule 65, except as hereinafter provided.

Sec. 3 of said Rule provides that such petition shall be filed within 30 days from notice of the
resolution sought to be reviewed. No such petition was ever filed. The present petition to set aside
the orders of the trial court denying its motion to quash and motion for reconsideration was filed only
on November 12, 1999, more than a year after Resolution No. 98-2194 was promulgated on October
29, 1998. Consequently, the resolution is now final and binding upon the parties.

Even if said resolution is erroneous for being contrary to the provisions of the Rules of Procedure of
the COMELEC, the same is not void. Since it has become final and executory, it is already binding
and effective.8

Second. The above discussion should be enough to dispose of this petition. However, we think there
is an important question of law that must not be left undecided, i.e., is the resolution of the
COMELEC dismissing the criminal complaint for violation of the election laws immediately final and
executory, as petitioner contends?

The contention is untenable. In support of his claims, petitioner cites Rule 13, §1(d) of the Rules of
Procedure of the COMELEC which provides:

Sec. 1. What pleadings are not allowed. — The following pleadings are not allowed:

x x x           x x x          x x x

(d) motion for reconsideration of an en banc ruling, resolution, order or decision; . . . .

The above quoted provision, however, is taken from the 1988 COMELEC Rules of Procedure which
has already been amended. The 1993 Rules of Procedure, now provides:

Rule 13. — Prohibited Pleadings.

Sec. 1. What pleadings are not allowed. — The following pleadings are not allowed:

x x x           x x x          x x x

(d) motion for reconsideration of an en banc ruling, resolution, order or

decision except in election offense cases; . . . (Emphasis added).

Under the present rule, therefore, a motion for reconsideration of a ruling, resolution or decision of
the COMELEC en banc is allowed in cases involving election offenses.

Here, there is no question that what is involved is a resolution of the COMELEC en banc in an
election offense. Hence, a motion for reconsideration of such resolution is allowed under the Rules
of Procedure of the COMELEC.
Petitioner likewise invokes Rule 34, §10 of the COMELEC Rules of Procedure which provides that
—

Sec. 10. Appeals from the Action of the State Prosecutor, Provincial or City Fiscal. —
Appeals from the resolution of the State Prosecutor, or Provincial or City Fiscal on
the recommendation or resolution of investigating officers may be made only to the
Commission within ten (10) days from receipt of the resolution of said
officials, provided, however that this shall not divest the Commission of its power
to motu proprio review, revise, modify or reverse the resolution of the chief state
prosecutor and/or provincial/city prosecutors. The decision of the Commission on
said appeals shall be immediately executory and final. (Emphasis added)

Even a cursory reading of the above rule, however, will show that it governs appeals from the action
of the State Prosecutor or Provincial or City Fiscal on the recommendation or resolution of
investigating officers. The present case does not involve such an appeal but a resolution of the
COMELEC itself in the exercise of its exclusive power to conduct preliminary investigation of election
offense cases. Such distinction can be easily explained.
9 

In cases where the State Prosecutor, or Provincial or City Fiscal exercises the delegated power  to 10 

conduct preliminary investigation of election offense cases, after the investigating officer submits his
recommendation, said officers already resolve the issue of probable cause. From such resolution,
appeal to the COMELEC lies. As the exercise by the Commission of its review powers would, at this
point, already constitute a second look on the issue of probable cause, the COMELEC's ruling on the
appeal would be immediately final and executory.

On the other hand, if the preliminary investigation of a complaint for election offense is conducted by
the COMELEC itself, its investigating officer prepares a report upon which the Commission's Law
Department makes its recommendation to the COMELEC en banc on whether there is probable
cause to prosecute. It is thus the COMELEC en banc which determines the existence of probable
cause.  Consequently, an appeal to the Commission is unavailing. Under the present Rules of
11 

Procedure of the COMELEC, however, a motion for reconsideration of such resolution is allowed.
This effectively allows for a review of the original resolution, in the same manner that the COMELEC,
on appeal or motu proprio, may review the resolution of the State Prosecutor, or Provincial or City
Fiscal.

