G.R. No.

147589

June 26, 2001

ANG BAGONG BAYANI-OFW LABOR PARTY (under the acronym OFW), represented herein by its secretary-general, MOHAMMAD OMAR FAJARDO, petitioner, vs. ANG BAGONG BAYANI-OFW LABOR PARTY GO! GO! PHILIPPINES; THE TRUE MARCOS LOYALIST ASSOCIATION OF THE PHILIPPINES; PHILIPPINE LOCAL AUTONOMY; CITIZENS MOVEMENT FOR JUSTICE, ECONOMY, ENVIRONMENT AND PEACE; CHAMBER OF REAL ESTATE BUILDERS ASSOCIATION; SPORTS & HEALTH ADVANCEMENT FOUNDATION, INC.; ANG LAKAS NG OVERSEAS CONTRACT WORKERS (OCW); BAGONG BAYANI ORGANIZATION and others under "Organizations/Coalitions" of Omnibus Resolution No. 3785; PARTIDO NG MASANG PILIPINO; LAKAS NUCD-UMDP; NATIONALIST PEOPLE'S COALITION; LABAN NG DEMOKRATIKONG PILIPINO; AKSYON DEMOKRATIKO; PDPLABAN; LIBERAL PARTY; NACIONALISTA PARTY; ANG BUHAY HAYAANG YUMABONG; and others under "Political Parties" of Omnibus Resolution No. 3785. respondents. x---------------------------------------------------------x G.R. No. 147613 June 26, 2001 BAYAN MUNA, petitioner, vs. COMMISSION ON ELECTIONS; NATIONALIST PEOPLE'S COALITION (NPC); LABAN NG DEMOKRATIKONG PILIPINO (LDP); PARTIDO NG MASANG PILIPINO (PMP); LAKASNUCD-UMDP; LIBERAL PARTY; MAMAMAYANG AYAW SA DROGA; CREBA; NATIONAL FEDERATION OF SUGARCANE PLANTERS; JEEP; and BAGONG BAYANI ORGANIZATION, respondents. PANGANIBAN, J.: The party-list system is a social justice tool designed not only to give more law to the great masses of our people who have less in life, but also to enable them to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them. It intends to make the marginalized and the underrepresented not merely passive recipients of the State's benevolence, but active participants in the mainstream of representative democracy. Thus, allowing all individuals and groups, including those which now dominate district elections, to have the same opportunity to participate in party-list elections would desecrate this lofty objective and mongrelize the social justice mechanism into an atrocious veneer for traditional politics. The Case Before us are two Petitions under Rule 65 of the Rules of Court, challenging Omnibus Resolution No. 3785 1issued by the Commission on Elections (Comelec) on March 26, 2001. This Resolution approved the participation of 154 organizations and parties, including those herein impleaded, in the 2001 party-list elections. Petitioners seek the disqualification of private respondents, arguing mainly that the party-list system was intended to benefit the marginalized and underrepresented; not the mainstream political parties, the non-marginalized or overrepresented. The Factual Antecedents With the onset of the 2001 elections, the Comelec received several Petitions for registration filed by sectoral parties, organizations and political parties. According to the Comelec, "[v]erifications were made as to the status and capacity of these parties and organizations and hearings were scheduled day and night until the last party w[as] heard. With the number of these petitions and the observance of the legal and procedural requirements, review of these petitions as well as deliberations takes a longer process in order to arrive at a decision and as a result the two (2) divisions promulgated a separate Omnibus Resolution and individual resolution on political parties. These numerous petitions and processes observed in the disposition of these petition[s] hinder the early release of the Omnibus Resolutions of the Divisions which were promulgated only on 10 February 2001." 2

Thereafter, before the February 12, 2001 deadline prescribed under Comelec Resolution No. 3426 dated December 22, 2000, the registered parties and organizations filed their respective Manifestations, stating their intention to participate in the party-list elections. Other sectoral and political parties and organizations whose registrations were denied also filed Motions for Reconsideration, together with Manifestations of their intent to participate in the party-list elections. Still other registered parties filed their Manifestations beyond the deadline. The Comelec gave due course or approved the Manifestations (or accreditations) of 154 parties and organizations, but denied those of several others in its assailed March 26, 2001 Omnibus Resolution No. 3785, which we quote: "We carefully deliberated the foregoing matters, having in mind that this system of proportional representation scheme will encourage multi-partisan [sic] and enhance the inability of small, new or sectoral parties or organization to directly participate in this electoral window. "It will be noted that as defined, the 'party-list system' is a 'mechanism of proportional representation' in the election of representatives to the House of Representatives from national, regional, and sectoral parties or organizations or coalitions thereof registered with the Commission on Elections. "However, in the course of our review of the matters at bar, we must recognize the fact that there is a need to keep the number of sectoral parties, organizations and coalitions, down to a manageable level, keeping only those who substantially comply with the rules and regulations and more importantly the sufficiency of the Manifestations or evidence on the Motions for Reconsiderations or Oppositions." 3 On April 10, 2001, Akbayan Citizens Action Party filed before the Comelec a Petition praying that "the names of [some of herein respondents] be deleted from the 'Certified List of Political Parties/Sectoral Parties/Organizations/Coalitions Participating in the Party List System for the May 14, 2001 Elections' and that said certified list be accordingly amended." It also asked, as an alternative, that the votes cast for the said respondents not be counted or canvassed, and that the latter's nominees not be proclaimed. 4 On April 11, 2001, Bayan Muna and Bayan Muna-Youth also filed a Petition for Cancellation of Registration and Nomination against some of herein respondents. 5 On April 18, 2001, the Comelec required the respondents in the two disqualification cases to file Comments within three days from notice. It also set the date for hearing on April 26, 2001, 6 but subsequently reset it to May 3, 2001. 7 During the hearing, however, Commissioner Ralph C. Lantion merely directed the parties to submit their respective memoranda. 8 Meanwhile, dissatisfied with the pace of the Comelec, Ang Bagong Bayani-OFW Labor Party filed a Petition 9before this Court on April 16, 2001. This Petition, docketed as GR No. 147589, assailed Comelec Omnibus Resolution No. 3785. In its Resolution dated April 17, 2001, 10 the Court directed respondents to comment on the Petition within a non-extendible period of five days from notice. 11 On April 17, 2001, Petitioner Bayan Muna also filed before this Court a Petition, 12 docketed as GR No. 147613, also challenging Comelec Omnibus Resolution No. 3785. In its Resolution dated May 9, 2001, 13 the Court ordered the consolidation of the two Petitions before it; directed respondents named in the second Petition to file their respective Comments on or before noon of May 15, 2001; and called the parties to an Oral Argument on May 17, 2001. It added that the Comelec may proceed with the counting and canvassing of votes cast for the party-list elections, but barred the proclamation of any winner therein, until further orders of the Court. Thereafter, Comments 14 on the second Petition were received by the Court and, on May 17, 2001, the Oral Argument was conducted as scheduled. In an Order given in open court, the parties were directed to submit their respective Memoranda simultaneously within a non-extendible period of five days. 15 Issues: During the hearing on May 17, 2001, the Court directed the parties to address the following issues:

"1. Whether or not recourse under Rule 65 is proper under the premises. More specifically, is there no other plain, speedy or adequate remedy in the ordinary course of law? "2. Whether or not political parties may participate in the party-list elections.

Finally, procedural requirements "may be glossed over to prevent a miscarriage of justice, when the issue involves the principle of social justice x x x when the decision 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." 26 Second Issue:

"3. Whether or not the party-list system is exclusive to 'marginalized and underrepresented' sectors and organizations. "4. Whether or not the Comelec committed grave abuse of discretion in promulgating Omnibus Resolution No. 3785." 16 The Court's Ruling The Petitions are partly meritorious. These cases should be remanded to the Comelec which will determine, after summary evidentiary hearings, whether the 154 parties and organizations enumerated in the assailed Omnibus Resolution satisfy the requirements of the Constitution and RA 7941, as specified in this Decision. First Issue: Recourse Under Rule 65 Respondents contend that the recourse of both petitioners under Rule 65 is improper because there are other plain, speedy and adequate remedies in the ordinary course of law. 17 The Office of the Solicitor General argues that petitioners should have filed before the Comelec a petition either for disqualification or for cancellation of registration, pursuant to Sections 19, 20, 21 and 22 of Comelec Resolution No. 3307-A 18 dated November 9, 2000. 19 We disagree. At bottom, petitioners attack the validity of Comelec Omnibus Resolution 3785 for having been issued with grave abuse of discretion, insofar as it allowed respondents to participate in the party-list elections of 2001. Indeed, under both the Constitution 20 and the Rules of Court, such challenge may be brought before this Court in a verified petition for certiorari under Rule 65. Moreover, the assailed Omnibus Resolution was promulgated by Respondent Commission en banc; hence, no motion for reconsideration was possible, it being a prohibited pleading under Section 1 (d), Rule 13 of the Comelec Rules of Procedure. 21 The Court also notes that Petitioner Bayan Muna had filed before the Comelec a Petition for Cancellation of Registration and Nomination against some of herein respondents. 22 The Comelec, however, did not act on that Petition. In view of the pendency of the elections, Petitioner Bayan Muna sought succor from this Court, for there was no other adequate recourse at the time. Subsequent events have proven the urgency of petitioner's action; to this date, the Comelec has not yet formally resolved the Petition before it. But a resolution may just be a formality because the Comelec, through the Office of the Solicitor General, has made its position on the matter quite clear. In any event, this case presents an exception to the rule that certiorari shall lie only in the absence of any other plain, speedy and adequate remedy. 23 It has been held that certiorari is available, notwithstanding the presence of other remedies, "where the issue raised is one purely of law, where public interest is involved, and in case of urgency." 24 Indeed, the instant case is indubitably imbued with public interest and with extreme urgency, for it potentially involves the composition of 20 percent of the House of Representatives. Moreover, this case raises transcendental constitutional issues on the party-list system, which this Court must urgently resolve, consistent with its duty to "formulate guiding and controlling constitutional principles, precepts, doctrines, or rules." 25

Participation of Political Parties In its Petition, Ang Bagong Bayani-OFW Labor Party contends that "the inclusion of political parties in the party-list system is the most objectionable portion of the questioned Resolution." 27 For its part, Petitioner Bayan Muna objects to the participation of "major political parties." 28 On the other hand, the Office of the Solicitor General, like the impleaded political parties, submits that the Constitution and RA No. 7941 allow political parties to participate in the party-list elections. It argues that the party-list system is, in fact, open to all "registered national, regional and sectoral parties or organizations." 29 We now rule on this issue. Under the Constitution and RA 7941, private respondents cannot be disqualified from the party-list elections, merely on the ground that they are political parties. Section 5, Article VI of the Constitution provides that members of the House of Representatives may "be elected through a party-list system of registered national, regional, and sectoral parties or organizations." Furthermore, under Sections 7 and 8, Article IX (C) of the Constitution, political parties may be registered under the party-list system. "Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list system as provided in this Constitution. "Sec. 8. Political parties, or organizations or coalitions registered under the party-list system, shall not be represented in the voters' registration boards, boards of election inspectors, boards of canvassers, or other similar bodies. However, they shall be entitled to appoint poll watchers in accordance with law." 30 During the deliberations in the Constitutional Commission, Comm. Christian S. Monsod pointed out that the participants in the party-list system may "be a regional party, a sectoral party, a national party, UNIDO, 31Magsasaka, or a regional party in Mindanao." 32 This was also clear from the following exchange between Comms. Jaime Tadeo and Blas Ople: 33 "MR. TADEO. Naniniwala ba kayo na ang party list ay pwedeng paghati-hatian ng UNIDO, PDPLaban, PNP, Liberal at Nacionalista? MR. OPLE. Maaari yan sapagkat bukas ang party list system sa lahat ng mga partido." Indeed, Commissioner Monsod stated that the purpose of the party-list provision was to open up the system, in order to give a chance to parties that consistently place third or fourth in congressional district elections to win a seat in Congress. 34 He explained: "The purpose of this is to open the system. In the past elections, we found out that there were certain groups or parties that, if we count their votes nationwide, have about 1,000,000 or 1,500,000 votes. But they were always third or fourth place in each of the districts. So, they have no voice in the Assembly. But this way, they would have five or six representatives in the Assembly even if they would not win individually in legislative districts. So, that is essentially the mechanics, the purpose and objectives of the partylist system." For its part, Section 2 of RA 7941 also provides for "a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, x x x." Section 3 expressly states that a "party" is "either a political party or a sectoral party or a coalition of parties." More to the point, the law defines "political party" as "an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most

immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidates for public office." Furthermore, Section 11 of RA 7941 leaves no doubt as to the participation of political parties in the party-list system. We quote the pertinent provision below: "x x x "For purposes of the May 1998 elections, the first five (5) major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the party-list system. x x x"

and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible." The Marginalized and Underrepresented to Become Lawmakers Themselves The foregoing provision mandates a state policy of promoting proportional representation by means of the Filipino-style party-list system, which will "enable" the election to the House of Representatives of Filipino citizens, 1. who belong to marginalized and underrepresented sectors, organizations and parties; and 2. who lack well-defined constituencies; but

Indubitably, therefore, political parties even the major ones -- may participate in the party-list elections. Third Issue: Marginalized and Underrepresented That political parties may participate in the party-list elections does not mean, however, that any political party -- or any organization or group for that matter -- may do so. The requisite character of these parties or organizations must be consistent with the purpose of the party-list system, as laid down in the Constitution and RA 7941. Section 5, Article VI of the Constitution, provides as follows: "(1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector." (Emphasis supplied.) Notwithstanding the sparse language of the provision, a distinguished member of the Constitutional Commission declared that the purpose of the party-list provision was to give "genuine power to our people" in Congress. Hence, when the provision was discussed, he exultantly announced: "On this first day of August 1986, we shall, hopefully, usher in a new chapter to our national history, by giving genuine power to our people in the legislature."35 The foregoing provision on the party-list system is not self-executory. It is, in fact, interspersed with phrases like "in accordance with law" or "as may be provided by law"; it was thus up to Congress to sculpt in granite the lofty objective of the Constitution. Hence, RA 7941 was enacted. It laid out the statutory policy in this wise: "SEC. 2. Declaration of Policy. -- The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and underrepresented 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. Towards this end, the State shall develop and guarantee a full, free

3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole. The key words in this policy are "proportional representation," "marginalized and underrepresented," and "lack ofwell-defined constituencies." "Proportional representation" here does not refer to the number of people in a particular district, because the party-list election is national in scope. Neither does it allude to numerical strength in a distressed or oppressed group. Rather, it refers to the representation of the "marginalized and underrepresented" as exemplified by the enumeration in Section 5 of the law; namely, "labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals." However, it is not enough for the candidate to claim representation of the marginalized and underrepresented, because representation is easy to claim and to feign. The party-list organization or party must factually and truly represent the marginalized and underrepresented constituencies mentioned in Section 5. 36 Concurrently, the persons nominated by the party-list candidateorganization must be "Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties." Finally, "lack of well-defined constituenc[y] " refers to the absence of a traditionally identifiable electoral group, like voters of a congressional district or territorial unit of government. Rather, it points again to those with disparate interests identified with the "marginalized or underrepresented." In the end, the role of the Comelec is to see to it that only those Filipinos who are "marginalized and underrepresented" become members of Congress under the party-list system, Filipino-style. The intent of the Constitution is clear: to give genuine power to the people, not only by giving more law to those who have less in life, but more so by enabling them to become veritable lawmakers themselves. Consistent with this intent, the policy of the implementing law, we repeat, is likewise clear: "to enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, x x x, to become members of the House of Representatives." Where the language of the law is clear, it must be applied according to its express terms. 37 The marginalized and underrepresented sectors to be represented under the party-list system are enumerated in Section 5 of RA 7941, which states: "SEC. 5. Registration. -- Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching thereto its constitution, by-laws, platform or program of government, list of officers, coalition agreement and other relevant information as the

COMELEC may require: Provided, that the sector shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals." While the enumeration of marginalized and underrepresented sectors is not exclusive, it demonstrates the clear intent of the law that not all sectors can be represented under the party-list system. It is a fundamental principle of statutory construction that words employed in a statute are interpreted in connection with, and their meaning is ascertained by reference to, the words and the phrases with which they are associated or related. Thus, the meaning of a term in a statute may be limited, qualified or specialized by those in immediate association. 38 The Party-List System Desecrated by the OSG Contentions Notwithstanding the unmistakable statutory policy, the Office of the Solicitor General submits that RA No. 7941 "does not limit the participation in the party-list system to the marginalized and underrepresented sectors of society." 39 In fact, it contends that any party or group that is not disqualified under Section 6 40 of RA 7941 may participate in the elections. Hence, it admitted during the Oral Argument that even an organization representing the super rich of Forbes Park or Dasmarias Village could participate in the party-list elections. 41 The declared policy of RA 7941 contravenes the position of the Office of the Solicitor General (OSG). We stress that the party-list system seeks to enable certain Filipino citizens specifically those belonging to marginalized and underrepresented sectors, organizations and parties to be elected to the House of Representatives. The assertion of the OSG that the party-list system is not exclusive to the marginalized and underrepresented disregards the clear statutory policy. Its claim that even the super-rich and overrepresented can participate desecrates the spirit of the party-list system. Indeed, the law crafted to address the peculiar disadvantages of Payatas hovel dwellers cannot be appropriated by the mansion owners of Forbes Park. The interests of these two sectors are manifestly disparate; hence, the OSG's position to treat them similarly defies reason and common sense. In contrast, and with admirable candor, Atty. Lorna Patajo-Kapunan 42 admitted during the Oral Argument that a group of bankers, industrialists and sugar planters could not join the party-list system as representatives of their respective sectors. 43 While the business moguls and the mega-rich are, numerically speaking, a tiny minority, they are neither marginalized nor underrepresented, for the stark reality is that their economic clout engenders political power more awesome than their numerical limitation. Traditionally, political power does not necessarily emanate from the size of one's constituency; indeed, it is likely to arise more directly from the number and amount of one's bank accounts. It is ironic, therefore, that the marginalized and underrepresented in our midst are the majority who wallow in poverty, destitution and infirmity. It was for them that the party-list system was enacted - to give them not only genuine hope, but genuine power; to give them the opportunity to be elected and to represent the specific concerns of their constituencies; and simply to give them a direct voice in Congress and in the larger affairs of the State. In its noblest sense, the party-list system truly empowers the masses and ushers a new hope for genuine change. Verily, it invites those marginalized and underrepresented in the past the farm hands, the fisher folk, the urban poor, even those in the underground movement to come out and participate, as indeed many of them came out and participated during the last elections. The State cannot now disappoint and frustrate them by disabling and desecrating this social justice vehicle. Because the marginalized and underrepresented had not been able to win in the congressional district elections normally dominated by traditional politicians and vested groups, 20 percent of the seats in the House of Representatives were set aside for the party-list system. In arguing that even those sectors who normally controlled 80 percent of the seats in the House could participate in the party-list elections for the remaining 20 percent, the OSG and the Comelec disregard the fundamental difference between the congressional district elections and the party-list elections. As earlier noted, the purpose of the party-list provision was to open up the system, 44 in order to enhance the chance of sectoral groups and organizations to gain representation in the House of

Representatives through the simplest scheme possible. 45 Logic shows that the system has been opened to those who have never gotten a foothold within it -- those who cannot otherwise win in regular elections and who therefore need the "simplest scheme possible" to do so. Conversely, it would be illogical to open the system to those who have long been within it -- those privileged sectors that have long dominated the congressional district elections. The import of the open party-list system may be more vividly understood when compared to a student dormitory "open house," which by its nature allows outsiders to enter the facilities. Obviously, the "open house" is for the benefit of outsiders only, not the dormers themselves who can enter the dormitory even without such special privilege. In the same vein, the open party-list system is only for the "outsiders" who cannot get elected through regular elections otherwise; it is not for the non-marginalized or overrepresented who already fill the ranks of Congress. Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats under the party-list system would not only dilute, but also prejudice the chance of the marginalized and underrepresented, contrary to the intention of the law to enhance it. The party-list system is a tool for the benefit of the underprivileged; the law could not have given the same tool to others, to the prejudice of the intended beneficiaries. This Court, therefore, cannot allow the party-list system to be sullied and prostituted by those who are neither marginalized nor underrepresented. It cannot let that flicker of hope be snuffed out. The clear state policy must permeate every discussion of the qualification of political parties and other organizations under the party-list system. Refutation of the Separate Opinions The Separate Opinions of our distinguished colleagues, Justices Jose C. Vitug and Vicente V. Mendoza, are anchored mainly on the supposed intent of the framers of the Constitution as culled from their deliberations. The fundamental principle in constitutional construction, however, is that the primary source from which to ascertain constitutional intent or purpose is the language of the provision itself. The presumption is that the words in which the constitutional provisions are couched express the objective sought to be attained. 46 In other words, verba legis still prevails. Only when the meaning of the words used is unclear and equivocal should resort be made to extraneous aids of construction and interpretation, such as the proceedings of the Constitutional Commission or Convention, in order to shed light on and ascertain the true intent or purpose of the provision being construed. 47 Indeed, as cited in the Separate Opinion of Justice Mendoza, this Court stated in Civil Liberties Union v. Executive Secretary 48 that "the debates and proceedings of the constitutional convention [may be consulted] in order to arrive at the reason and purpose of the resulting Constitution x x x only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention 'are of value as showing the views of the individual members, and as indicating the reason for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass or our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face.' The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers' understanding thereof." Section 5, Article VI of the Constitution, relative to the party-list system, is couched in clear terms: the mechanics of the system shall be provided by law. Pursuant thereto, Congress enacted RA 7941. In understanding and implementing party-list representation, we should therefore look at the law first. Only when we find its provisions ambiguous should the use of extraneous aids of construction be resorted to. But, as discussed earlier, the intent of the law is obvious and clear from its plain words. Section 2 thereof unequivocally states that the party-list system of electing congressional representatives was designed to "enable underrepresented 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 x x x." The criteria for participation is well defined.

Thus, there is no need for recourse to constitutional deliberations, not even to the proceedings of Congress. In any event, the framers' deliberations merely express their individual opinions and are, at best, only persuasive in construing the meaning and purpose of the constitution or statute. Be it remembered that the constitutionality or validity of Sections 2 and 5 of RA 7941 is not an issue here. Hence, they remain parts of the law, which must be applied plainly and simply. Fourth Issue: Grave Abuse of Discretion From its assailed Omnibus Resolution, it is manifest that the Comelec failed to appreciate fully the clear policy of the law and the Constitution. On the contrary, it seems to have ignored the facet of the party-list system discussed above. The OSG as its counsel admitted before the Court that any group, even the non-marginalized and overrepresented, could field candidates in the party-list elections. When a lower court, or a quasi-judicial agency like the Commission on Elections, violates or ignores the Constitution or the law, its action can be struck down by this Court on the ground of grave abuse of discretion. 49Indeed, the function of all judicial and quasi-judicial instrumentalities is to apply the law as they find it, not to reinvent or second-guess it. 50 In its Memorandum, Petitioner Bayan Muna passionately pleads for the outright disqualification of the major political parties Respondents Lakas-NUCD, LDP, NPC, LP and PMP on the ground that under Comelec Resolution No. 4073, they have been accredited as the five (six, including PDPLaban) major political parties in the May 14, 2001 elections. It argues that because of this, they have the "advantage of getting official Comelec Election Returns, Certificates of Canvass, preferred poll watchers x x x." We note, however, that this accreditation does not refer to the party-list election, but, inter alia, to the election of district representatives for the purpose of determining which parties would be entitled to watchers under Section 26 of Republic Act No. 7166. What is needed under the present circumstances, however, is a factual determination of whether respondents herein and, for that matter, all the 154 previously approved groups, have the necessary qualifications to participate in the party-list elections, pursuant to the Constitution and the law. Bayan Muna also urges us to immediately rule out Respondent Mamamayan Ayaw sa Droga (MAD), because "it is a government entity using government resources and privileges." This Court, however, is not a trier of facts. 51 It is not equipped to receive evidence and determine the truth of such factual allegations. Basic rudiments of due process require that respondents should first be given an opportunity to show that they qualify under the guidelines promulgated in this Decision, before they can be deprived of their right to participate in and be elected under the party-list system. Guidelines for Screening Party-List Participants The Court, therefore, deems it proper to remand the case to the Comelec for the latter to determine, after summary evidentiary hearings, whether the 154 parties and organizations allowed to participate in the party-list elections comply with the requirements of the law. In this light, the Court finds it appropriate to lay down the following guidelines, culled from the law and the Constitution, to assist the Comelec in its work. First, the political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Section 5 of RA 7941. In other words, it must show -through its constitution, articles of incorporation, bylaws, history, platform of government and track record -- that it represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of its membership should belong to the marginalized and underrepresented. And it must

demonstrate that in a conflict of interests, it has chosen or is likely to choose the interest of such sectors. Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to participate in the party-list system, they must comply with the declared statutory policy of enabling "Filipino citizens belonging to marginalized and underrepresented sectors x x x to be elected to the House of Representatives." In other words, while they are not disqualified merely on the ground that they are political parties, they must show, however, that they represent the interests of the marginalized and underrepresented. The counsel of Aksyon Demokratiko and other similarly situated political parties admitted as much during the Oral Argument, as the following quote shows: "JUSTICE PANGANIBAN: I am not disputing that in my question. All I am saying is, the political party must claim to represent the marginalized and underrepresented sectors? ATTY. KAPUNAN: Yes, Your Honor, the answer is yes."52 Third, in view of the objections53 directed against the registration of Ang Buhay Hayaang Yumabong, which is allegedly a religious group, the Court notes the express constitutional provision that the religious sector may not be represented in the party-list system. The extent of the constitutional proscription is demonstrated by the following discussion during the deliberations of the Constitutional Commission: "MR. OPLE. x x x In the event that a certain religious sect with nationwide and even international networks of members and supporters, in order to circumvent this prohibition, decides to form its own political party in emulation of those parties I had mentioned earlier as deriving their inspiration and philosophies from well-established religious faiths, will that also not fall within this prohibition? MR. MONSOD. If the evidence shows that the intention is to go around the prohibition, then certainly the Comelec can pierce through the legal fiction." 54 The following discussion is also pertinent: "MR. VILLACORTA. When the Commissioner proposed "EXCEPT RELIGIOUS GROUPS," he is not, of course, prohibiting priests, imams or pastors who may be elected by, say, the indigenous community sector to represent their group. REV. RIGOS. Not at all, but I am objecting to anybody who represents the Iglesia ni Kristo, the Catholic Church, the Protestant Church et cetera." 55 Furthermore, the Constitution provides that "religious denominations and sects shall not be registered."56 The prohibition was explained by a member57 of the Constitutional Commission in this wise: "[T] he prohibition is on any religious organization registering as a political party. I do not see any prohibition here against a priest running as a candidate. That is not prohibited here; it is the registration of a religious sect as a political party." 58 Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941, which enumerates the grounds for disqualification as follows: "(1) It is a religious sect or denomination, organization or association organized for religious purposes; (2) It advocates violence or unlawful means to seek its goal; (3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes; (5) It violates or fails to comply with laws, rules or regulations relating to elections; (6) It declares untruthful statements in its petition; (7) It has ceased to exist for at least one (1) year; or (8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered." 59 Note should be taken of paragraph 5, which disqualifies a party or group for violation of or failure to comply with election laws and regulations. These laws include Section 2 of RA 7941, which states that the party-list system seeks to "enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties x x x to become members of the House of Representatives." A party or an organization, therefore, that does not comply with this policy must be disqualified. Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by, the government. By the very nature of the party-list system, the party or organization must be a group of citizens, organized by citizens and operated by citizens. It must be independent of the government. The participation of the government or its officials in the affairs of a party-list candidate is not only illegal60 and unfair to other parties, but also deleterious to the objective of the law: to enable citizens belonging to marginalized and underrepresented sectors and organizations to be elected to the House of Representatives. Sixth, the party must not only comply with the requirements of the law; its nominees must likewise do so. Section 9 of RA 7941 reads as follows: "SEC. 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election, able to read and write, a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election. In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his term." Seventh, not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees. To repeat, under Section 2 of RA 7941, the nominees must be Filipino citizens "who belong to marginalized and underrepresented sectors, organizations and parties." Surely, the interests of the youth cannot be fully represented by a retiree; neither can those of the urban poor or the working class, by an industrialist. To allow otherwise is to betray the State policy to give genuine representation to the marginalized and underrepresented. Eighth, as previously discussed, while lacking a well-defined political constituency, the nominee must likewise be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole. Senator Jose Lina explained during the bicameral committee proceedings that "the nominee of a party, national or regional, is not going to represent a particular district x x x."61 Epilogue

The linchpin of this case is the clear and plain policy of the law: "to enable Filipino citizens belonging to marginalized and underrepresented 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." Crucial to the resolution of this case is the fundamental social justice principle that those who have less in life should have more in law. The party-list system is one such tool intended to benefit those who have less in life. It gives the great masses of our people genuine hope and genuine power. It is a message to the destitute and the prejudiced, and even to those in the underground, that change is possible. It is an invitation for them to come out of their limbo and seize the opportunity. Clearly, therefore, the Court cannot accept the submissions of the Comelec and the other respondents that the party-list system is, without any qualification, open to all. Such position does not only weaken the electoral chances of the marginalized and underrepresented; it also prejudices them. It would gut the substance of the party-list system. Instead of generating hope, it would create a mirage. Instead of enabling the marginalized, it would further weaken them and aggravate their marginalization. In effect, the Comelec would have us believe that the party-list provisions of the Constitution and RA 7941 are nothing more than a play on dubious words, a mockery of noble intentions, and an empty offering on the altar of people empowerment. Surely, this could not have been the intention of the framers of the Constitution and the makers of RA 7941. WHEREFORE, this case is REMANDED to the Comelec, which is hereby DIRECTED to immediately conduct summary evidentiary hearings on the qualifications of the party-list participants in the light of the guidelines enunciated in this Decision. Considering the extreme urgency of determining the winners in the last party-list elections, the Comelec is directed to begin its hearings for the parties and organizations that appear to have garnered such number of votes as to qualify for seats in the House of Representatives. The Comelec is further DIRECTED to submit to this Court its compliance report within 30 days from notice hereof.1wphi1.nt The Resolution of this Court dated May 9, 2001, directing the Comelec "to refrain from proclaiming any winner" during the last party-list election, shall remain in force until after the Comelec itself will have complied and reported its compliance with the foregoing disposition. This Decision is immediately executory upon the Commission on Elections' receipt thereof. No pronouncement as to costs. SO ORDERED. G.R. No. 162203 April 14, 2004

AKLAT-ASOSASYON PARA SA KAUNLARAN NG LIPUNAN AT ADHIKAIN PARA SA TAO, INC., petitioner, vs. COMMISSION ON ELECTIONS (COMELEC), respondent. RESOLUTION TINGA, J.: For resolution is the Petition1 for certiorari and mandamus filed by Aklat-Asosasyon Para Sa Kaunlaran Ng Lipunan At Adhikain Para Sa Tao, Inc. (Aklat) assailing the Commission on Elections (Comelec) Resolution2 dated January 8, 2004, which dismissed its Petition3 for re-qualification as a party-list organization, and the Resolution4dated February 13, 2004, which denied its Motion for Reconsideration.5 Briefly, the facts are as follows:

On November 20, 2003, Aklat filed a Petition for declaration of re-qualification as a partylist organization for purposes of the May 2004 elections. It alleged in its petition that it participated in the 2001 elections but was disqualified by the Comelec as it was found not to have complied with the guidelines set by the Court in the case of Ang Bagong BayaniOFW Labor Party v. Comelec (Bagong Bayani case)6 for party-list organizations to qualify and participate as such in the party-list elections. Accordingly, Aklat "re-organized itself in order that it will comply with the 8-point guidelines enunciated by the Supreme Court" 7 in the said case. In its assailed Resolution dated January 8, 2004, the Comelec dismissed the petition stating that Aklat cannot be considered as an organization representing the marginalized and underrepresented groups as identified under Section 5 of Republic Act No. 7941 (R.A. 7941). According to the Comelec, Aklats statement that it has re-organized itself does not cure this defect as "there is nothing in the petition which will help us identify what particular marginalized and underrepresented group AKLAT is now representing."8 Further, the Comelec held that "AKLAT lumped all the sectoral groups imaginable under the classification of regular members just to convince us that it is now cured of its defect."9 On January 15, 2004, Aklat filed a Motion for Reconsideration dated January 14, 2004, substantially averring that it has reorganized itself and taken the necessary steps to make it an organization of, by and for the marginalized and underrepresented groups of society, particularly the indigenous cultural communities and the youth. To this end, it has allegedly effected a fundamental change in its purposes as an organization, nature of its membership and focus of its programs. 10 The Comelec denied the motion in its questioned Resolution dated February 13, 2004, on three grounds, namely: the petition was filed beyond the deadline set by the Comelec in Resolution No. 6320 for registration of party-list organizations; the petition was not one for re-qualification as Aklat was never a registered party-list organization having failed to meet the eight-point guidelines set by the Court in the Bagong Bayani case; and that its decision not to extend the deadline for registration of party-list organizations is valid, the Comelec being in the best position to make such a determination.11 In the instant Petition, Aklat asserts that under Section 5 of R.A. 7941, petitions for registration as a party-list organization may be filed not later than ninety (90) days before the elections. It therefore had until February 10, 2004, the ninetieth (90th) day before the elections on May 10, 2004, within which to file its petition. Hence, its petition, which was filed on November 20, 2003, was filed within the allowed period. Section 5 of Resolution No. 6320 12 which requires the filing of such petitions not later than September 30, 2003, is null and void as it amends R.A. 7941. It further maintains that it has complied with the eight-point guidelines set in the Bagong Bayani case. Allegedly, Aklat has a total membership of over 4,000 persons who belong to the marginalized and underrepresented groups. It has established information and coordination centers throughout the country for the benefit and in representation of indigenous cultural communities, farm and factory workers including fisherfolk and the youth. Aklat also asserts that it is different from Asosasyon Para sa Kaunlaran ng Industria ng Aklat (A.K.L.A.T.) which was previously deregistered by the Comelec. Because of all these, Aklat contends that the Comelec gravely abused its discretion when it denied its petition for re-qualification. The Office of the Solicitor General (OSG) filed a Comment dated March 26, 2004, stating that the Comelec did not commit grave abuse of discretion in issuing the assailed Resolutions. According to the OSG, Resolution No. 6320 is not in conflict with and is, in fact, germane to the purpose of R.A. 7941. It was within the scope of the authority granted to the Comelec that it issued Resolution No. 6320 setting the deadline for filing petitions for registration under the party-list system on September 30, 2003. In line with the purpose of R.A. 7941 to enable marginalized sectors to actively participate in legislation, the Comelec must be given sufficient time to evaluate all petitions for registration, at the same time allowing oppositions to be filed to the end that only those truly qualified may be accredited under the party-list system. Besides, Republic Act No. 843613 allows the Comelec to change the periods and dates prescribed by law for certain pre-election acts to ensure their accomplishment. The OSG further maintains that the petition for re-qualification failed to comply with the provisions of Resolution No. 6320. According to the OSG, the petition was not properly verified there being no showing that Mr. Dominador Buhain, the signatory of the verification and certification of non-forum

shopping, was duly authorized by Aklat to verify or cause the preparation and filing of the petition on its behalf. Moreover, Aklat was registered with the Securities and Exchange Commission only on October 20, 2003, a month before it filed its petition for re-qualification. Hence, it has not existed for a period of at least one (1) year prior to the filing of the petition as required by Section 6 of Resolution No. 6320. The OSG also points out that Aklat failed to support its petition with the documents required under Section 7 of Resolution No. 6320, namely: a list of its officers and members particularly showing that the majority of its membership belongs to the marginalized and underrepresented sectors it seeks to represent, and a track record or summary showing that it represents and seeks to uplift the marginalized and underrepresented sectors of society. Moreover, the OSG notes that the incorporators and directors of Aklat are invariably known as pillars of the book publishing industry or authors. Hence, even as re-organized, Aklat remains to be an association of authors, book publishers, and publishing companies, rather than the organization of indigenous cultural communities, farm and factory workers, fisherfolk and youth it claims to be. For its part, the Comelec filed a Comment dated March 29, 2004, stating that the period of ninety (90) days prescribed in R.A. 7941 refers to the prohibitive period beyond which petitions for registration may no longer be filed. Furthermore, the documents submitted by Aklat do not prove that its members belong to the marginalized and underrepresented sectors of society. Aklats contention that Resolution No. 6320 is null and void as it amends and amplifies R.A. 7941 deserves scant consideration. R.A. 7941 provides: Sec. 5. Registration.Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching thereto its constitution, by-laws, platform or program of government, list of officers, coalition agreement and other relevant information as the COMELEC may require: Provided, That the sectors shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals[Italics supplied.] By its wording, R.A. 7941 itself supports the Comelecs position that the period stated therein refers to the prohibitive period beyond which petitions for registration should no longer be filed nor entertained. Put elsewise, it is simply the minimum countback period which is not subject to reduction since it is prescribed by law, but it is susceptible of protraction on account of administrative necessities and other exigencies perceived by the poll body. Verily, the Comelec has the power to promulgate the necessary rules and regulations to enforce and administer election laws. This power includes the determination, within the parameters fixed by law, of appropriate periods for the accomplishment of certain pre-election acts like filing petitions for registration under the party-list system. This is exactly what the Comelec did when it issued its Resolution No. 6320 declaring September 30, 2003, as the deadline for filing petitions for registration under the party-list system. Considering these, as well as the multifarious pre-election activities that the Comelec is mandated to undertake, the issuance of its Resolution No. 6320 cannot be considered tainted with grave abuse of discretion. Neither is there grave abuse of discretion in the Comelecs denial of Aklats petition on the ground that it failed to substantiate its claim that it represents the marginalized and underrepresented sectors of society. It should be noted that it was Aklat which asserted in its petition before the poll body that it has re-organized and is now applying for re-qualification after its de-registration for failure to comply with the guidelines set forth in the Bagong Bayani case. Thus, the Comelec cannot be faulted for relying on its earlier finding, absent any evidence in Aklats petition to the contrary, that Aklat is not an organization representing the marginalized and underrepresented sectors, but is actually a business interest or economic lobby group which seeks the promotion and protection of the book publishing industry. Significantly, Aklat and A.K.L.A.T. have substantially the same incorporators. In fact, four (4) of Aklats six (6) incorporators14 are also incorporators of A.K.L.A.T.15 This substantial similarity is hard to ignore and bolsters the conclusion that the supposed re-organization undertaken by Aklat is plain

window-dressing as it has not really changed its character as a business interest of persons in the book publishing industry. The Court observes that Aklats articles of incorporation and document entitled The Facts About Aklat which were attached to its petition for re-qualification contain general averments that it supposedly represents marginalized groups such as the youth, indigenous communities, urban poor and farmers/fisherfolk. These general statements do not measure up to the first guideline set by the Bagong Bayani case for screening party-list participants, i.e.,that "the political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Section 5 of R.A. 7941. In other words, it must showthrough its constitution, articles of incorporation, bylaws, history, platform of government and track recordthat it represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of its membership should belong to the marginalized and underrepresented. And it must demonstrate that in a conflict of interests, it has chosen or is likely to choose the interest of such sectors." 16 In this regard, the Court notes with approval the OSGs contention that Aklat has no track record to speak of concerning its representation of marginalized and underrepresented constituencies considering that it has been in existence for only a month prior to the filing of its petition for requalification. It should finally be emphasized that the findings of fact by the Comelec, or any other administrative agency exercising particular expertise in its field of endeavor, are binding on the Supreme Court. 17 In view of the foregoing, the Comelec can, by no means, be held to have committed grave abuse of discretion to justify the setting aside of the assailed Resolutions. ACCORDINGLY, the Petition is DISMISSED. SO ORDERED.

ELECTIONS (COMELEC), HOUSE OF REPRESENTATIVES represented by Speaker Manuel B. Villar, PAG-ASA, SENIOR CITIZENS, AKAP, AKSYON, PINATUBO, NUPA, PRP, AMIN, MAHARLIKA, OCW, UNIFIL, PCCI, AMMA-KATIPUNAN, KAMPIL, BANTAY-BAYAN, AFW, ANG LAKAS OCW, WOMENPOWER INC., FEJODAP, CUP, VETERANS CARE, FOUR "L", AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA, GREEN, ANAK-BAYAN, ARBA, MINFA, AYOS, ALL COOP, PDP-LABAN, KATIPUNAN, ONEWAY PRINT, AABANTE KA PILIPINAS, respondents.

[G.R. No. 136795. October 6, 2000]

ALAGAD (PARTIDO NG MARALITANG-LUNGSOD), NATIONAL CONFEDERATION OF SMALL COCONUT FARMERS' ORGANIZATIONS (NCSFCO), and LUZON FARMERS' PARTY (BUTIL), petitioners, vs. COMMISSION ON ELECTIONS, SENIOR CITIZENS, AKAP, AKSYON, PINATUBO, NUPA, PRP, AMIN, PAG-ASA, MAHARLIKA, OCW, UNIFIL, PCCI, AMMA-KATIPUNAN, KAMPIL, BANTAY-BAYAN, AFW, ANG LAKAS OCW, WOMENPOWER INC., FEJODAP, CUP, VETERANS CARE, 4L, AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA, GREEN, ANAK-BAYAN, ARBA, MINFA, AYOS, ALL COOP, PDP-LABAN, KATIPUNAN, ONEWAY PRINT, and AABANTE KA PILIPINAS, respondents. DECISION PANGANIBAN, J.:*

Prologue

[G.R. No. 136781. October 6, 2000]

To determine the winners in a Philippine-style party-list election, the Constitution and Republic Act (RA) No. 7941 mandate at least four inviolable parameters. These are: First, the twenty percent allocation - the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list. Second, the two percent threshold - only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are qualified to have a seat in the House of Representatives; Third, the three-seat limit - each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one qualifying and two additional seats. Fourth, proportional representation - the additional seats which a qualified party is entitled to shall be computed in proportion to their total number of votes. Because the Comelec violated these legal parameters, the assailed Resolutions must be struck down for having been issued in grave abuse of discretion. The poll body is mandated to enforce and administer election-related laws. It has no power to contravene or amend them. Neither does it have authority to decide the wisdom, propriety or rationality of the acts of Congress. Its bounden duty is to craft rules, regulations, methods and formulas to implement election laws -- not to reject, ignore, defeat, obstruct or circumvent them. In fine, the constitutional introduction of the party-list system - a normal feature of parliamentary democracies - into our presidential form of government, modified by unique Filipino statutory parameters, presents new paradigms and novel questions, which demand innovative legal solutions convertible into mathematical formulations which are, in turn, anchored on time-tested jurisprudence.

VETERANS FEDERATION PARTY, ALYANSANG BAYANIHAN NG MGA MAGSASAKA, MANGGAGAWANG BUKID AT MANGINGISDA, ADHIKAIN AT KILUSAN NG ORDINARYONG TAO PARA SA LUPA, PABAHAY AT KAUNLARAN, and LUZON FARMERS PARTY, petitioners, vs. COMMISSION ON ELECTIONS, PAG-ASA, SENIOR CITIZENS, AKAP AKSYON, PINATUBO, NUPA, PRP, AMIN, PAG-ASA, MAHARLIKA, OCW-UNIFIL, PCCI, AMMA-KATIPUNAN, KAMPIL, BANTAY-BAYAN, AFW, ANG LAKAS OCW, WOMEN-POWER, INC., FEJODAP, CUP, VETERANS CARE, 4L, AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA, GREEN, ANAKBAYAN, ARBA, MINFA, AYOS, ALL COOP, PDP-LABAN, KATIPUNAN, ONEWAY PRINT, AABANTE KA PILIPINAS -- All Being Party-List Parties/Organizations -- and Hon. MANUEL B. VILLAR, JR. in His Capacity as Speaker of the House of Representatives, respondents.

[G.R. No. 136786. October 6, 2000]

AKBAYAN! (CITIZENS' ACTION PARTY), ADHIKAIN AT KILUSAN NG ORDINARYONG TAO PARA SA LUPA, PABAHAY AT KAUNLARAN (AKO), and ASSOCIATION OF PHILIPPINE ELECTRIC COOPERATIVES (APEC), petitioners, vs. COMMISSION ON

The Case

For purposes of the May 1998 elections, the first five (5) major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the party-list system. In determining the allocation of seats for the second vote, the following procedure shall be observed: (a) The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. (b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each; Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes; Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. Pursuant to Section 18 of RA 7941, the Comelec en banc promulgated Resolution No. 2847, prescribing the rules and regulations governing the election of party-list representatives through the party-list system.

Before the Court are three consolidated Petitions for Certiorari (with applications for the issuance of a temporary restraining order or writ of preliminary injunction) under Rule 65 of the Rules of Court, assailing (1) the October 15, 1998 Resolution [1] of the Commission on Elections (Comelec), Second Division, in Election Matter 98-065;[2] and (2) the January 7, 1999 Resolution[3] of the Comelec en banc, affirming the said disposition. The assailed Resolutions ordered the proclamation of thirty-eight (38) additional party-list representatives "to complete the full complement of 52 seats in the House of Representatives as provided under Section 5, Article VI of the 1987 Constitution and R.A. 7941.

The Facts and the Antecedents

Our 1987 Constitution introduced a novel feature into our presidential system of government -- the party-list method of representation. Under this system, any national, regional or sectoral party or organization registered with the Commission on Elections may participate in the election of party-list representatives who, upon their election and proclamation, shall sit in the House of Representatives as regular members.[4] In effect, a voter is given two (2) votes for the House -- one for a district congressman and another for a party-list representative.[5] Specifically, this system of representation is mandated by Section 5, Article VI of the Constitution, which provides: Sec. 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected by a party-list system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution, one half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. Complying with its constitutional duty to provide by law the selection or election of party-list representatives, Congress enacted RA 7941 on March 3, 1995. Under this statutes policy declaration, the State shall "promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and underrepresented 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. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible. (italics ours.) The requirements for entitlement to a party-list seat in the House are prescribed by this law (RA 7941) in this wise: Sec. 11. Number of Party-List Representatives. -- The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list.