Reliance by petitioner upon Rule 34, §10 of the COMELEC Rules of Procedure is thus without any
basis.

WHEREFORE, the petition for certiorari is DENIED.

SO ORDERED.

24
G.R. No. 124893 April 18, 1997

LYNETTE G. GARVIDA, petitioner, 
vs.
FLORENCIO G. SALES, JR., THE HONORABLE COMMISSION ON ELECTIONS, ELECTION
OFFICER DIONISIO F. RIOS and PROVINCIAL SUPERVISOR NOLI PIPO, respondents.
PUNO, J.:

Petitioner Lynette G. Garvida seeks to annul and set aside the order dated May 2, 1996 of
respondent Commission on Elections (COMELEC) en banc suspending her proclamation as the duly
elected Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Municipality of Bangui,
Ilocos Norte.

The facts are undisputed. The Sangguniang Kabataan (SK) elections nationwide was scheduled to
be held on May 6, 1996. On March 16, 1996, petitioner applied for registration as member and voter
of the Katipunan ng Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Board of
Election Tellers, however, denied her application on the ground that petitioner, who was then twenty-
one years and ten (10) months old, exceeded the age limit for membership in the Katipunan ng
Kabataan as laid down in Section 3 [b] of COMELEC Resolution No. 2824.

On April 2, 1996, petitioner filed a "Petition for Inclusion as Registered Kabataang Member and
Voter" with the Municipal Circuit Trial Court, Bangui-Pagudpud-Adams-Damalneg, Ilocos Norte. In a
decision dated April 18, 1996, the said court found petitioner qualified and ordered her registration
as member and voter in the Katipunan ng Kabataan.   The Board of Election Tellers appealed to the
1

Regional Trial Court, Bangui, Ilocos Norte.   The presiding judge of the Regional Trial Court,
2

however, inhibited himself from acting on the appeal due to his close association with petitioner. 
3

On April 23, 1996, petitioner filed her certificate of candidacy for the position of Chairman,
Sangguniang Kabataan, Barangay San Lorenzo, Municipality of Bangui, Province of Ilocos Norte. In
a letter dated April 23, 1996, respondent Election Officer Dionisio F. Rios, per advice of Provincial
Election Supervisor Noli Pipo,   disapproved petitioner's certificate of candidacy again due to her
4

age.   Petitioner, however, appealed to COMELEC Regional Director Filemon A. Asperin who set
5

aside the order of respondents and allowed petitioner to run. 6

On May 2, 1996, respondent Rios issued a memorandum to petitioner informing her of her
ineligibility and giving her 24 hours to explain why her certificate of candidacy should not be
disapproved.   Earlier and without the knowledge of the COMELEC officials, private respondent
7

Florencio G. Sales, Jr., a rival candidate for Chairman of the Sangguniang Kabataan, filed with the
COMELEC en banc a "Petition of Denial and/or Cancellation of Certificate of Candidacy" against
petitioner Garvida for falsely representing her age qualification in her certificate of candidacy. The
petition was sent by facsimile   and registered mail on April 29, 1996 to the Commission on Elections
8

National Office, Manila.

On May 2, 1996, the same day respondent Rios issued the memorandum to petitioner, the
COMELEC en bancissued an order directing the Board of Election Tellers and Board of Canvassers
of Barangay San Lorenzo to suspend the proclamation of petitioner in the event she won in the
election. The order reads as follows:

Acting on the Fax "Petition for Denial And/Or Cancellation of Certificate of

Candidacy" by petitioner Florencio G. Sales, Jr. against Lynette G. Garvida, received
on April 29, 1996, the pertinent allegations of which reads:

xxx xxx xxx

 5. That the said respondent is disqualified to become a voter and a candidate for the
SK for the reason that she will be more than twenty-one (21) years of age on May 6,
1996; that she was born on June 11, 1974 as can be gleaned from her birth
certificate, copy of which is hereto attached and marked as Annex "A";

6. That in filing her certificate of candidacy as candidate for SK of Bgy. San Lorenzo,
Bangui, Ilocos Norte, she made material representation which is false and as such,
she is disqualified; that her certificate of candidacy should not be given due course
and that said candidacy must be cancelled;

xxx xxx xxx

the Commission, it appearing that the petition is meritorious, hereby DIRECTS the
Board of Election Tellers/Board of Canvassers of Barangay San Lorenzo, Bangui,
Ilocos Norte, to suspend the proclamation of Lynette G. Garvida in the event she
garners the highest number of votes for the position of Sangguniang Kabataan [sic].

Meantime, petitioner is hereby required to submit immediately ten (10) copies of his
petition and to pay the filing and legal research fees in the amount of P510.00.

SO ORDERED.  9

On May 6, 1996, election day, petitioner garnered 78 votes as against private respondent's votes of
76.   In accordance with the May 2, 1996 order of the COMELEC en banc, the Board of Election
10

Tellers did not proclaim petitioner as the winner. Hence, the instant petition for certiorari was filed on
May 27, 1996.

On June 2, 1996, however, the Board of Election Tellers proclaimed petitioner the winner for the
position of SK chairman, Barangay San Lorenzo, Bangui, Ilocos Norte.   The proclamation was
11

"without prejudice to any further action by the Commission on Elections or any other interested
party."   On July 5, 1996, petitioner ran in the Pambayang Pederasyon ng mga Sangguniang
12

Kabataan for the municipality of Bangui, Ilocos Norte. She won as Auditor and was proclaimed one
of the elected officials of the Pederasyon. 13

Petitioner raises two (2) significant issues: the first concerns the jurisdiction of the COMELEC en
banc to act on the petition to deny or cancel her certificate of candidacy; the second, the cancellation
of her certificate of candidacy on the ground that she has exceeded the age requirement to run as
an elective official of the SK.

Section 532 (a) of the Local Government Code of 1991 provides that the conduct of the SK elections
is under the supervision of the COMELEC and shall be governed by the Omnibus Election
Code.   The Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due
14

course to or cancel a certificate of candidacy, viz:

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. — A

verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from the time of filing
 of the certificate of candidacy and shall be decided, after due notice and hearing, not
later than fifteen days before election.

In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to
deny due course to or cancel a certificate of candidacy for an elective office may be filed with
the Law Department of the COMELEC on the ground that the candidate has made a false
material representation in his certificate. The petition may be heard and evidence received
by any official designated by the COMELEC after which the case shall be decided by the
COMELEC itself.  15

Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of candidacy
lies with the COMELEC sitting in Division, not en banc. Cases before a Division may only be
entertained by the COMELEC en banc when the required number of votes to reach a decision,
resolution, order or ruling is not obtained in the Division. Moreover, only motions to reconsider
decisions, resolutions, orders or rulings of the COMELEC in Division are resolved by the
COMELEC en banc.   It is therefore the COMELEC sitting in Divisions that can hear and decide
16

election cases. This is clear from Section 3 of the said Rules thus:

Sec. 3. The Commission Sitting in Divisions. — The Commission shall sit in two (2)
Divisions to hear and decide protests or petitions in ordinary actions, special actions,
special cases, provisional remedies, contempt and special proceedings except in
accreditation of citizens' arms of the Commission.  17

In the instant case, the COMELEC en banc did not refer the case to any of its Divisions upon receipt
of the petition. It therefore acted without jurisdiction or with grave abuse of discretion when it
entertained the petition and issued the order of May 2, 1996. 18

II

The COMELEC en banc also erred when it failed to note that the petition itself did not comply with
the formal requirements of pleadings under the COMELEC Rules of Procedure. These requirements
are:

Sec. 1. Filing of Pleadings. — Every pleading, motion and other papers must be filed
in ten (10) legible copies. However, when there is more than one respondent or
protestee, the petitioner or protestant must file additional number of copies of the
petition or protest as there are additional respondents or protestees.