Election of the Fourteen Party-List Representatives

On May 11, 1998, the first election for party-list representation was held simultaneously with the national elections. A total of one hundred twenty-three (123) parties, organizations and coalitions participated. On June 26, 1998, the Comelec en banc proclaimed thirteen (13) party-list representatives from twelve (12) parties and organizations, which had obtained at least two percent of the total number of votes cast for the party-list system. Two of the proclaimed representatives belonged to Petitioner APEC, which obtained 5.5 percent of the votes. The proclaimed winners and the votes cast in their favor were as follows:[6] Party/Organization/ Number of Percentage of Nominees Coalition Votes Obtained Total Votes 1. APEC 503,487 5.5% Rene M. Silos Melvyn D. Eballe 2. ABA 321,646 3.51% Leonardo Q. Montemayor 3. ALAGAD 312,500 3.41% Diogenes S. Osabel 4. VETERANS 304,802 3.33% Eduardo P. Pilapil FEDERATION 5. PROMDI 255,184 2.79% Joy A.G. Young 6. AKO 239,042 2.61% Ariel A. Zartiga 7. NCSCFO 238,303 2.60% Gorgonio P. Unde 8. ABANSE! PINAY 235,548 2.57% Patricia M. Sarenas 9. AKBAYAN 232,376 2.54% Loreta Ann P. Rosales 10. BUTIL 215,643 2.36% Benjamin A. Cruz 11. SANLAKAS 194,617 2.13% Renato B. Magtubo 12. COOP-NATCCO 189,802 2.07% Cresente C. Paez After passing upon the results of the special elections held on July 4, 18, and 25, 1998, the Comelec en banc further determined that COCOFED (Philippine Coconut Planters Federation, Inc.) was entitled to one party-list seat for having garnered 186,388 votes, which were equivalent to 2.04 percent of the total votes cast for the party-list system. Thus, its first nominee, Emerito S. Calderon, was proclaimed on September 8, 1998 as the 14th party-list representative.[7] On July 6, 1998, PAG-ASA (Peoples Progressive Alliance for Peace and Good Government Towards Alleviation of Poverty and Social Advancement) filed with the Comelec a "Petition to Proclaim [the] Full Number of Party-List Representatives provided by the Constitution." It alleged that the filling up of the twenty percent membership of party-list representatives in the House of Representatives, as provided under the Constitution, was mandatory. It further claimed that the literal application of the two percent vote requirement and the three-seat limit under RA 7941 would defeat this constitutional provision, for only 25 nominees would be declared winners, short of the 52 party-list representatives who should actually sit in the House.

Thereafter, nine other party-list organizations[8] filed their respective Motions for Intervention, seeking the same relief as that sought by PAG-ASA on substantially the same grounds. Likewise, PAG-ASAs Petition was joined by other party-list organizations in a Manifestation they filed on August 28, 1998. These organizations were COCOFED, Senior Citizens, AKAP, AKSYON, PINATUBO, NUPA, PRP, AMIN, PCCI, AMMA-KATIPUNAN, OCW-UNIFIL, KAMPIL, MAHARLIKA, AFW, Women Power, Inc., Ang Lakas OCW, FEJODAP, CUP, Veterans Care, Bantay Bayan, 4L, AWATU, PMP, ATUCP, ALU and BIGAS. On October 15, 1998, the Comelec Second Division promulgated the present assailed Resolution granting PAG-ASA's Petition. It also ordered the proclamation of herein 38 respondents who, in addition to the 14 already sitting, would thus total 52 party-list representatives. It held that "at all times, the total number of congressional[9] seats must be filled up by eighty (80%) percent district representatives and twenty (20%) percent party-list representatives." In allocating the 52 seats, it disregarded the two percent-vote requirement prescribed under Section 11 (b) of RA 7941. Instead, it identified three "elements of the party-list system," which should supposedly determine "how the 52 seats should be filled up." First, "the system was conceived to enable the marginalized sectors of the Philippine society to be represented in the House of Representatives." Second, "the system should represent the broadest sectors of the Philippine society." Third, "it should encourage [the] multi-party system. (Boldface in the original.) Considering these elements, but ignoring the two percent threshold requirement of RA 7941, it concluded that "the party-listgroups ranked Nos. 1 to 51 x x x should have at least one representative. It thus disposed as follows: "WHEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code (B.P. 881), Republic Act No. 7941 and other election laws, the Commission (Second Division) hereby resolves to GRANT the instant petition and motions for intervention, to include those similarly situated. ACCORDINGLY, the nominees from the party-list hereinbelow enumerated based on the list of names submitted by their respective parties, organizations and coalitions are PROCLAIMED as party-list representatives, to wit: 1. SENIOR CITIZENS 2. AKAP 3. AKSYON 4. PINATUBO 5. NUPA 6. PRP 7. AMIN 8. PAG-ASA 9. MAHARLIKA 10. OCW-UNIFIL 11. FCL 12. AMMA-KATIPUNAN 13. KAMPIL 14. BANTAY BAYAN 15. AFW 16. ANG LAKAS OCW 17. WOMENPOWER, INC. 18. FEJODAP

19. CUP 20. VETERANS CARE 21. 4L 22. AWATU 23. PMP 24. ATUCP 25. NCWP 26. ALU 27. BIGAS 28. COPRA 29. GREEN 30. ANAKBAYAN 31. ARBA 32. MINFA 33. AYOS 34. ALL COOP 35. PDP-LABAN 36. KATIPUNAN 37. ONEWAY PRINT 38. AABANTE KA PILIPINAS to complete the full complement of 52 seats in the House of Representatives as provided in Section 5, Article VI of the 1987 Constitution and R.A. 7941. The foregoing disposition sums up a glaring bit of inconsistency and flip-flopping. In its Resolution No. 2847 dated June 25, 1996, the Comelec en banc had unanimously promulgated a set of Rules and Regulations Governing the Election of x x x Party-List Representatives Through the Party-List System. Under these Rules and Regulations, one additional seat shall be given for every two percent of the vote, a formula the Comelec illustrated in its Annex A. It apparently relied on this method when it proclaimed the 14 incumbent party-list solons (two for APEC and one each for the 12 other qualified parties). However, for inexplicable reasons, it abandoned said unanimous Resolution and proclaimed, based on its three elements, the Group of 38 private respondents. [10] The twelve (12) parties and organizations, which had earlier been proclaimed winners on the basis of having obtained at least two percent of the votes cast for the party-list system, objected to the proclamation of the 38 parties and filed separate Motions for Reconsideration. They contended that (1) under Section 11 (b) of RA 7941, only parties, organizations or coalitions garnering at least two percent of the votes for the party-list system were entitled to seats in the House of Representatives; and (2) additional seats, not exceeding two for each, should be allocated to those which had garnered the two percent threshold in proportion to the number of votes cast for the winning parties, as provided by said Section 11.

Ruling of the Comelec En Banc

Noting that all the parties -- movants and oppositors alike - had agreed that the twenty percent membership of party-list representatives in the House "should be filled up, the Comelec en

banc resolved only the issue concerning the apportionment or allocation of the remaining seats. In other words, the issue was: Should the remaining 38 unfilled seats allocated to party-list solons be given (1) to the thirteen qualified parties that had each garnered at least two percent of the total votes, or (2) to the Group of 38 - herein private respondents - even if they had not passed the two percent threshold? The poll body held that to allocate the remaining seats only to those who had hurdled the two percent vote requirement "will mean the concentration of representation of party, sectoral or group interests in the House of Representatives to thirteen organizations representing two political parties, three coalitions and four sectors: urban poor, veterans, women and peasantry x x x. Such strict application of the 2% 'threshold' does not serve the essence and object of the Constitution and the legislature -- to develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives x x x. Additionally, it "will also prevent this Commission from complying with the constitutional and statutory decrees for party-list representatives to compose 20% of the House of Representatives. Thus, in its Resolution dated January 7, 1999, the Comelec en banc, by a razor-thin majority -- with three commissioners concurring[11] and two members[12] dissenting -- affirmed the Resolution of its Second Division. It, however, held in abeyance the proclamation of the 51 st party (AABANTE KA PILIPINAS), "pending the resolution of petitions for correction of manifest errors. Without expressly declaring as unconstitutional or void the two percent vote requirement imposed by RA 7941, the Commission blithely rejected and circumvented its application, holding that there were more important considerations than this statutory threshold. Consequently, several petitions for certiorari, prohibition and mandamus, with prayers for the issuance of temporary restraining orders or writs of preliminary injunction, were filed before this Court by the parties and organizations that had obtained at least two per cent of the total votes cast for the party-list system.[13] In the suits, made respondents together with the Comelec were the 38 parties, organizations and coalitions that had been declared by the poll body as likewise entitled to party-list seats in the House of Representatives. Collectively, petitioners sought the proclamation of additional representatives from each of their parties and organizations, all of which had obtained at least two percent of the total votes cast for the party-list system. On January 12, 1999, this Court issued a Status Quo Order directing the Comelec to CEASE and DESIST from constituting itself as a National Board of Canvassers on 13 January 1999 or on any other date and proclaiming as winners the nominees of the parties, organizations and coalitions enumerated in the dispositive portions of its 15 October 1998 Resolution or its 7 January 1999 Resolution, until further orders from this Court. On July 1, 1999, oral arguments were heard from the parties. Atty. Jeremias U. Montemayor appeared for petitioners in GR No. 136781; Atty. Gregorio A. Andolana, for petitioners in GR No. 136786; Atty. Rodante D. Marcoleta for petitioners in GR No. 136795; Attys. Ricardo Blancaflor and Pete Quirino Quadra, for all the private respondents; Atty. Porfirio V. Sison for Intervenor NACUSIP; and Atty. Jose P. Balbuena for Respondent Comelec. Upon invitation of the Court, retired Comelec Commissioner Regalado E. Maambong acted as amicus curiae. Solicitor General Ricardo P. Galvez appeared, not for any party but also as a friend of the Court. Thereafter, the parties and the amici curiae were required to submit their respective Memoranda in amplification of their verbal arguments.[14]

3. If the answer to Issue 2 is in the affirmative, how should the additional seats of a qualified party be determined?

The Courts Ruling

The Petitions are partly meritorious. The Court agrees with petitioners that the assailed Resolutions should be nullified, but disagrees that they should all be granted additional seats.

First Issue: Whether the Twenty Percent Constitutional Allocation Is Mandatory

The pertinent provision[15] of the Constitution on the Representatives reads as follows:

composition of the House

of

Sec. 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected by a party-list system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution, one half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.

Determination of the Total Number of Party-List Lawmakers

Clearly, the Constitution makes the number of district representatives the determinant in arriving at the number of seats allocated for party-list lawmakers, who shall comprise "twenty per centum of the total number of representatives including those under the party-list." We thus translate this legal provision into a mathematical formula, as follows: No. of district representatives ---------------------------------- x .20 = No. of party-list .80 representatives This formulation[16] means that any increase in the number of district representatives, as may be provided by law, will necessarily result in a corresponding increase in the number of party-list seats. To illustrate, considering that there were 208 district representatives to be elected during the 1998 national elections, the number of party-list seats would be 52, computed as follows: 208 -------- x .20 = 52 .80 The foregoing computation of seat allocation is easy enough to comprehend. The problematic question, however, is this: Does the Constitution require all such allocated seats to be filled up all the time and under all circumstances? Our short answer is No.

The Issues

The Court believes, and so holds, that the main question of how to determine the winners of the subject party-list election can be fully settled by addressing the following issues: 1. Is the twenty percent allocation for party-list representatives mentioned in Section 5 (2), Article VI of the Constitution, mandatory or is it merely a ceiling? In other words, should the twenty percent allocation for party-list solons be filled up completely and all the time? 2. Are the two percent threshold requirement and the three-seat limit provided in Section 11 (b) of RA 7941 constitutional?

Twenty Percent Allocation a Mere Ceiling

The Constitution simply states that "[t]he party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. According to petitioners, this percentage is a ceiling; the mechanics by which it is to be filled up has been left to Congress. In the exercise of its prerogative, the legislature enacted RA 7941, by which it prescribed that a party, organization or coalition participating in the party-list election must obtain at least two percent of the total votes cast for the system in order to qualify for a seat in the House of Representatives. Petitioners further argue that the constitutional provision must be construed together with this legislative requirement. If there is no sufficient number of participating parties, organizations or coalitions which could hurdle the two percent vote threshold and thereby fill up the twenty percent party-list allocation in the House, then naturally such allocation cannot be filled up completely. The Comelec cannot be faulted for the "incompleteness," for ultimately the voters themselves are the ones who, in the exercise of their right of suffrage, determine who and how many should represent them. On the other hand, Public Respondent Comelec, together with the respondent parties, avers that the twenty percent allocation for party-list lawmakers is mandatory, and that the two percent vote requirement in RA 7941 is unconstitutional, because its strict application would make it mathematically impossible to fill up the House party-list complement. We rule that a simple reading of Section 5, Article VI of the Constitution, easily conveys the equally simple message that Congress was vested with the broad power to define and prescribe the mechanics of the party-list system of representation. The Constitution explicitly sets down only the percentage of the total membership in the House of Representatives reserved for party-list representatives. In the exercise of its constitutional prerogative, Congress enacted RA 7941. As said earlier, Congress declared therein a policy to promote "proportional representation" in the election of partylist representatives in order to enable Filipinos belonging to the marginalized and underrepresented sectors to contribute legislation that would benefit them. It however deemed it necessary to require parties, organizations and coalitions participating in the system to obtain at least two percent of the total votes cast for the party-list system in order to be entitled to a party-list seat.Those garnering more than this percentage could have "additional seats in proportion to their total number of votes. Furthermore, no winning party, organization or coalition can have more than three seats in the House of Representatives. Thus the relevant portion of Section 11(b) of the law provides: (b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each; Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes; Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. Considering the foregoing statutory requirements, it will be shown presently that Section 5 (2), Article VI of the Constitution is not mandatory. It merely provides a ceiling for party-list seats in Congress. On the contention that a strict application of the two percent threshold may result in a mathematical impossibility, suffice it to say that the prerogative to determine whether to adjust or change this percentage requirement rests in Congress. [17] Our task now, as should have been the Comelecs, is not to find fault in the wisdom of the law through highly unlikely scenarios of clinical extremes, but to craft an innovative mathematical formula that can, as far as practicable, implement it within the context of the actual election process. Indeed, the function of the Supreme Court, as well as of all judicial and quasi-judicial agencies, is to apply the law as we find it, not to reinvent or second-guess it. Unless declared unconstitutional, ineffective, insufficient or otherwise void by the proper tribunal, a statute remains a valid command of sovereignty that must be respected and obeyed at all times. This is the essence of the rule of law.

The Two Percent Threshold

In imposing a two percent threshold, Congress wanted to ensure that only those parties, organizations and coalitions having a sufficient number of constituents deserving of representation are actually represented in Congress. This intent can be gleaned from the deliberations on the proposed bill. We quote below a pertinent portion of the Senate discussion: SENATOR GONZALES: For purposes of continuity, I would want to follow up a point that was raised by, I think, Senator Osmea when he said that a political party must have obtained at least a minimum percentage to be provided in this law in order to qualify for a seat under the party-list system. They do that in many other countries. A party must obtain at least 2 percent of the votes cast, 5 percent or 10 percent of the votes cast. Otherwise, as I have said, this will actually proliferate political party groups and those who have not really been given by the people sufficient basis for them to represent their constituents and, in turn, they will be able to get to the Parliament through the backdoor under the name of the party-list system, Mr. President."[18] A similar intent is clear from the statements of the bill sponsor in the House of Representatives, as the following shows: MR. ESPINOSA. There is a mathematical formula which this computation is based at, arriving at a five percent ratio which would distribute equitably the number of seats among the different sectors. There is a mathematical formula which is, I think, patterned after that of the party list of the other parliaments or congresses, more particularly the Bundestag of Germany.[19] Moreover, even the framers of our Constitution had in mind a minimum-vote requirement, the specification of which they left to Congress to properly determine. Constitutional Commissioner Christian S. Monsod explained: MR. MONSOD. x x x We are amenable to modifications in the minimum percentage of votes. Our proposal is that anybody who has two-and-a-half percent of the votes gets a seat. There are about 20 million who cast their votes in the last elections. Two-and-a-half percent would mean 500,000 votes. Anybody who has a constituency of 500,000 votes nationwide deserves a seat in the Assembly. If we bring that down to two percent, we are talking about 400,000 votes. The average vote per family is three. So, here we are talking about 134,000 families. We believe that there are many sectors who will be able to get seats in the Assembly because many of them have memberships of over 10,000. In effect, that is the operational implication of our proposal. What we are trying to avoid is this selection of sectors, the reserve seat system. We believe that it is our job to open up the system and that we should not have within that system a reserve seat. We think that people should organize, should work hard, and should earn their seats within that system. [20] The two percent threshold is consistent not only with the intent of the framers of the Constitution and the law, but with the very essence of "representation." Under a republican or representative state, all government authority emanates from the people, but is exercised by representatives chosen by them. [21] But to have meaningful representation, the elected persons must have the mandate of a sufficient number of people. Otherwise, in a legislature that features the party-list system, the result might be the proliferation of small groups which are incapable of contributing significant legislation, and which might even pose a threat to the stability of Congress. Thus, even legislative districts are apportioned according to "the number of their respective inhabitants, and on the basis of a uniform and progressive ratio" [22] to ensure meaningful local representation. All in all, we hold that the statutory provision on this two percent requirement is precise and crystalline. When the law is clear, the function of courts is simple application, not interpretation or circumvention.[23]

Second Issue: The Statutory Requirement and Limitation The Three-Seat-Per-Party Limit

An important consideration in adopting the party-list system is to promote and encourage a multiparty system of representation. Again, we quote Commissioner Monsod: MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party list system because we wanted to open up the political system to a pluralistic society through a multiparty system. But we also wanted to avoid the problems of mechanics and operation in the implementation of a concept that has very serious shortcomings of classification and of double or triple votes. We are for opening up the system, and we would like very much for the sectors to be there. That is why one of the ways to do that is to put a ceiling on the number of representatives from any single party that can sit within the 50 allocated under the party list system.This way, we will open it up and enable sectoral groups, or maybe regional groups, to earn their seats among the fifty. x x x.[24] Consistent with the Constitutional Commission's pronouncements, Congress set the seat-limit to three (3) for each qualified party, organization or coalition. "Qualified" means having hurdled the two percent vote threshold. Such three-seat limit ensures the entry of various interestrepresentations into the legislature; thus, no single group, no matter how large its membership, would dominate the party-list seats, if not the entire House. We shall not belabor this point, because the validity of the three-seat limit is not seriously challenged in these consolidated cases.

Another suggestion that the Court considered was the Niemeyer formula, which was developed by a German mathematician and adopted by Germany as its method of distributing party-list seats in the Bundestag. Under this formula, the number of additional seats to which a qualified party would be entitled is determined by multiplying the remaining number of seats to be allocated by the total number of votes obtained by that party and dividing the product by the total number of votes garnered by all the qualified parties. The integer portion of the resulting product will be the number of additional seats that the party concerned is entitled to. Thus: No. of remaining seats to be allocated No. of additional --------------------------- x No. of votes of = seats of party Total no. of votes of party concerned concerned qualified parties (Integer.decimal) The next step is to distribute the extra seats left among the qualified parties in the descending order of the decimal portions of the resulting products. Based on the 1998 election results, the distribution of party-list seats under the Niemeyer method would be as follows: Party Number of Guaranteed Additional Extra Total Votes Seats Seats Seats 1. APEC 503,487 1 5.73 1 7 2. ABA 321,646 1 3.66 1 5 3. ALAGAD 312,500 1 3.55 4 4. VETERANS 304,802 1 3.47 4 FEDERATION 5. PROMDI 255,184 1 2.90 1 4 6. AKO 239,042 1 2.72 1 4 7. NCSCFO 238,303 1 2.71 1 4 8. ABANSE! PINAY 235,548 1 2.68 1 4 9. AKBAYAN 232,376 1 2.64 1 4 10. BUTIL 215,643 1 2.45 3 11. SANLAKAS 194,617 1 2.21 3 12. COOP-NATCCO 189,802 1 2.16 3 13. COCOFED 186,388 1 2.12 3 Total 3,429,338 13 32 7 52 However, since Section 11 of RA 7941 sets a limit of three (3) seats for each party, those obtaining more than the limit will have to give up their excess seats. Under our present set of facts, the thirteen qualified parties will each be entitled to three seats, resulting in an overall total of 39. Note that like the previous proposal, the Niemeyer formula would violate the principle of "proportional representation," a basic tenet of our party-list system. The Niemeyer formula, while no doubt suitable for Germany, finds no application in the Philippine setting, because of our three-seat limit and the non-mandatory character of the twenty percent allocation. True, both our Congress and the Bundestag have threshold requirements -- two percent for us and five for them. There are marked differences between the two models, however. As ably pointed out by private respondents,[26] one half of the German Parliament is filled up by party-list members. More important, there are no seat limitations, because German law discourages the proliferation of small parties. In contrast, RA 7941, as already mentioned, imposes a three-seat limit to encourage the promotion of the multiparty system. This major statutory difference makes the Niemeyer formula completely inapplicable to the Philippines. Just as one cannot grow Washington apples in the Philippines or Guimaras mangoes in the Arctic because of fundamental environmental differences, neither can the Niemeyer formula be transplanted in toto here because of essential variances between the two party-list models.

Third Issue: Method of Allocating Additional Seats

Having determined that the twenty percent seat allocation is merely a ceiling, and having upheld the constitutionality of the two percent vote threshold and the three-seat limit imposed under RA 7941, we now proceed to the method of determining how many party-list seats the qualified parties, organizations and coalitions are entitled to. The very first step - there is no dispute on this - is to rank all the participating parties, organizations and coalitions (hereafter collectively referred to as "parties") according to the votes they each obtained. The percentage of their respective votes as against the total number of votes cast for the party-list system is then determined. All those that garnered at least two percent of the total votes cast have an assured or guaranteed seat in the House of Representatives. Thereafter, "those garnering more than two percent of the votes shall be entitled to additional seats in proportion to their total number of votes." The problem is how to distribute additional seats "proportionally," bearing in mind the threeseat limit further imposed by the law.

One Additional Seat Per Two Percent Increment

One proposed formula is to allocate one additional seat for every additional proportion of the votes obtained equivalent to the two percent vote requirement for the first seat.[25] Translated in figures, a party that wins at least six percent of the total votes cast will be entitled to three seats; another party that gets four percent will be entitled to two seats; and one that gets two percent will be entitled to one seat only. This proposal has the advantage of simplicity and ease of comprehension. Problems arise, however, when the parties get very lop-sided votes -- for example, when Party A receives 20 percent of the total votes cast; Party B, 10 percent; and Party C, 6 percent. Under the method just described, Party A would be entitled to 10 seats; Party B, to 5 seats and Party C, to 3 seats. Considering the three-seat limit imposed by law, all the parties will each uniformly have three seats only. We would then have the spectacle of a party garnering two or more times the number of votes obtained by another, yet getting the same number of seats as the other one with the much lesser votes. In effect, proportional representation will be contravened and the law rendered nugatory by this suggested solution. Hence, the Court discarded it.

The Legal and Logical Formula for the Philippines

The Niemeyer Formula

It is now obvious that the Philippine style party-list system is a unique paradigm which demands an equally unique formula. In crafting a legally defensible and logical solution to determine the number of additional seats that a qualified party is entitled to, we need to review the parameters of the Filipino party-list system. As earlier mentioned in the Prologue, they are as follows:

First, the twenty percent allocation - the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list. Second, the two percent threshold - only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are qualified to have a seat in the House of Representatives; Third, the three-seat limit - each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one qualifying and two additional seats. Fourth, proportional representation - the additional seats which a qualified party is entitled to shall be computed in proportion to their total number of votes. The problem, as already stated, is to find a way to translate proportional representation into a mathematical formula that will not contravene, circumvent or amend the above-mentioned parameters. After careful deliberation, we now explain such formula, step by step. Step One. There is no dispute among the petitioners, the public and the private respondents, as well as the members of this Court, that the initial step is to rank all the participating parties, organizations and coalitions from the highest to the lowest based on the number of votes they each received. Then the ratio for each party is computed by dividing its votes by the total votes cast for all the parties participating in the system. All parties with at least two percent of the total votes are guaranteed one seat each. Only these parties shall be considered in the computation ofadditional seats. The party receiving the highest number of votes shall thenceforth be referred to as the first party. Step Two. The next step is to determine the number of seats the first party is entitled to, in order to be able to compute that for the other parties. Since the distribution is based on proportional representation, the number of seats to be allotted to the other parties cannot possibly exceed that to which the first party is entitled by virtue of its obtaining the most number of votes. For example, the first party received 1,000,000 votes and is determined to be entitled to two additional seats. Another qualified party which received 500,000 votes cannot be entitled to the same number of seats, since it garnered only fifty percent of the votes won by the first party. Depending on the proportion of its votes relative to that of the first party whose number of seats has already been predetermined, the second party should be given less than that to which the first one is entitled. The other qualified parties will always be allotted less additional seats than the first party for two reasons: (1) the ratio between said parties and the first party will always be less than 1:1, and (2) the formula does not admit of mathematical rounding off, because there is no such thing as a fraction of a seat. Verily, an arbitrary rounding off could result in a violation of the twenty percent allocation. An academic mathematical demonstration of such incipient violation is not necessary because the present set of facts, given the number of qualified parties and the voting percentages obtained, will definitely not end up in such constitutional contravention. The Court has previously ruled in Guingona Jr. v. Gonzales[27] that a fractional membership cannot be converted into a whole membership of one when it would, in effect, deprive another party's fractional membership. It would be a violation of the constitutional mandate of proportional representation. We said further that "no party can claim more than what it is entitled to x x x. In any case, the decision on whether to round off the fractions is better left to the legislature. Since Congress did not provide for it in the present law, neither will this Court. The Supreme Court does not make the law; it merely applies it to a given set of facts.

party, it should be entitled to twice the latter's number of seats and so on. The formula, therefore, for computing the number of seats to which the first party is entitled is as follows: Number of votes of first party Proportion of votes of -------------------- = first party relative to Total votes for total votes for party-list system party-list system If the proportion of votes received by the first party without rounding it off is equal to at least six percent of the total valid votes cast for all the party list groups, then the first party shall be entitled to two additional seats or a total of three seats overall. If the proportion of votes without a rounding off is equal to or greater than four percent, but less than six percent, then the first party shall have one additional or a total of two seats. And if the proportion is less than four percent, then the first party shall not be entitled to any additional seat. We adopted this six percent bench mark, because the first party is not always entitled to the maximum number of additional seats. Likewise, it would prevent the allotment of more than the total number of available seats, such as in an extreme case wherein 18 or more parties tie for the highest rank and are thus entitled to three seats each. In such scenario, the number of seats to which all the parties are entitled may exceed the maximum number of party-list seats reserved in the House of Representatives. Applying the above formula, APEC, which received 5.5% of the total votes cast, is entitled to one additional seat or a total of two seats. Note that the above formula will be applicable only in determining the number of additional seats the first party is entitled to. It cannot be used to determine the number of additional seats of the other qualified parties. As explained earlier, the use of the same formula for all would contravene the proportional representation parameter. For example, a second party obtains six percent of the total number of votes cast. According to the above formula, the said party would be entitled to two additional seats or a total of three seats overall. However, if the first party received a significantly higher amount of votes -- say, twenty percent -- to grant it the same number of seats as the second party would violate the statutory mandate of proportional representation, since a party getting only six percent of the votes will have an equal number of representatives as the one obtaining twenty percent. The proper solution, therefore, is to grant the first party a total of three seats; and the party receiving six percent, additional seats in proportion to those of the first party.

Formula for Additional Seats of Other Qualified Parties

Step Three The next step is to solve for the number of additional seats that the other qualified parties are entitled to, based on proportional representation. The formula is encompassed by the following complex fraction: No. of votes of concerned party -----------------Total no. of votes Additional seats for party-list system No. of additional for concerned = ----------------------- x seats allocated to party No. of votes of the first party first party -----------------Total no. of votes for party list system In simplified form, it is written as follows: No. of votes of Additional seats concerned party No. of additional for concerned = ------------------ x seats allocated to party No. of votes of the first party first party

Formula for Determining Additional Seats for the First Party

Now, how do we determine the number of seats the first party is entitled to? The only basis given by the law is that a party receiving at least two percent of the total votes shall be entitled to one seat. Proportionally, if the first party were to receive twice the number of votes of the second

Thus, in the case of ABA, the additional number of seats it would be entitled to is computed as follows: No. of votes of Additional seats ABA No. of additional for concerned = -------------------- x seats allocated to party (ABA) No. of votes of the first party first party (APEC) Substituting actual values would result in the following equation: Additional seats 321,646 for concerned = ----------- x 1 = .64 or 0 additional seat, since party (ABA) 503,487 rounding off is not to be applied Applying the above formula, we find the outcome of the 1998 party-list election to be as follows: Organization Votes %age of Initial No. Additional Total Garnered Total Votes of Seats Seats 1. APEC 503,487 5.50% 1 1 2 2. ABA 321,646 3.51% 1 321,646 / 503,487 * 1 = 0.64 1 3. ALAGAD 312,500 3.41% 1 312,500 / 503,487 * 1 = 0.62 1 4. VETERANS 304,802 3.33% 1 304,802 / 503,487 * 1 = 0.61 1 FEDERATION 5. PROMDI 255,184 2.79% 1 255,184 / 503,487 * 1 = 0.51 1 6. AKO 239,042 2.61% 1 239,042 / 503,487 * 1 = 0.47 1 7. NCSFO 238,303 2.60% 1 238,303 / 503,487 * 1 = 0.47 1 8. ABANSE! 235,548 2.57% 1 321,646 / 503,487 * 1 = 0.47 1 PINAY 9. AKBAYAN! 232,376 2.54% 1 232,376 / 503,487 * 1 = 0.46 1 10. BUTIL 215,643 2.36% 1 215,643 / 503,487 * 1 = 0.43 1 11. SANLAKAS 194,617 2.13% 1 194,617 / 503,487 * 1 = 0.39 1 12. COOP- 189,802 2.07% 1 189,802 / 503,487 * 1 = 0.38 1 NATCCO 13. COCOFED 186,388 2.04% 1 186,388 / 503,487 * 1 = 0.37 1 Incidentally, if the first party is not entitled to any additional seat, then the ratio of the number of votes for the other party to that for the first one is multiplied by zero. The end result would be zero additional seat for each of the other qualified parties as well. The above formula does not give an exact mathematical representation of the number of additional seats to be awarded since, in order to be entitled to one additional seat, an exact whole number is necessary. In fact, most of the actual mathematical proportions are not whole numbers and are not rounded off for the reasons explained earlier. To repeat, rounding off may result in the awarding of a number of seats in excess of that provided by the law. Furthermore, obtaining absolute proportional representation is restricted by the three-seat-per-party limit to a maximum of twoadditional slots. An increase in the maximum number of additional representatives a party may be entitled to would result in a more accurate proportional representation. But the law itself has set the limit: only two additional seats. Hence, we need to work within such extant parameter. The net result of the foregoing formula for determining additional seats happily coincides with the present number of incumbents; namely, two for the first party (APEC) and one each for the twelve other qualified parties. Hence, we affirm the legality of the incumbencies of their nominees, albeit through the use of a different formula and methodology. In his Dissent, Justice Mendoza criticizes our methodology for being too strict. We say, however, that our formula merely translated the Philippine legal parameters into a mathematical equation, no more no less. If Congress in its wisdom decides to modify RA 7941 to make it less strict, then the formula will also be modified to reflect the changes willed by the lawmakers.

because it glaringly violated two requirements of RA 7941: the two percent threshold and proportional representation. In disregarding, rejecting and circumventing these statutory provisions, the Comelec effectively arrogated unto itself what the Constitution expressly and wholly vested in the legislature: the power and the discretion to define the mechanics for the enforcement of the system. The wisdom and the propriety of these impositions, absent any clear transgression of the Constitution or grave abuse of discretion amounting to lack or excess of jurisdiction, are beyond judicial review. [28] Indeed, the Comelec and the other parties in these cases - both petitioners and respondents have failed to demonstrate that our lawmakers gravely abused their discretion in prescribing such requirements. By grave abuse of discretion is meant such capricious or whimsical exercise of judgment equivalent to lack or excess of jurisdiction.[29] The Comelec, which is tasked merely to enforce and administer election-related laws,[30] cannot simply disregard an act of Congress exercised within the bounds of its authority. As a mere implementing body, it cannot judge the wisdom, propriety or rationality of such act. Its recourse is to draft an amendment to the law and lobby for its approval and enactment by the legislature. Furthermore, a reading of the entire Constitution reveals no violation of any of its provisions by the strict enforcement of RA 7941. It is basic that to strike down a law or any of its provisions as unconstitutional, there must be a clear and unequivocal showing that what the Constitution prohibits, the statute permits.[31] Neither can we grant petitioners prayer that they each be given additional seats (for a total of three each), because granting such plea would plainly and simply violate the proportional representation mandated by Section 11 (b) of RA 7941. The low turnout of the party-list votes during the 1998 elections should not be interpreted as a total failure of the law in fulfilling the object of this new system of representation. It should not be deemed a conclusive indication that the requirements imposed by RA 7941 wholly defeated the implementation of the system. Be it remembered that the party-list system, though already popular in parliamentary democracies, is still quite new in our presidential system. We should allow it some time to take root in the consciousness of our people and in the heart of our tripartite form of republicanism. Indeed, the Comelec and the defeated litigants should not despair. Quite the contrary, the dismal result of the first election for party-list representatives should serve as a challenge to our sectoral parties and organizations. It should stir them to be more active and vigilant in their campaign for representation in the State's lawmaking body. It should also serve as a clarion call for innovation and creativity in adopting this novel system of popular democracy. With adequate information dissemination to the public and more active sectoral parties, we are confident our people will be more responsive to future party-list elections. Armed with patience, perseverance and perspicacity, our marginalized sectors, in time, will fulfill the Filipino dream of full representation in Congress under the aegis of the party-list system, Philippine style. WHEREFORE, the Petitions are hereby partially GRANTED. The assailed Resolutions of the Comelec are SET ASIDE and NULLIFIED. The proclamations of the fourteen (14) sitting party-list representatives - two for APEC and one each for the remaining twelve (12) qualified parties are AFFIRMED. No pronouncement as to costs. SO ORDERED.

EN BANC

BARANGAY ASSOCIATION FOR Epilogue NATIONAL ADVANCEMENT AND TRANSPARENCY (BANAT), In sum, we hold that the Comelec gravely abused its discretion in ruling that the thirty-eight (38) herein respondent parties, organizations and coalitions are each entitled to a party-list seat, Petitioner,

G.R. No. 179271

- versus -

PERALTA, and BERSAMIN, JJ.

COMMISSION ON ELECTIONS (sitting as the National Board of Canvassers), Respondent. COMMISSION ON ELECTIONS, Respondent. _______________________ ARTS BUSINESS AND SCIENCE PROFESSIONALS, Intervenor. x---------------------------------------------------x Promulgated:

AANGAT TAYO, Intervenor. CARPIO, J.: COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC. (SENIOR CITIZENS), Intervenor. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - x BAYAN MUNA, ADVOCACY FOR TEACHER EMPOWERMENT THROUGH ACTION, COOPERATION AND HARMONY TOWARDS EDUCATIONAL REFORMS, INC., and ABONO, Petitioners, PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, - versus CARPIO MORALES, TINGA, CHICO-NAZARIO, VELASCO, JR., Petitioners in G.R. No. Present: G.R. No. 179295

DECISION

The Case

Petitioner in G.R. No. 179271 Barangay Association for National Advancement and Transparency Resolution
[2]

(BANAT) in

petition

for

certiorari

and

mandamus,[1] assails

the

promulgated on 3 August 2007 by the Commission on Elections (COMELEC) in NBC No.

07-041 (PL). The COMELECs resolution in NBC No. 07-041 (PL) approved the recommendation of Atty. Alioden D. Dalaig, Head of the National Board of Canvassers (NBC) Legal Group, to deny the petition of BANAT for being moot. BANAT filed before the COMELEC En Banc, acting as NBC, a Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution.

The following are intervenors in G.R. No. 179271: Arts Business and Science Professionals (ABS), Aangat Tayo (AT), and Coalition of Associations of Senior Citizens in the Philippines, Inc. (Senior Citizens).

179295 Bayan

Muna,

Abono, and Advocacy

for

Teacher

Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms (A Teacher) in a petition for certiorari with mandamus and prohibition,[3] assails NBC Resolution No. 07-60[4] promulgated on 9 July 2007. NBC No. 07-60 made a partial proclamation of parties, organizations and coalitions that obtained at least two percent of the total votes cast under the Party-List System. The COMELEC announced that, upon completion of the canvass of the party-list NACHURA, LEONARDO-DE CASTRO, BRION, results, it would determine the total number of seats of each winning party, organization, or coalition in accordance with Veterans Federation Party v. COMELEC [5] (Veterans).

Estrella DL Santos, in her capacity as President and First Nominee of the Veterans Freedom Party, filed a motion to intervene in both G.R. Nos. 179271 and 179295.

Pantar, Lanao del Norte; and Pagalungan, Maguindanao) 102,430 Maximum Total Party-List Votes 16,723,121

The Facts

The 14 May 2007 elections included the elections for the party-list representatives. The COMELEC counted 15,950,900 votes cast for 93 parties under the Party-List System.[6] On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution, docketed as NBC No. 07-041 (PL) before the NBC. BANAT filed its petition because [t]he Chairman and the Members of the [COMELEC] have

WHEREAS, Section 11 of Republic Act No. 7941 (Party-List System Act) provides in part: The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: provided, that those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: provided, finally, that each party, organization, or coalition shall be entitled to not more than three (3) seats. WHEREAS, for the 2007 Elections, based on the above projected total of party-list votes, the presumptive two percent (2%) threshold can be pegged at three hundred thirty four thousand four hundred sixty-two (334,462) votes; WHEREAS, the Supreme Court, in Citizens Battle Against Corruption (CIBAC) versus COMELEC, reiterated its ruling in Veterans Federation Party versus COMELEC adopting a formula for the additional seats of each party, organization or coalition receving more than the required two percent (2%) votes, stating that the same shall be determined only after all party-list ballots have been completely canvassed; WHEREAS, the parties, organizations, and coalitions that have thus far garnered at least three hundred thirty four thousand four hundred sixtytwo (334,462) votes are as follows:

recently been quoted in the national papers that the [COMELEC] is duty bound to and shall implement the Veterans ruling, that is, would apply the Panganiban formula in allocating party-list seats.[7] There were no intervenors in BANATs petition before the NBC. BANAT filed a memorandum on 19 July 2007.

On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution No. 0760. NBC Resolution No. 07-60 proclaimed thirteen (13) parties as winners in the party-list elections, namely: Buhay Hayaan Yumabong (BUHAY), Bayan Muna, Citizens Battle Against Corruption (CIBAC), Gabrielas Women Party (Gabriela), Association of Philippine Electric

Cooperatives (APEC), A Teacher, Akbayan! Citizens Action Party (AKBAYAN), Alagad, Luzon Farmers Party (BUTIL), Cooperative-Natco Network Party (COOP-NATCCO), Anak Pawis, Alliance of Rural Concerns (ARC), and Abono. We quote NBC Resolution No. 07-60 in its entirety below: WHEREAS, the Commission on Elections sitting en banc as National Board of Canvassers, thru its Sub-Committee for Party-List, as of 03 July 2007, had officially canvassed, in open and public proceedings, a total of fifteen million two hundred eighty three thousand six hundred fifty-nine (15,283,659) votes under the Party-List System of Representation, in connection with the National and Local Elections conducted last 14 May 2007; WHEREAS, the study conducted by the Legal and Tabulation Groups of the National Board of Canvassers reveals that the projected/maximum total party-list votes cannot go any higher thansixteen million seven hundred twenty three thousand one hundred twenty-one (16,723,121) votes given the following statistical data: Projected/Maximum Party-List Votes for May 2007 Elections

RANK

PARTY/ORGANIZATION/ COALITION

VOTES RECEIVED 1,163,218 972,730 760,260 610,451 538,971 476,036 470,872 423,076 405,052 390,029 386,361

1 2 3 4 5 6 7

BUHAY BAYAN MUNA CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD BUTIL COOP-NATCO BATAS

i. Total party-list votes already canvassed/tabulated ii. Total party-list votes remaining uncanvassed/ untabulated (i.e. canvass deferred) iii. Maximum party-list votes (based on 100% outcome) from areas not yet submitted for canvass (Bogo, Cebu; Bais City;

15,283,659 8 1,337,032 9 10 11

12 13 14

ANAK PAWIS ARC ABONO

376,036 338,194 337,046

The total number of seats of each winning party, organization or coalition shall be determined pursuant to Veterans Federation Party versus COMELEC formula upon completion of the canvass of the party-list results. The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS) is hereby deferred until final resolution of SPC No. 07250, in order not to render the proceedings therein moot and academic. Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with pending disputes shall likewise be held in abeyance until final resolution of their respective cases. Let the Clerk of the Commission implement this Resolution, furnishing a copy thereof to the Speaker of the House of Representatives of the Philippines. SO ORDERED.[8] (Emphasis in the original)

WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS), against which an URGENT PETITION FOR CANCELLATION/REMOVAL OF REGISTRATION AND DISQUALIFICATION OF PARTY-LIST NOMINEE (With Prayer for the Issuance of Restraining Order) has been filed before the Commission, docketed as SPC No. 07-250, all the parties, organizations and coalitions included in the aforementioned list are therefore entitled to at least one seat under the party-list system of representation in the meantime. NOW, THEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941, and other election laws, the Commission on Elections, sitting en banc as the National Board of Canvassers, hereby RESOLVES to PARTIALLY PROCLAIM, subject to certain conditions set forth below, the following parties, organizations and coalitions participating under the Party-List System:

Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC, promulgated NBC Resolution No. 07-72, which declared the additional seats allocated to the appropriate parties. We quote from the COMELECs interpretation of the Veterans formula as found in NBC Resolution No. 07-72:

1 2 3 4 5 6

Buhay Hayaan Yumabong Bayan Muna Citizens Battle Against Corruption Gabriela Womens Party Association of Philippine Electric Cooperatives Advocacy for Teacher Empowerment Through Action, Cooperation Reforms, Inc. and Harmony Towards Educational

BUHAY BAYAN MUNA CIBAC GABRIELA APEC A TEACHER

WHEREAS, on July 9, 2007, the Commission on Elections sitting en banc as the National Board of Canvassers proclaimed thirteen (13) qualified parties, organization[s] and coalitions based on the presumptive two percent (2%) threshold of 334,462 votes from the projected maximum total number of party-list votes of 16,723,121, and were thus given one (1) guaranteed partylist seat each; WHEREAS, per Report of the Tabulation Group and Supervisory Committee of the National Board of Canvassers, the projected maximum total party-list votes, as of July 11, 2007, based on the votes actually canvassed, votes canvassed but not included in Report No. 29, votes received but uncanvassed, and maximum votes expected for Pantar, Lanao del Norte, is 16,261,369; and that the projected maximum total votes for the thirteen (13) qualified parties, organizations and coalition[s] are as follows:

7 8 9 10 11 12 13

Akbayan! Citizens Action Party Alagad Luzon Farmers Party Cooperative-Natco Network Party Anak Pawis Alliance of Rural Concerns Abono

AKBAYAN ALAGAD BUTIL COOP-NATCCO ANAKPAWIS ARC ABONO 1 2 3 4 5 6 7 8 Party-List BUHAY BAYAN MUNA CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD Projected total number of votes 1,178,747 977,476 755,964 621,718 622,489 492,369 462,674 423,190

This is without prejudice to the proclamation of other parties, organizations, or coalitions which may later on be established to have obtained at least two percent (2%) of the total actual votes cast under the Party-List System.

9 10 11 12 13

BUTIL COOP-NATCO ANAKPAWIS ARC ABONO

409,298 Party List 412,920 BAYAN MUNA 370,165 CIBAC 375,846 GABRIELA 340,151 APEC 1.05 0.83 0.78 0.71 0.69 0.69 0.62 0.63 0.57 1 0 0 0 0 0 0 0 0 1.05 1 1.28 1 1.65 1 Percentage Additional Seat

WHEREAS, based on the above Report, Buhay Hayaan Yumabong (Buhay) obtained the highest number of votes among the thirteen (13) qualified parties, organizations and coalitions, making it the first party in accordance with Veterans Federation Party versus COMELEC, reiterated in Citizens Battle Against Corruption (CIBAC) versus COMELEC; WHEREAS, qualified parties, organizations and coalitions participating under the party-list system of representation that have obtained one guaranteed (1) seat may be entitled to an additional seat or seats based on the formula prescribed by the Supreme Court in Veterans; WHEREAS, in determining the additional seats for the first party, the correct formula as expressed in Veterans, is: Number of votes of first party --------------------Total votes for party-list system Proportion of votes of first = party relative to total votes for party-list system

A TEACHER AKBAYAN ALAGAD BUTIL COOP-NATCO ANAKPAWIS ARC ABONO

wherein the proportion of votes received by the first party (without rounding off) shall entitle it to additional seats:

Proportion of votes received by the first party Equal to or at least 6% Equal to or greater than 4% but less than 6% Less than 4%

Additional seats

Two (2) additional seats One (1) additional seat No additional seat

NOW THEREFORE, by virtue of the powers vested in it by the Constitution, Omnibus Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941 and other elections laws, the Commission on Elections en banc sitting as the National Board of Canvassers, hereby RESOLVED, as it hereby RESOLVES, to proclaim the following parties, organizations or coalitions as entitled to additional seats, to wit:

Party List BUHAY BAYAN MUNA CIBAC GABRIELA APEC

Additional Seats 2 1 1 1 1

WHEREAS, applying the above formula, Buhay obtained the following percentage: 1,178,747 -------16,261,369 = 0.07248 or 7.2%

which entitles it to two (2) additional seats. WHEREAS, in determining the additional seats for the other qualified parties, organizations and coalitions, the correct formula as expressed in Veterans and reiterated in CIBAC is, as follows: No. of votes of concerned party ------------------No. of votes of first party No. of additional seats allocated to first party

Additional seats for a concerned party

This is without prejudice to the proclamation of other parties, organizations or coalitions which may later on be established to have obtained at least two per cent (2%) of the total votes cast under the party-list system to entitle them to one (1) guaranteed seat, or to the appropriate percentage of votes to entitle them to one (1) additional seat. Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with pending disputes shall likewise be held in abeyance until final resolution of their respective cases.