Sec. 2. How Filed. — The documents referred to in the immediately preceding

section must be filed directly with the proper Clerk of Court of the Commission
personally, or, unless otherwise provided in these Rules, by registered mail. In the
latter case, the date of mailing is the date of filing and the requirement as to the
number of copies must be complied with.

Sec. 3. Form of Pleadings, etc. — (a) All pleadings allowed by these Rules shall be
printed, mimeographed or typewritten on legal size bond paper and shall be in
English or Filipino.

xxx xxx xxx

 Every pleading before the COMELEC must be printed, mimeographed or typewritten in legal
size bond paper and filed in at least ten (10) legible copies. Pleadings must be filed directly
with the proper Clerk of Court of the COMELEC personally, or, by registered mail.

In the instant case, the subject petition was not in proper form. Only two (2) copies of the petition
were filed with the COMELEC.   Also, the COMELEC en banc issued its Resolution on the basis of
19

the petition transmitted by facsimile, not by registered mail.

A facsimile or fax transmission is a process involving the transmission and reproduction of printed
and graphic matter by scanning an original copy, one elemental area at a time, and representing the
shade or tone of each area by a specified amount of electric current.   The current is transmitted as
20

a signal over regular telephone lines or via microwave relay and is used by the receiver to reproduce
an image of the elemental area in the proper position and the correct shade.   The receiver is
21

equipped with a stylus or other device that produces a printed record on paper referred to as a
facsimile. 
22

Filing a pleading by facsimile transmission is not sanctioned by the COMELEC Rules of Procedure,
much less by the Rules of Court. A facsimile is not a genuine and authentic pleading. It is, at best,
an exact copy preserving all the marks of an original.   Without the original, there is no way of
23

determining on its face whether the facsimile pleading is genuine and authentic and was originally
signed by the party and his counsel. It may, in fact, be a sham pleading. The uncertainty of the
authenticity of a facsimile pleading should have restrained the COMELEC en banc from acting on
the petition and issuing the questioned order. The COMELEC en banc should have waited until it
received the petition filed by registered mail.

III

To write finis to the case at bar, we shall now resolve the issue of petitioner's age.

The Katipunan ng Kabataan was originally created by Presidential Decree No. 684 in 1975 as the
Kabataang Barangay, a barangay youth organization composed of all residents of the barangay who
were at least 15 years but less than 18 years of age.   The Kabataang Barangay sought to provide
24

its members a medium to express their views and opinions and participate in issues of
transcendental importance.   Its affairs were administered by a barangay youth chairman together
25

with six barangay youth leaders who were actual residents of the barangay and were at least 15
years but less than 18 years of age.   In 1983, Batas Pambansa Blg. 337, then the Local
26

Government Code, raised the maximum age of the Kabataang Barangay members from "less than
18 years of age" to "not more than 21 years of age."

The Local Government Code of 1991 changed the Kabataang Barangay into the Katipunan ng
Kabataan. It, however, retained the age limit of the members laid down in B.P. 337 at 15 but not
more than 21 years old.   The affairs of the Katipunan ng Kabataan are administered by the
27

Sangguniang Kabataan (SK) composed of a chairman and seven (7) members who are elected by
the Katipunan ng Kabataan.   The chairman automatically becomes ex-officio member of the
28

Sangguniang Barangay.   A member of the SK holds office for a term of three (3) years, unless
29

sooner removed for cause, or becomes permanently incapacitated, dies or resigns from office.  30

Membership in the Katipunan ng Kabataan is subject to specific qualifications laid down by the Local
Government Code of 1991, viz:

Sec. 424. Katipunan ng Kabataan. — The katipunan ng kabataan shall be composed

of all citizens of the Philippines actually residing in the barangay for at least six (6)
 months, who are fifteen (15) but not more than twenty-one (21) years of age, and
who are duly registered in the list of the sangguniang kabataan or in the official
barangay list in the custody of the barangay secretary.

A member of the Katipunan ng Kabataan may become a candidate for the Sangguniang
Kabataan if he possesses the following qualifications:

Sec. 428. Qualifications. — An elective official of the sangguniang kabataan must be

a citizen of the Philippines, a qualified voter of the katipunan ng kabataan, a resident
of the barangay for at least one (1) year immediately prior to election, at least fifteen
(15) years but not more than twenty-one (21) years of age on the day of his election,
able to read and write Filipino, English, or the local dialect, and must not have been
convicted of any crime involving moral turpitude.

Under Section 424 of the Local Government Code, a member of the Katipunan ng Kabataan must
be: (a) a Filipino citizen; (b) an actual resident of the barangay for at least six months; (c) 15 but not
more than 21 years of age; and (d) duly registered in the list of the Sangguniang Kabataan or in the
official barangay list. Section 428 of the Code requires that an elective official of the Sangguniang
Kabataan must be: (a) a Filipino citizen; (b) a qualified voter in the Katipunan ng Kabataan; (c) a
resident of the barangay at least one (1) year immediately preceding the election; (d) at least 15
years but not more than 21 years of age on the day of his election; (e) able to read and write; and (f)
must not have been convicted of any crime involving moral turpitude.

For the May 6, 1996 SK elections, the COMELEC interpreted Sections 424 and 428 of the Local
Government Code of 1991 in Resolution No. 2824 and defined how a member of the Katipunan ng
Kabataan becomes a qualified voter and an elective official. Thus:

Sec. 3. Qualifications of a voter. — To be qualified to register as a voter in the SK

elections, a person must be:

a) a citizen of the Philippines;

b) fifteen (15) but not more than twenty-one (21) years of age on election day that is,
he must have been born between May 6, 1975 and May 6, 1981, inclusive; and

c) a resident of the Philippines for at least one (1) year and actually residing in the
barangay wherein he proposes to vote for at least six (6) months immediately
preceding the elections.

xxx xxx xxx

Sec. 6. Qualifications of elective members. — An elective official of the SK must be:

a) a qualified voter;

b) a resident in the barangay for at least one (1) year immediately prior to the
elections; and

c) able to read and write Filipino or any Philippine language or dialect or English.
 Cases involving the eligibility or qualification of candidates shall be decided by the
city/municipal Election Officer (EO) whose decision shall be final.

A member of the Katipunan ng Kabataan may be a qualified voter in the May 6, 1996 SK
elections if he is: (a) a Filipino citizen; (b) 15 but not more than 21 years of age on election
day, i.e., the voter must be born between May 6, 1975 and May 6, 1981, inclusive; and (c) a
resident of the Philippines for at least one (1) year and an actual resident of the barangay at
least six (6) months immediately preceding the elections. A candidate for the SK must: (a)
possess the foregoing qualifications of a voter; (b) be a resident in the barangay at least one
(1) year immediately preceding the elections; and (c) able to read and write.

Except for the question of age, petitioner has all the qualifications of a member and voter in the
Katipunan ng Kabataan and a candidate for the Sangguniang Kabataan. Petitioner 's age is
admittedly beyond the limit set in Section 3 [b] of COMELEC Resolution No. 2824. Petitioner,
however, argues that Section 3 [b] of Resolution No. 2824 is unlawful, ultra vires and beyond the
scope of Sections 424 and 428 of the Local Government Code of 1991. She contends that the Code
itself does not provide that the voter must be exactly 21 years of age on election day. She urges that
so long as she did not turn twenty-two (22) years old, she was still twenty-one years of age on
election day and therefore qualified as a member and voter in the Katipunan ng Kabataan and as
candidate for the SK elections.