WHEREAS, applying the above formula, the results are as follows:

Let the National Board of Canvassers Secretariat implement this Resolution, furnishing a copy hereof to the Speaker of the House of Representatives of the Philippines. SO ORDERED.[9]

RECOMMENDATION: The petition of BANAT is now moot and academic. The Commission En Banc in NBC Resolution No. 07-60 promulgated July 9, 2007 re In the Matter of the Canvass of Votes and Partial Proclamation of the Parties, Organizations and Coalitions Participating Under the PartyList System During the May 14, 2007 National and Local Elections resolved among others that the total number of seats of each winning party, organization or coalition shall be determined pursuant to the Veterans Federation Party versus COMELEC formula upon completion of the canvass of the party-list results. WHEREFORE, premises considered, the National Board of Canvassers RESOLVED, as it hereby RESOLVES, to approve and adopt the recommendation of Atty. Alioden D. Dalaig, Head, NBC Legal Group, to DENY the herein petition of BANAT for being moot and academic. Let the Supervisory Committee implement this resolution. SO ORDERED.[10]

Acting on BANATs petition, the NBC promulgated NBC Resolution No. 07-88 on 3 August 2007, which reads as follows:

This pertains to the Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution filed by the Barangay Association for National Advancement and Transparency (BANAT). Acting on the foregoing Petition of the Barangay Association for National Advancement and Transparency (BANAT) party-list, Atty. Alioden D. Dalaig, Head, National Board of Canvassers Legal Group submitted his comments/observations and recommendation thereon [NBC 07-041 (PL)], which reads: COMMENTS / OBSERVATIONS: Petitioner Barangay Association for National Advancement and Transparency (BANAT), in its Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution prayed for the following reliefs, to wit: 1. That the full number -- twenty percent (20%) -- of Party-List representatives as mandated by Section 5, Article VI of the Constitution shall be proclaimed. 2. Paragraph (b), Section 11 of RA 7941 which prescribes the 2% threshold votes, should be harmonized with Section 5, Article VI of the Constitution and with Section 12 of the same RA 7941 in that it should be applicable only to the first party-list representative seats to be allotted on the basis of their initial/first ranking. 3. The 3-seat limit prescribed by RA 7941 shall be applied; and 4. Initially, all party-list groups shall be given the number of seats corresponding to every 2% of the votes they received and the additional seats shall be allocated in accordance with Section 12 of RA 7941, that is, in proportion to the percentage of votes obtained by each party-list group in relation to the total nationwide votes cast in the party-list election, after deducting the corresponding votes of those which were allotted seats under the 2% threshold rule. In fine, the formula/procedure prescribed in the ALLOCATION OF PARTY-LIST SEATS, ANNEX A of COMELEC RESOLUTION 2847 dated 25 June 1996, shall be used for [the] purpose of determining how many seats shall be proclaimed, which party-list groups are entitled to representative seats and how many of their nominees shall seat [sic]. 5. In the alternative, to declare as unconstitutional Section 11 of Republic Act No. 7941 and that the procedure in allocating seats for party-list representative prescribed by Section 12 of RA 7941 shall be followed.

BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC Resolution No. 07-88. BANAT did not file a motion for reconsideration of NBC Resolution No. 07-88.

On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting as NBC, to reconsider its decision to use the Veterans formula as stated in its NBC Resolution No. 07-60 because the Veterans formula is violative of the Constitution and of Republic Act No. 7941 (R.A. No. 7941). On the same day, the COMELEC denied reconsideration during the proceedings of the NBC.[11]

Aside from the thirteen party-list organizations proclaimed on 9 July 2007, the COMELEC proclaimed three other party-list organizations as qualified parties entitled to one guaranteed seat under the Party-List System: Agricultural Sector Alliance of the Philippines, Inc. (AGAP), [12] Anak Mindanao (AMIN),[13] and An Waray.[14] Per the certification[15] by COMELEC, the following party-list organizations have been proclaimed as of 19 May 2008:

Party-List 1.1 1.2 1.3 1.4 Buhay Bayan Muna CIBAC Gabriela

No. of Seat(s) 3 2 2 2

1.5 1.6 1.7 1.8 1.9 1.10 1.11 1.12 1.13 1.14 1.15

APEC A Teacher Akbayan Alagad Butil Coop-Natco [sic] Anak Pawis ARC Abono AGAP AMIN

2 1 1 1 1 1 1 1 1 1 1

implement the First-Party Rule in the allocation of list organizations as said rule: A. proportional B. in Party representation 2. of and Section 3. Party RA Violates the constitutional representation.

seats to qualified partyprinciple of

Violates the provisions of RA 7941 particularly: 1. The 2-4-6 Formula used by the First Party Rule allocating additional seats for the First violates the principle of proportional under RA 7941. The use of two formulas in the allocation additional seats, one for the First Party another for the qualifying parties, violates 11(b) of RA 7941. The proportional relationships under the First Rule are different from those required under 7941;

C. Violates the Four Inviolable Parameters of the Philippine party-list system as provided for under the same case of Veterans Federation Party, et al. v. COMELEC. II. Presuming that the Commission on Elections did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when it implemented the First-Party Rule in the allocation of seats to qualified party-list organizations, the same being merely in consonance with the ruling in Veterans Federations Party, et al. v. COMELEC, the instant Petition is a justiciable case as the issues involved herein are constitutional in nature, involving the correct interpretation and implementation of RA 7941, and are of transcendental importance to our nation.[17]

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS), against which an Urgent Petition for Cancellation/Removal of Registration and Disqualification of Party-list Nominee (with Prayer for the Issuance of Restraining Order) has been filed before the COMELEC, was deferred pending final resolution of SPC No. 07-250.

Issues

Considering the allegations in the petitions and the comments of the parties in these cases, we defined the following issues in our advisory for the oral arguments set on 22 April 2008:

BANAT brought the following issues before this Court: 1. Is the twenty percent allocation for party-list representatives provided in Section 5(2), Article VI of the Constitution mandatory or is it merely a ceiling? 2. 7941 3. the 4. Is the three-seat constitutional? limit provided in Section 11(b) of RA

1. in a 2. 3. RA 4. 5. from major list

Is the twenty percent allocation for party-list representatives Section 5(2), Article VI of the Constitution mandatory or merely ceiling? Is the three-seat limit in Section 11(b) of RA 7941 constitutional? Is the two percent threshold prescribed 7941 to qualify for one seat constitutional? in Section 11(b) of

Is the two percent threshold and qualifier votes prescribed by same Section 11(b) of RA 7941 constitutional? How shall the party-list representatives be allocated?[16]

How shall the party-list representative seats be allocated? Does the Constitution prohibit the major political parties participating in the party-list elections? If not, can the political parties be barred from participating in the partyelections?[18]

Bayan Muna, A Teacher, and Abono, on the other hand, raised the following issues in their petition: I. Respondent Commission on Elections, acting as National Board of Canvassers, committed grave abuse of discretion amounting to lack or excess of jurisdiction when it promulgated NBC Resolution No. 07-60 to

The Ruling of the Court

The petitions have partial merit. We maintain that a Philippine-style party-list election has at least four inviolable parameters as clearly stated in Veterans. For easy reference, these are:

First, the twenty percent allocation the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list; Second, the two percent threshold only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are qualified to have a seat in the House of Representatives; Third, the three-seat limit each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one qualifying and two additional seats; Fourth, proportional representation the additional seats which a qualified party is entitled to shall be computed in proportion to their total number of votes.[19]

Section 5(1), Article VI of the Constitution states that the House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law. The House of Representatives shall be composed of district representatives and party-list

representatives. The Constitution allows the legislature to modify the number of the members of the House of Representatives.

Section 5(2), Article VI of the Constitution, on the other hand, states the ratio of party-list representatives to the total number of representatives. We compute the number of seats available

to party-list representatives from the number of legislative districts. On this point, we do not deviate from the first formula in Veterans, thus:

However, because the formula in Veterans has flaws in its mathematical interpretation of the term proportional representation, this Court is compelled to revisit the formula for the allocation of additional seats to party-list organizations.

Number of seats available to legislative districts .80 x .20 =

Number of seats available to party-list representatives

Number of Party-List Representatives: The Formula Mandated by the Constitution This formula allows for the corresponding increase in the number of seats available for party-list representatives whenever a legislative district is created by law. Since the 14 thCongress of the Philippines Section 5, Article VI of the Constitution provides: Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. has 220 district representatives, there are 55 seats available to party-list

representatives.

220 .80

x .20 =

55

After prescribing the ratio of the number of party-list representatives to the total number of representatives, the Constitution left the manner of allocating the seats available to partylist representatives to the wisdom of the legislature.

Allocation of Seats for Party-List Representatives: The Statutory Limits Presented by the Two Percent Threshold

The first paragraph of Section 11 of R.A. No. 7941 reads: Section 11. Number of Party-List Representatives. The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list. xxx

and the Three-Seat Cap

All parties agree on the formula to determine the maximum number of seats reserved under the Party-List System, as well as on the formula to determine the guaranteed seats to party-list candidates garnering at least two-percent of the total party-list votes. However, there are numerous interpretations of the provisions of R.A. No. 7941 on the allocation of additional seats under the

Party-List System. Veterans produced the First Party Rule,[20] and Justice Vicente V. Mendozas dissent in Veterans presented Germanys Niemeyer formula[21] as an alternative. Forty-four (44) party-list seats will be awarded under BANATs first interpretation.

The Constitution left to Congress the determination of the manner of party-list representatives. Congress enacted R.A. and Section 12 of which provide: Section 11. Number of Party-List Representatives. x x x

allocating the seats for

The second interpretation presented by BANAT assumes that the 2% vote requirement is declared unconstitutional, and apportions the seats for party-list representatives by following Section 12 of R.A. No. 7941. BANAT states that the COMELEC: (a) shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis; (b) rank them according to the number of votes received; and, (c) allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization or coalition as against the total nationwide votes cast for the party-list system.[24]

No. 7941, paragraphs (a) and (b) of Section 11

In determining the allocation of seats for the second vote, [22] the following procedure shall be observed: (a) The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. (b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. Section 12. Procedure in Allocating Seats for Party-List Representatives. The COMELEC shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis, rank them according to the number of votes received and allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization, or coalition as against the total nationwide votes cast for the party-list system. (Emphasis supplied)

BANAT used two formulas to obtain the same results: one is based on the proportional percentage of the votes received by each party as against the total nationwide party-list votes, and the other is by making the votes of a party-list with a median percentage of votes as the divisor in computing the allocation of seats.[25] Thirty-four (34) party-list seats will be awarded under BANATs second interpretation.

In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the COMELECs original 2-4-6 formula and the Veterans formula for systematically preventing all the party-list seats from being filled up. They claim that both formulas do not factor in the total number of seats alloted for the entire Party-List System. Bayan Muna, Abono, and A Teacher reject the three-seat

In G.R. No. 179271, BANAT presents two interpretations through three formulas to allocate party-list representative seats.

cap, but accept the 2% threshold. After determining the qualified parties, a second percentage is generated by dividing the votes of a qualified party by the total votes of all qualified parties only. The number of seats allocated to a qualified party is computed by multiplying the total partylist seats available with the second percentage. There will be a first round of seat allocation, limited to using the whole integers as the equivalent of the number of seats allocated to the concerned party-list. After all the qualified parties are given their seats, a second round of seat allocation is conducted. The fractions, or remainders, from the whole integers are ranked from highest to lowest and the remaining seats on the basis of this ranking are allocated until all the seats are filled up.[26]

The first interpretation allegedly harmonizes the provisions of Section 11(b) on the 2% requirement with Section 12 of R.A. No. 7941. BANAT described this procedure as follows: (a) The party-list representatives shall constitute twenty percent (20%) of the total Members of the House of Representatives including those from the party-list groups as prescribed by Section 5, Article VI of the Constitution, Section 11 (1st par.) of RA 7941 and Comelec Resolution No. 2847 dated 25 June 1996. Since there are 220 District Representatives in the 14 th Congress, there shall be 55 Party-List Representatives. All seats shall have to be proclaimed. (b) All party-list groups shall initially be allotted one (1) seat for every two per centum (2%) of the total party-list votes they obtained; provided, that no party-list groups shall have more than three (3) seats (Section 11, RA 7941). (c) The remaining seats shall, after deducting the seats obtained by the party-list groups under the immediately preceding paragraph and after deducting from their total the votes corresponding to those seats, the remaining seats shall be allotted proportionately to all the party-list groups which have not secured the maximum three (3) seats under the 2% threshold rule, in accordance with Section 12 of RA 7941.[23]

We examine what R.A. No. 7941 prescribes to allocate seats for party-list representatives.

Section 11(a) of R.A. No. 7941 prescribes the ranking of the participating parties from the highest to the lowest based on the number of votes they garnered during the elections.

Table 1. Ranking of the participating parties from the highest to the lowest based on the number of votes garnered during the elections. [27]

24 ABA-AKO 25 ALIF 26 SENIOR

218,818 217,822 213,058

71 BABAE KA 72 SB 73 ASAP

36,512 34,835 34,098

Rank

Party

Votes Garnered 1,169,234 979,039 755,686 621,171 619,657 490,379 466,112 423,149 409,883 409,160 385,810 374,288 370,261 339,990 338,185 328,724 321,503 310,889 300,923 245,382 235,086 228,999 228,637

Rank

Party

Votes Garnered

CITIZENS 27 AT 197,872 196,266 188,521 177,028 170,531 169,801 74 PEP 75 ABA ILONGGO 76 VENDORS 77 ADD-TRIBAL 78 ALMANA 79 AANGAT PILIPINO 33 ABAKADA 34 1-UTAK 35 TUCP 36 COCOFED 37 AGHAM 38 ANAK 39 ABANSE! PINAY 40 PM 41 AVE 42 SUARA 43 ASSALAM 44 DIWA 45 ANC 46 SANLAKAS 47 ABC 166,747 164,980 162,647 155,920 146,032 141,817 130,356 119,054 110,769 110,732 110,440 107,021 99,636 97,375 90,058 80 AAPS 81 HAPI 82 AAWAS 83 SM 84 AG 85 AGING PINOY 86 APO 87 BIYAYANG BUKID 88 ATS 89 UMDJ 90 BUKLOD FILIPINA 91 LYPAD 92 AA-KASOSYO 93 KASAPI TOTAL 26,271 25,781 22,946 20,744 16,916 16,729 16,421 16,241 14,161 9,445 8,915 8,471 8,406 6,221 15,950,900 KA 33,938 33,903 33,691 32,896 32,255 29,130

1 BUHAY 2 BAYAN MUNA 3 CIBAC 4 GABRIELA 5 APEC 6 A TEACHER 7 AKBAYAN 8 ALAGAD 9 COOP-NATCCO 10 BUTIL 11 BATAS 12 ARC 13 ANAKPAWIS 14 ABONO 15 AMIN 16 AGAP 17 AN WARAY 18 YACAP 19 FPJPM 20 UNI-MAD 21 ABS 22 KAKUSA 23 KABATAAN

48 KALAHI 49 APOI 50 BP 51 AHONBAYAN 52 BIGKIS 53 PMAP 54 AKAPIN 55 PBA 56 GRECON 57 BTM 58 A SMILE 59 NELFFI 60 AKSA 61 BAGO 62 BANDILA 63 AHON 64 ASAHAN MO 65 AGBIAG! 66 SPI 67 BAHANDI 68 ADD 69 AMANG 70 ABAY PARAK

88,868 28 VFP 79,386 29 ANAD 78,541 30 BANAT 78,424 31 ANG KASANGGA 77,327 32 BANTAY 75,200 74,686 71,544 62,220 60,993 58,717 57,872 57,012 55,846 54,751 54,522 51,722 50,837 50,478 46,612 45,624 43,062 42,282

The first clause of Section 11(b) of R.A. No. 7941 states that parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each. This clause guarantees a seat to the two-percenters. In Table 2 below, we use the first 20 party-list candidates for illustration purposes. The percentage of votes garnered by each party is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for all party-list candidates. Table 2. The first 20 party-list candidates and their respective percentage of votes garnered over the total votes for the party-list.[28]

18 YACAP 19 FPJPM 20 UNI-MAD

310,889 300,923 245,382

1.95% 1.89% 1.54%

0 0 0

From Table 2 above, we see that only 17 party-list candidates received at least 2% from the total number of votes cast for party-list candidates. The 17 qualified party-list candidates, or the two-percenters, are the party-list candidates that are entitled to one seat each, or the

Votes Garnered Rank Party Votes Garnered over Total Votes for Party-List, in % 1 BUHAY 2 BAYAN MUNA 3 CIBAC 4 GABRIELA 5 APEC 6 A TEACHER 7 AKBAYAN 8 ALAGAD 9 COOP-NATCCO 10 BUTIL 11 BATAS[29] 12 ARC 13 ANAKPAWIS 14 ABONO 15 AMIN 16 AGAP 17 AN WARAY Total 1,169,234 979,039 755,686 621,171 619,657 490,379 466,112 423,149 409,883 409,160 385,810 374,288 370,261 339,990 338,185 328,724 321,503 7.33% 6.14% 4.74% 3.89% 3.88% 3.07% 2.92% 2.65% 2.57% 2.57% 2.42% 2.35% 2.32% 2.13% 2.12% 2.06% 2.02% 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 17 Guaranteed Seat

guaranteed seat. In this first round of seat allocation, we distributed 17 guaranteed seats. The second clause of Section 11(b) of R.A. No. 7941 provides that those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes. This is where petitioners and intervenors problem with the formula in Veterans lies. Veterans interprets the clause in proportion to their total number of votes to be in proportion to the votes of the first party. This interpretation is contrary to the express language of R.A. No. 7941.

We rule that, in computing the allocation of additional seats, the continued operation of the two percent threshold for the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent threshold makes it mathematically impossible to achieve the maximum number of available party list seats when the number of available party list seats exceeds 50. The continued operation of the two percent threshold in the distribution of the additional seats frustrates the attainment of the permissive ceiling that 20% of the members of the House of Representatives shall consist of partylist representatives.

To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes cast for the 100 participants in the party list elections. A party that has two percent of the votes

cast, or one million votes, gets a guaranteed seat. Let us further assume that the first 50 parties all get one million votes. Only 50 parties get a seat despite the availability of 55 seats. Because of the operation of the two percent threshold, this situation will repeat itself even if we increase the available party-list seats to 60 seats and even if we increase the votes cast to 100 million. Thus, even if the maximum number of parties get two percent of the votes for every party, it is always impossible for the number of occupied party-list seats to exceed 50 seats as long as the two percent threshold is present.

We therefore strike down the two percent threshold only in relation to the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941. The two percent

threshold presents an unwarranted obstacle to the full implementation of Section 5(2), Article VI of the Constitution and prevents the attainment of the broadest possible representation of party, sectoral or group interests in the House of Representatives. [30]

In determining the allocation of seats for party-list representatives under Section 11 of R.A. No. 7941, the following procedure shall be observed: Table 3. Distribution of Available Party-List Seats

1.

The parties, organizations, and coalitions shall be ranked from the highest to the

lowest based on the number of votes they garnered during the elections.

Votes Garnered

Guaranteed Seat

Additional Seats

(B) plus (C), in whole integers

Applying the three seat cap

2.

The parties, organizations, and coalitions receiving at least two percent (2%) of the

over Total Votes Garnered Votes for Party List, in % (First Round) (Second Round)

total votes cast for the party-list system shall be entitled to one guaranteed seat each.

3.

Those garnering sufficient number of votes, according to the ranking in paragraph 1,

Rank

Party

shall be entitled to additional seats in proportion to their total number of votes until all the additional seats are allocated.

4. seats.

Each party, organization, or coalition shall be entitled to not more than three (3) (A) In computing the additional seats, the guaranteed seats shall no longer be included because 1 2 3 4 5 In declaring the two percent threshold unconstitutional, we do not limit our allocation of 6 7 8 9[31] BUHAY BAYAN MUNA CIBAC GABRIELA APEC A Teacher AKBAYAN ALAGAD COOPNATCCO 10 11 12 BUTIL BATAS ARC 409,160 385,810 374,288 2.57% 2.42% 2.35% 1 1 1 1 1 1 2 2 2 N.A. N.A. N.A. 1,169,234 979,039 755,686 621,171 619,657 490,379 466,112 423,149 409,883 7.33% 6.14% 4.74% 3.89% 3.88% 3.07% 2.92% 2.65% 2.57% (B) 1 1 1 1 1 1 1 1 1 (C) 2.79 2.33 1.80 1.48 1.48 1.17 1.11 1.01 1 (D) 3 3 2 2 2 2 2 2 2 (E)

N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A.

they have already been allocated, at one seat each, to every two-percenter. Thus, the remaining available seats for allocation as additional seats are the maximum seats reserved under the Party List System less the guaranteed seats. Fractional seats are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of fractional seats.

additional seats in Table 3 below to the two-percenters. The percentage of votes garnered by each party-list candidate is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for party-list candidates. There are two steps in the second round of seat allocation. First, the percentage is multiplied by the remaining available seats, 38, which is the difference between the 55 maximum seats reserved under the Party-List System and the 17 guaranteed seats of the two-percenters. The whole integer of the product of the percentage and of the remaining available seats corresponds to a partys share in the remaining available seats. Second, we assign one party-list seat to each of the parties next in rank until all available seats are completely distributed. We distributed all of the remaining 38 seats in the second round of seat allocation. Finally, we apply the three-seat cap to determine the number of seats each qualified party-list candidate is entitled. Thus:

13 14 15 16 17 18 19 20 21 22 23 24 25 26

ANAKPAWIS ABONO AMIN AGAP AN WARAY YACAP FPJPM UNI-MAD ABS KAKUSA KABATAAN ABA-AKO ALIF SENIOR CITIZENS

370,261 339,990 338,185 328,724 321,503 310,889 300,923 245,382 235,086 228,999 228,637 218,818 217,822 213,058

2.32% 2.13% 2.12% 2.06% 2.02% 1.95% 1.89% 1.54% 1.47% 1.44% 1.43% 1.37% 1.37% 1.34%

1 1 1 1 1 0 0 0 0 0 0 0 0 0

1 1 1 1 1 1 1 1 1 1 1 1 1 1

2 2 2 2 2 1 1 1 1 1 1 1 1 1

N.A. N.A. N.A. N.A.

Applying the procedure of seat allocation as illustrated in Table 3 above, there are 55 partylist representatives from the 36 winning party-list organizations. All 55 available party-list seats are filled. The additional seats allocated to the parties with sufficient number of votes for one whole

seat, in no case to exceed a total of three seats for each party, are shown in column (D).

Participation of Major Political Parties in Party-List Elections N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party list system because we wanted to open up the political system to a pluralistic society through a multiparty system. x x x We are for opening up the system, and we would like very much for the sectors to be there. That is why one of the ways to do that is to put a ceiling on the number of representatives from any single party that can sit within the 50 allocated under the party list system. x x x. xxx MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to political parties. My question is this: Are we going to classify for example Christian Democrats and Social Democrats as political parties? Can they run under the party list concept or must they be under the district legislation side of it only? MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner mentioned can field candidates for the Senate as well as for the House of Representatives. Likewise, they can also field sectoral candidates for the 20 percent or 30 percent, whichever is adopted, of the seats that we are allocating under the party list system. MR. MONSOD. In other words, the Christian Democrats can field district candidates and can also participate in the party list system? MR. VILLACORTA. Why not? When they come to the party list system, they will be fielding only sectoral candidates. MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list system? 169,801 166,747 164,980 162,647 155,920 1.06% 1.05% 1.03% 1.02% 0.98% 0 0 0 0 0 17 1 1 1 1 1 1 1 1 1 1 55 N.A. N.A. N.A. N.A. N.A. MR. VILLACORTA. Yes, why not? For as long as they field candidates who come from the different marginalized sectors that we shall designate in this Constitution. MR. MONSOD. Suppose Senator Taada wants to run under BAYAN group and says that he represents the farmers, would he qualify? MR. VILLACORTA. No, Senator Taada would not qualify. MR. MONSOD. But UNIDO can field candidates under the party list system and say Juan dela Cruz is a farmer. Who would pass on whether he is a farmer or not? MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties, particularly minority political parties, are not prohibited to participate in the party list election if they can prove that they are also organized along sectoral lines. The Constitutional Commission adopted a multi-party system that allowed all political parties to participate in the party-list elections. Commission clearly bear this out, thus: The deliberations of the Constitutional

27 28 29 30 31

AT VFP ANAD BANAT ANG KASANGGA

197,872 196,266 188,521 177,028 170,531

1.24% 1.23% 1.18% 1.11% 1.07%

0 0 0 0 0

1 1 1 1 1

1 1 1 1 1

N.A. N.A. N.A. N.A. N.A.

32 33 34 35 36 Total

BANTAY ABAKADA 1-UTAK TUCP COCOFED

MR. MONSOD. What the Commissioner is saying is that all political parties can participate because it is precisely the contention of political parties that they represent the broad base of citizens and that all sectors are represented in them. Would the Commissioner agree? MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political party, it will dominate the party list at mawawalang saysay din yung sector. Lalamunin mismo ng political parties ang party list system. Gusto ko lamang bigyan ng diin ang reserve. Hindi ito reserve seat sa marginalized sectors. Kung titingnan natin itong 198 seats, reserved din ito sa political parties. MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my question to Commissioner Villacorta and probably also to Commissioner Tadeo is that under this system, would UNIDO be banned from running under the party list system? MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that condition alone, UNIDO may be allowed to register for the party list system. MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer? MR. TADEO. The same. MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines. xxxx MR. OPLE. x x x In my opinion, this will also create the stimulus for political parties and mass organizations to seek common ground. For example, we have the PDP-Laban and the UNIDO. I see no reason why they should not be able to make common goals with mass organizations so that the very leadership of these parties can be transformed through the participation of mass organizations. And if this is true of the administration parties, this will be true of others like the Partido ng Bayan which is now being formed. There is no question that they will be attractive to many mass organizations. In the opposition parties to which we belong, there will be a stimulus for us to contact mass organizations so that with their participation, the policies of such parties can be radically transformed because this amendment will create conditions that will challenge both the mass organizations and the political parties to come together. And the party list system is certainly available, although it is open to all the parties. It is understood that the parties will enter in the roll of the COMELEC the names of representatives of mass organizations affiliated with them. So that we may, in time, develop this excellent system that they have in Europe where labor organizations and cooperatives, for example, distribute themselves either in the Social Democratic Party and the Christian Democratic Party in Germany, and their very presence there has a transforming effect upon the philosophies and the leadership of those parties. It is also a fact well known to all that in the United States, the AFL-CIO always vote with the Democratic Party. But the businessmen, most of them, always vote with the Republican Party, meaning that there is no reason at all why political parties and mass organizations should not combine, reenforce, influence and interact with each other so that the very objectives that we set in this Constitution for sectoral representation are achieved in a wider, more lasting, and more institutionalized way. Therefore, I support this [MonsodVillacorta] amendment. It installs sectoral representation as a constitutional gift, but at the same time, it challenges the sector to rise to the majesty of being elected representatives later on through a party list system; and even beyond that, to become actual political parties capable of contesting political power in the wider constitutional arena for major political parties. xxx
[32]

R.A. No. 7941 provided the details for the concepts put forward by the Constitutional Commission. Section 3 of R.A. No. 7941 reads: Definition of Terms. (a) The party-list system is a mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions thereof registered with the Commission on Elections (COMELEC). Component parties or organizations of a coalition may participate independently provided the coalition of which they form part does not participate in the partylist system. (b) A party means either a political party or a sectoral party or a coalition of parties. (c) A political party refers to an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidates for public office. It is a national party when its constituency is spread over the geographical territory of at least a majority of the regions. It is a regional party when its constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region. (d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special interests and concerns of their sector, (e) A sectoral organization refers to a group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics, employment, interests or concerns. (f) A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes.

Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party from dominating the party-list elections.

Neither the Constitution nor R.A. No. 7941 prohibits major political parties from participating in the party-list system. On the contrary, the framers of the Constitution clearly intended the major political parties to participate in party-list elections through their sectoral wings. In fact, the members of the Constitutional Commission voted down, 19-22, any permanent sectoral seats, and in the alternative the reservation of the party-list system to the sectoral groups.[33] In defining a party that participates in party-list elections as either a political party or a sectoral party, R.A. No. 7941 also clearly intended that major political parties will participate in the party-list elections. Excluding the major political parties in party-list elections is manifestly against the Constitution, the intent of the Constitutional Commission, and R.A. No. 7941. This Court cannot engage in socio-political engineering and judicially legislate the exclusion of major political parties from the party-list elections in patent violation of the Constitution and the law.

(Emphasis supplied)

Read together, R.A. No. 7941 and the deliberations of the Constitutional Commission state that major political parties are allowed to establish, or form coalitions with, sectoral organizations for electoral or political purposes. There should not be a problem if, for example, the Liberal Party participates in the party-list election through the Kabataang Liberal ng Pilipinas (KALIPI), its sectoral youth wing. The other major political parties can thus organize, or affiliate with, their

party from dominating the party-list elections.

Seats for party-list representatives shall thus be

allocated in accordance with the procedure used in Table 3 above.

However, by a vote of 8-7, the Court decided to continue the ruling in Veterans disallowing major political parties from participating in the party-list elections, directly or indirectly. Those who voted to continue disallowing major political parties from the party-list elections joined Chief Justice Reynato S. Puno in his separate opinion. On the formula to allocate party-list seats, the Court is unanimous in concurring with this ponencia.

chosen sector or sectors. To further illustrate, the Nacionalista Party can establish a fisherfolk wing to participate in the party-list election, and this fisherfolk wing can field its fisherfolk

nominees. Kabalikat ng Malayang Pilipino (KAMPI) can do the same for the urban poor.

The qualifications of party-list nominees are prescribed in Section 9 of R.A. No. 7941:

WHEREFORE, we PARTIALLY GRANT the petition. We SET ASIDE the Resolution of the COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well as the Resolution dated 9 July 2007

Qualifications of Party-List Nominees. No person shall be nominated as party-list representative unless he is a natural born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the elections, able to read and write, bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election. In case of a nominee of the youth sector, he must at least be twentyfive (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue until the expiration of his term.

in NBC No. 07-60.

We declare unconstitutional the two percent threshold in the distribution of

additional party-list seats. The allocation of additional seats under the Party-List System shall be in accordance with the procedure used in Table 3 of this Decision. Major political parties are

disallowed from participating in party-list elections. This Decision is immediately executory. No pronouncement as to costs.

SO ORDERED. G.R. No. 181613 November 25, 2009

Under Section 9 of R.A. No. 7941, it is not necessary that the party-list organizations nominee wallow in poverty, destitution and infirmity [34] as there is no financial status required in the law. It is enough that the nominee of the sectoral party/organization/coalition belongs to the marginalized and underrepresented sectors,[35] that is, if the nominee represents the fisherfolk, he or she must be a fisherfolk, or if the nominee represents the senior citizens, he or she must be a senior citizen.

ROSALINDA A. PENERA, Petitioner, vs. COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents. RESOLUTION CARPIO, J.: We grant Rosalinda A. Peneras (Penera) motion for reconsideration of this Courts Decision of 11 September 2009 (Decision). The assailed Decision dismissed Peneras 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.

Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20% allocation of party-list representatives found in the Constitution. The Constitution, in paragraph 1, Section 5 of Article VI, left the determination of the number of the members of the House of Representatives to Congress: The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, x x x. The 20% allocation of partylist representatives is merely a ceiling; party-list representatives cannot be more than 20% of the members of the House of Representatives. However, we cannot allow the continued existence of a provision in the law which will systematically prevent the constitutionally allocated 20% party-list representatives from being filled. The three-seat cap, as a limitation to the number of seats that a qualified party-list organization may occupy, remains a valid statutory device that prevents any

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 periodfor 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 Eusebios acts of election campaigning or partisan political activities were committed outside of the campaign period. The only question is whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a "candidate" when he committed those acts before the start of the campaign period on 24 March 2004.

Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates of candidacy to 120 days before election day. Thus, the original deadline was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial question is: did this change in the deadline for filing the certificate of candidacy make one who filed his certificate of candidacy before 2 January 2004 immediately liable for violation of Section 80 if he engaged in election campaign or partisan political activities prior to the start of the campaign period on 24 March 2004? Section 11 of RA 8436 provides: SECTION 11. Official Ballot. The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election Inspectors shall affix his/her signature to authenticate the official ballot shall be provided. Both sides of the ballots may be used when necessary. For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/ manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice-President, Senators and candidates under the party-list system as well as petitions for registration and/or manifestation to participate in the party-list system shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998. The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens arms of the Commission may assign watchers in the printing, storage and distribution of official ballots. To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying machine, and that identification marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot. The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered voter with a provision of additional four (4) ballots per precinct. Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to give ample time for the printing of official ballots. This is clear from the following deliberations of the Bicameral Conference Committee: SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,] uniform for local and national officials? THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present periods. SENATOR GONZALES. But the moment one files a certificate of candidacy, hes already a candidate, and there are many prohibited acts on the part of candidate.

THE CHAIRMAN (REP. TANJUATCO). Unless we. . . . SENATOR GONZALES. And you cannot say that the campaign period has not yet began (sic). THE CHAIRMAN (REP. TANJUATCO). If we dont provide that the filing of the certificate will not bring about ones being a candidate. SENATOR GONZALES. If thats a fact, the law cannot change a fact. THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of candidacy will not result in that official vacating his position, we can also provide that insofar he is concerned, election period or his being a candidate will not yet commence. Because here, the reason why we are doing an early filing is to afford enough time to prepare this machine readable ballots. So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will withdraw its proposal and will agree to the 120-day period provided in the Senate version. THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman. xxxx SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which apply immediately upon being a candidate? THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the Comelec enough time to print the ballots, this provision does not intend to change the campaign periods as presently, or rather election periods as presently fixed by existing law. THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition. THE CHAIRMAN (REP. TANJUATCO). Thats right. THE ACTING CHAIRMAN (SEN. FERNAN). Okay. THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore because we are talking about the 120-day period before election as the last day of filing a certificate of candidacy, election period starts 120 days also. So that is election period already. But he will still not be considered as a candidate. 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 ones 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 citizens 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 laymans 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. Peneras 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. GADOR vs. COMELEC G.R. No. L-52365 January 22, 1980 This petition for mandamus with a prayer for a writ of preliminary injunction was filed on January 21, 1980 at 4:47pm asking the Supreme Court to immediately order the respondent COMELEC to include the name his name in the list of candidates for Mayor of the City of Ozamiz. Facts: The petition alleges that the petitioner is a candidate for the Office of Mayor of the City of Ozamiz as Independent this coming January 30, 1980 local election. He filed his certificate of candidacy with the Election Registrar of Ozamis City on January 7, 1980 because of the news in the Bulletin Today. The said news stated that the respondent COMELEC issued a resolution for the extension of time for filing COC. However, the President denied said resolution. Therefore, respondent COMELEC informed the petitioner that his name might not be included in the list of candidates for mayor because of the said incident. Thus, this petition.

ISSUE: WON the certificate of candidacy of the petitioner which was filed on January 7, 1980 is valid. Ruling: NO. A certificate of candidacy filed beyond reglementary period is void. Section 7, Batasang Pambansa Bilang 52, provides that The sworn certificate of candidacy shall be filed in triplicate not later than January 4, 1980. It is a fact admitted by the petitioner that the President had not extended the period within which to file the certificate of candidacy. This Court is powerless to grant the remedy prayed for in the petition. Having been filed beyond January 4, 1980, the certificate of candidacy of the petitioner is void. G.R. No. 139801 May 31, 2000 ROBERTO CONQUILLA, petitioner, vs. COMMISSION ON ELECTIONS and EDUARDO A. ALARILLA, respondents.

(signed) JOSE DE VENECIA, JR. Secretary-General xxx xxx xxx ACCEPTANCE I hereby accept the foregoing nomination and pledge to work for the total victory of the Party in my area of responsibility. (signed) EDUARDO A. ALARILLA On 14 April 1998 CONQUILLA filed with the COMELEC a Petition for Cancellation of Certificate of Candidacy and Disqualification, docketed as SPA No. 98-132, praying that private respondent ALARILLA's Certificate of Candidacy be expunged and cancelled on the ground that it was null and void for failing to specify the elective position he was running for and, consequently, he be disqualified to run for any position n Meycauayan, Bulacan. During the pendency of SPA No. 98-132 the Board of Canvassers proclaimed ALARILLA as the Mayor-elect of Meycauayan, Bulacan. As a consequence, CONQUILLA filed an "Urgent Motion to Annul the Proclamation and/or to Suspend the Effects of Proclamation" of ALARILLA contending that any decision in SPA No. 98-132 would be pre-empted unless his proclamation was nullified. The records do not show that the motion was properly acted upon. On 21 May 1998 the First Division of COMELEC dismissed SPA No. 98-132 for lack of merit. It ruled that ALARILLA's failure to specify the public office he was seeking in his Certificate of Candidacy was not a fatal defect because the required information was supplied in the Certificate of Nomination and Acceptance attached to his Certificate of Candidacy. In addition, the First Division ruled that ALARILLA was able to correct his omission by filing an Amended Certificate of Candidacy on 21 April 1998 clearly indicating therein that he was running for the position of Municipal Mayor, Meycauayan, Bulacan. On 1 June 1998 CONQUILLA filed an "Appeal with Urgent Motion for Annulment and/or Suspension of Proclamation with Prayer for Issuance of a Restraining Order." He also prayed that the Resolution of the First Division be set aside. The "Appeal with Urgent Motion for Annulment . . ." was treated as a motion for reconsideration under Rule 19 of the Comelec Rules of Procedure and accordingly certified to the COMELEC En Banc pursuant to Sec. 5 thereof. 2 On 7 September 1998 the COMELEC En Banc denied the motion for reconsideration for being proforma and for late filing.3 The COMELEC ruled that under Sec. 9, Rule 19, of the Comelec Rules of Procedure4 CONQUILLA had only until 31 March 1998, i.e., five (5) days within which to move for reconsideration counted from the time he allegedly received the questioned Resolution of the First Division on 26 March 1998. Hence, the "Appeal with Urgent Motion for Annulment and/or Suspension of Proclamation with Prayer for Issuance of a Restraining Order" was late having been filed on 1 June 1998. CONQUILLA contends that public respondent COMELEC committed grave abuse of discretion: (a) in affirming in toto the Resolution of the First Division dismissing SPA No. 98-132 for lack of merit; (b) in ruling that the Certificate of Nomination and Acceptance attached to private respondent's Certificate of Candidacy could be used as basis in determining the elective position private respondent was seeking; and, (c) in not resolving the motion to suspend private respondent's proclamation as Mayor-elect of Meycauayan, Bulacan. Additionally, CONQUILLA contends that COMELEC erred in dismissing his appeal for late filing.

BELLOSILLO, J.: ROBERTO CONQUILLA assails in this special civil action for certiorari the En Banc Resolution of the Commission on Elections (COMELEC) dated 7 September 1999 which affirmed the Resolution of its First Division dated 21 May 1998 dismissing his Petition for Cancellation of Certificate of Candidacy and Disqualification against private respondent EDUARDO A. ALARILLA 1 for lack of merit. On 27 March 1998 ALARILLA filed his Certificate of Candidacy with the Municipal Election Officer of Meycauayan, Bulacan, without however indicating the elective position which he was aspiring for. Thus in the blank space provided therefor appeared merely CERTIFICATE OF CANDIDACY I hereby announce my candidacy for the office of Meycauayan, Bulacan, Republic of the Philippines, in the May 11, 1998 elections . . . . However, attached thereto and filed with his Certificate of Candidacy was ALARILLA's Certificate of Nomination and Acceptance to wit CERTIFICATE OF NOMINATION AND ACCEPTANCE I, JOSE DE VENECIA, JR., by virtue of the powers and authority vested in me by the Constitution and By-Laws of the Lakas National Union of Christian Democrats-United Muslim Democrats of the Philippines (LAKAS NUCD-UMDP) as its Secretary-General, hereby nominate: EDUARDO A. ALARILLA as the Party's official candidate in the May 11, 1998 elections for the position of MUNICIPAL MAYOR of the Municipality of Meycauayan in the Fourth District of Bulacan. WITNESS MY HAND this 18th day of March 1998 in Makati City, Metro Manila.

We agree with CONQUILLA that his motion for reconsideration was not filed late on 1 June 1998 considering that 31 May 1998 was a Sunday, hence, he had until the next working day, which was 1 June 1998, within which to ask for reconsideration.5 However, we cannot agree that ALARILLA's failure to specify the public office he was seeking in his Certificate of Candidacy was a fatal defect, for several reasons. First. As correctly observed by the First Division of COMELEC and affirmed by COMELEC En Banc, the information omitted in the Certificate of Candidacy was supplied in the Certificate of Nomination and Acceptance attached thereto specifying that ALARILLA was nominated as the Lakas NUCDUMDP's official candidate for the position of Municipal Mayor of Meycauayan, Bulacan, and that such nomination had been accepted by ALARILLA. As the COMELEC itself has clarified, certificates of nomination and acceptance are procedurally required to be filed with, and form an integral part of, the certificates of candidacy of official candidates of political parties. Second. ALARILLA timely rectified the deficiency in his original Certificate of Candidacy by filing an Amended Certificate on 21 April 1998 specifically stating that he was running for the position of Municipal Mayor of Meycauayan, Bulacan, in the 11 May 1998 elections. In Alialy v. Commission on Elections6 where petitioners sought the reversal of a COMELEC resolution denying due course to a certificate of candidacy on the ground that it was not subscribed under oath by the secretary of the Nacionalista Party as required by Sec. 35 of the Revised Election Code, this Court ruling on the effectiveness of the amended certificate of candidacy filed to correct the defect declared that the filing of an amended certificate even after the deadline but before the election was substantial compliance with the law which cured the defect. The Court further said . . . when the Election Law does not provide that a departure from a prescribed form will be fatal and such departure has been due to an honest mistake or misinterpretation of the Election Law on the part of him who was obligated to observe it, and that such departure has not been used as a means for fraudulent practices . . . the law will be held directory and such departure will be considered a harmless irregularity (Gardiner v. Romulo, 26 Phil. 521, cited in the De Guzman v. Bd. of Canvassers of La Union and Lucero, 48 Phil. 211, 214215). For inconsequential deviations which cannot affect the result of the election, or deviations from provisions intended primarily to secure timely and orderly conduct of elections, a directory construction is generally applied (III Sutherland Stat. Const., 3rd Ed. Sec. 5820, pp. 113-114 - cases cited therein). The same ruling is given on acts not calculated to affect the integrity of the elections (Hunt v. Mann, 136 Miss. 590). Third. The purpose in requiring a certificate of candidacy (which is to enable the voters to know before the elections the candidates among whom they are to make a choice) was deemed satisfied not only by the Amended Certificate of Candidacy filed before the elections but also by the Certified List of Candidates issued by the Office of the Election Officer, Meycauayan, Bulacan, indubitably listing therein EDUARDO A. ALARILLA as candidate for the position of "mayor" of said municipality. Finally, it cannot be denied that ALARILLA was elected Mayor of Meycauayan, Bulacan, in the 11 May 1998 elections. If substantial compliance with the Election Law should give way to a mere technicality, the will of the electorate, as far as ALARILLA is concerned, would be frustrated. 7 WHEREFORE, the petition is DISMISSED. The assailed En Banc Resolution dated 7 September 1999 of public respondent Commission on Elections which affirmed the Resolution dated 21 May 1998 of its First Division dismissing the Petition for Cancellation of Certificate of Candidacy and Disqualification filed by petitioner ROBERTO CONQUILLA against private respondent EDUARDO A. ALARILLA is AFFIRMED. Costs against petitioner. SO ORDERED. G.R. No. 147741 May 10, 2001

PARDO, J.: The Case In her petition for certiorari,1 petitioner seeks to nullify the resolution of the Commission on Elections (COMELEC)en banc declaring her disqualified to run for the office of governor of Leyte and mayor of Baybay, Leyte, because she filed certificates of candidacy for both positions and the withdrawal of her certificate of candidacy for mayor was filed late by twenty eight minutes from the deadline. Forthwith, we issued an order2 to maintain the status quo ante, in effect allowing petitioner's certificate of candidacy for governor in the meantime. In its Comment,3 the COMELEC justified its resolution on the ground that petitioner's affidavit of withdrawal of her certificate of candidacy for mayor of Baybay, Leyte was ineffectual because it was submitted twenty eight (28) minutes late at the office of the municipal election officer at Baybay. The facsimile copy thereof was filed with said office at 12:28 a.m., 1 March 2001, and the original copy thereof was actually received by the office of the municipal election officer of Baybay at 1:15 p.m., the same day. The provincial election supervisor of Leyte, with office at Tacloban City, to whom petitioner filed her certificate of candidacy for governor at 11:47 p.m., 28 February 2001, refused to accept the affidavit of withdrawal tendered simultaneously therewith because, as he claimed, the affidavit must be filed with the office of the municipal election officer of Baybay, Leyte where petitioner filed certificate of candidacy for mayor.1wphi1.nt The Facts Petitioner is the incumbent representative of the Fifth District, province of Leyte, whose term of office will expire at noon on 30 June 2001. On 27 February 2001, petitioner filed with the municipal election officer of the municipality of Baybay, Leyte, a certificate of candidacy for mayor of Baybay, Leyte. On 28 February 2001, at 11:47 p.m., petitioner filed with the provincial election supervisor of Leyte, with office at Tacloban City, another certificate of candidacy for governor of the province of Leyte. Simultaneously therewith, she attempted to file with the provincial election supervisor an affidavit of withdrawal of her candidacy for mayor of the municipality of Baybay, Leyte. Hiowever, the provincial election supervisor of Leyte refused to accept the affidavit of withdrawal and suggested that, pursuant to a COMELEC resolution, she should file it with the municipal election officer of Baybay, Leyte where she filed her certificate of candidacy for mayor. At that later hour, with only minutes left to midnight, the deadline for filing certificates of candidacy or withdrawal thereof, and considering that the travel time from Tacloban to Baybay was two (2) hours, petitioner decided to send her affidavit of withdrawal by fax4 to her father at Baybay, Leyte and the latter submitted the same to the office of the election officer of Baybay, Leyte at 12:28 a.m., 01 March 2001.5 On the same day, at 1:15 p.m., the election officer of Baybay Leyte, received the original of the affidavit of withdrawal.6 On 05 March 2001 respondent Montejo filed with the provincial election supervisor of Leyte, at Tacloban City a petition to deny due course and/or to cancel the certificates of candidacy of petitioner.7 Respondent Antoni filed a similar petitions, namely, that for mayor of Baybay, Leyte, and that for governor of Leyte, thus, making her ineligible for both.1wphi1.nt On 06 March 2001, Atty. Manuel L. Villegas, the provincial election supervisor of Leyte, by 1st indorsement, referred the cases to the Commission on Election, Manila, Law Department, on the ground that he was inhibiting himself due to his prior action of refusing to receive the petitioner's affidavit of withdrawal tendered simultaneously with the filing of the certificate of candidacy for governor on 28 February 2001.9

REP. MA. CATALINA L. GO, petitioner, vs. COMMISSION ON ELECTIONS, FELIPE V. MONTEJO and ARVIN V. ANTONI, respondents.