A closer look at the Local Government Code will reveal a distinction between the maximum age of a
member in the Katipunan ng Kabataan and the maximum age of an elective SK official. Section 424
of the Code sets a member's maximum age at 21 years only. There is no further provision as to
when the member shall have turned 21 years of age. On the other hand, Section 428 provides that
the maximum age of an elective SK official is 21 years old "on the day of his election." The addition
of the phrase "or the day of his election" is an additional qualification. The member may be more
than 21 years of age on election day or on the day he registers as member of the Katipunan ng
Kabataan. The elective official, however, must not be more than 21 years old on the day of election.
The distinction is understandable considering that the Code itself provides more qualifications for an
elective SK official than for a member of the Katipunan ng Kabataan. Dissimilum dissimilis est
ratio.   The courts may distinguish when there are facts and circumstances showing that the
31

legislature intended a distinction or qualification. 

32

The qualification that a voter in the SK elections must not be more than 21 years of age on the day
of the election is not provided in Section 424 of the Local Government Code of 1991. In fact the term
"qualified voter" appears only in COMELEC Resolution No. 2824.   Since a "qualified voter" is not
33

necessarily an elective official, then it may be assumed that a "qualified voter" is a "member of the
Katipunan ng Kabataan." Section 424 of the Code does not provide that the maximum age of a
member of the Katipunan ng Kabataan is determined on the day of the election. Section 3 [b] of
COMELEC Resolution No. 2824 is therefore ultra vires insofar as it sets the age limit of a voter for
the SK elections at exactly 21 years on the day of the election.

The provision that an elective official of the SK should not be more than 21 years of age on the day
of his election is very clear. The Local Government Code speaks of years, not months nor days.
When the law speaks of years, it is understood that years are of 365 days each.   One born on the
34

first day of the year is consequently deemed to be one year old on the 365th day after his birth —
the last day of the year.   In computing years, the first year is reached after completing the first 365
35

days. After the first 365th day, the first day of the second 365-day cycle begins. On the 365th day of
the second cycle, the person turns two years old. This cycle goes on and on in a lifetime. A person
turns 21 years old on the 365th day of his 21st 365-day cycle. This means on his 21st birthday, he
has completed the entire span of 21 365-day cycles. After this birthday, the 365-day cycle for his
22nd year begins. The day after the 365th day is the first day of the next 365-day cycle and he turns
22 years old on the 365th day.

The phrase "not more than 21 years of age" means not over 21 years, not beyond 21 years. It
means 21 365-day cycles. It does not mean 21 years and one or some days or a fraction of a year
because that would be more than 21 365-day cycles. "Not more than 21 years old" is not equivalent
to "less than 22 years old," contrary to petitioner's claims. The law does not state that the candidate
be less than 22 years on election day.

In P.D. 684, the law that created the Kabataang Barangay, the age qualification of a barangay youth
official was expressly stated as ". . . at least fifteen years of age or over but less than
eighteen . . ."   This provision clearly states that the youth official must be at least 15 years old and
36

may be 17 years and a fraction of a year but should not reach the age of eighteen years. When the
Local Government Code increased the age limit of members of the youth organization to 21 years, it
did not reenact the provision in such a way as to make the youth "at least 15 but less than 22 years
old." If the intention of the Code's framers was to include citizens less than 22 years old, they should
have stated so expressly instead of leaving the matter open to confusion and doubt.  37

Former Senator Aquilino Q. Pimentel, the sponsor and principal author of the Local Government
Code of 1991 declared that one of the reasons why the Katipunan ng Kabataan was created and the
Kabataang Barangay discontinued was because most, if not all, Kabataang Barangay leaders were
already over 21 years of age by the time President Aquino assumed power.   They were not the
38

"youth" anymore. The Local Government Code of 1991 fixed the maximum age limit at not more
than 21 years   and the only exception is in the second paragraph of Section 423 which reads:
39

Sec. 423. Creation and Election. —

a) . . . ;

b) A sangguniang kabataan official who, during his term of office, shall have passed
the age of twenty-one (21) years shall be allowed to serve the remaining portion of
the term for which he was elected.