In the meantime, the Law Department, COMELEC, under Director Jose P. Balbuena, made a study of the cases without affording petitioner an opportunity to be heard or to submit responsive pleadings. On 05 April 2001, they submitted a report and recommendation to the COMELEC en banc10 The report and recommendation reads: "Submitted for due consideration is the petition filed by Atty. Felipe V. Montejo and Atty. Arvin V. Antoni on March 5, 2001, before the Office of the Provincial Election Supervisor of Leyte, seeking to deny due course and/or to cancel the certificate of candidacy of Catalina L. Go for Governor of Leyte. "Both petitions which are exactly worded in the same language allege, as follows: "This petition is heretofore filed pursuant to the provisions of Rule 23 of the COMELEC RULES OF PROCEDURE and Section 15, as well, of RESOLUTION NO. 3253-A of the COMELEC EN BANC promulgated on November 20, 2000. Ditto, this petition is filed within the reglementary period following the last day for the filing of certificates of candidacy on February 28, 2001. 'Petitioner Atty. Felipe V. Montejo is of voting age, Filipino, lawyer by profession, married, and a resident of #50 Juan Luna Street, Tacloban City, of which locality he is a registered voter. 'Respondent re. Catalina L. Go, on the other hand, is likewise of legal age, married, resident of Baybay, Leyte, of which locality she is a registered voter, and the incumbent Member of the House of Representatives representing the 5th Congressional District of Leyte. 'Respondent CATALINA L. GO filed a certificate of candidacy for the office of Mayor of the Municipality of Baybay, Leyte on February 27, 2001. Without canceling or withdrawing the said certificate of candidacy this time for the office of Provincial Governor of Leyte on February 28, 2001. However, before the expiration of the period for the filing of certificates of candidacy, respondent indubitably failed to declare under oath the office for which she desires to be eligible and cancel the certificate of candidacy for the other office. 'Verily, at the time respondent filed her certificate of candidacy for Provincial Governor, she knew fully well that she was ineligible for the said office, having filed, a day earlier, a certificate of candidacy for Mayor of Baybay, Leyte. Hence, respondent falsely represented in her certificate of candidacy for provincial Governor, and under oath, that she is ELIGIBLE for the said office; a material fact required by law to be sworn to and contained in certificates of candidacy. In fine, respondent likewise falsely represented in her certificates of candidacy, under oath, the she will OBEY THE LAWS, ORDERS, DECRESS, RESOLUTIONS AND REGULATIONS PROMULGATED AND ISSUED BY THE DULY CONSTITUTED AUTHORITIES; a material fact required by law to be sworn to and contained in certificates of candidacy.' "Petitioners' ground to deny due course and/or to cancel the said certificate of candidacy is anchored on Section 73 of the Omnibus Election Code, quoted hereunder. 'No person shall be eligible for more than one office to be filed in the same election, and if he files his certificate of candidacy within the period fixed herein. 'No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them. However, before the expiration of the period for the filing of certificates of candidacy, the person who has filed more than one certificate of candidacy may declare under oath the office for which he

desires to be eligible and cancel the certificate of candidacy for the other office or offices.' "In relation to Section (1) (b) of the Comelec Resolution No. 3253-A, to wit: 'SECTION 1. Certificate of Candidacy. xxxxxx (b) No person shall be eligible for more than one office to be filed in the same election. If he files a certificate of candidacy for more than one office he shall not be eligible for either. However, before the expiration of the period for the filing of certificate of candidacy, he may declare under oath the office for which he desire to be eligible and cancel the certificate of candidacy for the office or offices.' "Moreover, petitioners contended that CATALINA LOPEZ LORETO-Go is ineligible to run either Mayor of Baybay, Leyte or Governor of Leyte Province. "Based on the certified list of candidate for the provincial candidates of Leyte on March 7, 2001, the certificate of candidacy of Catalina Lopez Loreto-Go for the position of Governor of Leyte was filed with the Office of the Provincial Election Supervisor on February 28, 2001 at 11:47 p.m., the last day for filing certificates of candidacy. "In support of the petitions of Atty. Montejo and Atty. Antoni, is a certified machine copy of the affidavit of withdrawal of Catalina L. Loreto-Go, which was filed on march 01, 2001 at the Office of the Election Officer of Baybay, Leyte, which she filed on February 28, 2001. "The affidavit of withdrawal of Catalina Loreto-Go, a portion of which reads: "1. That last February 27, 2001 I filed my certificate of candidacy for mayor for the MUNICIPALITY OF BAYBAY, LEYTE; "2. That due to political exigency and influence form my political leaders urging me to run for mayor of the Municipality of baybay, leyte, I have no other recourse but to follow desire of my political constituents; "3. That therefore, I am formally withdrawing my certificate of candidacy for Mayor of the Municipality of Baybay, leyte and in it stead I am formally filing my certificate for Governor of Leyte. "A careful scrutiny and examination of Catalina Loreto-Go certificate of candidacy for Governor of Leyte Province although filed on the last day of February 28, 2001, her affidavit of withdrawal for Mayor of Baybay, Leyte, was filed only on March 1, 2001 or one (1) day after the February 28, 2001 deadline. In other word, there are two (2) certificates of candidacy filed by Catalina Loreto-Go, one for governor of Leyte and the other for Mayor of Baybay, Leyte. "Clearly, on March 1, 2001 when she filed her affidavit of withdrawal for Mayor of baybay, Leyte, both her certificates of candidacy for Mayor of Baybay, leyte and Governor of Leyte were still subsisting and effective making her liable for filing two certificates of candidacy on different elective positions, thus, rendering her ineligible for both positions, in accordance with Section (1) (b) of Comelec Resolution No. 3253-A. "PREMISES CONSIDERED, the Law Department RECOMMENDS as follows: "1.) To give due course to the petition of Atty. Felipe V. Montejo and Atty. Arvin V. Antonio against the certificates of candidacy of Catalina Loreto-Go for Governor of Leyte; and

"2.) To direct the Provincial Election Suprevisor of Leyte and the Election Officer to delete/cancel the name of CATALINA LOPEZ LORETO-GO from the certified list of candidates for Governor of Leyte and Mayoralty candidates of Baybay, Leyte, and to accordingly notify the parties and the above-named Comelec Officials."11 On 23 April 2001, the COMELEC en banc approved the recommendation of the Director, Law Department and adopted the resolution in question as set out in the opening paragraph of this decision.12 Hence, this petition.13 The Issues At the oral argument on 07 May 2001, at 3:00 p.m., we defined the following issues to be addressed by the parties: I. Is petitioner disqualified to be candidate for governor of Leyte and mayor of Baybay, Leyte because she filed certificates of candidacy for both positions? II. Was there a valid withdrawal of the certificate of candidacy for municipal mayor of Baybay, Leyte? (a) Must the affidavit of withdrawal be filed with the election officer of the place where the certificate of candidacy was filed? (b) May the affidavit of withdrawal be validly filed by fax? III. Was there denial to petitioner of procedural due process of law? The Court's Ruling We grant the petition. We annul the COMELEC resolution declaring petitioner disqualified for both positions of governor of Leyte and mayor of the municipality of Baybay, Leyte. The filing of the affidavit of withdrawal with the election officer of Baybay, Leyte, at 12:28 a.m., 1 March 2001 was a substantial compliance with the requirement of the law.14 We hold that petitioner's withdrawal of her certificate of candidacy for mayor of Baybay, Leyte was effective for all legal purposes, and left in full force her certificate of candidacy for governor. 15 Section 73, Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, provides that: "SEC. 73. Certificate of candidacy. - No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein. "A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the office concerned a written declaration under oath. "No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them. However, before the expiration of the period for the filing of certificates of candidacy, the person who has file more than one certificate of candidacy may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices." There is nothing in this Section which mandates that the affidavit of withdrawal must be filed with the same office where the certificate of candidacy to be withdrawn was filed. Thus, it can be filed directly with the main office of the COMELEC, the office of the regional election director concerned,

the office of the provincial election supervisor of the province to which the municipality involved belongs, or the office of the municipal election officer of the said municipality. While it may be true that Section 12 of COMELEC Resolution No. 3253-A, adopted on 20 November 2000, requires that the withdrawal be filed before the election officer of the place where the certificate of candidacy was filed,16 such requirement is merely directory, and is intended for convenience. It is not mandatory or jurisdictional. An administrative resolution can not contradict, much less amend or repeal a law, or supply a deficiency in the law. 17 Hence, the filing of petitioner's affidavit of withdrawal of candidacy for mayor of Baybay with the provincial election supervisor of Leyte sufficed to effectively withdraw such candidacy. the COMELEC thus acted with grave abuse of discretion when it declare petitioner ineligible for both positions for which she filed certificates of candidacy. There is another important moiety that affects the validity of the COMELEC resolution canceling petitioner's certificates of candidacy. It is that petitioner was deprived of procedural due process of law.18 The petition to cancel her certificate of candidacy or to deny due course to both were filed before the provincial election supervisor of Leyte who inhibited himself and referred the cases to the Law Department, COMELEC, Manila. On 11 April 2001, the COMELEC, First Division, acting on the first indorsement of Atty. Villegas approved his inhibition and required the provincial election supervisor of Leyte to immediately forward his copy of the records of these cases to the Regional Election Director, Region 08, at Tacloban, Leyte, for hearing.19 On 18 April 2001, Regional Election Director, Region 08, Atty. Adolfo A. Ibaez issued summons/subpoena to petitioner Go to submit her consolidated answer to the petitions and counter-affidavits including position paper within three (3) days form notice.20 On 23 April 2001, petitioner submitted her consolidated position paper. 21 On 25 April 2001, at 9:00 a.m., Director Ibaez set the cases for hearing for reception of evidence of the parties. In the meantime, however, the Law Department, COMELCE conducted an ex-parte study of the cases. It did not give petitioner an opportunity to be heard. Petitioner was not required to submit a comment or opposition to the petitions for cancellation of her certificates of candidacy and/or for disqualification. It did not set the cases for hearing. It was not even aware of the proceedings before Director Ibaez in Tacloban. After an ex-parte study of the cases, on 05 April 2001, the Law Department submitted its report and recommendation, approved by Director Balbuena, to the COMELEC en banc. During the oral argument on 07 May 2001, Director Balbuena candidly admitted that the COMELEC Rules of Procedure requires that notice be given to the respondent . Indeed, Section 3, Rule 23 of said Rules on petition to deny due course to or cancel certificates of candidacy explicitly provides: "Rule 23 - Petition to Deny Due Course to or Cancel Certificates of Candidacy "xxxx "Sec. 3. Summary Proceeding. - The petition shall be heard summarily after due notice. (emphasis supplied) Obviously, the COMELEC en banc in approving the report and recommendation of the Law Department, deprived the petitioner of procedural due process of law. 22 The COMELEC, acting as a quasi-judicial tribunal, cannot ignore the requirements of procedural due process in resolving cases before it.23 WHEREFORE, the Court GRANTS the petition. The Court ANNULS COMELEC Resolution No. 3982, adopted on 23 April 2001, and DECLARES valid petitioner's certificate of candidacy for Governor of Leyte. The Chairman, Commission on Elections, Manila, and the provincial election supervisor of Leyte shall immediately order the inclusion of petitioner's name in the certified list of candidates for Governor, province of Leyte, to be posted in each polling place,/voting booth in every precinct throughout the province of Leyte, in the voters information sheet to be given to each registered voter therein, in the election returns, statement of votes by percents, and certificate of canvass, and all other election papers. The status quo ante order heretofore issued is made permanent.

This decision is immediately executory. No motion for reconsideration shall be entertained. No costs. SO ORDERED. G.R. No. 100947 May 31, 1993 PNOC ENERGY DEVELOPMENT CORPORATION and MARCELINO TONGCO, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and MANUEL S. PINEDA, respondents. Alikpala, Gomez & Associates Law Office for petitioners. Filomeno A. Zieta for private respondent.

On June 7, 1988, Marcelino M. Tongco, Department Manager of the Engineering and Construction Department, PNOC-EDC, addressed an inquiry to the latter's Legal Department regarding the status of Manuel S. Pineda as employee in view of his candidacy for the office of municipal councilor. 5 In response, the Legal Department rendered an opinion to the effect that Manuel S. Pineda should be considered ipso facto resigned upon the filing of his Certificate of Candidacy in November, 1987, in accordance with Section 66 of the Omnibus Election Code. 6 Pineda appealed the PNOC-EDC Legal Department's ruling to N.C. Vasquez, the Vice-President of PNOC-EDC, on July 14, 1988. In his letter of appeal, 7 he invoked a "court ruling in the case of Caagusan and Donato vs. PNOC-Exploration Corp. . . . (to the effect that) while the governmentowned or controlled corporations are covered by the Civil Service Law (as is taken to mean in Sec. 66 of the Omnibus Election Code of 1985) (sic), the subsidiaries or corporate offsprings are not." In the same letter he declared his wish to continue resign from his position as councilor/member of the Sangguniang Bayan. He also wrote a letter dated October 1, 1988 to the Department of Local Government inquiring about the status of his employment with PNOC-EDC in relation to his election as member of the Sangguniang Bayan. He was advised by DLG Undersecretary Jacinto T. Rubillo, Jr., by letter dated March 31, 1989, that there was no legal impediment to his continuing in his employment with PNOC-EDC while holding at the same time the elective position of municipal councilor. Cited as basis by Undersecretary Rubillo was Section 2(1) Article IX-B of the 1987 Constitution and this Court's ruling in NASECO vs. NLRC, 168 SCRA 122. Undersecretary Rubillo went on to say that Pineda could receive his per diems as municipal councilor as well as the corresponding representation and transportation allowance [RATA] "provided the PNOC-EDC charter does not provide otherwise and public shall not be prejudiced." 8 The PNOC-EDC did not, however, share the Undersecretary's views. On January 26, 1989, the PNOC-EDC, through Marcelino Tongco (Manager, Engineering and Construction Department), notified Manuel S. Pineda in writing (1) that after having given him "ample time" to make some major adjustments before . . . separation from the company," his employment was being terminated pursuant to Section 66 of the Omnibus Election Code, effective upon receipt of notice, and (2) that he was entitled to "proper compensation" for the services rendered by him from the time he filed his certificate of candidacy until his actual separation from the service. 9 On October 16, 1989, Pineda lodged a complaint for illegal dismissal in the Regional Arbitration Branch No. VIII, NLRC, Tacloban City. Impleaded as respondents were the PNOC-EDC and the Manager of its Engineering and Construction Department, Marcelino M. Tongco. 10 After due proceedings, Labor Arbiter Araceli H. Maraya, to whom the case was assigned, rendered a decision on December 28, 1990, 11 declaring Manuel S. Pineda's dismissal from the service illegal, and ordering his reinstatement to his former position without loss of seniority rights and payment of full back wages corresponding to the period from his illegal dismissal up to the time of actual reinstatement. The Arbiter pointed out that the ruling relied upon by PNOC-EDC to justify Pineda's dismissal from the service, i.e., NHA v. Juco, 12 had already been abandoned; and that "as early as November 29, 1988," the governing principle laid down by case law in light of Section 2 (1), Article IX-B of the 1987 Constitution 13 has been that government-owned or controlled corporations incorporated under the Corporation Code, the general law as distinguished from those created by special charter are not deemed to be within the coverage of the Civil Service Law, and consequently their employees, like those of the PNOC-EDC, are subject to the provisions of the Labor Code rather than the Civil Service Law. 14 The PNOC-EDC filed an appeal with the National Labor Relations Commission. The latter dismissed the appeal for lack of merit in a decision dated April 24, 1991. 15 PNOC-EDC sought reconsideration; 16 its motion was denied by the Commission in a Resolution dated June 21, 1991. 17 It is this decision of April 24, 1991 and the Resolution of June 21, 1991 that the PNOC-EDC seeks to be annulled and set aside in the special civil action for certiorari at bar. It contends that the respondent Commission gravely abused its discretion: 1) when it ruled that Manuel S. Pineda was not covered by the Civil Service Rules when he filed his candidacy for the 1988 local government elections in November 1987;

NARVASA, C.J.: The applicability to private respondent Manuel S. Pineda of Section 66 of the Election Code is what is chiefly involved in the case at bar. Said section reads as follows: Sec. 66. Candidates holding appointive office or position. 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. Manuel S. Pineda was employed with the Philippine National Oil Co.-Energy Development Corp. (PNOC-EDC), as subsidiary of the Philippine National Oil Co., from September 17, 1981, when he was hired as clerk, to January 26, 1989, when his employment was terminated. The events leading to his dismissal from his job are not disputed. In November, 1987, while holding the position of Geothermal Construction Secretary, Engineering and Construction Department, at Tongonan Geothermal Project, Ormoc City, Pineda decided to run for councilor of the Municipality of Kananga, Leyte, in the local elections scheduled in January, 1988, and filed the corresponding certificate of candidacy for the position. Objection to Pineda's being a candidate while retaining his job in the PNOC-EDC was shortly thereafter registered by Mayor Arturo Cornejos of Kananga, Leyte. The mayor communicated with the PNOC-EDC thru Engr. Ernesto Patanao, Resident Manager, Tongonan Geothermal Project to express the view that Pineda could not actively participate in politics unless he officially resigned from PNOCEDC. 1 Nothing seems to have resulted from this protest. The local elections in Leyte, scheduled for January, 1988, were reset to and held on February 1, 1988. Pineda was among the official candidates voted for, and eventually proclaimed elected to, the office of councilor. Some vacillation appears to have been evinced by Pineda at about this time. On February 8, 1988, he wrote to the COMELEC Chairman, expressing his desire to withdraw from the political contest on account of what he considered to be election irregularities; 2 and on March 19, 1988, he wrote to the Secretary of Justice seeking legal opinion on the question, among others, of whether or not he was "considered automatically resigned upon . . . filing of . . . (his) certificate of candidacy," and whether or not, in case he was elected, he could "remain appointed to any corporate offspring of a government-owned or controlled corporation." 3 Nevertheless, Pineda took his oath of office in June, 1988 as councilor-elect of the Municipality of Kananga, Leyte. 4 And despite so qualifying as councilor, and assuming his duties as such, he continued working for PNOCEDC as the latter's Geothermal Construction Secretary, Engineering and Construction Department, at Tongonan Geothermal Project, Ormoc City.

2) when it ruled that Pineda was not covered by the Omnibus Election Code at the time he filed his certificate of candidacy for the 1988 local elections; 3) when it ruled that Pineda was illegally dismissed despite the fact that he was considered automatically resigned pursuant to Section 66 of the Omnibus Election Code; and 4) when it ruled that Pineda could occupy a local government position and be simultaneously employed in a government-owned or controlled corporation, a situation patently violative of the constitutional prohibition on additional compensation. Acting on the petition, this Court issued a temporary restraining order enjoining the respondent NLRC from implementing or enforcing its decision and resolution dated April 24, 1991 and June 21, 1991, respectively. In the comment required of him by the Court, the Solicitor General expressed agreement with the respondent Commission's holding that Manuel Pineda had indeed been illegally separated from his employment in the PNOC-EDC; in other words, that his running for public office and his election thereto had no effect on his employment with the PNOC-EDC, a corporation not embraced within the Civil Service. Petitioner PNOC-EDC argues that at the time that Pineda filed his certificate of candidacy for municipal councilor in November, 1987, the case law "applicable as far as coverage of governmentowned or controlled corporations are concerned . . . ( was to the following effect): 18 As correctly pointed out by the Solicitor General, the issue of jurisdiction had been resolved in a string of cases starting with the National Housing Authority vs. Juco (134 SCRA 172) followed byMetropolitan Waterworks and Sewerage System vs. Hernandez (143 SCRA 602) and the comparatively recent case of Quimpo vs. Sandiganbayan (G.R. No. 72553, Dec. 2, 1986) in which this Court squarely ruled that PNOC subsidiaries, whether or not originally created as government-owned or controlled corporations are governed by the Civil Service Law. This doctrine, petitioner further argues, was not "automatically reversed" by the 1987 Constitution because not "amended or repealed by the Supreme Court or the Congress;" 19 and this Court's decision in November, 1988, inNational Service Corporation vs. NLRC, supra 20 abandoning the Juco ruling "cannot be given retroactive effect . . . (in view of ) the time-honored principle . . . that laws (judicial decisions included) shall have no retroactive effect, unless the contrary is provided (Articles 4 and 8 of the New Civil Code of the Philippines)." Section 2 (1), Article IX of the 1987 Constitution provides as follows: The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. Implicit in the provision is that government-owned or controlled corporations without original charters i.e., organized under the general law, the Corporation Code are not comprehended within the Civil Service Law. So has this Court construed the provision. 21 In National Service Corporation (NASECO), et al. v. NLRC, et al., etc., 22 decided on November 29, 1988, it was ruled that the 1987 Constitution "starkly varies" from the 1973 charter upon which the Juco doctrine rested in that unlike the latter, the present constitution qualifies the term, "government-owned or controlled corporations," by the phrase, "with original charter;" hence, the clear implication is that the Civil Service no longer includes government-owned or controlled corporations without original charters, i.e., those organized under the general corporation law. 23 NASECO further ruled that the Juco ruling should not apply retroactively, considering that

prior to its promulgation on January 17, 1985, this Court had expressly recognized the applicability of the Labor Code to government-owned or controlled corporations. 24 Lumanta, et al. v. NLRC, et al., 25 decided on February 8, 1989, made the same pronouncement: that Juco had been superseded by the 1987 Constitution for implicit in the language of Section 2 (1), Article IX thereof, is the proposition that government-owned or controlled corporations without original charter do not fall under the Civil Service Law but under the Labor Code. And in PNOC-EDC v. Leogardo, etc., et al., 26 promulgated on July 5, 1989, this Court ruled that conformably with the apparent intendment of the NASECO case, supra, since the PNOC-EDC, a government-owned or controlled company had been incorporated under the general Corporation Law, its employees are subject to the provisions of the Labor Code. It is thus clear that the Juco doctrine prevailing at the time of the effectivity of the fundamental charter in 1987 i.e., that government-owned or controlled corporations were part of the Civil Service and its employees subject to Civil Service laws and regulations, 27 regardless of the manner of the mode of their organization or incorporation is no longer good law, being at "stark variance," to paraphrase NASECO, with the 1987 Constitution. In other words, and contrary to the petitioner's view, as of the effectivity of the 1987 Constitution, government-owned or controlled corporations without original charters, or, as Mr. Justice Cruz insists in his concurring opinion inNASECO v. NLRC, 28 a legislative charter (i.e., those organized under the Corporation Code), ceased to pertain to the Civil Service and its employees could no longer be considered as subject to Civil Service Laws, rules or regulations. The basic question is whether an employee in a government-owned or controlled corporations without an original charter (and therefore not covered by Civil Service Law) nevertheless falls within the scope of Section 66 of the Omnibus Election Code, viz.: Sec. 66. Candidates holding appointive office or position. 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. When the Congress of the Philippines reviewed the Omnibus Election Code of 1985, in connection with its deliberations on and subsequent enactment of related and repealing legislation i.e., Republic Acts Numbered 7166: "An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes" (effective November 26, 1991), 6646: "An Act Introducing Additional Reforms in the Electoral System and for Other Purposes" (effective January 5, 1988) and 6636: "An Act Resetting the Local Elections, etc., (effective November 6, 1987), it was no doubt aware that in light of Section 2 (1), Article IX of the 1987 Constitution: (a) government-owned or controlled corporations were of two (2) categories those with original charters, and those organized under the general law and (b) employees of these corporations were of two (2) kinds those covered by the Civil Service Law, rules and regulations because employed in corporations having original charters, and those not subject to Civil Service Law but to the Labor Code because employed in said corporations organized under the general law, or the Corporation Code. Yet Congress made no effort to distinguish between these two classes of government-owned or controlled corporations or their employees in the Omnibus Election Code or subsequent related statutes, particularly as regards the rule that any employee "in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy." 29 Be this as it may, it seems obvious to the Court that a government-owned or controlled corporation does not lose its character as such because not possessed of an original charter but organized under the general law. If a corporation's capital stock is owned by the Government, or it is operated and managed by officers charged with the mission of fulfilling the public objectives for which it has been organized, it is a government-owned or controlled corporation even if organized under the Corporation Code and not under a special statute; and employees thereof, even if not covered by the Civil Service but by the Labor Code, are nonetheless "employees in government-owned or controlled corporations," and come within the letter of Section 66 of the Omnibus Election Code, declaring them "ipso facto resigned from . . . office upon the filing of . . . (their) certificate of candidacy."

What all this imports is that Section 66 of the Omnibus Election Code applies to officers and employees in government-owned or controlled corporations, even those organized under the general laws on incorporation and therefore not having an original or legislative charter, and even if they do not fall under the Civil Service Law but under the Labor Code. In other words, Section 66 constitutes just cause for termination of employment in addition to those set forth in the Labor Code, as amended. The conclusions here reached make unnecessary discussion and resolution of the other issues raised in this case. WHEREFORE, the petition is GRANTED; the decision of public respondent National Labor Relations Commission dated April 24, 1991 and its Resolution dated June 21, 1991 are NULLIFIED AND SET ASIDE; and the complaint of Manuel S. Pineda is DISMISSED. No costs. SO ORDERED. G.R. No. 189698 February 22, 2010

I. Procedural Issues First, we shall resolve the procedural issues on the timeliness of the COMELECs 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 COMELECs 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 intervenors 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

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 Courts 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 movantsintervenors 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.

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 Courts 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 Code 18 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. Treas): 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. Farias, 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 Farias, et al. v. Executive Secretary, et al.25 In Farias, 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 deemedresigned 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 Farias 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--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 Farias 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 Farias 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--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 VicePresident, 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." 47 In 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 statutes 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--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 Legislatures 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 Decisions 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. xxx 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 Acts 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) Oklahomas Merit System of Personnel Administration Act restricting the political activities of the States 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 Acts 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 crossreferring 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 Oklahomas 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. Pawtuckets "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 governments 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 Courts 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 ponencias 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 Decisions 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 ones 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, ones interest in seeking office, by itself, is not entitled to constitutional protection. 74 Moreover, one cannot bring ones 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 nonfundamental 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. Fashing 76 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--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-torun 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--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 Officials 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 statutes plainly legitimate sweep.87 In operational terms, measuring the substantiality of a statutes overbreadth would entail, among other things, a rough balancing of the number of valid applications compared to the number of potentially invalid applications.88In 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 partisannonpartisan 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.97 Instead, 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, 2009 101 even as her position as Justice Secretary includes supervision over the City and Provincial Prosecutors, 102 who, in turn, act as ViceChairmen 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 respondents and the intervenors Motions for Reconsideration; REVERSE and SET ASIDE this Courts 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. CIRILO R. VALLES, petitioner, vs. COMMISSION ROSALIND YBASCO LOPEZ, respondents. ON ELECTIONS and

DECISION PURISIMA, J.: This is a petition for certiorari under Rule 65, pursuant to Section 2, Rule 64 of the 1997 Rules of Civil Procedure, assailing Resolutions dated July 17, 1998 and January 15, 1999, respectively, of the Commission on Elections in SPA No. 98-336, dismissing the petition for disqualification filed by the herein petitioner, Cirilo R. Valles, against private respondent Rosalind Ybasco Lopez, in the May 1998 elections for governor of Davao Oriental. Rosalind Ybasco Lopez was born on May 16, 1934 in Napier Terrace, Broome, Western Australia, to the spouses, Telesforo Ybasco, a Filipino citizen and native of Daet, Camarines Norte, and Theresa Marquez, an Australian. In 1949, at the age of fifteen, she left Australia and came to settle in the Philippines. On June 27, 1952, she was married to Leopoldo Lopez, a Filipino citizen, at the Malate Catholic Church in Manila. Since then, she has continuously participated in the electoral process not only as a voter but as a candidate, as well. She served as Provincial Board Member of the Sangguniang Panlalawigan of Davao Oriental. In 1992, she ran for and was elected governor of Davao Oriental. Her election was contested by her opponent, Gil Taojo, Jr., in a petition for quo warranto, docketed as EPC No. 92-54, alleging as ground therefor her alleged Australian citizenship. However, finding no sufficient proof that respondent had renounced her Philippine citizenship, the Commission on Elections en banc dismissed the petition, ratiocinating thus: A cursory reading of the records of this case vis-a-vis the impugned resolution shows that respondent was able to produce documentary proofs of the Filipino citizenship of her late father... and consequently, prove her own citizenship and filiation by virtue of the Principle of Jus Sanguinis, the perorations of the petitioner to the contrary notwithstanding. On the other hand, except for the three (3) alleged important documents . . . no other evidence substantial in nature surfaced to confirm the allegations of petitioner that respondent is an Australian citizen and not a Filipino. Express renunciation of citizenship as a mode of losing citizenship under Commonwealth Act No. 63 is an equivocal and deliberate act with full awareness of its significance and consequence. The evidence adduced by petitioner are inadequate, nay meager, to prove that respondent contemplated renunciation of her Filipino citizenship.[1] In the 1995 local elections, respondent Rosalind Ybasco Lopez ran for re-election as governor of Davao Oriental. Her opponent, Francisco Rabat, filed a petition for disqualification, docketed as SPA No. 95-066 before the COMELEC, First Division, contesting her Filipino citizenship but the said petition was likewise dismissed by the COMELEC, reiterating substantially its decision in EPC 92-54. The citizenship of private respondent was once again raised as an issue when she ran for re-election as governor of Davao Oriental in the May 11, 1998 elections. Her candidacy was questioned by the herein petitioner, Cirilo Valles, in SPA No. 98-336. On July 17, 1998, the COMELECs First Division came out with a Resolution dismissing the petition, and disposing as follows: Assuming arguendo that res judicata does not apply and We are to dispose the instant case on the merits trying it de novo, the above table definitely shows that petitioner herein has presented no new evidence to disturb the Resolution of this Commission in SPA No. 95-066. The present petition merely restates the same matters and incidents already passed upon by this Commission not just in 1995 Resolution but likewise in the Resolution of EPC No. 92-54. Not having put forth any new evidence and matter substantial in nature, persuasive in character or sufficiently provocative to compel reversal of such Resolutions, the dismissal of the present petition follows as a matter of course. xxx....................................xxx....................................xxx

WHEREFORE, premises considered and there being no new matters and issues tendered, We find no convincing reason or impressive explanation to disturb and reverse the Resolutions promulgated by this Commission in EPC 92-54 and SPA. 95-066. This Commission RESOLVES as it hereby RESOLVES to DISMISS the present petition. SO ORDERED.[2] Petitioner interposed a motion for reconsideration of the aforesaid Resolution but to no avail. The same was denied by the COMELEC in its en banc Resolution of January 15, 1999. Undaunted, petitioner found his way to this Court via the present petition; questioning the citizenship of private respondent Rosalind Ybasco Lopez. The Commission on Elections ruled that private respondent Rosalind Ybasco Lopez is a Filipino citizen and therefore, qualified to run for a public office because (1) her father, Telesforo Ybasco, is a Filipino citizen, and by virtue of the principle of jus sanguinis she was a Filipino citizen under the 1987 Philippine Constitution; (2) she was married to a Filipino, thereby making her also a Filipino citizen ipso jure under Section 4 of Commonwealth Act 473; (3) and that, she renounced her Australian citizenship on January 15, 1992 before the Department of Immigration and Ethnic Affairs of Australia and her Australian passport was accordingly cancelled as certified to by the Australian Embassy in Manila; and (4) furthermore, there are the COMELEC Resolutions in EPC No. 92-54 and SPA Case No. 95-066, declaring her a Filipino citizen duly qualified to run for the elective position of Davao Oriental governor. Petitioner, on the other hand, maintains that the private respondent is an Australian citizen, placing reliance on the admitted facts that: a) In 1988, private respondent registered herself with the Bureau of Immigration as an Australian national and was issued Alien Certificate of Registration No. 404695 dated September 19, 1988; b) On even date, she applied for the issuance of an Immigrant Certificate of Residence (ICR), and c) She was issued Australian Passport No. H700888 on March 3, 1988. Petitioner theorizes that under the aforestated facts and circumstances, the private respondent had renounced her Filipino citizenship. He contends that in her application for alien certificate of registration and immigrant certificate of residence, private respondent expressly declared under oath that she was a citizen or subject of Australia; and said declaration forfeited her Philippine citizenship, and operated to disqualify her to run for elective office. As regards the COMELECs finding that private respondent had renounced her Australian citizenship on January 15, 1992 before the Department of Immigration and Ethnic Affairs of Australia and had her Australian passport cancelled on February 11, 1992, as certified to by the Australian Embassy here in Manila, petitioner argues that the said acts did not automatically restore the status of private respondent as a Filipino citizen. According to petitioner, for the private respondent to reacquire Philippine citizenship she must comply with the mandatory requirements for repatriation under Republic Act 8171; and the election of private respondent to public office did not mean the restoration of her Filipino citizenship since the private respondent was not legally repatriated. Coupled with her alleged renunciation of Australian citizenship, private respondent has effectively become a stateless person and as such, is disqualified to run for a public office in the Philippines; petitioner concluded. Petitioner theorizes further that the Commission on Elections erred in applying the principle of res judicata to the case under consideration; citing the ruling in Moy Ya Lim Yao vs. Commissioner of Immigration,[3] that: xxx Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding court or administrative authority decides

therein as to such citizenship is generally not considered as res adjudicata, hence it has to be threshed out again and again as the occasion may demand. xxx The petition is unmeritorious. The Philippine law on citizenship adheres to the principle of jus sanguinis. Thereunder, a child follows the nationality or citizenship of the parents regardless of the place of his/her birth, as opposed to the doctrine of jus soli which determines nationality or citizenship on the basis of place of birth. Private respondent Rosalind Ybasco Lopez was born on May 16, 1934 in Napier Terrace, Broome, Western Australia, to the spouses, Telesforo Ybasco, a Filipino citizen and native of Daet, Camarines Norte, and Theresa Marquez, an Australian. Historically, this was a year before the 1935 Constitution took into effect and at that time, what served as the Constitution of the Philippines were the principal organic acts by which the United States governed the country. These were the Philippine Bill of July 1, 1902 and the Philippine Autonomy Act of August 29, 1916, also known as the Jones Law. Among others, these laws defined who were deemed to be citizens of the Philippine islands. The Philippine Bill of 1902 defined Philippine citizens as: SEC. 4 xxx all inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in the Philippine Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain signed at Paris December tenth, eighteen hundred and ninety-eight. (underscoring ours) The Jones Law, on the other hand, provides: SEC. 2 That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris December tenth, eighteen hundred and ninety-eight, and except such others as have since become citizens of some other country: Provided, That the Philippine Legislature, herein provided for, is hereby authorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who cannot come within the foregoing provisions, the natives of the insular possessions of the United States, and such other persons residing in the Philippine Islands who are citizens of the United States, or who could become citizens of the United States under the laws of the United States if residing therein. (underscoring ours) Under both organic acts, all inhabitants of the Philippines who were Spanish subjects on April 11, 1899 and resided therein including their children are deemed to be Philippine citizens. Private respondents father, Telesforo Ybasco, was born on January 5, 1879 in Daet, Camarines Norte, a fact duly evidenced by a certified true copy of an entry in the Registry of Births. Thus, under the Philippine Bill of 1902 and the Jones Law, Telesforo Ybasco was deemed to be a Philippine citizen. By virtue of the same laws, which were the laws in force at the time of her birth, Telesforos daughter, herein private respondent Rosalind Ybasco Lopez, is likewise a citizen of the Philippines. The signing into law of the 1935 Philippine Constitution has established the principle of jus sanguinis as basis for the acquisition of Philippine citizenship, to wit: (1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution. (2) Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution had been elected to public office in the Philippine Islands. (3) Those whose fathers are citizens of the Philippines.

(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine citizenship. (5) Those who are naturalized in accordance with law. So also, the principle of jus sanguinis, which confers citizenship by virtue of blood relationship, was subsequently retained under the 1973 [4] and 1987[5] Constitutions. Thus, the herein private respondent, Rosalind Ybasco Lopez, is a Filipino citizen, having been born to a Filipino father. The fact of her being born in Australia is not tantamount to her losing her Philippine citizenship. If Australia follows the principle of jus soli, then at most, private respondent can also claim Australian citizenship resulting to her possession of dual citizenship. Petitioner also contends that even on the assumption that the private respondent is a Filipino citizen, she has nonetheless renounced her Philippine citizenship. To buttress this contention, petitioner cited private respondents application for an Alien Certificate of Registration (ACR) and Immigrant Certificate of Residence (ICR), on September 19, 1988, and the issuance to her of an Australian passport on March 3, 1988. Under Commonwealth Act No. 63, a Filipino citizen may lose his citizenship: (1) By naturalization in a foreign country; (2) By express renunciation of citizenship; (3) By subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining twenty-one years of age or more; (4) By accepting commission in the military, naval or air service of a foreign country; (5) By cancellation of the certificate of naturalization; (6) By having been declared by competent authority, a deserter of the Philippine armed forces in time of war, unless subsequently, a plenary pardon or amnesty has been granted: and (7) In case of a woman, upon her marriage, to a foreigner if, by virtue of the laws in force in her husbands country, she acquires his nationality. In order that citizenship may be lost by renunciation, such renunciation must be express. Petitioners contention that the application of private respondent for an alien certificate of registration, and her Australian passport, is bereft of merit. This issue was put to rest in the case of Aznar vs. COMELEC[6] and in the more recent case of Mercado vs. Manzano and COMELEC.[7] In the case of Aznar, the Court ruled that the mere fact that respondent Osmena was a holder of a certificate stating that he is an American did not mean that he is no longer a Filipino, and that an application for an alien certificate of registration was not tantamount to renunciation of his Philippine citizenship. And, in Mercado vs. Manzano and COMELEC, it was held that the fact that respondent Manzano was registered as an American citizen in the Bureau of Immigration and Deportation and was holding an American passport on April 22, 1997, only a year before he filed a certificate of candidacy for vice-mayor of Makati, were just assertions of his American nationality before the termination of his American citizenship. Thus, the mere fact that private respondent Rosalind Ybasco Lopez was a holder of an Australian passport and had an alien certificate of registration are not acts constituting an effective renunciation of citizenship and do not militate against her claim of Filipino citizenship. For renunciation to effectively result in the loss of citizenship, the same must be express.[8]As held by this court in the aforecited case of Aznar, an application for an alien certificate of registration does not amount to an express renunciation or repudiation of ones citizenship. The application of the herein private respondent for an alien certificate of registration, and her holding of an Australian passport, as in the case of Mercado vs. Manzano, were mere acts of assertion of her Australian citizenship before she effectively renounced the same. Thus, at the most, private respondent had dual citizenship - she was an Australian and a Filipino, as well.

Moreover, under Commonwealth Act 63, the fact that a child of Filipino parent/s was born in another country has not been included as a ground for losing ones Philippine citizenship. Since private respondent did not lose or renounce her Philippine citizenship, petitioners claim that respondent must go through the process of repatriation does not hold water. Petitioner also maintains that even on the assumption that the private respondent had dual citizenship, still, she is disqualified to run for governor of Davao Oriental; citing Section 40 of Republic Act 7160 otherwise known as the Local Government Code of 1991, which states: SEC. 40. Disqualifications. The following persons are disqualified from running for any elective local position: xxx....................................xxx....................................xxx (d) Those with dual citizenship; xxx....................................xxx....................................xxx Again, petitioners contention is untenable. In the aforecited case of Mercado vs. Manzano, the Court clarified dual citizenship as used in the Local Government Code and reconciled the same with Article IV, Section 5 of the 1987 Constitution on dual allegiance. [9] Recognizing situations in which a Filipino citizen may, without performing any act, and as an involuntary consequence of the conflicting laws of different countries, be also a citizen of another state, the Court explained that dual citizenship as a disqualification must refer to citizens with dual allegiance. The Court succinctly pronounced: xxx the phrase dual citizenship in R.A. No. 7160, xxx 40 (d) and in R.A. No. 7854, xxx 20 must be understood as referring to dual allegiance. Consequently, persons with mere dual citizenship do not fall under this disqualification. Thus, the fact that the private respondent had dual citizenship did not automatically disqualify her from running for a public office. Furthermore, it was ruled that for candidates with dual citizenship, it is enough that they elect Philippine citizenship upon the filing of their certificate of candidacy, to terminate their status as persons with dual citizenship.[10] The filing of a certificate of candidacy sufficed to renounce foreign citizenship, effectively removing any disqualification as a dual citizen.[11] This is so because in the certificate of candidacy, one declares that he/she is a Filipino citizen and that he/she will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto. Such declaration, which is under oath, operates as an effective renunciation of foreign citizenship. Therefore, when the herein private respondent filed her certificate of candidacy in 1992, such fact alone terminated her Australian citizenship. Then, too, it is significant to note that on January 15 1992, private respondent executed a Declaration of Renunciation of Australian Citizenship, duly registered in the Department of Immigration and Ethnic Affairs of Australia on May 12, 1992. And, as a result, on February 11, 1992, the Australian passport of private respondent was cancelled, as certified to by Second Secretary Richard F. Munro of the Embassy of Australia in Manila. As aptly appreciated by the COMELEC, the aforesaid acts were enough to settle the issue of the alleged dual citizenship of Rosalind Ybasco Lopez. Since her renunciation was effective, petitioners claim that private respondent must go through the whole process of repatriation holds no water. Petitioner maintains further that when citizenship is raised as an issue in judicial or administrative proceedings, the resolution or decision thereon is generally not considered res judicata in any subsequent proceeding challenging the same; citing the case of Moy Ya Lim Yao vs. Commissioner of Immigration.[12] He insists that the same issue of citizenship may be threshed out anew. Petitioner is correct insofar as the general rule is concerned, i.e. the principle of res judicata generally does not apply in cases hinging on the issue of citizenship. However, in the case of Burca vs. Republic,[13] an exception to this general rule was recognized. The Court ruled in that case that in order that the doctrine of res judicata may be applied in cases of citizenship, the following must be present:

1) a persons citizenship be raised as a material issue in a controversy where said person is a party; 2) the Solicitor General or his authorized representative took active part in the resolution thereof, and 3) the finding on citizenship is affirmed by this Court. Although the general rule was set forth in the case of Moy Ya Lim Yao, the case did not foreclose the weight of prior rulings on citizenship. It elucidated that reliance may somehow be placed on these antecedent official findings, though not really binding, to make the effort easier or simpler.[14] Indeed, there appears sufficient basis to rely on the prior rulings of the Commission on Elections in SPA. No. 95-066 and EPC 92-54 which resolved the issue of citizenship in favor of the herein private respondent. The evidence adduced by petitioner is substantially the same evidence presented in these two prior cases. Petitioner failed to show any new evidence or supervening event to warrant a reversal of such prior resolutions. However, the procedural issue notwithstanding, considered on the merits, the petition cannot prosper. WHEREFORE, the petition is hereby DISMISSED and the COMELEC Resolutions, dated July 17, 1998 and January 15, 1999, respectively, in SPA No. 98-336 AFFIRMED. Private respondent Rosalind Ybasco Lopez is hereby adjudged qualified to run for governor of Davao Oriental. No pronouncement as to costs. SO ORDERED.

WHEREFORE, premises considered, the instant Petition for Disqualification is GRANTED and respondent Eusebio Eugenio K. Lopez is DISQUALIFIED from running as Barangay Chairman of Barangay Bagacay, San Dionisio, Iloilo. SO ORDERED.[7] In ruling against petitioner, the COMELEC found that he was not able to regain his Filipino citizenship in the manner provided by law. According to the poll body, to be able to qualify as a candidate in the elections, petitioner should have made a personal and sworn renunciation of any and all foreign citizenship. This, petitioner failed to do. His motion for reconsideration having been denied, petitioner resorted to the present petition, imputing grave abuse of discretion on the part of the COMELEC for disqualifying him from running and assuming the office of Barangay Chairman. We dismiss the petition. Relying on Valles v. Commission on Elections,[8] petitioner argues that his filing of a certificate of candidacy operated as an effective renunciation of foreign citizenship. We note, however, that the operative facts that led to this Court's ruling in Valles are substantially different from the present case. In Valles, the candidate, Rosalind Ybasco Lopez, was a dual citizen by accident of birth on foreign soil. [9] Lopez was born of Filipino parents in Australia, a country which follows the principle of jus soli. As a result, she acquired Australian citizenship by operation of Australian law, but she was also considered a Filipino citizen under Philippine law. She did not perform any act to swear allegiance to a country other than the Philippines. In contrast, petitioner was born a Filipino but he deliberately sought American citizenship and renounced his Filipino citizenship. He later on became a dual citizen by re-acquiring Filipino citizenship. More importantly, the Court's 2000 ruling in Valles has been superseded by the enactment of R.A. No. 9225[10] in 2003. R.A. No. 9225 expressly provides for the conditions before those who reacquired Filipino citizenship may run for a public office in the Philippines. Section 5 of the said law states: Section 5. Civil and Political Rights and Liabilities. - Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: xxxx (2) Those seeking elective public office in the Philippines shall meet the qualification 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. (Emphasis added) Petitioner re-acquired his Filipino citizenship under the cited law. This new law explicitly provides that should one seek elective public office, he should first "make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath." Petitioner failed to comply with this requirement. We quote with approval the COMELEC observation on this point: While respondent was able to regain his Filipino Citizenship by virtue of the Dual Citizenship Law when he took his oath of allegiance before the Vice Consul of the Philippine Consulate General's Office in Los Angeles, California, the same is not enough to allow him to run for a public office. The above-quoted provision of law mandates that a candidate with dual citizenship must make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. There is no evidence presented that will show that respondent complied with the provision of R.A. No. 9225. Absent such proof we cannot allow

[G.R. No. 182701, July 23, 2008] EUSEBIO EUGENIO K. LOPEZ, PETITIONER, VS. COMMISSION ON ELECTIONS AND TESSIE P. VILLANUEVA, RESPONDENTS. RESOLUTION REYES, R.T., J.: A Filipino-American or any dual citizen cannot run for any elective public position in the Philippines unless he or she personally swears to a renunciation of all foreign citizenship at the time of filing the certificate of candidacy. This is a petition for certiorari under Rule 65, in relation to Rule 64 of the Rules on Civil Procedure assailing the (1) Resolution[1] and (2) Omnibus Order [2] of the Commission on Elections (COMELEC), Second Division, disqualifying petitioner from running as Barangay Chairman. Petitioner Eusebio Eugenio K. Lopez was a candidate for the position of Chairman of Barangay Bagacay, San Dionisio, Iloilo City in the synchronized Barangay and Sangguniang Kabataan Elections held on October 29, 2007. On October 25, 2007, respondent Tessie P. Villanueva filed a petition [3] before the Provincial Election Supervisor of the Province of Iloilo, praying for the disqualification of petitioner on the ground that he is an American citizen, hence, ineligible from running for any public office. In his Answer,[4] petitioner argued that he is a dual citizen, a Filipino and at the same time an American, by virtue of Republic Act (R.A.) No. 9225, otherwise known as the Citizenship Retention and Reacquisition Act of 2003.[5] He returned to the Philippines and resided in Barangay Bagacay. Thus, he said, he possessed all the qualifications to run for Barangay Chairman. After the votes for Barangay Chairman were canvassed, petitioner emerged as the winner. [6] On February 6, 2008, COMELEC issued the assailed Resolution granting the petition for disqualification, disposing as follows:

respondent to run for Barangay Chairman of Barangay Bagacay. For the renunciation to be valid, it must be contained in an affidavit duly executed before an officer of law who is authorized to administer an oath. The affiant must state in clear and unequivocal terms that he is renouncing all foreign citizenship for it to be effective. In the instant case, respondent Lopez's failure to renounce his American citizenship as proven by the absence of an affidavit that will prove the contrary leads this Commission to believe that he failed to comply with the positive mandate of law. For failure of respondent to prove that he abandoned his allegiance to the United States, this Commission holds him disqualified from running for an elective position in the Philippines.[11] (Emphasis added) While it is true that petitioner won the elections, took his oath and began to discharge the functions of Barangay Chairman, his victory can not cure the defect of his candidacy. Garnering the most number of votes does not validate the election of a disqualified candidate because the application of the constitutional and statutory provisions on disqualification is not a matter of popularity. [12] In sum, the COMELEC committed no grave abuse of discretion in disqualifying petitioner as candidate for Chairman in the Barangay elections of 2007. WHEREFORE, the petition is DISMISSED. SO ORDERED.

Before the 11th May 1992 elections, a petition for cancellation (SPA 92-065) of respondent's certificate of candidacy, on the ground of the candidate's disqualification under Section 40(e) of the Local Government Code, was filed by petitioner with the COMELEC. On 08 May 1992, the COMELEC dismissed the petition. Petitioner's subsequent recourse to this Court (in G.R. No. 105310) from the 08th May 1992 resolution of COMELEC was dismissed without prejudice, however, to the filing in due time of a possible post-election quo warranto proceeding against private respondent. The Court, in its resolution of 02 June 1992, held: Evidently, the matter elevated to this Court was a pre-proclamation controversy. Since the private respondent had already been proclaimed as the duly elected Governor of the Province of Quezon, the petition below for disqualification has ceased to be a pre-proclamation controversy. In Casimiro vs. Commission on Elections, G.R. Nos. 84462-63 and Antonio vs. Commission on Elections, G.R. Nos. 84678-79, jointly decided on 29 March 1989, 171 SCRA 468, this court held that a pre-proclamation controversy is no longer viable at this point of time and should be dismissed. The proper remedy of the petitioner is to pursue the disqualification suit in a separate proceeding. ACCORDINGLY, the Court Resolved to DISMISS the petition, without prejudice to the filing of the appropriate proceedings in the proper forum, if so desired, within ten (10) days from notice. 1 Private respondent was proclaimed Governor-elect of Quezon on 29 May 1992. Forthwith, petitioner instituted quo warranto proceedings (EPC 92-28) against private respondent before the COMELEC. In its 02 February 1993 resolution, the COMELEC (Second Division) dismissed the petition. The COMELEC En Banc, on 02 December 1993, denied a reconsideration of the resolution. Hence, this petition for certiorari, the core issue of which, such as to be expected, focuses on whether private respondent who, at the time of the filing of his certificate of candidacy (and to date), is said to be facing a criminal charge before a foreign court and evading a warrant for his arrest comes within the term "fugitive from justice" contemplated by Section 40(e) of the Local Government Code and, therefore, disqualified from being a candidate for, and thereby ineligible from holding on to, an elective local office. Petitioner's position is perspicuous and to the point. The law, he asseverates, needs no further interpretation and construction. Section 40(e) of Republic Act No. 7160, is rather clear, he submits, and it disqualifies "fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged flee to avoid prosecution. This definition truly finds support from jurisprudence (Philippine Law Dictionary, Third Edition, p. 399, by F.B. Moreno; Black's Law Dictionary, Sixth Edition, p. 671; King vs. Noe, 244 S.C. 344, 137 S.E. 2d 102, 103; Hughes vs. PFlanz, 138 Federal Reporter 980; Tobin vs. Casaus, 275 Pacific Reporter, 2d., p. 792), and it may be so conceded as expressing the general and ordinary connotation of the term. In turn, private respondent would have the Court respect the conclusions of the Oversight Committee which, conformably with Section 533 2 of R.A. 7160, was convened by the President to "formulate and issue the appropriate rules and regulations necessary for the efficient and effective implementation of any and all provisions of the Code to ensure compliance with the principles of Local Autonomy. Here are some excerpts from the committee's deliberations: CHAIRMAN MERCADO. Session is resumed.

G.R. No. 112889 April 18, 1995 BIENVENIDO O. MARQUEZ, JR., petitioner, vs. COMMISSION ON ELECTIONS and EDUARDO T. RODRIGUEZ, respondents.

VITUG, J.: The Court is called upon, in this petition for certiorari, to resolve the conflicting claims of the parties on the meaning of the term "fugitive from justice as that phrase is so used under the provisions of Section 40(e) of the Local Government Code (Republic Act No. 7160). That law states: Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position: xxx xxx xxx (e) Fugitive from justice in criminal or non-political cases here or abroad(.) Bienvenido Marquez, a defeated candidate for the elective position for the elective position in the Province of Quezon in the 11th May 1992 elections filed this petition for certiorari praying for the reversal of the resolution of the Commission on Elections ("COMELEC") which dismissed his petition for quo warranto against the winning candidate, herein private respondent Eduardo Rodriguez, for being allegedly a fugitive from justice. It is averred that at the time private respondent filed his certificate of candidacy, a criminal charge against him for ten (10) counts of insurance fraud or grand theft of personal property was still pending before the Municipal Court of Los Angeles Judicial District, County of Los Angeles, State of California, U.S.A. A warrant issued by said court for his arrest, it is claimed, has yet to be served on private respondent on account of his alleged "flight" from that country.

So, we are in agreement to retain Line 12, Page 36, as is. So next, Page 39. CHAIRMAN DE PEDRO. Kay Benny Marquez.

REP. CUENCO: What does he want? CHAIRMAN DE PEDRO. Kung puwede i-retain lang iyan. Bahala na kung kuwestiyunin ang constitutionality nito before the Supreme Court later on. REP. CUENCO. Anong nakalagay diyan? CHAIRMAN DE PEDRO. Iyong disqualification to run for public office. Any person who is a fugitive from justice in criminal or nonpolitical cases here or abroad. Mabigat yung abroad. One who is facing criminal charges with the warrant of arrest pending, unserved. . . HONORABLE SAGUISAG. I think that is even a good point, ano what is a fugitive? It is not defined. We have loose understanding. . . CHAIRMAN DE PEDRO. So isingit na rin sa definition of terms iyong fugitive. Si Benny umalis na, with the understanding na okay na sa atin ito. THE CHAIRMAN. Whether we have this rule or not she can run. She is not a fugitive from justice. Mrs. Marcos can run at this point and I have held that for a long time ago. So can. . . MS. DOCTOR. Mr. Chairman. . . THE CHAIRMAN. Yes. MS. DOCTOR. Let's move to. . . THE CHAIRMAN. Wait, wait, wait. Can we just agree on the wording, this is very important. Manny, can you come up? MR. REYES. Let's use the word conviction by final judgment. THE CHAIRMAN. Fugitive means somebody who is convicted by final judgment. Okay,. Fugitive means somebody who is convicted by final judgment. Insert that on Line 43 after the semi-colon. Is that approved? No objection, approved (TSN, Oversight Committee, 07 May 1991). xxx xxx xxx THE CHAIRMAN. Andy, saan ba naman itong amendment on page 2? Sino ba ang gumawa nito? Okay, on page 2,

lines 43 and 44, "fugitive from justice". What "fugitive"? Sino ba ang gumawa nito, ha? MR. SANCHEZ. Yes, I think, well, last time, Mr. Chairman, we agree to clarify the word "fugitive". THE CHAIRMAN. "Fugitive from justice means a person" ba ito, ha? MR. SANCHEZ. Means a person... THE CHAIRMAN. Ha? HON. REYES. A person who has been convicted. THE CHAIRMAN; Yes, fugitive from justice, oo. Fugitive from justice shall mean or means one who has been convicted by final judgment. It means one who has been convicted by final judgment. HON. DE PEDRO. Kulang pa rin ang ibig sabihin niyan. THE CHAIRMAN. Ano? Sige, tingnan natin. HON. DE PEDRO. Kung nasa loob ng presuhan, fugitive pa rin siya? THE CHAIRMAN. O, tama na yan, fugitive from justice. He has been convicted by final judgment, meaning that if he is simply in jail and because he put up, post bail, but the case is still being reviewed, that is not yet conviction by final judgment. 3 The Oversight Committee evidently entertained serious apprehensions on the possible constitutional infirmity of Section 40(e) of Republic Act No. 7160 if the disqualification therein meant were to be so taken as to embrace those who merely were facing criminal charges. A similar concern was expressed by Senator R. A. V. Saguisag who, during the bicameral conference committee of the Senate and the House of Representatives, made this reservation: . . . de ipa-refine lang natin 'yung language especially 'yung, the scope of fugitive. Medyo bothered ako doon, a. 4 The Oversight Committee finally came out with Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991. It provided: Art. 73. Disqualifications. The following persons shall be disqualified from running for any elective local position: (a) . . . (e) Fugitives from justice in criminal or non-political cases here or abroad. Fugitive from justice refers to a person who has been convicted by final judgment. 5 (Emphasis supplied) Private respondent reminds us that the construction placed upon law by the officials in charge of its enforcement deserves great and considerable weight (Atlas Consolidated Mining and Development

Corp. vs. CA, 182 SCRA 166, 181). The Court certainly agrees; however, when there clearly is no obscurity and ambiguity in an enabling law, it must merely be made to apply as it is so written. An administrative rule or regulation can neither expand nor constrict the law but must remain congruent to it. The Court believes and thus holds, albeit with some personal reservations of the ponente (expressed during the Court's en banc deliberations), that Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991, to the extent that it confines the term "fugitive from justice" to refer only to a person (the fugitive) "who has been convicted by final judgment." is an inordinate and undue circumscription of the law. Unfortunately, the COMELEC did not make any definite finding on whether or not, in fact, private respondent is a "fugitive from justice" as such term must be interpreted and applied in the light of the Court's opinion. The omission is understandable since the COMELEC dismissed outrightly the petition for quo warranto on the basis instead of Rule 73 of the Rules and Regulations promulgated by the Oversight Committee. The Court itself, not being a trier of facts, is thus constrained to remand the case to the COMELEC for a determination of this unresolved factual matter. WHEREFORE, the questioned resolutions of the Commission on Elections are REVERSED and SET ASIDE, and the case is hereby REMANDED to the Commission which is DIRECTED to proceed and resolve the case with dispatch conformably with the foregoing opinion. No special pronouncement on costs. SO ORDERED G.R. No. 120099 July 24, 1996 EDUARDO T. RODRIGUEZ, petitioner, vs. COMMISSION ON ELECTIONS, BIENVENIDO O. MARQUEZ, JR., respondents.

. . . , "fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution. This definition truly finds support from jurisprudence (. . .), and it may be so conceded as expressing the general and ordinary connotation of the term. 1 Whether or not Rodriguez is a "fugitive from justice" under the definition thus given was not passed upon by the Court. That task was to devolve on the COMELEC upon remand of the case to it, with the directive to proceed therewith with dispatch conformably with the MARQUEZ Decision. Rodriguez sought a reconsideration thereof. He also filed an "Urgent Motion to Admit Additional Argument in Support of the Motion for Reconsideration" to which was attached a certification from the Commission on Immigration showing that Rodriguez left the US on June 25, 1985 roughly five (5) months prior to the institution of the criminal complaint filed against him before the Los Angeles court. The Court however denied a reconsideration of the MARQUEZ Decision. In the May 8, 1995 election, Rodriguez and Marquez renewed their rivalry for the same position of governor. This time, Marquez challenged Rodriguez' candidacy via petition for disqualification before the COMELEC, based principally on the same allegation that Rodriguez is a "fugitive from justice." This petition for disqualification (SPA No. 95-089) was filed by Marquez on April 11, 1995 when Rodriguez' petition forcertiorari (112889) from where the April 18, 1995 MARQUEZ Decision sprung was still then pending before the Court. On May 7, 1995 and after the promulgation of the MARQUEZ Decision, the COMELEC promulgated a Consolidated Resolution for EPC No. 92-28 (quo warranto case) and SPA NO. 95-089 (disqualification case). In justifying a joint resolution of these two (2) cases, the COMELEC explained that: 1. EPC No. 92-28 and SPA No. 95-089 are inherently related cases 2. the parties, facts and issue involved are identical in both cases

FRANCISCO, J.:p Petitioner Eduardo T. Rodriguez and private respondent Bienvenido O. Marquez Jr. (Rodriguez and Marquez, for brevity) were protagonists for the gubernatorial post of Quezon Province in the May 1992 elections. Rodriguez won and was proclaimed dulyelected governor. Marquez challenged Rodriguez' victory via petition for quo warranto before the COMELEC (EPC No. 92-28). Marquez revealed that Rodriguez left the United States where a charge, filed on November 12, 1985, is pending against the latter before the Los Angeles Municipal Court for fraudulent insurance claims, grand theft and attempted grand theft of personal property. Rodriguez is therefore a "fugitive from justice" which is a ground for his disqualification/ineligibility under Section 40(e) of the Local Government Code (R.A. 7160), so argued Marquez. The COMELEC dismissed Marquez' quo warranto petition (EPC No. 92-28) in a resolution of February 2, 1993, and likewise denied a reconsideration thereof. Marquez challenged the COMELEC dismissal of EPC No. 92-28 before this Court via petition for certiorari, docketed as G.R. No. 112889. The crux of said petition is whether Rodriguez, is a "fugitive from justice" as contemplated by Section 40 (e) of the Local Government Code based on the alleged pendency of a criminal charge against him (as previously mentioned). In resolving that Marquez petition (112889), the Court in "Marquez, Jr. vs. COMELEC"' promulgated on April 18, 1995, now appearing in Volume 243, page 538 of the SCRA and hereinafter referred to as theMARQUEZ Decision, declared that: 3. the same evidence is to be utilized in both cases in determining the common issue of whether Rodriguez is a "fugitive from justice" 4. on consultation with the Commission En Banc, the Commissioners unanimously agreed that a consolidated resolution of the two (2) cases is not procedurally flawed. Going now into the meat of that Consolidated Resolution, the COMELEC, allegedly having kept in mind theMARQUEZ Decision definition of "fugitive from justice", found Rodriguez to be one. Such finding was essentially based on Marquez' documentary evidence consisting of 1. an authenticated copy of the November 12, 1995 warrant of arrest issued by the Los Angeles municipal court against Rodriguez, and 2. an authenticated copy of the felony complaint which the COMELEC allowed to be presented ex-parte after Rodriguez walked-out of the hearing of the case on April 26, 1995 following the COMELEC's denial of Rodriguez' motion for postponement. With the walk-out, the COMELEC considered Rodriguez as having waived his right to disprove the authenticity of Marquez' aforementioned documentary evidence. The COMELEC thus made the following analysis: The authenticated documents submitted by petitioner (Marquez) to show the pendency of a criminal complaint against the respondent (Rodriguez) in the Municipal Court of Los Angeles, California, U.S.A., and the fact that there is an outstanding warrant against him amply proves petitioner's contention that the

respondent is a fugitive from justice. The Commission cannot look with favor on respondent's defense that long before the felony complaint was allegedly filed, respondent was already in the Philippines and he did not know of the filing of the same nor was he aware that he was being proceeded against criminally. In a sense, thru this defense, respondent implicitly contends that he cannot be deemed a fugitive from justice, because to be so, one must be aware of the filing of the criminal complaint, and his disappearance in the place where the long arm of the law, thru the warrant of arrest, may reach him is predicated on a clear desire to avoid and evade the warrant. This allegation in the Answer, however, was not even fortified with any attached document to show when he left the United States and when he returned to this country, facts upon which the conclusion of absence of knowledge about the criminal complaint may be derived. On the contrary, the fact of arrest of respondent's wife on November 6, 1985 in the United States by the Fraud Bureau investigators in an apartment paid for respondent in that country can hardly rebut whatever presumption of knowledge there is against the respondent. 2 And proceeding therefrom, the COMELEC, in the dispositive portion, declared: WHEREFORE, considering that respondent has been proven to be fugitive from justice, he is hereby ordered disqualified or ineligible from assuming and performing the functions of Governor of Quezon Province. Respondent is ordered to immediately vacate said office. Further, he is hereby disqualified from running for Governor for Quezon Province in the May 8, 1995 elections. Lastly, his certificate of candidacy for the May 8, 1995 elections is hereby set aside. At any rate, Rodriguez again emerge as the victorious candidate in the May 8, 1995 election for the position of governor. On May 10 and 11, 1995, Marquez filed urgent motions to suspend Rodriguez' proclamation which the COMELEC granted on May 11, 1995. The Provincial Board of Canvassers nonetheless proclaimed Rodriguez on May 12, 1995. The COMELEC Consolidated Resolution in EPC No. 92-28 and SPA No. 95-089 and the May 11, 1995 Resolution suspending Rodriguez' proclamation thus gave rise to the filing of the instant petition forcertiorari (G.R. No. 120099) on May 16, 1995. On May 22, 1995, Marquez filed an "Omnibus Motion To Annul The Proclamation of Rodriguez, To Proclaim Marquez And To Cite The Provincial Board of Canvassers in Contempt" before the COMELEC (in EPC No. 92-28 and SPA No. 95-089). Acting on Marquez' omnibus motion, the COMELEC, in its Resolution of June 23, 1995, nullified Rodriguez' proclamation and ordered certain members of the Quezon Province Provincial Board of Canvassers to explain why they should not be cited in contempt for disobeying the poll body's May 11, 1995 Resolution suspending Rodriguez' proclamation. But with respect to Marquez' motion for his proclamation, the COMELEC deferred action until after this Court has resolved the instant petition (G.R. No. 120099). Rodriguez filed a motion to admit supplemental petition to include the aforesaid COMELEC June 23, 1995 Resolution, apart from the May 7 and May 11, 1995 Resolutions (Consolidated Resolution and Order to suspend Rodriguez' proclamation, respectively). As directed by the Court, oral arguments were had in relation to the instant petition (G.R. No. 120099) on July 13, 1995. Marquez, on August 3, 1995, filed an "Urgent Motion for Temporary Restraining Order Or Preliminary Injunction" which sought to retain and enjoin Rodriguez "from exercising the powers, functions and prerogatives of Governor of Quezon . . . ." Acting favorably thereon, the Court in a Resolution dated August 8, 1995 issued a temporary restraining order. Rodriguez' "Urgent Motion to Lift Temporary Restraining Order And/Or For

Reconsideration" was denied by the Court in an August 15, 1995 Resolution. Another similar urgent motion was later on filed by Rodriguez which the Court also denied. In a Resolution dated October 24, 1995, the Court . . . RESOLVED to DIRECT the Chairman of the Commission on Elections ("COMELEC") to designate a Commissioner or a ranking official of the COMELEC to RECEIVE AND EVALUATE such legally admissible evidence as herein petitioner Eduardo Rodriguez may be minded to present by way of refuting the evidence heretofore submitted by private respondent Bienvenido Marquez, Sr., or that which can tend to establish petitioner's contention that he does not fall within the legal concept of a "fugitive from justice." Private respondent Marquez may likewise, if he so desires, introduce additional and admissible evidence in support of his own position. The provisions of Sections 3 to 10, Rule 33, of the Rules of Court may be applied in the reception of the evidence. The Chairman of the COMELEC shall have the proceedings completed and the corresponding report submitted to this Court within thirty (30) days from notice hereof. The COMELEC complied therewith by filing before the Court, on December 26, 1995, a report entitled "'EVIDENCE OF THE PARTIES and COMMISSION'S EVALUATION" wherein the COMELEC, after calibrating the parties' evidence, declared that Rodriguez is NOT a "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision, thus making a 180-degree turnaround from its finding in the Consolidated Resolution. In arriving at this new conclusion, the COMELEC opined that intent to evade is a material element of the MARQUEZ Decision definition. Such intent to evade is absent in Rodriguez' case because evidence has established that Rodriguez arrived in the Philippines (June 25, 1985) long before the criminal charge was instituted in the Los Angeles Court (November 12, 1985). But the COMELEC report did not end there. The poll body expressed what it describes as its "persistent discomfort" on whether it read and applied correctly the MARQUEZ Decision definition of "fugitive from justice". So as not to miss anything, we quote the COMELEC's observations in full: . . . The main opinion's definition of a "fugitive from justice" "include not only those who flee after conviction to avoid punishment but also those who, after being charged, flee to avoid prosecution." It proceeded to state that: This definition truly finds support from jurisprudence (Philippine Law Dictionary Third Edition, p. 399 by F.B. Moreno; Black's Law Dictionary, Sixth Edition, p. 671; King v. Noe, 244 SC 344; 137 SE 2d 102, 103; Hughes v. Pflanz, 138 Federal Reporter 980; Tobin v. Casaus 275 Pacific Reporter 2d p. 792), and it may be so conceded as expressing the general and ordinary connotation of the term. But in the majority of the cases cited, the definition of the term "fugitive from justice" contemplates other instances not explicitly mentioned in the main opinion. Black's Law Dictionary begins the definition of the term by referring to a "fugitive from justice" as: (A) person, who, having committed a crime, flees from jurisdiction of the court where crime was committed or departs from his usual place of abode and conceals himself within the district. . . . Then, citing King v. Noe, the definition continues and conceptualizes a "fugitive from justice" as:

. . . a person who, having committed or been charged with a crime in one state, has left its jurisdiction and is found within the territory of another when it is sought to subject him to the criminal process of the former state. (our emphasis) In Hughes v. Pflanz, the term was defined as: a person who, having committed within a state a crime, when sought for, to be subjected to criminal process, is found within the territory of another state. Moreno's Philippine Law Dictionary, 5th Ed. considers the term as an: expression which refers to one having committed, or being accused, of a crime in one jurisdiction and is absent for any reason from that jurisdiction. Specifically, one who flees to avoid punishment . . . (emphasis ours) From the above rulings, it can be gleaned that the objective facts sufficient to constitute flight from justice are: (a) a person committed a "crime" or has been charged for the commission thereof; and (b) thereafter, leaves the jurisdiction of the court where said crime was committed or his usual place of abode. Filing of charges prior to flight is not always an antecedent requirement to label one a "fugitive from justice". Mere commission of a "crime" without charges having been filed for the same and flight subsequent thereto sufficiently meet the definition. Attention is directed at the use of the word "crime" which is not employed to connote guilt or conviction for the commission thereof. Justice Davide's separate opinion in G.R. No. 112889 elucidates that the disqualification for being a fugitive does not involve the issue of the presumption of innocence, the reason for disqualification being that a person "was not brought within the jurisdiction of the court because he had successfully evaded arrest; or if he was brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded service of sentence because he had jumped bail or escaped. The disqualification then is based on his flight from justice." Other rulings of the United States Supreme Court further amplify the view that intent and purpose for departure is inconsequential to the inquiry. The texts, which are persuasive in our jurisdiction, are more unequivocal in their pronouncements. In King v. US (144 F. 2nd 729), citing Roberts v. Reilly(116 US 80) the United States Supreme Court held: . . . it is not necessary that the party should have left the state or the judicial district where the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding an anticipated prosecution, but that, having committed a crime within a state or district, he has left and is found in another jurisdiction (emphasis supplied) Citing State v. Richter (37 Minn. 436), the Court further ruled in unmistakeable language: The simple fact that they (person who have committed crime within a state) are not within the state to answer its criminal process when required renders them, in legal intendment, fugitives from justice.

THEREFORE, IT APPEARS THAT GIVEN THE AUTHORITIES CITED IN G.R. NO. 112889, THE MERE FACT THAT THERE ARE PENDING CHARGES IN THE UNITED STATES AND THAT PETITIONER RODRIGUEZ IS IN THE PHILIPPINES MAKE PETITIONER A "FUGITIVE FROM JUSTICE". From the foregoing discussions, the determination of whether or not Rodriguez is a fugitive from justice hinges on whether or not Rodriguez' evidence shall be measured against the two instances mentioned in the main opinion, or is to be expanded as to include other situations alluded to by the foreign jurisprudence cited by the Court. In fact, the spirited legal fray between the parties in this case focused on each camp's attempt to construe the Court's definition so as to fit or to exclude petitioner within the definition of a "fugitive from justice". Considering, therefore, the equally valid yet different interpretations resulting from the Supreme Court decision in G.R. No. 112889, the Commission deems it most conformable to said decision to evaluate the evidence in light of the varied constructions open to it and to respectfully submit the final determination of the case to the Honorable Supreme Court as the final interpreter of the law. The instant petition dwells on that nagging issue of whether Rodriguez is a "fugitive from justice", the determination of which, as we have directed the COMELEC on two (2) occasions (in the MARQUEZ Decision and in the Court's October 24, 1995 Resolution), must conform to how such term has been defined by the Court in the MARQUEZ Decision. To reiterate, a "fugitive from justice": . . . includes not only those who flee after conviction to avoid punishment but likewise who, after being charged, flee to avoid prosecution. The definition thus indicates that the intent to evade is the compelling factor that animates one's flight from a particular jurisdiction. And obviously, there can only be an intent to evade prosecution or punishment when there is knowledge by the fleeing subject of an already instituted indictment, or of a promulgated judgment of conviction. Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival in the Philippines from the US on June 25, 1985, as per certifications issued by the Bureau of Immigrations dated April 27 3 and June 26 of 1995, 4 preceded the filing of the felony complaint in the Los Angeles Court on November 12, 1985 and of the issuance on even date of the arrest warrant by the same foreign court, by almost five (5) months. It was clearly impossible for Rodriguez to have known about such felony complaint and arrest warrant at the time he left the US, as there was in fact no complaint and arrest warrant much less conviction to speak of yet at such time. What prosecution or punishment then was Rodriguez deliberately running away from with his departure from the US? The very essence of being a "fugitive from justice" under the MARQUEZDecision definition, is just nowhere to be found in the circumstances of Rodriguez. With that, the Court gives due credit to the COMELEC in having made the same analysis in its ". . . COMMISSION'S EVALUATION". There are, in fact, other observations consistent with such analysis made by the poll body that are equally formidable so as to merit their adoption as part of this decision, to wit: It is acknowledged that there was an attempt by private respondent to show Rodriguez' intent to evade the law. This was done by offering for admission a voluminous copy of an investigation report (Exhibits I to I-17 and J to J-87 inclusive) on the alleged crimes committed which led to the filing of the charges against petitioner. It was offered for the sole purpose of establishing the fact that it was impossible for petitioner not to have known of said investigation due to its magnitude. Unfortunately, such conclusion misleads because investigations of this nature, no matter how extensive or prolonged, are shrouded with utmost secrecy to afford law enforcers the advantage of surprise and effect the arrest of those who would be charged. Otherwise, the indiscreet conduct of the investigation would be nothing short of a well-publicized announcement to the perpetrators of the imminent filing of charges against them. And having been forewarned, every effort to sabotage the investigation may be resorted to by its intended objects. But if private respondent's attempt

to show Rodriguez' intent to evade the law at the time he left the United States has any legal consequence at all, it will be nothing more than proof that even private respondent accepts that intent to evade the law is a material element in the definition of a fugitive. The circumstantial fact that it was seventeen (17) days after Rodriguez' departure that charges against him were filed cannot overturn the presumption of good faith in his favor. The same suggests nothing more than the sequence of events which transpired. A subjective fact as that of petitioner's purpose cannot be inferred from the objective data at hand in the absence of further proof to substantiate such claim. In fact, the evidence of petitioner Rodriguez sufficiently proves that his compulsion to return to the Philippines was due to his desire to join and participate vigorously in the political campaigns against former President Ferdinand E. Marcos. For indeed, not long after petitioner's arrival in the country, the upheaval wrought by the political forces and the avalanche of events which occurred resulted in one of the more colorful events in the Philippine history. The EDSA Revolution led to the ouster of former Pres. Marcos and precipitated changes in the political climate. And being a figure in these developments, petitioner Rodriguez began serving his home province as OIC-Board Member of the Sangguniang Panlalawigan ng Quezon in 1986. Then, he was elected Governor in 1988 and continues to be involved in politics in the same capacity as re-elected Governor in 1992 and the disputed re-election in 1995. Altogether, these landmark dates hem in for petitioner a period of relentless, intensive and extensive activity of varied political campaigns first against the Marcos government, then for the governorship. And serving the people of Quezon province as such, the position entails absolute dedication of one's time to the demands of the office. Having established petitioner's lack of knowledge of the charges to be filed against him at the time he left the United States, it becomes immaterial under such construction to determine the exact time when he was made aware thereof. While the law, as interpreted by the Supreme Court, does not countenance flight from justice in the instance that a person flees the jurisdiction of another state after charges against him or a warrant for his arrest was issued or even in view of the imminent filing and issuance of the same, petitioner's plight is altogether a different situation. When, in good faith, a person leaves the territory of a state not his own, homeward bound, and learns subsequently of charges filed against him while in the relative peace and service of his own country, the fact that he does not subject himself to the jurisdiction of the former state does not qualify him outright as a fugitive from justice. The severity of the law construed in the manner as to require of a person that he subject himself to the jurisdiction of another state while already in his country or else be disqualified from office, is more apparent when applied in petitioner's case. The criminal process of the United States extends only within its territorial jurisdiction. That petitioner has already left said country when the latter sought to subject him to its criminal process is hardly petitioner's fault. In the absence of an intent to evade the laws of the United States, petitioner had every right to depart therefrom at the precise time that he did and to return to the Philippines. Not justifiable reason existed to curtail or fetter petitioner's exercise of his right to leave the United State and return home. Hence, sustaining the contrary proposition would be to unduly burden and punish petitioner for exercising a right as he cannot be faulted for the circumstances that brought him within Philippine territory at the time he was sought to be placed under arrest and to answer for charges filed against him. Granting, as the evidence warrants, that petitioner Rodriguez came to know of the charges only later, and under his circumstances, is there a law that requires petitioner to travel to the United States and subject himself to the monetary burden and tedious process of defending himself before the country's courts? It must be noted that moral uprightness is not a standard too far-reaching as to demand of political candidate the performance of duties and obligations that are

supererogatory in nature. We do not dispute that an alleged "fugitive from justice" must perform acts in order not to be so categorized. Clearly, a person who is aware of the imminent filing of charges against him or of the same already filed in connection with acts he committed in the jurisdiction of a particular state, is under an obligation not to flee said place of commission. However, as in petitioner's case, his departure from the United States may not place him under a similar obligation. His subsequent knowledge while in the Philippines and non-submission to the jurisdiction of the former country does not operate to label petitioner automatically a fugitive from justice. As he was a public officer appointed and elected immediately after his return to the country, petitioner Rodriguez had every reason to devote utmost priority to the service of his office. He could not have gone back to the United States in the middle of his term nor could he have traveled intermittently thereto without jeopardizing the interest of the public he serves. The require that of petitioner would be to put him in a paradoxical quandary where he is compelled to violate the very functions of his office. However, Marquez and the COMELEC (in its "COMMISSION'S EVALUATION" as earlier quoted) seem to urge the Court to re-define "fugitive from justice". They espouse the broader concept of the term and culled from foreign authorities (mainly of U.S. vintage) cited in the MARQUEZ Decision itself, i.e., that one becomes a "fugitive from justice" by the mere fact that he leaves the jurisdiction where a charge is pending against him, regardless of whether or not the charge has already been filed at the time of his flight. Suffice it to say that the "law of the case" doctrine forbids the Court to craft an expanded re-definition of"fugitive from justice" (which is at variance with the MARQUEZ Decision) and proceed therefrom in resolving the instant petition. The various definitions of that doctrine have been laid down in People v. Pinuila, 103 Phil. 992, 999, to wit: "Law of the case" has been defined as the opinion delivered on a former appeal. More specifically, it means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case, whether correct on a general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. (21 C.J.S. 330) It may be stated as a rule of general application that, where the evidence on a second or succeeding appeal is substantially the same as that on the first or preceding appeal, all matters, questions, points, or issues adjudicated on the prior appeal are the law of the case on all subsequent appeals and will not be considered or readjudicated therein. (5 C.J.S. 1267) In accordance with the general rule stated in Section 1821, where, after a definite determination, the court has remanded the cause for further action below, it will refuse to examine question other than those arising subsequently to such determination and remand, or other than the propriety of the compliance with its mandate; and if the court below has proceeded in substantial conformity to the directions of the appellate court, its action will not be questioned on a second appeal. As a general rule a decision on a prior appeal of the same case is held to be the law of the casewhether that decision is right or wrong, the remedy of the party deeming himself aggrieved being to seek a rehearing. (5 C.J.S. 1276-77). Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case on a subsequent appeal, although the questions are not expressly treated in the opinion of the court, as the presumption is that all the facts in the case bearing on the point decided have received due consideration whether all or none of them are mentioned in the opinion. (5 C.J.S. 1286-87).

To elaborate, the same parties (Rodriguez and Marquez) and issue (whether or not Rodriguez is a "fugitive from justice") are involved in the MARQUEZ Decision and the instant petition. The MARQUEZ Decision was an appeal from EPC No. 92-28 (the Marquez' quo warranto petition before the COMELEC). The instant petition is also an appeal from EPC No. 92-28 although the COMELEC resolved the latter jointly with SPA No. 95-089 (Marquez' petition for the disqualification of Rodriguez). Therefore, what was irrevocably established as the controlling legal rule in the MARQUEZ Decision must govern the instant petition. And we specifically refer to the concept of "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision which highlights the significance of an intent to evade but which Marquez and the COMELEC, with their proposed expanded definition, seem to trivialize. Besides, to re-define "fugitive from justice" would only foment instability in our jurisprudence when hardly has the ink dried in the MARQUEZ Decision. To summarize, the term "fugitive from justice" as a ground for the disqualification or ineligibility of a person seeking to run for any elective local petition under Section 40(e) of the Local Government Code, should be understood according to the definition given in the MARQUEZ Decision, to wit: A "fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution. (Emphasis ours.) Intent to evade on the part of a candidate must therefore be established by proof that there has already been a conviction or at least, a charge has already been filed, at the time of flight. Not being a "fugitive from justice" under this definition, Rodriguez cannot be denied the Quezon Province gubernatorial post. WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED and the assailed Resolutions of the COMELEC dated May 7, 1995 (Consolidated Resolution), May 11, 1995 (Resolution suspending Rodriguez' proclamation) and June 23, 1995 (Resolution nullifying Rodriguez' proclamation and ordering the Quezon Province Provincial Board and Canvassers to explain why they should not be cited in contempt) are SET ASIDE. SO ORDERED. G.R. No. 88831 November 8, 1990 MATEO CAASI, petitioner, vs. THE HON. COURT OF APPEALS and MERITO C. MIGUEL, respondents. G.R. No. 84508 November 13, 1990 ANECITO CASCANTE petitioner, vs. THE COMMISSION ON ELECTIONS and MERITO C. MIGUEL, respondents. Ireneo B. Orlino for petitioner in G.R. Nos. 88831 & 84508. Montemayor & Montemayor Law Office for private respondent.

These two cases were consolidated because they have the same objective; the disqualification under Section 68 of the Omnibus Election Code of the private respondent, Merito Miguel for the position of municipal mayor of Bolinao, Pangasinan, to which he was elected in the local elections of January 18, 1988, on the ground that he is a green card holder, hence, a permanent resident of the United States of America, not of Bolinao. G.R. No. 84508 is a petition for review on certiorari of the decision dated January 13, 1988 of the COMELEC First Division, dismissing the three (3) petitions of Anecito Cascante (SPC No. 87-551), Cederico Catabay (SPC No. 87-595) and Josefino C. Celeste (SPC No. 87-604), for the disqualification of Merito C. Miguel filed prior to the local elections on January 18, 1988. G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a petition for review of the decision dated June 21, 1989, of the Court of Appeals in CA-G.R. SP No. 14531 dismissing the petition for quo warranto filed by Mateo Caasi, a rival candidate for the position of municipal mayor of Bolinao, Pangasinan, also to disqualify Merito Miguel on account of his being a green card holder. In his answer to both petitions, Miguel admitted that he holds a green card issued to him by the US Immigration Service, but he denied that he is a permanent resident of the United States. He allegedly obtained the green card for convenience in order that he may freely enter the United States for his periodic medical examination and to visit his children there. He alleged that he is a permanent resident of Bolinao, Pangasinan, that he voted in all previous elections, including the plebiscite on February 2,1987 for the ratification of the 1987 Constitution, and the congressional elections on May 18,1987. After hearing the consolidated petitions before it, the COMELEC with the exception of Commissioner Anacleto Badoy, Jr., dismissed the petitions on the ground that: The possession of a green card by the respondent (Miguel) does not sufficiently establish that he has abandoned his residence in the Philippines. On the contrary, inspite (sic) of his green card, Respondent has sufficiently indicated his intention to continuously reside in Bolinao as shown by his having voted in successive elections in said municipality. As the respondent meets the basic requirements of citizenship and residence for candidates to elective local officials (sic) as provided for in Section 42 of the Local Government Code, there is no legal obstacle to his candidacy for mayor of Bolinao, Pangasinan. (p. 12, Rollo, G.R. No. 84508). In his dissenting opinion, Commissioner Badoy, Jr. opined that: A green card holder being a permanent resident of or an immigrant of a foreign country and respondent having admitted that he is a green card holder, it is incumbent upon him, under Section 68 of the Omnibus Election Code, to prove that he "has waived his status as a permanent resident or immigrant" to be qualified to run for elected office. This respondent has not done. (p. 13, Rollo, G.R. No. 84508.) In G.R. No. 88831, "Mateo Caasi, petitioner vs. Court of Appeals and Merito Miguel, respondents," the petitioner prays for a review of the decision dated June 21, 1989 of the Court of Appeals in CAG.R. SP No. 14531 "Merito C. Miguel, petitioner vs. Hon. Artemio R. Corpus, etc., respondents," reversing the decision of the Regional Trial Court which denied Miguel's motion to dismiss the petition for quo warranto filed by Caasi. The Court of Appeals ordered the regional trial court to dismiss and desist from further proceeding in the quo warranto case. The Court of Appeals held: ... it is pointless for the Regional Trial Court to hear the case questioning the qualification of the petitioner as resident of the Philippines, after the COMELEC has ruled that the petitioner meets the very basic requirements of citizenship and residence for candidates to elective local officials (sic) and that there is no legal obstacles (sic) for the candidacy of the petitioner, considering that decisions of the Regional Trial Courts on quo warranto cases under the Election Code are appealable to the COMELEC. (p. 22, Rollo, G.R. No. 88831.)

GRIO-AQUINO, J.:

These two cases pose the twin issues of: (1) whether or not a green card is proof that the holder is a permanent resident of the United States, and (2) whether respondent Miguel had waived his status as a permanent resident of or immigrant to the U.S.A. prior to the local elections on January 18, 1988. Section 18, Article XI of the 1987 Constitution provides: Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law. In the same vein, but not quite, Section 68 of the Omnibus Election Code of the Philippines (B.P. Blg. 881) provides: SEC. 68. Disqualifications ... 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. (Sec. 25, 1971, EC). In view of current rumor that a good number of elective and appointive public officials in the present administration of President Corazon C. Aquino are holders of green cards in foreign countries, their effect on the holders' right to hold elective public office in the Philippines is a question that excites much interest in the outcome of this case. In the case of Merito Miguel, the Court deems it significant that in the "Application for Immigrant Visa and Alien Registration" (Optional Form No. 230, Department of State) which Miguel filled up in his own handwriting and submitted to the US Embassy in Manila before his departure for the United States in 1984, Miguel's answer to Question No. 21 therein regarding his "Length of intended stay (if permanently, so state)," Miguel's answer was,"Permanently." On its face, the green card that was subsequently issued by the United States Department of Justice and Immigration and Registration Service to the respondent Merito C. Miguel identifies him in clear bold letters as a RESIDENT ALIEN. On the back of the card, the upper portion, the following information is printed: Alien Registration Receipt Card. Person identified by this card is entitled to reside permanently and work in the United States." (Annex A pp. 189-190, Rollo of G.R. No. 84508.) Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. For he did not go to the United States merely to visit his children or his doctor there; he entered the limited States with the intention to have there permanently as evidenced by his application for an immigrant's (not a visitor's or tourist's) visa. Based on that application of his, he was issued by the U.S. Government the requisite green card or authority to reside there permanently. Immigration is the removing into one place from another; the act of immigrating the entering into a country with the intention of residing in it. An immigrant is a person who removes into a country for the purpose of permanent residence. As shown infra 84, however, statutes sometimes give a broader meaning to the term "immigrant." (3 CJS 674.)