The general rule is that an elective official of the Sangguniang Kabataan must not be more
than 21 years of age on the day of his election. The only exception is when the official
reaches the age of 21 years during his incumbency. Section 423 [b] of the Code allows him
to serve the remaining portion of the term for which he was elected. According to Senator
Pimentel, the youth leader must have "been elected prior to his 21st birthday."   Conversely,
40

the SK official must not have turned 21 years old before his election. Reading Section 423
[b] together with Section 428 of the Code, the latest date at which an SK elective official
turns 21 years old is on the day of his election. The maximum age of a youth official must
therefore be exactly 21 years on election day. Section 3 [b] in relation to Section 6 [a] of
COMELEC Resolution No. 2824 is not ultra vires insofar as it fixes the maximum age of an
elective SK official on the day of his election.

In the case at bar, petitioner was born on June 11, 1974. On March 16, 1996, the day she registered
as voter for the May 6, 1996 SK elections, petitioner was twenty-one (21) years and nine (9) months
old. On the day of the elections, she was 21 years, 11 months and 5 days old. When she assumed
office on June 1, 1996, she was 21 years, 11 months and 20 days old and was merely ten (10) days
away from turning 22 years old. Petitioner may have qualified as a member of the Katipunan ng
Kabataan but definitely, petitioner was over the age limit for elective SK officials set by Section 428
of the Local Government Code and Sections 3 [b] and 6 of Comelec Resolution No. 2824. She was
ineligible to run as candidate for the May 6, 1996 Sangguniang Kabataan elections.

The requirement that a candidate possess the age qualification is founded on public policy and if he
lacks the age on the day of the election, he can be declared ineligible.   In the same vein, if the
41

candidate is over the maximum age limit on the day of the election, he is ineligible. The fact that the
candidate was elected will not make the age requirement directory, nor will it validate his
election.   The will of the people as expressed through the ballot cannot cure the vice of ineligibility. 
42 43

The ineligibility of petitioner does not entitle private respondent, the candidate who obtained the
highest number of votes in the May 6, 1996 elections, to be declared elected.   A defeated candidate
44

cannot be deemed elected to the office.   Moreover, despite his claims,   private respondent has
45 46

failed to prove that the electorate themselves actually knew of petitioner's ineligibility and that they
maliciously voted for her with the intention of misapplying their franchises and throwing away their
votes for the benefit of her rival candidate.  47

Neither can this Court order that pursuant to Section 435 of the Local Government Code petitioner
should be succeeded by the Sangguniang Kabataan member who obtained the next highest number
of votes in the May 6, 1996 elections.   Section 435 applies when a Sangguniang Kabataan
48

Chairman "refuses to assume office, fails to qualify,   is convicted of a felony, voluntarily resigns,
49

dies, is permanently incapacitated, is removed from office, or has been absent without leave for
more than three (3) consecutive months."

The question of the age qualification is a question of eligibility.  Being "eligible" means being "legally
50

qualified; capable of being legally chosen."   Ineligibility, on the other hand, refers to the lack of the
51

qualifications prescribed in the Constitution or the statutes for holding public office.   Ineligibility is
52

not one of the grounds enumerated in Section 435 for succession of the SK Chairman.

To avoid a hiatus in the office of SK Chairman, the Court deems it necessary to order that the
vacancy be filled by the SK member chosen by the incumbent SK members of Barangay San
Lorenzo, Bangui, Ilocos Norte by simple majority from among themselves. The member chosen shall
assume the office of SK Chairman for the unexpired portion of the term, and shall discharge the
powers and duties, and enjoy the rights and privileges appurtenant to said office.

IN VIEW WHEREOF, the petition is dismissed and petitioner Lynette G. Garvida is declared
ineligible for being over the age qualification for candidacy in the May 6, 1996 elections of the
Sangguniang Kabataan, and is ordered to vacate her position as Chairman of the Sangguniang
Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Sangguniang Kabataan member
voted by simple majority by and from among the incumbent Sangguniang Kabataan members of
Barangay San Lorenzo, Bangui, Ilocos Norte shall assume the office of Sangguniang Kabataan
Chairman of Barangay San Lorenzo, Bangui, Ilocos Norte for the unexpired portion of the term.

SO ORDERED.