As a resident alien in the U.S., Miguel owes temporary and local allegiance to the U.S., the country in which he resides (3 CJS 527). This is in return for the protection given to him during the period of his residence therein. Aliens reading in the limited States, while they are permitted to remain, are in general entitled to the protection of the laws with regard to their rights of person and property and to their civil and criminal responsibility. In general, aliens residing in the United States, while they are permitted to remain are entitled to the safeguards of the constitution with regard to their rights of person and property and to their civil and criminal responsibility. Thus resident alien friends are entitled to the benefit of the provision of the Fourteenth Amendment to the federal constitution that no state shall deprive "any person" of life liberty, or property without due process of law, or deny to any person the equal protection of the law, and the protection of this amendment extends to the right to earn a livelihood by following the ordinary occupations of life. So an alien is entitled to the protection of the provision of the Fifth Amendment to the federal constitution that no person shall be deprived of life, liberty, or property without due process of law. (3 CJS 529530.) Section 18, Article XI of the 1987 Constitution which provides that "any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law" is not applicable to Merito Miguel for he acquired the status of an immigrant of the United States before he was elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan. The law applicable to him is Section 68 of the Omnibus Election Code (B.P. Blg. 881), which provides: xxx xxx xxx 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 such 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.' Did Miguel, by returning to the Philippines in November 1987 and presenting himself as a candidate for mayor of Bolinao in the January 18,1988 local elections, waive his status as a permanent resident or immigrant of the United States? To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green card holder must have "waived his status as a permanent resident or immigrant of a foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his candidacy for elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office" (Sec. 68, Omnibus Election Code). Respondent Merito Miguel admits that he holds a green card, which proves that he is a permanent resident or immigrant it of the United States, but the records of this case are starkly bare of proof that he had waived his status as such before he ran for election as municipal mayor of Bolinao on January 18, 1988. We, therefore, hold that he was disqualified to become a candidate for that office. The reason for Section 68 of the Omnibus Election Code is not hard to find. Residence in the municipality where he intends to run for elective office for at least one (1) year at the time of filing his certificate of candidacy, is one of the qualifications that a candidate for elective public office must possess (Sec. 42, Chap. 1, Title 2, Local Government Code). Miguel did not possess that qualification because he was a permanent resident of the United States and he resided in Bolinao

for a period of only three (3) months (not one year) after his return to the Philippines in November 1987 and before he ran for mayor of that municipality on January 18, 1988. In banning from elective public office Philippine citizens who are permanent residents or immigrants of a foreign country, the Omnibus Election Code has laid down a clear policy of excluding from the right to hold elective public office those Philippine citizens who possess dual loyalties and allegiance. The law has reserved that privilege for its citizens who have cast their lot with our country "without mental reservations or purpose of evasion." The assumption is that those who are resident aliens of a foreign country are incapable of such entire devotion to the interest and welfare of their homeland for with one eye on their public duties here, they must keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their status as permanent residents thereof. Miguel insists that even though he applied for immigration and permanent residence in the United States, he never really intended to live there permanently, for all that he wanted was a green card to enable him to come and go to the U.S. with ease. In other words, he would have this Court believe that he applied for immigration to the U.S. under false pretenses; that all this time he only had one foot in the United States but kept his other foot in the Philippines. Even if that were true, this Court will not allow itself to be a party to his duplicity by permitting him to benefit from it, and giving him the best of both worlds so to speak. Miguel's application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local elections on January 18, 1988, our conclusion is that he was disqualified to run for said public office, hence, his election thereto was null and void. WHEREFORE, the appealed orders of the COMELEC and the Court of Appeals in SPC Nos. 87-551, 87-595 and 87-604, and CA-G.R. SP No. 14531 respectively, are hereby set aside. The election of respondent Merito C. Miguel as municipal mayor of Bolinao, Pangasinan is hereby annulled. Costs against the said respondent. SO ORDERED. G.R. No. 157870 November 3, 2008 VELASCO, JR., J.:

DECISION

In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain offenses, among other personalities, is put in issue. As far as pertinent, the challenged section reads as follows: SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug testing: xxxx (c) Students of secondary and tertiary schools. - Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school's student handbook and with notice to the parents, undergo a random drug testing x x x; (d) Officers and employees of public and private offices. - Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company's work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law; xxxx (f) All persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug test; (g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act. G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections) On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the rules and regulations on the mandatory drug testing of candidates for public office in connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of the said resolution read as follows: WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:

SOCIAL JUSTICE SOCIETY (SJS), petitioner vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA),respondents. x-----------------------------------------------x G.R. No. 158633 November 3, 2008

ATTY. MANUEL J. LASERNA, JR., petitioner vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY, respondents. x-----------------------------------------------x G.R. No. 161658 November 3, 2008

AQUILINO Q. PIMENTEL, JR., petitioner vs. COMMISSION ON ELECTIONS, respondents.

SEC. 36. Authorized Drug Testing. - x x x

xxxx (g) All candidates for public office x x x both in the national or local government shall undergo a mandatory drug test. WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency; WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the quality of candidates they are electing and they will be assured that only those who can serve with utmost responsibility, integrity, loyalty, and efficiency would be elected x x x. NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election laws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on the conduct of mandatory drug testing to candidates for public office[:] SECTION 1. Coverage. - All candidates for public office, both national and local, in the May 10, 2004 Synchronized National and Local Elections shall undergo mandatory drug test in government forensic laboratories or any drug testing laboratories monitored and accredited by the Department of Health. SEC. 3. x x x On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec Offices and employees concerned shall submit to the Law Department two (2) separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply x x x. SEC. 4. Preparation and publication of names of candidates. - Before the start of the campaign period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply with said drug test. x x x SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate. - No person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test and filed with the offices enumerated under Section 2 hereof the drug test certificate herein required. (Emphasis supplied.) Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re - election in the May 10, 2004 elections,1 filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they impose a qualification for candidates for senators in addition to those already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486. Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states: SECTION 3. No person shall be a Senator unless he is a natural - born citizen of the Philippines, and, on the day of the election, is at least thirty - five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election. According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a candidate for, elected to, and be a member of the Senate. He says that both the Congress

and COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for senator must first be certified as drug free. He adds that there is no provision in the Constitution authorizing the Congress or COMELEC to expand the qualification requirements of candidates for senator. G.R. No. 157870 (Social Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency) In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they give unbridled discretion to schools and employers to determine the manner of drug testing. For another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an employee deemed undesirable. And for a third, a person's constitutional right against unreasonable searches is also breached by said provisions. G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous Drugs Board and Philippine Drug Enforcement Agency) Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the right against self - incrimination, and for being contrary to the due process and equal protection guarantees. The Issue on Locus Standi First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege any incident amounting to a violation of the constitutional rights mentioned in their separate petitions.2 It is basic that the power of judicial review can only be exercised in connection with a bona fidecontroversy which involves the statute sought to be reviewed. 3 But even with the presence of an actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional question is brought before it by a party having the requisite standing to challenge it.4 To have standing, one must establish that he or she has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action. 5 The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non traditional plaintiffs, like ordinary citizens, taxpayers, and legislators 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.6 There is no doubt that Pimentel, as senator of the Philippines and candidate for the May 10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject matter of the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court is wont to relax the rule on locus standi owing primarily to the transcendental importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165. The Consolidated Issues The principal issues before us are as follows: (1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the Constitution? and

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation of legislative power? Pimentel Petition (Constitutionality of Sec. 36[g] of RA 9165 and COMELEC Resolution No. 6486) In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these stated qualification requirements, candidates for senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate, 7 or alter or enlarge the Constitution. Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution. 8 In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed.9 Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. As early as 1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the following wise: Someone has said that the powers of the legislative department of the Government, like the boundaries of the ocean, are unlimited. In constitutional governments, however, as well as governments acting under delegated authority, the powers of each of the departments x x x are limited and confined within the four walls of the constitution or the charter, and each department can only exercise such powers as are necessarily implied from the given powers. The Constitution is the shore of legislative authority against which the waves of legislative enactment may dash, but over which it cannot leap. 10 Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional limitations which circumscribe both the exercise of the power itself and the allowable subjects of legislation.11 The substantive constitutional limitations are chiefly found in the Bill of Rights12 and other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for senators. In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution. 13 Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal - drug clean, obviously as a pre - condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator - elect. The COMELEC resolution completes the chain with the proviso that "[n]o person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test." Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not the drug free bar set up under the challenged provision is to be hurdled before or after election is really of no

moment, as getting elected would be of little value if one cannot assume office for non - compliance with the drug - testing requirement. It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not expressly state that non - compliance with the drug test imposition is a disqualifying factor or would work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test requirement is optional. But the particular section of the law, without exception, made drug - testing on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse consequences for not adhering to the statutory command. And since the provision deals with candidates for public office, it stands to reason that the adverse consequence adverted to can only refer to and revolve around the election and the assumption of public office of the candidates. Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and effect whatsoever. While it is anti - climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems it appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance. It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator. SJS Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165) The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to stamp out illegal drug and safeguard in the process "the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs." This statutory purpose, per the policy - declaration portion of the law, can be achieved via the pursuit by the state of "an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated system of planning, implementation and enforcement of anti drug abuse policies, programs and projects."14 The primary legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily treated as criminals. They may even be exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point: Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation. - A drug dependent or any person who violates Section 15 of this Act may, by himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency. If the examination x x x results in the certification that the applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by the Board x x x. xxxx Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. A drug dependent under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Section 15 of this Act subject to the following conditions: xxxx School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low rate.15

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure 16 under Sec. 2, Art. III17 of the Constitution. But while the right to privacy has long come into its own, this case appears to be the first time that the validity of a state - decreed search or intrusion through the medium of mandatory random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably one of first impression. US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of Education),18 both fairly pertinent US Supreme Court decided cases involving the constitutionality of governmental search. In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective institutions following the discovery of frequent drug use by school athletes. After consultation with the parents, they required random urinalysis drug testing for the school's athletes. James Acton, a high school student, was denied participation in the football program after he refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming that the school's drug testing policy violated, inter alia, the Fourth Amendment19 of the US Constitution. The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights than non - athletes since the former observe communal undress before and after sports events; (4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school supervision and regulation; (5) requiring urine samples does not invade a student's privacy since a student need not undress for this kind of drug testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the policy constituted reasonable search under the Fourth 20 and 14th Amendments and declared the random drug - testing policy constitutional. In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high school students desiring to join extra - curricular activities. Lindsay Earls, a member of the show choir, marching band, and academic team declined to undergo a drug test and averred that the drug - testing policy made to apply to non - athletes violated the Fourth and 14th Amendments. As Earls argued, unlike athletes who routinely undergo physical examinations and undress before their peers in locker rooms, non - athletes are entitled to more privacy. The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non - athletes on the basis of the school's custodial responsibility and authority. In so ruling, said court made no distinction between a non - athlete and an athlete. It ratiocinated that schools and teachers act in place of the parents with a similar interest and duty of safeguarding the health of the students. And in holding that the school could implement its random drug - testing policy, the Court hinted that such a test was a kind of search in which even a reasonable parent might need to engage. In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well - being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory. Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements. The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well - being of the people,21 particularly the youth and school children who usually

end up as victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected. To borrow from Vernonia, "[d]eterring drug use by our Nation's schoolchildren is as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs"; the necessity for the State to act is magnified by the fact that the effects of a drug - infested school are visited not just upon the users, but upon the entire student body and faculty.22Needless to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students. Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than saying that "subjecting almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the individual right to privacy,"23 has failed to show how the mandatory, random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution.24Petitioner Laserna's lament is just as simplistic, sweeping, and gratuitous and does not merit serious consideration. Consider what he wrote without elaboration: The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of mandatory drug tests in the school and the workplaces. The US courts have been consistent in their rulings that the mandatory drug tests violate a citizen's constitutional right to privacy and right against unreasonable search and seizure. They are quoted extensively hereinbelow.25 The essence of privacy is the right to be left alone.26 In context, the right to privacy means the right to be free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary sensibilities. 27 And while there has been general agreement as to the basic function of the guarantee against unwarranted search, "translation of the abstract prohibition against unreasonable searches and seizures' into workable broad guidelines for the decision of particular cases is a difficult task," to borrow from C. Camara v. Municipal Court.28Authorities are agreed though that the right to privacy yields to certain paramount rights of the public and defers to the state's exercise of police power. 29 As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, "reasonableness" is the touchstone of the validity of a government search or intrusion. 30 And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government - mandated intrusion on the individual's privacy interest against the promotion of some compelling state interest.31 In the criminal context, reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug - testing policy for employees-and students for that matter--under RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as "swift and informal disciplinary procedures," the probable - cause standard is not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question. The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees' privacy interest in an office is to a large extent circumscribed by the company's work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated inOple v. Torres, is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"?32

The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would unduly embarrass the employees or place them under a humiliating experience. While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to "random drug test as contained in the company's work rules and regulations x x x for purposes of reducing the risk in the work place." For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access - controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody. 33 In addition, the IRR issued by the DOH provides that access to the drug results shall be on the "need to know" basis;34 that the "drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect the confidentiality of the test results." 35Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees' privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal. To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well - being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test.36 To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individual's privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social - economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an investor's dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern - day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem. Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well - defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional. Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service.37 And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency. 38 Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give unbridled options to schools and employers to determine the manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools and officers/employees of public/private offices should be conducted. It enumerates the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance with the school rules as contained in the student handbook and with notice to parents. On the part of officers/employees, the testing shall take into account the company's work

rules. In either case, the random procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test results are established. Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of the Interior and Local Government, Department of Education, and Department of Labor and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted. The validity of delegating legislative power is now a quiet area in the constitutional landscape.39 In the face of the increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here. Laserna Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165) Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement. We find the situation entirely different in the case of persons charged before the public prosecutor's office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy.40 To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves. WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g)of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs. SO ORDERED 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. chanroblesvirtualawlibary

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. chanroblesvirtualawlibary The present petition cralaw 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. chanroblesvirtualawlibary 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. chanroblesvirtualawlibary 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. chanroblesvirtualawlibary 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. chanroblesvirtualawlibary THE COURT'S RULING We find the petition meritorious. chanroblesvirtualawlibary General Considerations
1

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 cralaw 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. chanroblesvirtualawlibary 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. chanroblesvirtualawlibary Section 43 (b) of RA 7160 practically repeats the constitutional provision, and any difference in wording does not assume any significance in this case. chanroblesvirtualawlibary 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. chanroblesvirtualawlibary 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 cralaw 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]. chanroblesvirtualawlibary A later case, Gaminde v. Commission on Audit,4 cralaw 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, the limitation refers to the term. chanroblesvirtualawlibary 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. chanroblesvirtualawlibary 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. chanroblesvirtualawlibary The word "renunciation" carries the dictionary meaning of abandonment. To renounce is to give up, abandon, decline, or resign.5 cralaw 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. chanroblesvirtualawlibary 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]. chanroblesvirtualawlibary MR DAVIDE. Yes. chanroblesvirtualawlibary 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. chanroblesvirtualawlibary 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 cralaw cralaw 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. chanroblesvirtualawlibary 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--vis term limitation with this firm mindset. chanroblesvirtualawlibary 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. chanroblesvirtualawlibary Lonzanida v. Commission on Elections7 cralaw 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 19951998 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. chanroblesvirtualawlibary Ong v. Alegre8 cralaw and Rivera v. COMELEC,9 cralaw 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.chanroblesvirtualawlibary 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. chanroblesvirtualawlibary 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. chanroblesvirtualawlibary Adormeo v. Commission on Elections10 cralaw 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. chanroblesvirtualawlibary Socrates v. Commission on Elections11 cralaw also tackled recall vis--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 ' 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. chanroblesvirtualawlibary 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. chanroblesvirtualawlibary 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. chanroblesvirtualawlibary 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 cralaw cralaw Latasa v. Commission on Elections13 cralaw 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 cralaw cralaw Latasa instructively highlights, after a review of Lonzanida, Adormeo and Socrates, that no threeterm 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. chanroblesvirtualawlibary

Seemingly differing from these results is the case of Montebon v. Commission on Elections,15 cralaw where the highest-ranking municipal councilor succeeded to the position of vicemayor 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. chanroblesvirtualawlibary 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.chanroblesvirtualawlibary 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. chanroblesvirtualawlibary 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. chanroblesvirtualawlibary 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 cralaw cralaw 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]. chanroblesvirtualawlibary Preventive Suspension and the Three-Term Limit Rule a. Nature of Preventive Suspension Preventive suspension ' whether under the Local Government Code, 17 cralaw the Anti-Graft and Corrupt Practices Act,18 cralaw or the Ombudsman Act19 cralaw ' 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. chanroblesvirtualawlibary

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. chanroblesvirtualawlibary 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. chanroblesvirtualawlibary 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. chanroblesvirtualawlibary 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 cralaw 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. chanroblesvirtualawlibary 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. chanroblesvirtualawlibary 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. chanroblesvirtualawlibary 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 noncomparable. chanroblesvirtualawlibary But beyond the obvious comparison of their respective natures is the more important consideration of how they affect the three-term limit rule. chanroblesvirtualawlibary 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. chanroblesvirtualawlibary 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. chanroblesvirtualawlibary 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 cralaw cralaw 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. chanroblesvirtualawlibary SO ORDERED. G.R. No. 161872 April 13, 2004

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner, vs. COMMISSION ON ELECTIONS, respondent. RESOLUTION TINGA, J.: Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on December 17, 2003. Respondent Commission on Elections (COMELEC) refused to give due course to petitioners Certificate of Candidacy in its Resolution No. 6558 dated January 17, 2004. The decision, however, was not unanimous since Commissioners Luzviminda G. Tancangco and Mehol K. Sadain voted to include petitioner as they believed he had parties or movements to back up his candidacy. On January 15, 2004, petitioner moved for reconsideration of Resolution No. 6558. Petitioners Motion for Reconsideration was docketed as SPP (MP) No. 04-001. The COMELEC, acting on petitioners Motion for Reconsideration and on similar motions filed by other aspirants for national elective positions, denied the same under the aegis of Omnibus Resolution No. 6604 dated February 11, 2004. The COMELEC declared petitioner and thirty-five (35) others nuisance candidates who could not wage a nationwide campaign and/or are not nominated by a political party or are not supported by a registered political party with a national constituency. Commissioner Sadain maintained his vote for petitioner. By then, Commissioner Tancangco had retired. In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were allegedly rendered in violation of his right to "equal access to opportunities for public service" under Section 26, Article II of the 1987 Constitution,1 by limiting the number of qualified candidates only to those who can afford to wage a nationwide campaign and/or are nominated by political parties. In so doing, petitioner argues that the COMELEC indirectly amended the constitutional provisions on the electoral process and limited the power of the sovereign people to choose their leaders. The COMELEC supposedly erred in disqualifying him since he is the most qualified among all the presidential candidates, i.e., he possesses all the constitutional and legal qualifications for the office of the president, he is capable of waging a national campaign since he has numerous national organizations under his leadership, he also has the capacity to wage an international campaign since he has practiced law in other countries, and he has a platform of government. Petitioner likewise attacks the validity of the form for theCertificate of Candidacy prepared by the COMELEC. Petitioner claims that the form does not provide clear and reasonable guidelines for determining the qualifications of candidates since it does not ask for the candidates bio-data and his program of government. First, the constitutional and legal dimensions involved. Implicit in the petitioners invocation of the constitutional provision ensuring "equal access to opportunities for public office" is the claim that there is a constitutional right to run for or hold public office and, particularly in his case, to seek the presidency. There is none. What is recognized is merely a privilege subject to limitations imposed by law. Section 26, Article II of the Constitution neither bestows such a right nor elevates the privilege to the level of an enforceable right. There is nothing in the plain language of the provision which suggests such a thrust or justifies an interpretation of the sort. The "equal access" provision is a subsumed part of Article II of the Constitution, entitled "Declaration of Principles and State Policies." The provisions under the Article are generally considered not self-executing,2 and there is no plausible reason for according a different treatment to the "equal access" provision. Like the rest of the policies enumerated in Article II, the provision does not contain any judicially enforceable constitutional right but merely specifies a guideline for legislative or executive action.3 The disregard of the provision does not give rise to any cause of action before the courts.4 An inquiry into the intent of the framers5 produces the same determination that the provision is not self-executory. The original wording of the present Section 26, Article II had read, "The State shall

broaden opportunities to public office and prohibit public dynasties." 6 Commissioner (now Chief Justice) Hilario Davide, Jr. successfully brought forth an amendment that changed the word "broaden" to the phrase "ensure equal access," and the substitution of the word "office" to "service." He explained his proposal in this wise: I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is important would be equal access to the opportunity. If you broaden, it would necessarily mean that the government would be mandated to create as many offices as are possible to accommodate as many people as are also possible. That is the meaning of broadening opportunities to public service. So, in order that we should not mandate the State to make the government the number one employer and to limit offices only to what may be necessary and expedient yet offering equal opportunities to access to it, I change the word "broaden."7 (emphasis supplied) Obviously, the provision is not intended to compel the State to enact positive measures that would accommodate as many people as possible into public office. The approval of the "Davide amendment" indicates the design of the framers to cast the provision as simply enunciatory of a desired policy objective and not reflective of the imposition of a clear State burden. Moreover, the provision as written leaves much to be desired if it is to be regarded as the source of positive rights. It is difficult to interpret the clause as operative in the absence of legislation since its effective means and reach are not properly defined. Broadly written, the myriad of claims that can be subsumed under this rubric appear to be entirely open-ended.8 Words and phrases such as "equal access," "opportunities," and "public service" are susceptible to countless interpretations owing to their inherent impreciseness. Certainly, it was not the intention of the framers to inflict on the people an operative but amorphous foundation from which innately unenforceable rights may be sourced. As earlier noted, the privilege of equal access to opportunities to public office may be subjected to limitations. Some valid limitations specifically on the privilege to seek elective office are found in the provisions9 of the Omnibus Election Code on "Nuisance Candidates" and COMELEC Resolution No. 645210 dated December 10, 2002 outlining the instances wherein the COMELEC may motu proprio refuse to give due course to or cancel aCertificate of Candidacy. As long as the limitations apply to everybody equally without discrimination, however, the equal access clause is not violated. Equality is not sacrificed as long as the burdens engendered by the limitations are meant to be borne by any one who is minded to file a certificate of candidacy. In the case at bar, there is no showing that any person is exempt from the limitations or the burdens which they create. Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the Omnibus Election Code and COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their presumed validity stands and has to be accorded due weight. Clearly, therefore, petitioners reliance on the equal access clause in Section 26, Article II of the Constitution is misplaced. The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced a bona fide intention to run for office is easy to divine. The State has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly. Towards this end, the State takes into account the practical considerations in conducting elections. Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion, not to mention the increased allocation of time and resources in preparation for the election. These practical difficulties should, of course, never exempt the State from the conduct of a mandated electoral exercise. At the same time, remedial actions should be available to alleviate these logistical hardships, whenever necessary and proper. Ultimately, a disorderly election is not merely a textbook example of inefficiency, but a rot that erodes faith in our democratic institutions. As the United States Supreme Court held: [T]here is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization and its

candidates on the ballot the interest, if no other, in avoiding confusion, deception and even frustration of the democratic [process].11 The COMELEC itself recognized these practical considerations when it promulgated Resolution No. 6558 on 17 January 2004, adopting the study Memorandum of its Law Department dated 11 January 2004. As observed in the COMELECs Comment: There is a need to limit the number of candidates especially in the case of candidates for national positions because the election process becomes a mockery even if those who cannot clearly wage a national campaign are allowed to run. Their names would have to be printed in the Certified List of Candidates, Voters Information Sheet and the Official Ballots. These would entail additional costs to the government. For the official ballots in automated counting and canvassing of votes, an additional page would amount to more or less FOUR HUNDRED FIFTY MILLION PESOS (P450,000,000.00). xxx[I]t serves no practical purpose to allow those candidates to continue if they cannot wage a decent campaign enough to project the prospect of winning, no matter how slim.12 The preparation of ballots is but one aspect that would be affected by allowance of "nuisance candidates" to run in the elections. Our election laws provide various entitlements for candidates for public office, such as watchers in every polling place, 13 watchers in the board of canvassers,14 or even the receipt of electoral contributions.15Moreover, there are election rules and regulations the formulations of which are dependent on the number of candidates in a given election. Given these considerations, the ignominious nature of a nuisance candidacy becomes even more galling. The organization of an election with bona fide candidates standing is onerous enough. To add into the mix candidates with no serious intentions or capabilities to run a viable campaign would actually impair the electoral process. This is not to mention the candidacies which are palpably ridiculous so as to constitute a one-note joke. The poll body would be bogged by irrelevant minutiae covering every step of the electoral process, most probably posed at the instance of these nuisance candidates. It would be a senseless sacrifice on the part of the State. Owing to the superior interest in ensuring a credible and orderly election, the State could exclude nuisance candidates and need not indulge in, as the song goes, "their trips to the moon on gossamer wings." The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the compelling State interest to ensure orderly and credible elections by excising impediments thereto, such as nuisance candidacies that distract and detract from the larger purpose. The COMELEC is mandated by the Constitution with the administration of elections16 and endowed with considerable latitude in adopting means and methods that will ensure the promotion of free, orderly and honest elections.17 Moreover, the Constitution guarantees that only bona fide candidates for public office shall be free from any form of harassment and discrimination. 18 The determination of bona fidecandidates is governed by the statutes, and the concept, to our mind is, satisfactorily defined in the Omnibus Election Code. Now, the needed factual premises. However valid the law and the COMELEC issuance involved are, their proper application in the case of the petitioner cannot be tested and reviewed by this Court on the basis of what is now before it. The assailed resolutions of the COMELEC do not direct the Court to the evidence which it considered in determining that petitioner was a nuisance candidate. This precludes the Court from reviewing at this instance whether the COMELEC committed grave abuse of discretion in disqualifying petitioner, since such a review would necessarily take into account the matters which the COMELEC considered in arriving at its decisions. Petitioner has submitted to this Court mere photocopies of various documents purportedly evincing his credentials as an eligible candidate for the presidency. Yet this Court, not being a trier of facts, can not properly pass upon the reproductions as evidence at this level. Neither the COMELEC nor the Solicitor General appended any document to their respective Comments.

The question of whether a candidate is a nuisance candidate or not is both legal and factual. The basis of the factual determination is not before this Court. Thus, the remand of this case for the reception of further evidence is in order. A word of caution is in order. What is at stake is petitioners aspiration and offer to serve in the government. It deserves not a cursory treatment but a hearing which conforms to the requirements of due process. As to petitioners attacks on the validity of the form for the certificate of candidacy, suffice it to say that the form strictly complies with Section 74 of the Omnibus Election Code. This provision specifically enumerates what a certificate of candidacy should contain, with the required information tending to show that the candidate possesses the minimum qualifications for the position aspired for as established by the Constitution and other election laws. IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded to the COMELEC for the reception of further evidence, to determine the question on whether petitioner Elly Velez Lao Pamatong is a nuisance candidate as contemplated in Section 69 of the Omnibus Election Code. The COMELEC is directed to hold and complete the reception of evidence and report its findings to this Court with deliberate dispatch. SO ORDERED. G.R. No. 191938 July 2, 2010

ABRAHAM KAHLIL B. MITRA, Petitioner, vs. COMMISSION ON ELECTIONS, ANTONIO V. GONZALES, and ORLANDO R. BALBON, JR., Respondents. DECISION BRION, J.: The minimum requirement under our Constitution 1 and election laws2 for the candidates residency in the political unit they seek to represent has never been intended to be an empty formalistic condition; it carries with it a very specific purpose: to prevent "stranger[s] or newcomer[s] unacquainted with the conditions and needs of a community" from seeking elective offices in that community.3 The requirement is rooted in the recognition that officials of districts or localities should not only be acquainted with the metes and bounds of their constituencies; more importantly, they should know their constituencies and the unique circumstances of their constituents their needs, difficulties, aspirations, potentials for growth and development, and all matters vital to their common welfare. Familiarity, or the opportunity to be familiar, with these circumstances can only come with residency in the constituency to be represented. The purpose of the residency requirement is "best met by individuals who have either had actual residence in the area for a given period or who have been domiciled in the same area either by origin or by choice."4 At the same time, the constituents themselves can best know and evaluate the candidates qualifications and fitness for office if these candidates have lived among them.5 Read and understood in this manner, residency can readily be appreciated as a requirement that goes into the heart of our democratic system; it directly supports the purpose of representation electing those who can best serve the community because of their knowledge and sensitivity to its needs. It likewise adds meaning and substance to the voters freedom of choice in the electoral exercise that characterizes every democracy.

In the present case, the respondent Commission on Elections (COMELEC) canceled the certificate of candidacy (COC) of petitioner Abraham Kahlil B. Mitra for allegedly misrepresenting that he is a resident of the Municipality of Aborlan, Province of Palawan where he ran for the position of Governor. Mitra came to this Court to seek the reversal of the cancellation. 6 The Antecedents When his COC for the position of Governor of Palawan was declared cancelled, Mitra was the incumbent Representative of the Second District of Palawan. This district then included, among other territories, the Municipality of Aborlan and Puerto Princesa City. He was elected Representative as a domiciliary of Puerto Princesa City, and represented the legislative district for three (3) terms immediately before the elections of 2010. 7 On March 26, 2007 (or before the end of Mitras second term as Representative), Puerto Princesa City was reclassified as a "highly urbanized city" and thus ceased to be a component city of the Province of Palawan. The direct legal consequence of this new status was the ineligibility of Puerto Princesa City residents from voting for candidates for elective provincial officials. 8 On March 20, 2009, with the intention of running for the position of Governor, Mitra applied for the transfer of his Voters Registration Record from Precinct No. 03720 of Brgy. Sta. Monica, Puerto Princesa City, to Sitio Maligaya,Brgy. Isaub, Municipality of Aborlan, Province of Palawan. He subsequently filed his COC for the position of Governor of Palawan as a resident of Aborlan. 9 Soon thereafter, respondents Antonio V. Gonzales and Orlando R. Balbon, Jr. (the respondents) filed a petition to deny due course or to cancel Mitras COC.10 They essentially argued that Mitra remains a resident of Puerto Princesa City who has not yet established residence in Aborlan, and is therefore not qualified to run for Governor of Palawan. Mitra insisted in his Answer that he has successfully abandoned Puerto Princesa City as his domicile of origin, and has established a new domicile in Aborlan since 2008.11 The Parties Claims and Evidence The respondents petition before the COMELEC claimed that Mitras COC should be cancelled under the following factual premises: (a) Mitra bought, in June 2009, a parcel of land in Aborlan where he began to construct a house, but up to the time of the filing of the petition to deny due course or to cancel Mitras COC, the house had yet to be completed; (b) in the document of sale, Puerto Princesa City was stated as Mitras residence (attached as Annex "J" of the Respondents Petition before the COMELEC);12 (c) Mitras Puerto Princesa City residence was similarly stated in his application for a building permit (attached as Annex "K" of the Respondents Petition before the COMELEC); 13 and (d) Mitras community tax certificate states that his residence was Puerto Princesa City (attached as Annex "M" of the Respondents Petition before the COMELEC). 14 The respondents presented several affidavits attesting to the non-completion of the construction of the house,15 and asserted that without a fully constructed house, Mitra could not claim residence in Aborlan. Mitra denied the respondents allegations in his Answer. He claimed that the respondents misled the COMELEC by presenting photographs of his unfinished house on the land he purchased from a certain Rexter Temple. He claimed, on the contrary, that his residence is located inside the premises of the Maligaya Feedmill and Farm (Maligaya Feedmill) which the owner, Carme Caspe, leased to him; and that he purchased a farm and presently has an experimental pineapple plantation and a cock farm. The transfer of his residence, he claimed, began in 2008. 16 He submitted the following: (a) the Sinumpaang Salaysay of Ricardo Temple; Florame T. Gabrillo, the Punong Barangay of Isaub, Aborlan; Marissa U. Zumarraga, Councilor of Aborlan; Virginia J. Agpao and Elsa M. Dalisay, both Sangguniang Barangay members of Isaub, Aborlan, attesting that Mitra resides in their locality;17 (b) photographs of the residential portion of the Maligaya Feedmill18 where he claims to reside, and of his Aborlan experimental pineapple plantation, farm, farmhouse and cock farm;19 (c) the lease contract over the Maligaya Feedmill;20 (d) the community tax certificate he claims he himself secured, stating that Aborlan is his residence;21and (e) an updated identification card issued by the House of Representatives stating that Aborlan is his residence.22

To refute Mitras claimed residence in Aborlan specifically, that he resides at the Maligaya Feedmill property the respondents additionally submitted: (a) the affidavits of the 14 Punong Barangays of Aborlan and of six residents of Aborlan, all stating that Mitra is not a resident of Aborlan and has never been seen in that municipality; (b) a Certification from the Barangay Captain of Sta. Monica, Puerto Princesa City stating that Mitra was a resident of that barangay as of November 16, 2009; (c) the affidavit of Commodore Nicanor Hernandez attesting that Mitra continues to reside in Puerto Princesa City; and (d) 24 affidavits of former employees, workers, Aborlan residents and a customer of the Maligaya Feedmill attesting that they have never seen Mitra during the time he claimed to have lived there and that the area where Mitra supposedly lives is, in fact, the office of the feedmill and is unlivable due to noise and pollution.23 The Ruling of the COMELECs First Division 24 The Law. The First Division defined the governing law with the statement that residence means domicile under the Courts consistent rulings since 1928 in Nuval v. Guray. 25 Domicile imports not only the intent to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of this intention.26 To acquire a new domicile a domicile by choice the following must concur: (1) residence or bodily presence in a new locality; (2) an intention to remain there; and (3) an intention to abandon the old domicile. In other words, there must be an animus non revertendi with respect to the old domicile, and an animus manendi at the domicile of choice. The intent to remain in or at the domicile of choice must be for an indefinite period of time and the acts of the person must be consistent with this intent.27 The First Divisions Evaluation of the Parties Evidence. Based on its consideration of the submitted evidence (including various affidavits submitted by both parties and the photographs of the room that Mitra claims to be his residence) and citing jurisprudence, the First Division granted the respondents petition to cancel Mitras COC. To the First Division, Mitras submitted pictures are telling; they show a small, sparsely furnished room that is evidently unlived in, located at the second floor of a structure that appears to be a factory or a warehouse; the residence appears hastily set-up, cold, and utterly devoid of any indication of Mitras personality such as old family photographs and memorabilia collected through the years. What the supposed residence lacks, in the First Divisions perception, are the loving attention and details inherent in every home to make it ones residence; perhaps, at most, this small room could have served as Mitras resting area whenever he visited the locality, but nothing more than this.28 These observations coupled with the statements from former employees and customers of the Maligaya Feedmill that the claimed residence is located in an unsavory location (for its noise and pollution), and that it had been in fact Maligaya Feedmills office just a few months back militated against Mitras claim. These pieces of information made it clear, to the First Division, that this room is not the home that a residence is supposed to be.29 A persons domicile of origin is not easily lost, the First Division further said. The fact that Mitra registered as a voter in Aborlan, has a cock farm, a farm, a rest house and an experimental pineapple plantation in Maligaya Feedmill, was occasionally seen staying in Aborlan, and held meetings with Aborlan constituents does not necessarily establish Mitras status as an Aborlan resident, or prove his abandonment of his domicile of origin in Puerto Princesa City. Mere absence from ones residence or domicile of origin to pursue studies, engage in business, or practice ones vocation is not sufficient to constitute abandonment or loss of domicile. Registration or voting in a place other than ones domicile does not eliminate an individuals animus revertendi to his domicile of origin; the natural desire and longing of every person to return to the place of birth and his strong feeling of attachment to this place can only be shown to have been overcome by a positive proof of abandonment of this place for another.30 Also, the First Division said that Mitras witnesses sworn statements appear to have been prepared by the same person, as they use similar wordings, allegations, and contents; thus, putting into question the credibility of the statements. Furthermore, the lease contract over the Maligaya Feedmill between Mitra and Carme Caspe is effective only up to February 28, 2010, thus casting doubt on Mitras claim of residency in Aborlan.31

The COMELEC En Banc Ruling The COMELEC en banc in a divided decision32 subsequently denied Mitras motion to reconsider the First Division ruling under the following outlined reasons. First, registration as a voter of Aborlan is not sufficient evidence that Mitra has successfully abandoned his domicile of origin.33 Second, mere intent cannot supplant the express requirement of the law; the "physical presence" required to establish domicile connotes actual, factual and bona fide residence in a given locality. The COMELEC en banc agreed with the First Divisions evidentiary findings on this point. 34 Third, the First Divisions Resolution was based on a careful and judicious examination and consideration of all evidence submitted by the parties. The summary nature of the proceedings is not necessarily offensive to a partys right to due process.35 Fourth, Fernandez v. House of Representatives Electoral Tribunal36 is not on all fours with the present case Fernandez stemmed from a quo warranto case while the present case involves a petition to deny due course or cancel the COC. Likewise, Fernandez successfully proved that his transfer to Sta. Rosa City, Laguna several years prior to his candidacy was prompted by valid reasons, i.e., existence of his business in the area and the enrolment of his children at Sta. Rosa schools, thereby erasing doubts as to the bona fide nature of his transfer. In the present case, the COMELEC en banc found that Mitra admitted that his transfer to Aborlan in 2008 was prompted by his plans to run for governor in the 2010 national and local elections. The COMELEC en banc also noted that Fernandez involved an individual who had earned an overwhelming mandate from the electorate. The COMELEC en bancs ruling on Mitras case, on the other hand, came before the 2010 elections; thus, the people had not then voted.37 In his Dissent,38 Commissioner Sarmiento points out that the following acts of Mitra, taken collectively, indubitably prove a change of domicile from Puerto Princesa to Aborlan: (a) in January 2008, [Mitra] started a pineapple growing project in a rented farmland near Maligaya Feedmill and Farm located in Barangay Isaub, Aborlan; (b) in February 2008, [Mitra] leased the residential portion of the said Maligaya Feedmill; (c) in March 2008, after the said residential portion has been refurbished and renovated, [Mitra] started to occupy and reside in the said premises; (d) in 2009, [Mitra] purchased his own farmland in the same barangay but continued the lease involving the Maligaya Feedmill, the contract of which was even renewed until February 2010; and (e) [Mitra] caused the construction of a house in the purchased lot which has been recently completed.39 The Petition Mitra supports his petition with the following ARGUMENTS: 6.1 x x x COMELECs GRAVE ABUSE is most patent as IT forgets, wittingly or unwittingly that the solitary GROUND to deny due course to a COC is the DELIBERATE false material representation to DECEIVE, and not the issue of the candidates eligibility which should be resolved in an appropriate QUO WARRANTO proceedings post election.40 6.2 Deny Due Course Petitions under Section 78 of the OEC, being SUMMARILY decided and resolved, the same must be exercised most sparingly, with utmost care and extreme caution; and construed most strictly against the proponent/s, and liberally in favor of the

candidate sought to be eliminated. When exercised otherwise and with apparent biased in favor of the proponents, as in this instance, GRAVE ABUSE OF DISCRETION necessarily sets in.41 6.3 The mandate to be extremely cautious and careful in the SUMMARY exercise of the awesome power to simplistically cancel [ones] candidacy x x x is further made manifest by the availability of a QUO WARRANTO proceeding appropriately prosecuted post election.42 6.4 Absent any formal HEARINGS and Presentation of Evidence; Lacking the actual inspection and verification; and without actual confrontation of affiants/alleged witnesses ALL the "conclusions" of COMELEC on the RESIDENCE issue, were indeed predicted (sic) on sheer SPECULATION[.]43 6.5 A grievous procedural flaw, FATAL in character. THE BURDEN OF PROOF MUST ALWAYS BE PLACED ON THE SHOULDERS OF THE PROPONENT/s. Not so in the present controversy, where COMELECs assailed decision/s were devoted exclusively to the alleged weakness of MITRAs submissions and COMELECs speculative conclusions, rather than on the strength of proponents unverified and unconfirmed submissions and unconfronted sworn statements of supposed affiants[.]44 The petition also asks for ancillary injunctive relief. We granted the application for injunctive relief by issuing a status quo ante order, allowing Mitra to be voted upon in the May 10, 2010 elections. 45 The respondents Comment46 states the following counter-arguments: a. Procedural Arguments: II. THE INSTANT PETITION FAILED TO ATTACH CERTIFIED TRUE COPIES OF THE MATERIAL PORTIONS OF THE RECORDS REFERRED TO THEREIN IN GROSS CONTRAVENTION OF SECTION 5 OF RULE 64 OF THE RULES OF COURT. CONSEQUENTLY, IT MUST BE DISMISSED OUTRIGHT. III. THE INSTANT PETITION RAISES MERE ERRORS OF JUDGMENT, WHICH ARE OUTSIDE THIS HONORABLE COURTS CERTIORARI JURISDICTION. b. Arguments on the Merits I. XXX B. THE LAW, IN IMPOSING A RESIDENCY REQUIREMENT, MANDATES NOT ONLY FAMILIARITY WITH THE NEEDS AND CONDITIONS OF THE LOCALITY, BUT ALSO ACTUAL PHYSICAL, PERSONAL AND PERMANENT RESIDENCE THEREIN. PETITIONERS SUPPOSED FAMILIARITY WITH THE "NEEDS, DIFFICULTIES, ASPIRATIONS, POTENTIALS (SIC) FOR GROWTH AND ALL MATTERS VITAL TO THE WELFARE OF HIS CONSTITUENCY WHICH CONSTITUTES ONE/THIRD OF THE WHOLE PROVINCE OF PALAWAN" AS A THREE-TERM CONGRESSMAN ABSENT SUCH RESIDENCE DOES NOT SUFFICE TO MEET THE RESIDENCY REQUIREMENT OF THE LAW. IV. FINDINGS OF FACTS OF ADMINISTRATIVE BODIES SUCH AS THE COMELEC, ARE ACCORDED GREAT RESPECT, IF NOT FINALITY BY THE COURTS, ESPECIALLY IF SUPPORTED BY SUBSTANTIAL EVIDENCE. BECAUSE THE FINDINGS OF FACTS OF THE COMELEC IN THE INSTANT CASE ARE OVERWHELMINGLY SUPPORTED BY SUBSTANTIAL EVIDENCE, THIS HONORABLE COURT MAY NOT REVERSE SUCH FINDINGS. V. THE COMELEC DID NOT COMMIT ANY GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED RESOLUTION DATED 04 MAY 2010.

A. THE COMELEC CORRECTLY RULED THAT PETITIONERS REGISTRATION AS A VOTER IN ABORLAN, PALAWAN IS NOT SUFFICIENT EVIDENCE THAT HE HAS SUCCESSFULLY ABANDONED HIS DOMICILE OF ORIGIN AT PUERTO PRINCESA CITY, PALAWAN. B. THE COMELEC CORRECTLY RULED THAT PETITIONERS MERE INTENT TO TRANSFER RESIDENCE TO ABORLAN, PALAWAN, ABSENT ACTUAL, FACTUAL, AND BONA FIDE RESIDENCE THEREIN DOES NOT SUFFICE TO PROVE HIS TRANSFER OF RESIDENCE FROM PUERTO PRINCESA, PALAWAN TO ABORLAN, PALAWAN. C. THE COMELEC THOROUGHLY EVALUATED THE EVIDENCE, AND CORRECTLY ARRIVED AT THE ASSAILED DECISION ONLY AFTER MUCH DELIBERATION AND CAREFUL ASSESSMENT OF THE EVIDENCE, ALBEIT THROUGH SUMMARY PROCEEDINGS PARTICIPATED IN ACTIVELY BY PETITIONER. THE COMELEC CORRECTLY DID NOT GIVE CREDENCE TO THE TESTIMONIES OF PETITIONERS WITNESSES FOR BEING INCREDIBLE AND CONTRARY TO THE PHYSICAL EVIDENCE, ESPECIALLY PERTAINING TO HIS ALLEGED RESIDENCE AT THE FEEDMILL PROPERTY. D. THE COMELEC CORRECTLY RULED THAT PETITIONER HAS NOT TRANSFERRED HIS RESIDENCE FROM PUERTO PRINCESA, PALAWAN TO ABORLAN, PALAWAN. E. THE ALLEGED LEASE OF THE RESIDENTIAL PORTION OF THE FEEDMILL PROPERTY IS A SHAM. VI. GIVEN HIS STATURE AS A MEMBER OF THE PROMINENT MITRA CLAN OF PALAWAN, AND AS A 3-TERM CONGRESSMAN, IT IS HIGHLY INCREDIBLE THAT A SMALL ROOM IN A FEEDMILL HAS SERVED AS HIS RESIDENCE SINCE 2008. VII. THE COMELEC CORRECTLY RULED THAT PETITIONER MAY NOT INVOKE THE CASE OF FERNANDEZ V. HRET AS PETITIONER IS NOT SIMILARLY SITUATED AS DAN FERNANDEZ. VIII. THE MATERIAL STATEMENT IN PETITIONERS COC RESPECTING HIS RESIDENCE HAS BEEN SHOWN TO BE FALSE. BY MAKING SUCH FALSE STATEMENT, PETITIONER DELIBERATELY TRIED TO MISLEAD AND TO MISINFORM THE ELECTORATE AS TO HIS ACTUAL RESIDENCE. HENCE, HIS COC WAS CORRECTLY DENIED DUE COURSE AND CANCELED. In the recently concluded elections of May 10, 2010, Mitra obtained the most number of votes for Governor and was accordingly proclaimed winner of the Palawan gubernatorial contest. 47 We required the respondents and the COMELEC to comment on the petition. 48 They complied on May 6, 201049and June 2, 2010, respectively.50 On May 17, 2010, the petitioner filed a "Supplemental Petition."51 On May 26, 2010, the respondents filed a "Supplemental Comment (with Omnibus Motion to Annul Proclamation and for Early Resolution)" to the petitioners "Supplemental Petition." 52 We deemed the case ready for resolution on the basis of these submissions. The Courts Ruling We find the petition meritorious. The Limited Review in Certiorari Petitions under Rule 64, in relation to Rule 65 of the Rules of Court A preliminary matter before us is the respondents jurisdictional objection based on the issues raised in the present petition. The respondents assert that the questions Mitra brought to us are beyond our certiorari jurisdiction. Specifically, the respondents contend that Mitras petition merely seeks to correct errors of the COMELEC in appreciating the parties evidence a question we cannot entertain under our limited certiorari jurisdiction.

Mitra brought his case before us pursuant to Rule 64, in relation to Rule 65 of the Rules of Court.53 Our review, therefore, is based on a very limited ground the jurisdictional issue of whether the COMELEC acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction. Whether the COMELEC, by law, has jurisdiction over a case or matter brought to it is resolved by considering the black-letter provisions of the Constitution and pertinent election laws, and we see no disputed issue on this point. Other than the respondents procedural objections which we will fully discuss below, the present case rests on the allegation of grave abuse of discretion an issue that generally is not as simple to resolve. As a concept, "grave abuse of discretion" defies exact definition; generally, it refers to "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction"; the abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility. 54 Mere abuse of discretion is not enough; it must be grave.55 We have held, too, that the use of wrong or irrelevant considerations in deciding an issue is sufficient to taint a decision-makers action with grave abuse of discretion.56 Closely related with the limited focus of the present petition is the condition, under Section 5, Rule 64 of the Rules of Court, that findings of fact of the COMELEC, supported by substantial evidence, shall be final and non-reviewable. Substantial evidence is that degree of evidence that a reasonable mind might accept to support a conclusion.57 In light of our limited authority to review findings of fact, we do not ordinarily review in a certiorari case the COMELECs appreciation and evaluation of evidence. Any misstep by the COMELEC in this regard generally involves an error of judgment, not of jurisdiction. In exceptional cases, however, when the COMELECs action on the appreciation and evaluation of evidence oversteps the limits of its discretion to the point of being grossly unreasonable, the Court is not only obliged, but has the constitutional duty to intervene. 58 When grave abuse of discretion is present, resulting errors arising from the grave abuse mutate from error of judgment to one of jurisdiction.59 Our reading of the petition shows that it is sufficient in form with respect to the requisite allegation of jurisdictional error. Mitra clearly alleged the COMELEC acts that were supposedly tainted with grave abuse of discretion. Thus, we do not agree with the respondents contention that the petition on its face raises mere errors of judgment that are outside our certiorari jurisdiction. Whether the allegations of "grave abuse" are duly supported and substantiated is another matter and is the subject of the discussions below. Nature of the Case under Review: COC Denial/Cancellation Proceedings The present petition arose from a petition to deny due course or to cancel Mitras COC. This is the context of and take-off point for our review. From this perspective, the nature and requisites of the COC cancellation proceedings are primary considerations in resolving the present petition. 60 Section 74, in relation to Section 78, of the Omnibus Election Code (OEC) governs the cancellation of, and grant or denial of due course to, COCs. The combined application of these sections requires that the candidates stated facts in the COC be true, under pain of the COCs denial or cancellation if any false representation of a material fact is made. To quote these provisions: 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 theBatasang 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. xxxx 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 the filing of the certificate of candidacy and shall be decided, after due notice and hearing not later than fifteen days before the election. The false representation that these provisions mention must necessarily pertain to a material fact. The critical material facts are those that refer to a candidates qualifications for elective office, such as his or her citizenship and residence. The candidates status as a registered voter in the political unit where he or she is a candidate similarly falls under this classification as it is a requirement that, by law (the Local Government Code), must be reflected in the COC. The reason for this is obvious: the candidate, if he or she wins, will work for and represent the political unit where he or she ran as a candidate.61 The false representation under Section 78 must likewise be a "deliberate attempt to mislead, misinform, or hide a fact that would otherwise render a candidate ineligible." Given the purpose of the requirement, it must be made with the intention to deceive the electorate as to the would-be candidates qualifications for public office.62 Thus, the misrepresentation that Section 78 addresses cannot be the result of a mere innocuous mistake, and cannot exist in a situation where the intent to deceive is patently absent, or where no deception on the electorate results. The deliberate character of the misrepresentation necessarily follows from a consideration of the consequences of any material falsity: a candidate who falsifies a material fact cannot run; if he runs and is elected, he cannot serve; in both cases, he can be prosecuted for violation of the election laws. Based on these standards, we find that Mitra did not commit any deliberate material misrepresentation in his COC. The COMELEC gravely abused its discretion in its appreciation of the evidence, leading it to conclude that Mitra is not a resident of Aborlan, Palawan. The COMELEC, too, failed to critically consider whether Mitra deliberately attempted to mislead, misinform or hide a fact that would otherwise render him ineligible for the position of Governor of Palawan. Under the evidentiary situation of the case, there is clearly no basis for the conclusion that Mitra deliberately attempted to mislead the Palawan electorate. From the start, Mitra never hid his intention to transfer his residence from Puerto Princesa City to Aborlan to comply with the residence requirement of a candidate for an elective provincial office. Republic Act No. 7160, otherwise known as the Local Government Code, does not abhor this intended transfer of residence, as its Section 39 merely requires an elective local official to be a resident of the local government unit where he intends to run for at least one (1) year immediately preceding the day of the election. In other words, the law itself recognizes implicitly that there can be a change of domicile or residence, but imposes only the condition that residence at the new place should at least be for a year. Of course, as a continuing requirement or qualification, the elected official must remain a resident there for the rest of his term. Mitras domicile of origin is undisputedly Puerto Princesa City. For him to qualify as Governor in light of the relatively recent change of status of Puerto Princesa City from a component city to a highly urbanized city whose residents can no longer vote for provincial officials he had to abandon his domicile of origin and acquire a new one within the local government unit where he intended to run; this would be his domicile of choice. To acquire a domicile of choice, jurisprudence, which the COMELEC correctly invoked, requires the following: (1) residence or bodily presence in a new locality;

(2) an intention to remain there; and (3) an intention to abandon the old domicile.63 The contentious issues in Mitras case relate to his bodily presence, or the lack of it, in Aborlan, and the declaration he made on this point. The respondents anchor their cause of action on the alleged falsity of Mitras statement that he is a resident of Aborlan. To support this contention, the respondents claim that the construction of the supposed Mitra residence or house, other than the leased premises in Maligaya Feedmill, has yet to be completed, leaving Mitra with no habitable place in Aborlan. When Mitra successfully refuted this original claim, the respondents presented sworn statements of Aborlan residents contradicting Mitras claimed physical residence at the Maligaya Feedmill building in Aborlan. They likewise point out, by sworn statements, that this alleged residence could not be considered a house that Mitra could properly consider his residence, on the view that the feedmill place is beneath what Mitra a three-term congressman and a member of the Mitra political clan of Palawan would occupy. Mitra, on the other hand, presented sworn statements of various persons (including the seller of the land he purchased, the lessor of the Maligaya Feedmill, and the Punong Barangay of the site of his residence) attesting to his physical residence in Aborlan; photographs of the residential portion of Maligaya Feedmill where he resides, and of his experimental pineapple plantation, farm, farmhouse and cock farm; the lease contract over the Maligaya Feedmill; and the deed of sale of the lot where he has started constructing his house. He clarified, too, that he does not claim residence in Aborlan at the house then under construction; his actual residence is the mezzanine portion of the Maligaya Feedmill building. Faced with the seemingly directly contradictory evidence, the COMELEC apparently grossly misread its import and, because it used wrong considerations, was led into its faulty conclusion. The seeming contradictions arose from the sworn statements of some Aborlan residents attesting that they never saw Mitra in Aborlan; these are controverted by similar sworn statements by other Aborlan residents that Mitra physically resides in Aborlan. The number of witnesses and their conflicting claims for and against Mitras residency appear to have sidetracked the COMELEC. Substantial evidence, however, is not a simple question of number; reason demands that the focus be on what these differing statements say. For example, the sworn statements that Mitra has never been seen in Aborlan border on the unbelievable and loudly speak of their inherent weakness as evidence. Mitra has established business interests in Aborlan, a fact which the respondents have never disputed. He was then the incumbent three-term Representative who, as early as 2008, already entertained thoughts of running for Governor in 2010. It is not disputed, too, that Mitra has started the construction of a house on a lot he bought from Rexter Temple; the site is very near the Maligaya Feedmill that he leased from its owner, Carme Caspe. While Mitra might not have stayed in Aborlan nor in Palawan for most of 2008 and 2009 because his office and activities as a Representative were in Manila, it is hardly credible that he would not be seen in Aborlan. In this regard, the sworn statement of the Punong Barangay of Isaub, Aborlan should carry a lot more weight than the statements of punong barangay officials elsewhere since it is the business of a punong barangay to know who the residents are in his own barangay. The COMELEC apparently missed all these because it was fixated on the perceived coldness and impersonality of Mitras dwelling. The parties submitted documentary evidence likewise requires careful consideration for the correct appraisal of its evidentiary value. On the one hand, the document of sale of the Temple property, the building permit for the house under construction, and the community tax certificate used in these transactions all stated that Mitras residence was Puerto Princesa City. On the other hand, Mitra introduced a notarized contract of lease supported by the sworn explanation of the lessor (Carme Caspe) showing that he indeed leased Maligaya Feedmill. He submitted, too, a residence certificate showing Aborlan as his residence, and an identification card of the House of Representatives showing Aborlan as his residence.

We cannot give full evidentiary weight to the contract of sale as evidence relating to Mitras residence for two reasons. First, it is a unilateral contract executed by the seller (Rexter Temple); thus, his statement and belief as to Mitras personal circumstances cannot be taken as conclusive against the latter. Second, the sale involved several vendees, including Mitras brother (Ramon B. Mitra) and one Peter Winston T. Gonzales; his co-vendees still live in Puerto Princesa City; hence, they were all loosely and collectively described to have their residence in Puerto Princesa City.64 Parenthetically, the document simply stated: "I, REXTER TEMPLE, of legal age, Filipino, single and resident of Isaub, Aborlan, Palawan, hereby by these presents, x x x do hereby SELL, TRANSFER and CONVEY unto the said Vendees, ABRAHAM KAHLIL B. MITRA, single; RAMON B. MITRA, married to Mary Ann Mitra; PETER WINSTON T. GONZALES, married to Florecita R. Gonzales, all of legal ages and residents [of] Rancho Sta. Monica, Brgy. Sta. Monica, Puerto Princesa City, their heirs and assigns."65 Thus, the contract contained a mere general statement that loosely described the vendees as Puerto Princesa City residents. This general statement solely came from the vendor. The building permit, on the other hand, was filed by Mitras representative, an architect named John Quillope, who apparently likewise filled the form. That Mitra only signed the building permit form is readily discernible from an examination of the face of the form; even the statement on his community tax certificate bearing a Puerto Princesa City residence does not appear in his handwriting.66 Significantly, Mitras secretary Lilia Camora attested that it was she who secured the community tax certificate for Mitra in February 2009 without the latters knowledge. 67Annex "M" of the respondents Petition before the COMELEC indeed shows that the community tax certificate did not bear the signature of Mitra.68 Mitra secured his own certificate in Aborlan on March 18, 2009. This community tax certificate carries his own signature. 69 Parenthetically, per Carme Caspes statement, Mitra leased the feedmill residence in February 2008 and started moving in his belongings in March 2008, confirming the veracity of his Aborlan presence at the time he secured his community tax certificate.70 In these lights, the February 3, 2009 community tax certificate, if at all, carries very little evidentiary value. The respondents expectedly attacked the validity of the lease contract; they contended in their Memorandum that the feedmill was situated in a forest land that cannot be leased, and that the contract, while notarized, was not registered with the required notarial office of the court. 71 The validity of the lease contract, however, is not the issue before us; what concerns us is the question of whether Mitra did indeed enter into an agreement for the lease, or strictly for the use, of the Maligaya Feedmill as his residence (while his house, on the lot he bought, was under construction) and whether he indeed resided there. The notarys compliance with the notarial law likewise assumes no materiality as it is a defect not imputable to Mitra; what is important is the parties affirmation before a notary public of the contracts genuineness and due execution. A sworn statement that has no counterpart in the respondents evidence in so far as it provides details (particularly when read with the statement of Ricardo Temple) 72 is Carme Caspes statement73 on how Mitras transfer of residence took place. Read together, these statements attest that the transfer of residence was accomplished, not in one single move but, through an incremental process that started in early 2008 and was in place by March 2009, although the house Mitra intended to be his permanent home was not yet then completed.74 In considering the residency issue, the COMELEC practically focused solely on its consideration of Mitras residence at Maligaya Feedmill, on the basis of mere photographs of the premises. In the COMELECs view (expressly voiced out by the Division and fully concurred in by the En Banc), the Maligaya Feedmill building could not have been Mitras residence because it is cold and utterly devoid of any indication of Mitras personality and that it lacks loving attention and details inherent in every home to make it ones residence.75 This was the main reason that the COMELEC relied upon for its conclusion. Such assessment, in our view, based on the interior design and furnishings of a dwelling as shown by and examined only through photographs, is far from reasonable; the COMELEC thereby determined the fitness of a dwelling as a persons residence based solely on very personal and subjective assessment standards when the law is replete with standards that can be used. Where a dwelling qualifies as a residence i.e., the dwelling where a person permanently intends to return to and to remain76 his or her capacity or inclination to decorate the place, or the lack of it, is immaterial.

Examined further, the COMELECs reasoning is not only intensely subjective but also flimsy, to the point of grave abuse of discretion when compared with the surrounding indicators showing the Mitra has indeed been physically present in Aborlan for the required period with every intent to settle there. Specifically, it was lost on the COMELEC majority (but not on the Dissent) that Mitra made definite, although incremental transfer moves, as shown by the undisputed business interests he has established in Aborlan in 2008; by the lease of a dwelling where he established his base; by the purchase of a lot for his permanent home; by his transfer of registration as a voter in March 2009; and by the construction of a house all viewed against the backdrop of a bachelor Representative who spent most of his working hours in Manila, who had a whole congressional district to take care of, and who was establishing at the same time his significant presence in the whole Province of Palawan. From these perspectives, we cannot but conclude that the COMELECs approach i.e., the application of subjective non-legal standards and the gross misappreciation of the evidence is tainted with grave abuse of discretion, as the COMELEC used wrong considerations and grossly misread the evidence in arriving at its conclusion. In using subjective standards, the COMELEC committed an act not otherwise within the contemplation of law on an evidentiary point that served as a major basis for its conclusion in the case. With this analysis and conclusion in mind, we come to the critical question of whether Mitra deliberately misrepresented that his residence is in Aborlan to deceive and mislead the people of the Province of Palawan. We do not believe that he committed any deliberate misrepresentation given what he knew of his transfer, as shown by the moves he had made to carry it out. From the evidentiary perspective, we hold that the evidence confirming residence in Aborlan decidedly tilts in Mitras favor; even assuming the worst for Mitra, the evidence in his favor cannot go below the level of an equipoise, i.e., when weighed, Mitras evidence of transfer and residence in Aborlan cannot be overcome by the respondents evidence that he remained a Puerto Princesa City resident. Under the situation prevailing when Mitra filed his COC, we cannot conclude that Mitra committed any misrepresentation, much less a deliberate one, about his residence. The character of Mitras representation before the COMELEC is an aspect of the case that the COMELEC completely failed to consider as it focused mainly on the character of Mitras feedmill residence. For this reason, the COMELEC was led into error one that goes beyond an ordinary error of judgment. By failing to take into account whether there had been a deliberate misrepresentation in Mitras COC, the COMELEC committed the grave abuse of simply assuming that an error in the COC was necessarily a deliberate falsity in a material representation. In this case, it doubly erred because there was no falsity; as the carefully considered evidence shows, Mitra did indeed transfer his residence within the period required by Section 74 of the OEC. The respondents significantly ask us in this case to adopt the same faulty approach of using subjective norms, as they now argue that given his stature as a member of the prominent Mitra clan of Palawan, and as a three term congressman, it is highly incredible that a small room in a feed mill has served as his residence since 2008.77 We reject this suggested approach outright for the same reason we condemned the COMELECs use of subjective non-legal standards. Mitras feed mill dwelling cannot be considered in isolation and separately from the circumstances of his transfer of residence, specifically, his expressed intent to transfer to a residence outside of Puerto Princesa City to make him eligible to run for a provincial position; his preparatory moves starting in early 2008; his initial transfer through a leased dwelling; the purchase of a lot for his permanent home; and the construction of a house in this lot that, parenthetically, is adjacent to the premises he leased pending the completion of his house. These incremental moves do not offend reason at all, in the way that the COMELECs highly subjective non-legal standards do. Thus, we can only conclude, in the context of the cancellation proceeding before us, that the respondents have not presented a convincing case sufficient to overcome Mitras evidence of effective transfer to and residence in Aborlan and the validity of his representation on this point in his COC, while the COMELEC could not even present any legally acceptable basis to conclude that Mitras statement in his COC regarding his residence was a misrepresentation.

Mitra has significant relationship with, and intimate knowledge of, the constituency he wishes to serve. Citing jurisprudence, we began this ponencia with a discussion of the purpose of the residency requirement under the law. By law, this residency can be anywhere within the Province of Palawan, except for Puerto Princesa City because of its reclassification as a highly urbanized city. Thus, residency in Aborlan is completely consistent with the purpose of the law, as Mitra thereby declared and proved his required physical presence in the Province of Palawan. We also consider that even before his transfer of residence, he already had intimate knowledge of the Province of Palawan, particularly of the whole 2nd legislative district that he represented for three terms. For that matter, even the respondents themselves impliedly acknowledged that the Mitras, as a family, have been identified with elective public service and politics in the Province of Palawan.78 This means to us that Mitra grew up in the politics of Palawan. We can reasonably conclude from all these that Mitra is not oblivious to the needs, difficulties, aspirations, potential for growth and development, and all matters vital to the common welfare of the constituency he intends to serve. Mitra who is no stranger to Palawan has merely been compelled after serving three terms as representative of the congressional district that includes Puerto Princesa City and Aborlan by legal developments to transfer his residence to Aborlan to qualify as a Province of Palawan voter. To put it differently, were it not for the reclassification of Puerto Princesa City from a component city to a highly urbanized city, Mitra would not have encountered any legal obstacle to his intended gubernatorial bid based on his knowledge of and sensitivity to the needs of the Palawan electorate. This case, incidentally, is not the first that we have encountered where a former elective official had to transfer residence in order to continue his public service in another political unit that he could not legally access, as a candidate, without a change of residence. In Torayno, Sr. v. COMELEC,79 former Governor Vicente Y. Emano re-occupied a house he owned and had leased out in Cagayan de Oro City to qualify as a candidate for the post of Mayor of that city (like Puerto Princesa City, a highly urbanized city whose residents cannot vote for and be voted upon as elective provincial officials). We said in that case that In other words, the actual, physical and personal presence of herein private respondent in Cagayan de Oro City is substantial enough to show his intention to fulfill the duties of mayor and for the voters to evaluate his qualifications for the mayorship. Petitioners' very legalistic, academic and technical approach to the residence requirement does not satisfy this simple, practical and commonsense rationale for the residence requirement. In Asistio v. Hon. Trinidad Pe-Aguirre,80 we also had occasion to rule on the residency and right to vote of former Congressman Luis A. Asistio who had been a congressman for Caloocan in 1992, 1995, 1998 and 2004, and, in the words of the Decision, "is known to be among the prominent political families in Caloocan City." 81 We recognized Asistios position that a mistake had been committed in his residency statement, and concluded that the mistake is not "proof that Asistio has abandoned his domicile in Caloocan City, or that he has established residence outside of Caloocan City." By this recognition, we confirmed that Asistio has not committed any deliberate misrepresentation in his COC. These cases are to be distinguished from the case of Velasco v. COMELEC82 where the COMELEC cancelled the COC of Velasco, a mayoralty candidate, on the basis of his undisputed knowledge, at the time he filed his COC, that his inclusion and registration as a voter had been denied. His failure to register as a voter was a material fact that he had clearly withheld from the COMELEC; he knew of the denial of his application to register and yet concealed his non-voter status when he filed his COC. Thus, we affirmed the COMELECs action in cancelling his COC. If there is any similarity at all in Velasco and the present case, that similarity is in the recognition in both cases of the rule of law. In Velasco, we recognized based on the law that a basic defect existed prior to his candidacy, leading to his disqualification and the vice-mayor-elects assumption to the office. In the present case, we recognize the validity of Mitras COC, again on the basis of

substantive and procedural law, and no occasion arises for the vice-governor-elect to assume the gubernatorial post. Mitra has been proclaimed winner in the electoral contest and has therefore the mandate of the electorate to serve We have applied in past cases the principle that the manifest will of the people as expressed through the ballot must be given fullest effect; in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate.83 Thus, we have held that while provisions relating to certificates of candidacy are in mandatory terms, it is an established rule of interpretation as regards election laws, that mandatory provisions, requiring certain steps before elections, will be construed as directory after the elections, to give effect to the will of the people. 84 Quite recently, however, we warned against a blanket and unqualified reading and application of this ruling, as it may carry dangerous significance to the rule of law and the integrity of our elections. For one, such blanket/unqualified reading may provide a way around the law that effectively negates election requirements aimed at providing the electorate with the basic information for an informed choice about a candidates eligibility and fitness for office. 85 Short of adopting a clear cut standard, we thus made the following clarification: We distinguish our ruling in this case from others that we have made in the past by the clarification that COC defects beyond matters of form and that involve material misrepresentations cannot avail of the benefit of our ruling that COC mandatory requirements before elections are considered merely directory after the people shall have spoken. A mandatory and material election law requirement involves more than the will of the people in any given locality. Where a material COC misrepresentation under oath is made, thereby violating both our election and criminal laws, we are faced as well with an assault on the will of the people of the Philippines as expressed in our laws. 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.861avvphi1 Earlier, Frivaldo v. COMELEC87 provided the following test: [T]his Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of our democracy. In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. [Emphasis supplied.] With the conclusion that Mitra did not commit any material misrepresentation in his COC, we see no reason in this case to appeal to the primacy of the electorates will. We cannot deny, however, that the people of Palawan have spoken in an election where residency qualification had been squarely raised and their voice has erased any doubt about their verdict on Mitras qualifications. WHEREFORE, premises considered, we GRANT the petition and ANNUL the assailed COMELEC Resolutions in Antonio V. Gonzales and Orlando R. Balbon, Jr. v. Abraham Kahlil B. Mitra (SPA No. 09-038 [C]). We DENY the respondents petition to cancel Abraham Kahlil Mitras Certificate of Candidacy. No costs. SO ORDERED. G.R. No. 134015 July 19, 1999 JUAN DOMINO, petitioner, vs.

COMMISSION ON ELECTIONS, NARCISO Ra. GRAFILO, JR., EDDY B. JAVA, JUAN P. BAYONITO, JR., ROSARIO SAMSON and DIONISIO P. LIM, SR., respondent, LUCILLE CHIONGBIAN-SOLON, intervenor.

Furthermore, Community Tax Certificate No. 11132212C of the same stub was issued to Carlito Engcong on September 5, 1997, while Certificate No. 11132213C was also issued to Mr. Juan Domino but was cancelled and serial no. 11132215C was issued in the name of Marianita Letigio on September 8, 1997. 5. Annex "E" The triplicate copy of the Community Tax Certificate No. 11132214C in the name of Juan Domino dated September 5, 1997; 6. Annex "F" Copy of the letter of Provincial Treasurer Lourdes P. Riego dated March 2, 1998 addressed to Mr. Herson D. Dema-ala, Deputy Provincial Treasurer and Municipal Treasurer of Alabel, Sarangani, which states: For easy reference, kindly turn-over to the undersigned for safekeeping, the stub of Community Tax Certificate containing Nos. 11132201C-11132250C issued to you on June 13, 1997 and paid under Official Receipt No. 7854744. Upon request of Congressman James L. Chiongbian.

DAVIDE, JR., CJ.: Challenged in this case for certiorari with a prayer for preliminary injunction are the Resolution of 6 May 1998 1 of the Second Division of the Commission on Elections (hereafter COMELEC), declaring petitioner Juan Domino (hereafter DOMINO) disqualified as candidate for representative of the Lone Legislative District of the Province of Sarangani in the 11 May 1998 elections, and the Decision of 29 May 1998 2 of the COMELEC en banc denying DOMINO's motion for reconsideration. The antecedents are not disputed.1wphi1.nt On 25 March 1998, DOMINO filed his certificate of candidacy for the position of Representative of the Lone Legislative District of the Province of Sarangani indicating in item nine (9) of his certificate that he had resided in the constituency where he seeks to be elected for one (1) year and two (2) months immediately preceding the election. 3 On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy B. Java, Juan P. Bayonito, Jr., Rosario Samson and Dionisio P. Lim, Sr., fied with the COMELEC a Petition to Deny Due Course to or Cancel Certificate of Candidacy, which was docketed as SPA No. 98-022 and assigned to the Second Division of the COMELEC. Private respondents alleged that DOMINO, contrary to his declaration in the certificate of candidacy, is not a resident, much less a registered voter, of the province of Sarangani where he seeks election. To substantiate their allegations, private respondents presented the following evidence: 1. Annex "A" the Certificate of Candidacy of respondent for the position of Congressman of the Lone District of the Province of Sarangani filed with the Office of the Provincial Election Supervisor of Sarangani on March 25, 1998, where in item 4 thereof he wrote his date of birth as December 5, 1953; in item 9, he claims he have resided in the constituency where he seeks election for one (1) year and two (2) months; and, in item 10, that he is registered voter of Precinct No. 14A-1, Barangay Poblacion, Alabel, Sarangani; 2. Annex "B" Voter's Registration Record with SN 31326504 dated June 22, 1997 indicating respondent's registration at Precinct No. 4400-A, Old Balara, Quezon City; 3. Annex "C" Respondent's Community Tax Certificate No. 11132214C dated January 15, 1997; 4. Annex "D" Certified true copy of the letter of Herson D. Dema-ala, Deputy Provincial & Municipal Treasurer of Alabel, Sarangani, dated February 26, 1998, addressed to Mr. Conrado G. Butil, which reads: In connection with your letter of even date, we are furnishing you herewith certified xerox copy of the triplicate copy of COMMUNITY TAX CERTIFICATE NO. 11132214C in the name of Juan Domino.

7. Annex "G" Certificate of Candidacy of respondent for the position of Congressman in the 3rd District of Quezon City for the 1995 elections filed with the Office of the Regional Election Director, National Capital Region, on March 17, 1995, where, in item 4 thereof, he wrote his birth date as December 22, 1953; in item 8 thereof his "residence in the constituency where I seek to be elected immediately preceding the election" as 3 years and 5 months; and, in item 9, that he is a registered voter of Precinct No. 182, Barangay Balara, Quezon City; 8. Annex "H" a copy of the APPLICATION FOR TRANSFER OF REGISTRATION RECORDS DUE TO CHANGE OF RESIDENCE of respondent dated August 30, 1997 addressed to and received by Election Officer Mantil Alim, Alabel, Sarangani, on September 22, 1997, stating among others, that "[T]he undersigned's previous residence is at 24 Bonifacio Street, Ayala Heights, Quezon City, III District, Quezon City; wherein he is a registered voter" and "that for business and residence purposes, the undersigned has transferred and conducts his business and reside at Barangay Poblacion, Alabel, Province of Sarangani prior to this application;" 9. Annex "I" Copy of the SWORN APPLICATION FOR OF CANCELLATION OF THE VOTER'S [TRANSFER OF] PREVIOUS REGISTRATION of respondent subscribed and sworn to on 22 October 1997 before Election Officer Mantil Allim at Alabel, Sarangani. 4 For his defense, DOMINO maintains that he had complied with the one-year residence requirement and that he has been residing in Sarangani since January 1997. In support of the said contention, DOMINO presented before the COMELEC the following exhibits, to wit: 1. Annex "1" Copy of the Contract of Lease between Nora Dacaldacal as Lessor and Administrator of the properties of deceased spouses Maximo and Remedios Dacaldacal and respondent as Lessee executed on January

15, 1997, subscribed and sworn to before Notary Public Johnny P. Landero; 2. Annex "2" Copy of the Extra-Judicial Settlement of Estate with Absolute Deed of sale executed by and between the heirs of deceased spouses Maximo and Remedios Dacaldacal, namely: Maria Lourdes, Jupiter and Beberlie and the respondent on November 4, 1997, subscribed and sworn to before Notary Public Jose A. Alegario; 3. Annex "3" True Carbon Xerox copy of the Decision dated January 19, 1998, of the Metropolitan Trial Court of Metro Manila, Branch 35, Quezon City, in Election Case NO. 725 captioned as "In the Matter of the Petition for the Exclusion from the List of voters of Precinct No. 4400-A Brgy. Old Balara, Quezon City, Spouses Juan and Zorayda Domino, Petitioners, -versus- Elmer M. Kayanan, Election Officer, Quezon City, District III, and the Board of Election Inspectors of Precinct No. 4400-A, Old Balara, Quezon City, Respondents." The dispositive portion of which reads: 1. Declaring the registration of petitioners as voters of Precinct No. 4400-A, Barangay Old Balara, in District III Quezon City as completely erroneous as petitioners were no longer residents of Quezon City but of Alabel, Sarangani where they have been residing since December 1996; 2. Declaring this erroneous registration of petitioners in Quezon City as done in good faith due to an honest mistake caused by circumstances beyond their control and without any fault of petitioners; 3. Approving the transfer of registration of voters of petitioners from Precint No. 4400-A of Barangay Old Balara, Quezon City to Precinct No. 14A1 of Barangay Poblacion of Alabel, Sarangani; and 4. Ordering the respondents to immediately transfer and forward all the election/voter's registration records of the petitioners in Quezon City to the Election Officer, the Election Registration Board and other Comelec Offices of Alabel, Sarangani where the petitioners are obviously qualified to excercise their respective rights of suffrage. 4. Annex "4" Copy of the Application for Transfer of Registration Records due to Change of Residence addressed to Mantil Alim, COMELEC Registrar, Alabel, Sarangani, dated August 30, 1997. 5. Annex "5" Certified True Copy of the Notice of Approval of Application, the roster of applications for

registration approved by the Election Registration Board on October 20, 1997, showing the spouses Juan and Zorayda Bailon Domino listed as numbers 111 and 112 both under Precinct No. 14A1, the last two names in the slate indicated as transferees without VRR numbers and their application dated August 30, 1997 and September 30, 1997, respectively. 6. Annex "6" same as Annex "5" 7. Annex "6-a" Copy of the Sworn Application for Cancellation of Voter's Previous Registration (Annex "I", Petition); 8. Annex "7" Copy of claim card in the name of respondent showing his VRR No. 31326504 dated October 20, 1997 as a registered voter of Precinct No. 14A1, Barangay Poblacion, Alabel, Sarangani; 9. Annex "7-a" Certification dated April 16, 1998, issued by Atty. Elmer M. Kayanan, Election Officer IV, District III, Quezon City, which reads: This is to certify that the spouses JUAN and ZORAYDA DOMINO are no longer registered voters of District III, Quezon City. Their registration records (VRR) were transferred and are now in the possession of the Election Officer of Alabel, Sarangani. This certification is being issued upon the request of Mr. JUAN DOMINO. 10. Annex "8" Affidavit of Nora Dacaldacal and Maria Lourdes Dacaldacal stating the circumstances and incidents detailing their alleged acquaintance with respondent. 11. Annexes "8-a", "8-b", "8-c" and "8-d" Copies of the uniform affidavits of witness Myrna Dalaguit, Hilario Fuentes, Coraminda Lomibao and Elena V. Piodos subscribed and sworn to before Notary Public Bonifacio F. Doria, Jr., on April 18, 1998, embodying their alleged personal knowledge of respondent's residency in Alabel, Sarangani; 12. Annex "8-e" A certification dated April 20, 1998, subscribed and sworn to before Notary Public Bonifacio, containing a listing of the names of fifty-five (55) residents of Alabel, Sarangani, declaring and certifying under oath that they personally know the respondent as a permanent resident of Alabel, Sarangani since January 1997 up to present; 13. Annexes "9", "9-a" and "9-b" Copies of Individual Income Tax Return for the year 1997, BIR form 2316 and W-2, respectively, of respondent; and, 14. Annex "10" The affidavit of respondent reciting the chronology of events and circumstances leading to his relocation to the Municipality of Alabel, Sarangani, appending Annexes "A", "B", "C", "D", "D-1", "E", "F", "G"

with sub-markings "G-1" and "G-2" and "H" his CTC No. 111`32214C dated September 5, 1997, which are the same as Annexes "1", "2", "4", "5", "6-a", "3", "7", "9" with sub-markings "9-a" and "9-b" except Annex "H". 5 On 6 May 1998, the COMELEC 2nd Division promulgated a resolution declaring DOMINO disqualified as candidate for the position of representative of the lone district of Sarangani for lack of the oneyear residence requirement and likewise ordered the cancellation of his certificate of candidacy, on the basis of the following findings: What militates against respondent's claim that he has met the residency requirement for the position sought is his own Voter's Registration Record No. 31326504 dated June 22, 1997 [Annex "B", Petition] and his address indicated as 24 Bonifacio St., Ayala Heights, Old Balara, Quezon City. This evidence, standing alone, negates all his protestations that he established residence at Barangay Poblacion, Alabel, Sarangani, as early as January 1997. It is highly improbable, nay incredible, for respondent who previously ran for the same position in the 3rd Legislative District of Quezon City during the elections of 1995 to unwittingly forget the residency requirement for the office sought. Counting, therefore, from the day after June 22, 1997 when respondent registered at Precinct No. 4400-A, up to and until the day of the elections on May 11, 1998, respondent clearly lacks the one (1) year residency requirement provided for candidates for Member of the House of Representatives under Section 6, Article VI of the Constitution. All told, petitioner's evidence conspire to attest to respondent's lack of residence in the constituency where he seeks election and while it may be conceded that he is a registered voter as contemplated under Section 12 of R.A. 8189, he lacks the qualification to run for the position of Congressman for the Lone District of the Province of Sarangani. 6 On 11 May 1998, the day of the election, the COMELEC issued Supplemental Omnibus Resolution No. 3046, ordering that the votes cast for DOMINO be counted but to suspend the proclamation if winning, considering that the Resolution disqualifying him as candidate had not yet become final and executory. 7 The result of the election, per Statement of Votes certified by the Chairman of the Provincial Board of Canvassers,8 shows that DOMINO garnered the highest number of votes over his opponents for the position of Congressman of the Province of Sarangani. On 15 May 1998, DOMINO filed a motion for reconsideration of the Resolution dated 6 May 1998, which was denied by the COMELEC en banc in its decision dated 29 May 1998. Hence, the present Petition for Certiorari with prayer for Preliminary Mandatory Injunction alleging, in the main, that the COMELEC committed grave abuse of discretion amounting to excess or lack of jurisdiction when it ruled that he did not meet the one-year residence requirement. On 14 July 1998, acting on DOMINO's Motion for Issuance of Temporary Restraining Order, the Court directed the parties to maintain the status quo prevailing at the time of the filing of the instant petition. 9 On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter INTERVENOR), the candidate receiving the second highest number of votes, was allowed by the Court to Intervene. 10 INTERVENOR in her Motion for Leave to Intervene and in her Comment in Intervention 11 is asking the Court to uphold the disqualification of petitioner Juan Domino and to proclaim her as the duly elected representative of Sarangani in the 11 May 1998 elections. Before us DOMINO raised the following issues for resolution, to wit:

a. Whether or not the judgment of the Metropolitan Trial Court of Quezon City declaring petitioner as resident of Sarangani and not of Quezon City is final, conclusive and binding upon the whole world, including the Commission on Elections. b. Whether or not petitioner herein has resided in the subject congressional district for at least one (1) year immediately preceding the May 11, 1998 elections; and c. Whether or not respondent COMELEC has jurisdiction over the petition a quo for the disqualification of petitioner. 12 The first issue. The contention of DOMINO that the decision of the Metropolitan Trial Court of Quezon City in the exclusion proceedings declaring him a resident of the Province of Sarangani and not of Quezon City is final and conclusive upon the COMELEC cannot be sustained. The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the Omnibus Election Code, over a petition to deny due course to or cancel certificate of candidacy. In the exercise of the said jurisdiction, it is within the competence of the COMELEC to determine whether false representation as to material facts was made in the certificate of candidacy, that will include, among others, the residence of the candidate. The determination of the Metropolitan Trial Court of Quezon City in the exclusion proceedings as to the right of DOMINO to be included or excluded from the list of voters in the precinct within its territorial jurisdicton, does not preclude the COMELEC, in the determination of DOMINO's qualification as a candidate, to pass upon the issue of compliance with the residency requirement. The proceedings for the exclusion or inclusion of voters in the list of voters are summary in character. Thus, the factual findings of the trial court and its resultant conclusions in the exclusion proceedings on matters other than the right to vote in the precinct within its territorial jurisdiction are not conclusive upon the COMELEC. Although the court in inclusion or exclusion proceedings may pass upon any question necessary to decide the issue raised including the questions of citizenship and residence of the challenged voter, the authority to order the inclusion in or exclusion from the list of voters necessarily caries with it the power to inquire into and settle all matters essential to the exercise of said authority. However, except for the right to remain in the list of voters or for being excluded therefrom for the particular election in relation to which the proceedings had been held, a decision in an exclusion or inclusion proceeding, even if final and unappealable, does not acquire the nature of res judicata. 13 In this sense, it does not operate as a bar to any future action that a party may take concerning the subject passed upon in the proceeding. 14 Thus, a decision in an exclusion proceeding would neither be conclusive on the voter's political status, nor bar subsequent proceedings on his right to be registered as a voter in any other election. 15 Thus, in Tan Cohon v. Election Registrar 16 we ruled that: . . . It is made clear that even as it is here held that the order of the City Court in question has become final, the same does not constitute res adjudicata as to any of the matters therein contained. It is ridiculous to suppose that such an important and intricate matter of citizenship may be passed upon and determined with finality in such a summary and peremptory proceeding as that of inclusion and exclusion of persons in the registry list of voters. Even if the City Court had granted appellant's petition for inclusion in the permanent list of voters on the allegation that she is a Filipino citizen qualified to vote, her alleged Filipino citizenship would still have been left open to question. Moreover, the Metropolitan Trial Court of Quezon City in its 18 January decision exceeded its jurisdiction when it declared DOMINO a resident of the Province of Sarangani, approved and ordered the transfer of his voter's registration from Precinct No. 4400-A of Barangay Old Balara, Quezon

City to precinct 14A1 of Barangay Poblacion, Alabel, Sarangani. It is not within the competence of the trial court, in an exclusion proceedings, to declare the challenged voter a resident of another municipality. The jurisdiction of the lower court over exclusion cases is limited only to determining the right of voter to remain in the list of voters or to declare that the challenged voter is not qualified to vote in the precint in which he is registered, specifying the ground of the voter's disqualification. The trial court has no power to order the change or transfer of registration from one place of residence to another for it is the function of the election Registration Board as provided under Section 12 of R.A. No. 8189. 17 The only effect of the decision of the lower court excluding the challenged voter from the list of voters, is for the Election Registration Board, upon receipt of the final decision, to remove the voter's registration record from the corresponding book of voters, enter the order of exclusion therein, and thereafter place the record in the inactive file. 18 Finally, the application of the rule on res judicata is unavailing. Identity of parties, subject matter and cause of action are indispensable requirements for the application of said doctrine. Neither herein Private Respondents nor INTERVENOR, is a party in the exclusion proceedings. The Petition for Exclusion was filed by DOMINDO himself and his wife, praying that he and his wife be excluded from the Voter's List on the ground of erroneous registration while the Petition to Deny Due Course to or Cancel Certificate of Candidacy was filed by private respondents against DOMINO for alleged false representation in his certificate of candidacy. For the decision to be a basis for the dismissal by reason of res judicata, it is essential that there must be between the first and the second action identity of parties, identity of subject matter and identity of causes of action. 19 In the present case, the aforesaid essential requisites are not present. In the case of Nuval v. Guray, et al., 20 the Supreme Court in resolving a similar issue ruled that: The question to be solved under the first assignment of error is whether or not the judgment rendered in the case of the petition for the exclusion of Norberto Guray's name from the election list of Luna, isres judicata, so as to prevent the institution and prosecution of an action in quo warranto, which is now before us. The procedure prescribed by section 437 of the Administrative Code, as amended by Act No. 3387, is of a summary character and the judgment rendered therein is not appealable except when the petition is tried before the justice of the peace of the capital or the circuit judge, in which case it may be appealed to the judge of first instance, with whom said two lower judges have concurrent jurisdiction. The petition for exclusion was presented by Gregorio Nuval in his dual capacity as qualified voter of the municipality of Luna, and as a duly registered candidate for the office of president of said municipality, against Norberto Guray as a registered voter in the election list of said municipality. The present proceeding of quo warranto was interposed by Gregorio Nuval in his capacity as a registered candidate voted for the office of municipal president of Luna, against Norberto Guray, as an elected candidate for the same office. Therefore, there is no identity of parties in the two cases, since it is not enough that there be an identity of persons, but there must be an identity of capacities in which said persons litigate. (Art. 1259 of the Civil Code; Bowler vs. Estate of Alvarez, 23 Phil., 561; 34 Corpus Juris, p. 756, par. 1165) In said case of the petition for the exclusion, the object of the litigation, or the litigious matter was the exclusion of Norberto Guray as a voter from the election list of the municipality of Luna, while in the present que warranto proceeding, the object of the litigation, or the litigious matter is his exclusion or expulsion from the office to which he has been elected. Neither does there exist, then, any identity in the object of the litigation, or the litigious matter. In said case of the petition for exclusion, the cause of action was that Norberto Guray had not the six months' legal residence in the municipality of Luna to be a qualified voter thereof, while in the present proceeding of quo warranto, the cause of action is that Norberto Guray has not the one year's legal residence required for eligibility to the office of municipal president of Luna. Neither does there exist therefore, identity of causes of action.

In order that res judicata may exist the following are necessary: (a) identity of parties; (b) identity of things; and (c) identity of issues (Aquino v. Director of Lands, 39 Phil. 850). And as in the case of the petition for excluision and in the present quo warranto proceeding, as there is no identity of parties, or of things or litigious matter, or of issues or causes of action, there is no res judicata. The Second Issue. Was DOMINO a resident of the Province of Sarangani for at least one year immediately preceding the 11 May 1998 election as stated in his certificate of candidacy? We hold in the negative. It is doctrinally settled that the term "residence," as used in the law prescribing the qualifications for suffrage and for elective office, means the same thing as "domicile," which imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. 21 "Domicile" denotes a fixed permanent residence to which, whenever absent for business, pleasure, or some other reasons, one intends to return. 22 "Domicile" is a question of intention and circumstances. In the consideration of circumstances, three rules must be borne in mind, namely: (1) that a man must have a residence or domicile somewhere; (2) when once established it remains until a new one is acquired; and (3) a man can have but one residence or domicile at a time.23 Records show that petitioner's domicile of origin was Candon, Ilocos Sur 24 and that sometime in 1991, he acquired a new domicile of choice at 24 Bonifacio St. Ayala Heights, Old Balara, Quezon City, as shown by his certificate of candidacy for the position of representative of the 3rd District of Quezon City in the May 1995 election. Petitioner is now claiming that he had effectively abandoned his "residence" in Quezon City and has established a new "domicile" of choice at the Province of Sarangani. A person's "domicile" once established is considered to continue and will not be deemed lost until a new one is established. 25 To successfully effect a change of domicile one must demonstrate an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one and definite acts which correspond with the purpose. 26 In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. 27 It is the contention of petitioner that his actual physical presence in Alabel, Sarangani since December 1996 was sufficiently established by the lease of a house and lot located therein in January 1997 and by the affidavits and certifications under oath of the residents of that place that they have seen petitioner and his family residing in their locality. While this may be so, actual and physical is not in itself sufficient to show that from said date he had transferred his residence in that place. To establish a new domicile of choice, personal presence in the place must be coupled with conduct indicative of that intention. While "residence" simply requires bodily presence in a given place, "domicile" requires not only such bodily presence in that place but also a declared and probable intent to make it one's fixed and permanent place of abode, one's home. 28 As a general rule, the principal elements of domicile, physical presence in the locality involved and intention to adopt it as a domicile, must concur in order to establish a new domicile. No change of domicile will result if either of these elements is absent. Intention to acquire a domicile without actual residence in the locality does not result in acquisition of domicile, nor does the fact of physical presence without intention. 29 The lease contract entered into sometime in January 1997, does not adequately support a change of domicile. The lease contract may be indicative of DOMINO's intention to reside in Sarangani but it does not engender the kind of permanency required to prove abandonment of one's original domicile. The mere absence of individual from his permanent residence, no matter how long,

without the intention to abandon it does not result in loss or change of domicile. 30 Thus the date of the contract of lease of a house and lot located in the province of Sarangani, i.e., 15 January 1997, cannot be used, in the absence of other circumstances, as the reckoning period of the one-year residence requirement. Further, Domino's lack of intention to abandon his residence in Quezon City is further strengthened by his act of registering as voter in one of the precincts in Quezon City. While voting is not conclusive of residence, it does give rise to a strong presumption of residence especially in this case where DOMINO registered in his former barangay. Exercising the right of election franchise is a deliberate public assertion of the fact of residence, and is said to have decided preponderance in a doubtful case upon the place the elector claims as, or believes to be, his residence. 31 The fact that a party continously voted in a particular locality is a strong factor in assisting to determine the status of his domicile. 32 His claim that his registration in Quezon City was erroneous and was caused by events over which he had no control cannot be sustained. The general registration of voters for purposes of the May 1998 elections was scheduled for two (2) consecutive weekends, viz.: June 14, 15, 21, and 22. 33 While, Domino's intention to establish residence in Sarangani can be gleaned from the fact that be bought the house he was renting on November 4, 1997, that he sought cancellation of his previous registration in Qezon City on 22 October 1997, 34 and that he applied for transfer of registration from Quezon City to Sarangani by reason of change of residence on 30 August 1997, 35 DOMINO still falls short of the one year residency requirement under the Constitution. In showing compliance with the residency requirement, both intent and actual presence in the district one intends to represent must satisfy the length of time prescribed by the fundamental law. 36 Domino's failure to do so rendered him ineligible and his election to office null and void. 37 The Third Issue. DOMINO's contention that the COMELEC has no jurisdiction in the present petition is bereft of merit. As previously mentioned, the COMELEC, under Sec. 78, Art. IX of the Omnibus Election Code, has jurisdiction over a petition to deny due course to or cancel certificate of candidacy. Such jurisdiction continues even after election, if for any reason no final judgment of disqualification is rendered before the election, and the candidate facing disqualification is voted for and receives the highest number of votes 38 and provided further that the winning candidate has not been proclaimed or has taken his oath of office. 39 It has been repeatedly held in a number of cases, that the House of Representatives Electoral Tribunal's sole and exclusive jurisdiction over all contests relating to the election, returns and qualifications of members of Congress as provided under Section 17 of Article VI of the Constitution begins only after a candidate has become a member of the House of Representatives. 40 The fact of obtaining the highest number of votes in an election does not automatically vest the position in the winning candidate. 41 A candidate must be proclaimed and must have taken his oath of office before he can be considered a member of the House of Representatives. In the instant case, DOMINO was not proclaimed as Congressman-elect of the Lone Congressional District of the Province of Sarangani by reason of a Supplemental Omnibus Resolution issued by the COMELEC on the day of the election ordering the suspension of DOMINO's proclamation should he obtain the winning number of votes. This resolution was issued by the COMELEC in view of the nonfinality of its 6 May 1998 resolution disqualifying DOMINO as candidate for the position. Cosidering that DOMINO has not been proclaimed as Congressman-elect in the Lone Congressional District of the Province of Sarangani he cannot be deemed a member of the House of Representatives. Hence, it is the COMELEC and not the Electoral Tribunal which has jurisdiction over the issue of his ineligibility as a candidate. 42

Issue raised by INTERVENOR. After finding that DOMINO is disqualified as candidate for the position of representative of the province of Sarangani, may INTERVENOR, as the candidate who received the next highest number of votes, be proclaimed as the winning candidate? It is now settled doctrine that the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified. 43 In every election, the people's choice is the paramount consideration and their expressed will must, at all times, be given effect. When the majority speaks and elects into office a candidate by giving the highest number of votes cast in the election for that office, no one can be declared elected in his place. 44 It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. 45 To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voters. He could not be considered the first among qualified candidates because in a field which excludes the qualified candidate, the conditions would have substantially changed. 46 Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. 47 The effect of a decision declaring a person ineligible to hold an office is only that the election fails entirely, that the wreath of victory cannot be transferred 48 from the disqualified winner to the repudiated loser because the law then as now only authorizes a declaration of election in favor of the person who has obtained a plurality of votes 49and does not entitle the candidate receiving the next highest number of votes to be declared elected. In such case, the electors have failed to make a choice and the election is a nullity. 50 To allow the defeated and repudiated candidate to take over the elective position despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the people's right to elect officials of their choice. 51 INTERVENOR's plea that the votes cast in favor of DOMINO be considered stray votes cannot be sustained. INTERVENOR's reliance on the opinion made in the Labo, Jr. case 52 to wit: if the electorate, fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nevertheless cast their votes in favor of the ineligible candidate, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected, is misplaced. Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the public as an ineligible candidate. Although the resolution declaring him ineligible as candidate was rendered before the election, however, the same is not yet final and executory. In fact, it was no less than the COMELEC in its Supplemental Omnibus Resolution No. 3046 that allowed DOMINO to be voted for the office and ordered that the votes cast for him be counted as the Resolution declaring him ineligible has not yet attained finality. Thus the votes cast for DOMINO are presumed to have been cast in the sincere belief that he was a qualified candidate, without any intention to misapply their franchise. Thus, said votes can not be treated as stray, void, or meaningless. 53 WHEREFORE, the instant petition is DISMISSED. The resolution dated 6 May 1998 of the COMELEC 2nd Division and the decision dated 29 May 1998 of the COMELEC En Banc, are hereby AFFIRMED.1wphi1.nt SO ORDERED G.R. Nos. 154796-97 October 23, 2003

RAYMUNDO A. BAUTISTA @ "OCA", petitioner, vs. HONORABLE COMMISSION ON ELECTIONS, JOSEFINA P. JAREO, HON. MAYOR RAYMUND M. APACIBLE, FRANCISCA C. RODRIGUEZ, AGRIPINA B. ANTIG, MARIA G. CANOVAS, and DIVINA ALCOREZA,respondents. DECISION

1. CONRADO S. PEDRAZA - Navotas 2. PIO B. MALIGAYA - Sampaga 3. PATERNO H. MENDOZA - Sampaga all of Balayan, Batangas.

CARPIO, J.: The Case This is a petition for certiorari and prohibition with a prayer for the issuance of a temporary restraining order to nullify Resolution Nos. 5404 and 5584 of the Commission on Elections ("COMELEC") en banc. Resolution No. 54041 dated 23 July 2002 ordered the deletion of Raymundo A. Bautista's ("Bautista") name from the official list of candidates for the position of Punong Barangay of Barangay Lumbangan, Nasugbu, Batangas ("Lumbangan") in the 15 July 2002 elections. Resolution No. 55842 dated 10 August 2002 provided for the policy of the COMELEC regarding proclaimed candidates found to be ineligible for not being registered voters in the place where they ran for office. The Facts On 10 June 2002, Bautista filed his certificate of candidacy for Punong Barangay in Lumbangan for the 15 July 2002 barangay elections. Election Officer Josefina P. Jareo ("Election Officer Jareo") refused to accept Bautista's certificate of candidacy because he was not a registered voter in Lumbangan. On 11 June 2002, Bautista filed an action for mandamus against Election Officer Jareo with the Regional Trial Court of Batangas, Branch 14 ("trial court").3 On 1 July 2002, the trial court ordered Election Officer Jareo to accept Bautista's certificate of candidacy and to include his name in the certified list of candidates for Punong Barangay. The trial court ruled that Section 7 (g) of COMELEC Resolution No. 48014 mandates Election Officer Jareo to include the name of Bautista in the certified list of candidates until the COMELEC directs otherwise. 5 In compliance with the trial court's order, Election Officer Jareo included Bautista in the certified list of candidates for Punong Barangay. At the same time, Election Officer Jareo referred the matter of Bautista's inclusion in the certified list of candidates with the COMELEC Law Department on 5 July 2002. 6 On 11 July 2002, the COMELEC Law Department recommended the cancellation of Bautista's certificate of candidacy since he was not registered as a voter in Lumbangan. The COMELEC en banc failed to act on the COMELEC Law Department's recommendation before the barangay elections on 15 July 2002. During the 15 July 2002 barangay elections, Bautista and private respondent Divina Alcoreza ("Alcoreza") were candidates for the position of Punong Barangay in Lumbangan. Bautista obtained the highest number of votes (719) while Alcoreza came in second with 522 votes, or a margin of 197 votes. Thus, the Lumbangan Board of Canvassers ("Board of Canvassers")7 proclaimed Bautista as the elected Punong Barangay8 on 15 July 2002. On 8 August 2002, Bautista took his oath of office as Punong Barangay before Congresswoman Eileen Ermita-Buhain of the First District of Batangas. On 16 August 2002, Bautista again took his oath of office during a mass oath-taking ceremony administered by Nasugbu Municipal Mayor Raymund Apacible. Meanwhile, COMELEC issued Resolution No. 5404 on 23 July 2002 and Resolution No. 5584 on 10 August 2002 ("COMELEC Resolutions"). In Resolution No. 5404, the COMELEC en banc resolved to cancel Bautista's certificate of candidacy. The COMELEC en banc directed the Election Officer to delete Bautista's name from the official list of candidates. The dispositive portion of Resolution No. 5404 reads: Considering the foregoing, the Commission, RESOLVED, as it hereby RESOLVES, to ADOPT the recommendation, as follows: 1. To DENY due course to/or cancel the certificates of candidacy of the following: A. For Barangay Officials: B. a. RAY OCA A. BAUTISTA, candidate for Punong Barangay of Brgy. Lumbangan, Nasugbu, Batangas, for not being registered voters of barangays where they are running for an office; 2. To DIRECT the Election Officers of Balayan, Batangas and Nasugbu, Batangas, to delete their names in the official list of candidates in their respective Barangays without prejudice to the filing of complaint against them for misrepresentation under Section 74 of the Omnibus Election Code if the evidence so warrants. Let the Law Department implement this resolution. On the other hand, Resolution No. 5584 expressed COMELEC's policy regarding proclaimed candidates found to be ineligible for not being registered voters in the place of their election, thus: ON PROCLAIMED CANDIDATES FOUND TO BE INELIGIBLE FOR BEING NOT REGISTERED VOTERS IN THE PLACE WHERE THEY WERE ELECTED. (a) For a proclaimed candidate whose certificate of candidacy was denied due course to or cancelled by virtue of a Resolution of the Commission En Banc albeit such Resolution did not arrive on time. 1. To DIRECT the Election Officers concerned to implement the resolution of the Commission deleting the name of the candidate whose certificate of candidacy was denied due course; 2. To DIRECT the candidate whose name was ordered deleted to cease and desist from taking his oath of office or from assuming the position to which he was elected, unless a temporary restraining order was issued by the Supreme Court; and 3. To RECONVENE the Board of Canvassers for the purpose of proclaiming the duly-elected candidates and correcting the Certificate of Canvass of Proclamation. (b) For a proclaimed candidate who is subsequently declared disqualified by the Commission in the disqualification case filed against him prior to his proclamation. 1. To DIRECT the proclaimed disqualified candidate to cease and desist from taking his oath of office or from assuming the position to which he was elected, unless a temporary restraining order was issued by the Supreme Court; and 2. To RECONVENE the Board of Canvassers for the purpose of proclaiming the duly-elected candidates and correcting the Certificate of Canvass of Proclamation. (c) For a proclaimed candidate who is found to be ineligible only after his proclamation (i.e., There is no Resolution denying due course to or canceling his certificate of candidacy and there is no petition for disqualification pending against him before his proclamation.)

1. To DISMISS any and all cases questioning the eligibility of such candidate for LACK OF JURISDICTION, the proper remedy being a quo warranto case before the metropolitan or municipal trial court. In a letter dated 19 August 2002,9 COMELEC Commissioner Luzviminda Tancangco directed Election Officer Jareo to (1) delete the name of Bautista from the official list of candidates for Punong Barangay of Barangay Lumbangan; (2) order the Board of Canvassers of Lumbangan to reconvene for the purpose of proclaiming the elected Punong Barangay with due notice to all candidates concerned; and (3) direct the proclaimed disqualified candidate Bautista to cease and desist from taking his oath of office or from assuming the position which he won in the elections, citing COMELEC Resolution Nos. 5404 and 5584. Consequently, Election Officer Jareo issued on 20 August 2002 an Order10 deleting the name of Bautista from the list of candidates for Punong Barangay. The Order also prohibited Bautista from assuming the position and discharging the functions of Punong Barangay of Lumbangan pursuant to the COMELEC Resolutions. The Board of Canvassers reconvened on 23 August 2002 and after making the necessary corrections in the Certificate of Canvass of Votes, proclaimed Alcoreza as the winning Punong Barangay. 11 Alcoreza thus assumed the post of Punong Barangay of Lumbangan. On 26 August 2002, Bautista wrote a letter to COMELEC requesting the latter for reconsideration of the COMELEC Resolutions. On 9 September 2002, while his letter for reconsideration was still pending with the COMELEC, Bautista filed this petition for certiorari and prohibition with a prayer for the issuance of a temporary restraining order. The Issues The issues raised are: 1. Whether the COMELEC en banc committed grave abuse of discretion amounting to excess or lack of jurisdiction when it issued Resolution Nos. 5404 and 5584; 2. Whether the COMELEC deprived Bautista of due process when the COMELEC en banc issued Resolution Nos. 5404 and 5584; and 3. Whether it was proper to proclaim Alcoreza as Punong Barangay in view of the alleged disqualification of the winning candidate Bautista. The Court's Ruling Before considering the merits of the case, we shall first resolve the procedural questions raised by respondents. Respondents contend that a motion for reconsideration of the assailed COMELEC Resolutions is a prerequisite to the filing of a petition for certiorari and prohibition. Absent any extraordinary circumstances, a party who has filed a motion for reconsideration should wait for the resolution of the motion before filing the petition for certiorari. Respondents allege that the instant petition is premature because Bautista has a pending motion for reconsideration of the COMELEC Resolutions. Respondents claim that Bautista filed the instant petition barely two weeks after filing the motion for reconsideration with the COMELEC en banc without waiting for the resolution of his motion.12 The contention of respondents is wrong. The case 13 cited by respondents refers to a motion for reconsideration pending before the COMELEC en banc seeking the reconsideration of a resolution rendered by a COMELEC division. Rule 19 of the 1993 COMELEC Rules of Procedure allows a motion to reconsider a decision, resolution, order, or ruling of a division. However, Section 1 (d), Rule 13 of the 1993 COMELEC Rules of Procedure prohibits a motion to reconsider a resolution of the COMELEC en banc except in cases involving election offenses. As held in Angelia v. Commission on Elections: 14 We hold that petitioner acted correctly in filing the present petition because the resolution of the COMELEC in question is not subject to reconsideration and, therefore, any party who disagreed with

it only had one recourse, and that was to file a petition for certiorari under Rule 65 of the Rules of Civil Procedure. Rule 13, 1 of the COMELEC Rules of Procedure provides: What Pleadings are Not Allowed. - The following pleadings are not allowed: ... d) motion for reconsideration of an en banc ruling, resolution, order or decision except in election offense cases; ... As the case before the COMELEC did not involve an election offense, reconsideration of the COMELEC resolution was not possible and petitioner had no appeal or any plain, speedy, and adequate remedy in the ordinary course of law. For him to wait until the COMELEC denied his motion would be to allow the reglementary period for filing a petition for certiorari with this Court to run and expire. The instant controversy involves resolutions issued by the COMELEC en banc which do not pertain to election offenses. Hence, a special civil action for certiorari is the proper remedy 15 in accordance with Section 2, Rule 64 of the Rules of Court which 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 certiorari under Rule 65 except as hereinafter provided. (Emphasis supplied) Whether the COMELEC en banc committed grave abuse of discretion amounting to excess or lack of jurisdiction in issuing Resolution Nos. 5404 and 5584 Bautista argues that without any disqualification case formally filed against him, the COMELEC has no jurisdiction to take cognizance of his case. The COMELEC cannot motu proprio act on the issue of his alleged lack of qualification. Even assuming that there was a disqualification case filed against him, it is the COMELEC sitting in division which has jurisdiction and not the COMELEC en banc. 16 On the other hand, respondents allege that the Constitution vests the COMELEC with the power to enforce and administer all laws and regulations relative to the conduct of elections. The Constitution thus empowers the COMELEC to pass upon the qualification of candidates for elective office. Furthermore, respondents submit that the COMELEC's jurisdiction to cancel the certificate of candidacy of disqualified candidates is already settled jurisprudence. 17 Respondents cited cases to support their claim that the COMELEC has jurisdiction to cancel the certificates of candidacy of disqualified candidates. However, the COMELEC heard these cases first in division and not en banc in the first instance. In Garvida v. Sales, Jr.,18 the Court held that it is the COMELEC sitting in division and not the COMELEC en banc which has jurisdiction over petitions to cancel a certificate of candidacy. The Court held: x x x The Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due 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. 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 election cases. This is clear from Section 3 of the said Rules thus: "Sec. 3. The Commission in 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." 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. (Emphasis supplied) In this case, Election Officer Jareo reported to the COMELEC Law Department Bautista's ineligibility for being a non-registered voter. The COMELEC Law Department recommended to the COMELEC en banc to deny due course or to cancel Bautista's certificate of candidacy. The COMELEC en banc approved the recommendation in Resolution No. 5404 dated 23 July 2002. A division of the COMELEC should have first heard this case. The COMELEC en banc can only act on the case if there is a motion for reconsideration of the decision of the COMELEC division. Hence, the COMELEC en banc acted without jurisdiction when it ordered the cancellation of Bautista's certificate of candidacy without first referring the case to a division for summary hearing. The proceeding on the cancellation of a certificate of candidacy does not merely pertain to the administrative functions of the COMELEC. Cancellation proceedings involve the COMELEC's quasijudicial functions. The Court discussed the difference between administrative and quasi-judicial functions in Villarosa v. Commission on Elections:19 In the concurring opinion of Justice Antonio in University of Nueva Caceres vs. Martinez, 56 SCRA 148, he noted that (t)he 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 supplied) In the exercise of its adjudicatory or quasi-judicial powers, the Constitution mandates the COMELEC to hear and decide cases first by division and upon motion for reconsideration, by the COMELEC en banc.20 In Baytan v. COMELEC,21 the Court expounded on the administrative and quasi-judicial powers of the COMELEC. The Court explained:

Under Section 2, Article IX-C of the 1987 Constitution, the COMELEC exercises both administrative and quasi-judicial powers. The COMELEC's administrative powers are found in Section 2 (1), (3), (4), (5), (6), (7), (8), and (9) of Article IX-C. The 1987 Constitution does not prescribe how the COMELEC should exercise its administrative powers, whether en banc or in division. The Constitution merely vests the COMELEC's administrative powers in the "Commission on Elections," while providing that the COMELEC "may sit en banc or in two divisions." Clearly, the COMELEC en banc can act directly on matters falling within its administrative powers. Indeed, this has been the practice of the COMELEC both under the 1973 and 1987 Constitutions. On the other hand, the COMELEC's quasi-judicial powers are found in Section 2 (2) of Article IX-C, to wit: "Section 2. The Commission on Elections shall exercise the following powers and functions: xxx (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable." The COMELEC's exercise of its quasi-judicial powers is subject to Section 3 of Article IX-C which expressly requires that all election cases, including pre-proclamation controversies, shall be decided by the COMELEC in division, and the motion for reconsideration shall be decided by the COMELEC en banc. It follows, as held by the Court in Canicosa, that the COMELEC is mandated to decide cases first in division, and then upon motion for reconsideration en banc, only when the COMELEC exercises its quasi-judicial powers. (Emphasis supplied) Under Section 3, Rule 23 of the 1993 COMELEC Rules of Procedure, a petition for the denial or cancellation of a certificate of candidacy must be heard summarily after due notice. It is thus clear that cancellation proceedings involve the exercise of the quasi-judicial functions of the COMELEC which the COMELEC in division should first decide. More so in this case where the cancellation proceedings originated not from a petition but from a report of the election officer regarding the lack of qualification of the candidate in the barangay election. The COMELEC en banc cannot short cut the proceedings by acting on the case without a prior action by a division because it denies due process to the candidate. Whether the COMELEC deprived Bautista of due process when it issued Resolution Nos. 5404 and 5584 Bautista alleges that the COMELEC denied him due process because there was no notice and hearing prior to the issuance of Resolution Nos. 5404 and 5584. He became aware of the issuance of the COMELEC Resolutions only when he received a copy of Election Officer Jareo's Order dated 20 August 2002 ordering him to cease and desist from assuming the position of Punong Barangay. 22 The Solicitor General submits that the COMELEC did not deprive Bautista of due process. Bautista had the chance to be heard and to present his side when he filed a letter to the COMELEC en banc requesting reconsideration of the Resolutions.23 This Court has explained the nature of due process in Stayfast Philippines Corporation v. NLRC: 24 The essence of due process is simply the opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek a reconsideration of the action or ruling complained of.

A formal or trial-type hearing is not at all times and in all instances essential. The requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is absolute lack of notice and hearing. x x x (Emphasis supplied) The opportunity to be heard does not only refer to the right to present verbal arguments in court during a formal hearing.25 There is due process when a party is able to present evidence in the form of pleadings.26 However, the COMELEC did not give Bautista such opportunity to explain his side. The COMELEC en banc issued Resolution Nos. 5404 and 5584 without prior notice and hearing. We cannot ignore the importance of prior notice and hearing. Severe consequences attach to the COMELEC Resolutions which not only ordered the cancellation of the certificate of candidacy of Bautista but also the annulment of his proclamation as Punong Barangay. What is involved here is not just the right to be voted for public office but the right to hold public office. As held in Sandoval v. Commission on Elections:27 x x x Although the COMELEC is clothed with jurisdiction over the subject matter and issue of SPC No. 98-143 and SPC No. 98-206, we find the exercise of its jurisdiction tainted with illegality. We hold that its order to set aside the proclamation of petitioner is invalid for having been rendered without due process of law. Procedural due process demands prior notice and hearing. Then after the hearing, it is also necessary that the tribunal show substantial evidence to support its ruling. In other words, due process requires that a party be given an opportunity to adduce his evidence to support his side of the case and that the evidence should be considered in the adjudication of the case. The facts show that COMELEC set aside the proclamation of petitioner without benefit of prior notice and hearing and it rendered the questioned order based solely on private respondent's allegations. We held in Bince, Jr. vs. COMELEC: "Petitioner cannot be deprived of his office without due process of law. Although public office is not property under Section 1 of the Bill of Rights of the Constitution, and one cannot acquire a vested right to public office, it is, nevertheless, a protected right. Due process in proceedings before the COMELEC, exercising its quasi-judicial functions, requires due notice and hearing, among others. Thus, although the COMELEC possesses, in appropriate cases, the power to annul or suspend the proclamation of any candidate, we had ruled in Farinas vs. Commission on Elections, Reyes vs. Commission on Elections and Gallardo vs. Commission on Elections that the COMELEC is without power to partially or totally annul a proclamation or suspend the effects of a proclamation without notice and hearing." (Emphasis supplied) The fact that Bautista was able to file a letter with the COMELEC en banc requesting for reconsideration of the Resolutions is beside the point. To reiterate, the 1993 COMELEC Rules of Procedure prohibit a motion for reconsideration of a COMELEC en banc resolution except in cases involving election offenses. Respondents likewise submit that there was no need for presentation and evaluation of evidence since the issue of whether Bautista was a registered voter is easily resolved by looking at the COMELEC registration records.28This reasoning fails to consider the instances where a voter may be excluded through inadvertence or registered with an erroneous or misspelled name.29 Indeed, if it was just a simple matter of looking at the record of registered voters, then the COMELEC would not have included Section 7 (g)30 in its Resolution No. 4801. This Section allows candidates who are not registered voters to be included in the certified list of candidates until the COMELEC directs otherwise. Rule 23 of the 1993 COMELEC Rules of Procedure provides for the twin requirements of prior notice and hearing, as follows: Rule 23 - Petition to Deny Due Course to or Cancel Certificates of Candidacy Section 1. Grounds for Denial of Certificate of Candidacy. - A petition to deny due course to or cancel, a certificate of candidacy for any elective office may be filed with the Law Department of the Commission by any citizen of voting age or a duly registered political party, organization, or coalition of political parties on the exclusive ground that any material representation contained therein as required by law is false.

Sec. 2. Period to File Petition. - The petition must be filed within five (5) days following the last day for the filing of certificates of candidacy. Sec. 3. Summary Proceeding. - The petition shall be heard summarily after due notice. Sec. 4. Delegation of Reception of Evidence. - The Commission may designate any of its officials who are members of the Philippine Bar to hear the case and receive evidence. (Emphasis supplied) A summary proceeding does not mean that the COMELEC could do away with the requirements of notice and hearing. The COMELEC should have at least given notice to Bautista to give him the chance to adduce evidence to explain his side in the cancellation proceeding. The COMELEC en banc deprived Bautista of procedural due process of law when it approved the report and recommendation of the Law Department without notice and hearing. 31 Whether Bautista was a registered voter of Barangay Lumbangan when he filed his certificate of candidacy The events32 that transpired after the 15 July 2002 elections necessitate the early resolution of this case. The Court deems it proper not to remand the case to the COMELEC to avoid further delay. The Court will resolve this case based on the pleadings submitted by the parties. Under the Revised Administrative Code,33 one of the qualifications of an elective municipal officer is that he must be a "qualified voter" in his municipality. Section 2174 of the Revised Administrative Code reads: Section 2174. Qualifications of elective municipal officer. - An elective municipal officer must, at the time of the election, be a qualified voter in his municipality and must have been resident therein for at least one year, and must not be less than twenty-three years of age. He must also be able to read and write intelligently either English, Spanish, or the local dialect. (Emphasis supplied) On the other hand, under the Republic Act No. 2370,34 otherwise known as the Barrio Charter, a candidate for the barrio council35 must be a "qualified elector." Section 8 of the Barrio Charter reads: Section 8. Qualifications for election to the barrio council. - Candidates for election to the barrio council: (a) Must be a qualified elector and must have been a resident of the barrio for at least six months prior to the election; and (b) Must not have been convicted of a crime involving moral turpitude or of a crime which carries a penalty of at least one year imprisonment. (Emphasis supplied) Thus, in the 1958 case of Rocha v. Cordis,36 the Court held that a candidate for an elective municipal office did not have to be a registered voter in the municipality to qualify to run for an elective municipal office. Citing the earlier case of Yra v. Abao, 37 the Court ruled that the words "qualified elector" meant a person who had all the qualifications provided by law to be a voter and not a person registered in the electoral list. In the same vein, the term "qualified" when applied to a voter does not necessarily mean that a person must be a registered voter. However, under the Local Government Code of 1991,38 which took effect on 1 January 1992, an elective local official, including a Punong Barangay, must not only be a "qualified elector" or a "qualified voter," he must also be a "registered voter." 39 Section 39 of the Local Government Code provides: 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 or, in the case of a member of the

sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filpino or any other local language or dialect. xxx (e) Candidates for the position of punong barangay or member of the sangguniang barangay must be at least eighteen (18) years of age on election day. xxx These qualifications were reiterated in Section 2 of COMELEC Resolution No. 4801 dated 23 May 2002 which prescribed the guidelines on the filing of certificates of candidacy in connection with the 15 July 2002 elections. Section 2 reads: Sec. 2. Qualifications. - (a) Candidates for Punong Barangay and Sangguniang Barangay Kagawad must be: (1) Filipino citizens; (2) At least 18 years old on election day; (3) Able to read and write Pilipino or any local language or dialect; and (4) Registered voters of the barangay where they intend to run for office and residents thereof for at least one (1) year immediately preceding the day of the election. (Emphasis supplied) Section 7 of COMELEC Resolution No. 4801 likewise requires the Election Officer to verify whether the candidates are registered voters and possess all the qualifications of a candidate. Thus, Section 7 (f) and (g) read: (f) Before the preparation of the certified lists of candidates it shall be the duty of the Election Officer to: (1) verify whether all candidates for barangay and sangguniang kabataan positions are registered voters of the barangay where they file their certificates of candidacy; and (2) examine the entries of the certificates of candidacy and determine on the basis of said entries whether the candidate concerned possesses all the qualifications of a candidate. (g) If there are candidates who are not registered voters in the barangay where they run for barangay or sangguniang kabataan positions or do not possess all the other qualifications of a candidate, he shall make the corresponding report by REGISTERED MAIL and by RUSH TELEGRAM to the Law Department of the Commission within three (3) days from the last day for filing the certificates of candidacy, copy furnished the Provincial Election Supervisor and the Regional Election Director. The names of said candidates, however, shall still be included in the certified lists of candidates until the Commission directs otherwise. (Emphasis supplied) It is thus clear that the law as it now stands requires a candidate for Punong Barangay to be a registered voter of the barangay where he intends to run for office. Bautista admitted in his affidavit40 dated 24 August 2002 that he was not a registered voter of Barangay Lumbangan, thus: AFFIDAVIT That I, RAYMUNDO A. @ OCA BAUTISTA, of legal age, married, Mechanical Engineer by profession, Filipino citizen and have been residing at Sitio Calamundingan, Barangay Lumbangan, Nasugbu, Batangas, after being duly sworn according to law depose and say:

1. That I was born at Barangay Tumalim, Nasugbu, Batangas, on March 15, 1954 and upon reaching the age of four (4) our family transferred to Sitio Calamundingan, Barangay Lumbangan, Nasugbu, Batangas and I have been permanently residing thereat since that time up to the present, and this fact can be attested to by our immediate neighbors. 2. That since the time I reached the age of majority, I have participated both in the National and Local Elections up to the year 1995 and as matter of fact I ran for the Office of member of the Municipal Council in the year 1992 Elections. 3. Sometime during the late part of the year 1995, I went to the United States of America scounting (sic) for a good job but I was not able to find one so I went home in the year 2000 but again believing that I could land a job in the United States, I again went there but I was not able to get a job therein and so I went back to the Philippines in the year 2001 but I found out that my name was no longer included in the list of registered voters at Barangay Lumbangan, Nasugbu, Batangas. 4. Sometime in the year 2002, I personally went to the Office of the Local Election Registrar particularly talking to Miss Josefina P. Jareo in order to register because as I know, to run for the Office of Barangay Chairman, I have to be a registered voter in our Barangay. 5. However, I was denied registration because according to her, her Office is not open for registration at any time and I should wait for the General Registration and for that reason I was not able to register. xxx 11. That had I known that there is a provision in Section 52, under paragraph (k) A, when Miss Josefina P. Jareo denied my request for registration as a voter, I would have filed a Petition for Mandamus with the proper Court so that she can be ordered to register me as a voter in Barangay Lumbangan, Nasugbu, Batangas so that any and all technicality may be avoided."(Emphasis supplied) According to Bautista's affidavit, he was practically out of the country from 1995 until 2001. When the certified list of voters ceased to be effective and operative after the barangay elections in 1997, qualified voters had to register again to vote in any election. Apparently, Bautista failed to register during the general registration of voters conducted by the COMELEC in 1997 since he was still out of the country during that time. Republic Act No. 8189 ("The Voter's Registration Act of 1996") provides for a system of continuing registration of voters. Thus, Bautista should have registered anew in the office of the Election Officer when he came back to the Philippines in 2001 and learned that his name was no longer included in the roster of registered voters. The pertinent provisions of RA No. 8189 read: SEC. 7. General Registration of Voters. - Immediately after the barangay elections in 1997, the existing certified list of voters shall cease to be effective and operative. For purposes of the May 1998 elections and all elections, plebiscites, referenda, initiatives, and recall subsequent thereto, the Commission shall undertake a general registration of voters before the Board of Election Inspectors on June 14, 15, 21 and 22 and, subject to the discretion of the Commission, on June 28 and 29, 1997 in accordance with this Act. SEC. 8. System of Continuing Registration of Voters. - The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election. xxx SEC. 10. Registration of Voters. - A qualified voter shall be registered in the permanent list of voters in a precinct of the city or municipality where he resides to be able to vote in any election. To

register as a voter, he shall personally accomplish an application form for registration as prescribed by the Commission in three (3) copies before the Election Officer on any date during office hours after having acquired the qualifications of a voter. (Emphasis supplied) xxx It is thus clear that Bautista was remiss in his duty to ensure his right to vote and to be voted for public office. As early as 2001, he was already aware that his name was no longer included in the roster of registered voters. Yet, Bautista chose not to register anew that year despite his knowledge that he needed to register as a voter in the barangay to run for the office of Punong Barangay. Bautista alleges that his non-registration as a voter of Barangay Lumbangan was due to the refusal of Election Officer Jareo to register him sometime in January 2002. 41 Aside from his bare allegation that he tried to register in January 2002, Bautista did not proffer any other proof like a duly accomplished application form for registration to substantiate his claim that he indeed attempted to register anew. On the other hand, Election Officer Jareo denies Bautista's allegations in her comment filed on 10 October 2002, thus: COMMENT COMES NOW Respondent JOSEPINA P. JAREO (sic) and to this Honorable Supreme Court by way of comment to the Petition for Certiorari and Prohibition with Prayer for the Issuance of Temporary Restraining Order, filed by herein Petitioner, most respectfully states that: 1. Respondent JOSEPINA P. JAREO (sic) is the Election Officer of Nasugbu, Batangas, while petitioner, RAYMUNDO A. BAUTISTA was one of the candidates for the Barangay Chairman of Barangay Lumbangan, Nasugbu, Batangas, in the recently concluded barangay elections; 2. Based on the records in our files, petitioner was not and is not a registered voter of Barangay Lumbangan or any other barangays in Nasugbu, Batangas; 3. There was never an instance during the period starting June 1997 up to December 26, 2001 when registration of voters for the updating of the Voter's Registration Record had been undertaken by the Commission on Elections on an "on again/off again" system, did petitioner RAYMUNDO BAUTISTA come to our office to check or ensure that he is still in the active list of voters of Barangay Lumbangan, i.e., assuming that he was registered as a voter thereof, in the first place; 4. The last day of registration of voters (new or transferee) had been last December 26, 2001 and registration shall resume again, this coming September 16, 2002. In the meantime, no general registration nor special registration had been mandated by the Commission on Election (COMELEC, for brevity) between the period December 27, 2001 until September 15, 2002; 5. I only met petitioner RAYMUNDO BAUTISTA for the first time when he came to our office to file his Certificate of Candidacy last June 10, 2002, which was the last day set by the COMELEC for the filing of Certificates of Candidacy; xxx Bautista was aware when he filed his certificate of candidacy for the office of Punong Barangay that he lacked one of the qualifications - that of being a registered voter in the barangay where he ran for office. He therefore made a misrepresentation of a material fact when he made a false statement in his certificate of candidacy that he was a registered voter in Barangay Lumbangan.42 An elective office is a public trust. He who aspires for elective office should not make a mockery of the electoral process by falsely representing himself. The importance of a valid certificate of candidacy rests at the very core of the electoral process.43 Under Section 78 of the Omnibus Election Code, false representation of a material fact in the certificate of candidacy is a

ground for the denial or cancellation of the certificate of candidacy. The material misrepresentation contemplated by Section 78 refers to qualifications for elective office. A candidate guilty of misrepresentation may be (1) prevented from running, or (2) if elected, from serving, or (3) prosecuted for violation of the election laws.44 Invoking salus populi est suprema lex, Bautista argues that the people's choice expressed in the local elections deserves respect. Bautista's invocation of the liberal interpretation of election laws is unavailing. As held in Aquino v. Commission on Elections:45 In fine, we are left with no choice but to affirm the COMELEC's conclusion declaring herein petitioner ineligible for the elective position as Representative of Makati City's Second District on the basis of respondent commission's finding that petitioner lacks the one year residence in the district mandated by the 1987 Constitution. A democratic government is necessarily a government of laws. In a republican government those laws are themselves ordained by the people. Through their representatives, they dictate the qualifications necessary for service in government positions. And as petitioner clearly lacks one of the essential qualifications for running for membership in the House of Representatives, not even the will of a majority or plurality of the voters of the Second District of Makati City would substitute for a requirement mandated by the fundamental law itself. Indeed, the electorate cannot amend or waive the qualifications prescribed by law for elective office. The will of the people as expressed through the ballot cannot cure the vice of ineligibility. 46 The fact that Bautista, a non-registered voter, was elected to the office of Punong Barangay does not erase the fact that he lacks one of the qualifications for Punong Barangay. Whether it was proper to proclaim Alcoreza as Punong Barangay in view of ineligibility of the winning candidate Bautista subscribes to the view of the Solicitor General that under the law and jurisprudence, the COMELEC cannot proclaim as winner the second placer in case of ineligibility of the winning candidate. The Solicitor General submits that the disqualification of the winning candidate Bautista does not result in the proclamation of Alcoreza who obtained the second highest number of votes because Alcoreza was obviously not the choice of the electorate. The Solicitor General emphasized that the COMELEC declared Bautista ineligible for the post of Punong Barangay only after his election and proclamation as the winning candidate. Respondent Alcoreza, however, alleges that her proclamation as the elected Punong Barangay was legal and valid. Alcoreza claims her case falls under the exception to the rule that the disqualification of the winning candidate does not entitle the candidate with the next higher number of votes to be proclaimed winner. Alcoreza cites Grego v. COMELEC 47 which held that the exception is predicated on the concurrence of two assumptions, namely: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate. This Court agrees with the view of the Solicitor General. It is now settled doctrine that the COMELEC cannot proclaim as winner the candidate who obtains the second highest number of votes in case the winning candidate is ineligible or disqualified.48 The exception to this well-settled rule was mentioned in Labo, Jr. v. Commission on Elections49 and reiterated in Grego v. COMELEC.50 However, the facts warranting the exception to the rule do not obtain in the present case. Although the COMELEC Law Department recommended to deny due course or to cancel the certificate of candidacy of Bautista on 11 July 2002, the COMELEC en banc failed to act on it before the 15 July 2002 barangay elections. It was only on 23 July 2002 that the COMELEC en banc issued Resolution No. 5404, adopting the recommendation of the COMELEC Law Department and directing the Election Officer to delete Bautista's name from the official list of candidates.

Thus, when the electorate voted for Bautista as Punong Barangay on 15 July 2002, it was under the belief that he was qualified. There is no presumption that the electorate agreed to the invalidation of their votes as stray votes in case of Bautista's disqualification. 51 The Court cannot adhere to the theory of respondent Alcoreza that the votes cast in favor of Bautista are stray votes. 52 A subsequent finding by the COMELEC en banc that Bautista is ineligible cannot retroact to the date of elections so as to invalidate the votes cast for him.53 As held in Domino v. COMELEC:54 Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the public as an ineligible candidate. Although the resolution declaring him ineligible as candidate was rendered before the election, however, the same is not yet final and executory. In fact, it was no less than the COMELEC in its Supplemental Omnibus Resolution No. 3046 that allowed DOMINO to be voted for the office and ordered that the votes cast for him be counted as the Resolution declaring him ineligible has not yet attained finality. Thus the votes cast for DOMINO are presumed to have been cast in the sincere belief that he was a qualified candidate, without any intention to misapply their franchise. Thus, said votes can not be treated as stray, void, or meaningless. The Local Government Code provides for the rule regarding permanent vacancy in the Office of the Punong Barangay, thus: SEC. 44. Permanent vacancies in the Offices of the Governor, Vice-Governor, Mayor, and ViceMayor. - If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice-governor, mayor, or vice-mayor, the highest ranking sanggunian member or, in the case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice-governor, mayor or vice-mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein. (b) If a permanent vacancy occurs in the office of the punong barangay member, the highest ranking sangguniang barangay member, or in the case of his permanent disability, the second highest ranking sanggunian member, shall become the punong barangay. (c) A tie between or among the highest ranking sanggunian members shall be resolved by the drawing of lots. (d) The successors as defined herein shall serve only the unexpired terms of their predecessors. For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, 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. For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election. (Emphasis supplied) Since Bautista failed to qualify for the position of Punong Barangay, the highest ranking sangguniang barangay member, or in the case of his permanent disability, the second highest ranking sangguniang member, shall become the Punong Barangay. 55 WHEREFORE, we DISMISS the petition. Petitioner Raymundo A. Bautista is ineligible for the position of Punong Barangay of Barangay Lumbangan for not being a registered voter of Barangay Lumbangan. The proclamation of the second placer Divina Alcoreza as winner in lieu of Bautista is void. Instead, the highest ranking sangguniang barangay member of Barangay Lumbangan shall assume the office of Punong Barangay of Lumbangan for the unexpired portion of the term. SO ORDERED.

G.R. No. 135886

August 16, 1999

VICTORINO SALCEDO II, petitioner, vs. COMMISSION ON ELECTIONS and ERMELITA CACAO SALCEDO, respondents. GONZAGA-REYES, J.: This is a petition for Certiorari under Rule 65 of the 1997 Rules of Court of the en banc Resolution of the Commission on Elections (Comelec) dated October 6, 1998, which reversed the earlier Resolution issued by its Second Division on August 12, 1998. From the pleadings and the annexes, the following uncontroverted facts have been established On February 18, 1968, Neptali P. Salcedo married Agnes Celiz, which marriage is evidenced by a certified true copy of the marriage contract issued by the Municipal Civil Registrar of Ajuy, Iloilo.1 Without his first marriage having been dissolved, Neptali P. Salcedo married private respondent Ermelita Cacao in a civil ceremony held on September 21, 1986. 2 Two days later, on September 23, 1986, Ermelita Cacao contracted another marriage with a certain Jesus Aguirre, as shown by a marriage certificate filed with the Office of the Civil Registrar.3 Petitioner Victorino Salcedo II and private respondent Ermelita Cacao Salcedo both ran for the position of mayor of the municipality of Sara, Iloilo in the May 11, 1998 elections, both of them having filed their respective certificates of candidacy on March 27, 1998.4 However, on April 17, 1998, petitioner filed with the Comelec a petition 5 seeking the cancellation of private respondent's certificate of candidacy on the ground that she had made a false representation therein by stating that her surname was "Salcedo." Petitioner contended that private respondent had no right to use said surname because she was not legally married to Neptali Salcedo. On May 13, 1998, private respondent was proclaimed as the duly elected mayor of Sara, Iloilo.6 In her answer, private respondent claimed that she had no information or knowledge at the time she married Neptali Salcedo that he was in fact already married; that, upon learning of his existing marriage, she encouraged her husband to take steps to annul his marriage with Agnes Celiz because the latter had abandoned their marital home since 1972 and has not been heard from since that time; that on February 16, 1998, Neptali Salcedo filed a petition for declaration of presumptive death before Branch 66 of the Regional Trial Court of Barotac Viejo, Iloilo, which was granted by the court in its April 8, 1998 decision; that Neptali Salcedo and Jesus Aguirre are one and the same person; and that since 1986 up to the present she has been using the surname "Salcedo" in all her personal, commercial and public transactions.7 On August 12, 1998, the Comelec's Second Division ruled, by a vote of 2 to 1, 8 that since there is an existing valid marriage between Neptali Salcedo and Agnes Celiz, the subsequent marriage of the former with private respondent is null and void. Consequently, the use by private respondent of the surname "Salcedo" constitutes material misrepresentation and is a ground for the cancellation of her certificate of candidacy. The pertinent portion of the Resolution reads as follows The only issue to be resolved is whether or not the use by respondent of the surname "Salcedo" in her certificate of candidacy constitutes material misrepresentation under Section 78 in relation to Section 74 of the Omnibus Election Code. Sec. 78 of the of the (sic) Omnibus Election Code reads: A verified petition seeking to deny due course to or cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material misrepresentation 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.

A candidate's name or surname contained in the certificate of candidacy is required under Section 74 of the Omnibus Election Code and is a material misrepresentation. Gleaned from the records, respondent admitted that she married Neptali Salcedo on September 21, 1986 in a civil ceremony held in Sara, Iloilo and that she married Jesus Aguirre on September 23, 1986. For the petitioner, this admission is supported by a marriage contract (attached as Annex "C" of the Petition) and a certificate of marriage (attached as Annex "D" of the petition) where the contracting parties are "Jesus Aguirre" and "Ermelita Cacao". On the other hand, respondent tries to create the impression that "Neptali Salcedo" and "Jesus Aguirre" are one and the same persons. This Commission, however, holds the view that regardless of whether Neptali Salcedo and Jesus Aguirre are the same persons, the fact remains irrefutable is that at the time respondent contracted marriage with Neptali Salcedo, the latter has a valid existing marriage with Agnes Celiz and this was sufficiently established by a marriage contract executed on February 18, 1968 and attached to the petition as Annex "E". Respondent cannot seek refuge in her bare assumption that since Agnes Celiz was declared as presumptively dead by the Regional Trial Court of Barotac Viejo, Iloilo, she was free to marry Neptali Salcedo. In point of fact and law, there was considerably NO pronouncement to the effect that the marriage of Neptali Salcedo and Agnes Celiz was annulled by the court and that Salcedo became free to marry respondent. From all indications, it is to be fairly assumed that since there is an existing valid marriage between Neptali Salcedo and Agnes Celiz, the subsequent marriage of the former with the respondent is null and void. Consequently, the use by the respondent of the surname "Salcedo" constitutes material misrepresentation and is a ground for the cancellation of her certificate of candidacy.1wphi1.nt WHEREFORE, this Commission (SECOND DIVISION) RESOLVED, as it hereby RESOLVES, to CANCEL the Certificate of Candidacy of respondent for the position of Municipal Mayor of Sara, Iloilo in the May 11, 1998 elections.9 However, in its en banc Resolution dated October 6, 1998, the Comelec overturned its previous resolution, ruling that private respondent's certificate of candidacy did not contain any material misrepresentation. It disposed of the case in this manner The record shows that respondent Ermelita C. Salcedo married Neptali Salcedo on September 21, 1986. Under Article 370 of the Civil Code, the respondent may use her husband's surname. Hence, there is no material misrepresentation nor usurpation of another's name. At any rate, its has been said that the "filing of a certificate of candidacy is a technicality that should be enforced before the election, but can be disregarded after the electorate has made the choosing" (Collado vs. Alonzo, 15 SCRA 526). This rule is in consonance with the policy announced in many decisions that "the rules and regulations, for the conduct of elections, are mandatory before the elections, but when it is sought to enforce them after the elections, they are held to be directory only" (Lambonao vs. Tero, 15 SCRA 716). Furthermore, the municipal board of canvassers proclaimed the respondent last May 13, 1998, as the duly elect mayor of the municipality of Sara, Province of Iloilo. Any defect in the respondent's certificate of candidacy should give way to the will of the electorate. WHEREFORE, the COMMISSION resolves to GRANT the instant Motion for Reconsideration. We REVERSE the resolution (Second Division) promulgated on August 12, 1998, cancelling the certificate of candidacy of the respondent Ermelita C. Salcedo. The proclamation of Ermelita C. Salcedo, as mayor of Sara, Iloilo, remains valid, there being no legal ground to set it aside.10 This last resolution of the Comelec prompted petitioner to repair to this Court by way of a petition for certiorariunder Rule 65, claiming that public respondent's ruling was issued in grave abuse of its discretion.

Contrary to petitioner's contention, we are of the opinion that the main issue in this case is not whether or not private respondent is entitled to use a specific surname in her certificate of candidacy,11 but whether the use of such surname constitutes a material misrepresentation under section 78 of the Omnibus Election Code (the "Code") so as to justify the cancellation of her certificate of candidacy. We hold that it does not. Every person aspiring to hold any elective public office must file a sworn certificate of candidacy.12 One of the things which should be stated therein is that the candidate is eligible for the office.13 In case there is a material misrepresentation in the certificate of candidacy, the Comelec is authorized to deny due course to or cancel such certificate upon the filing of a petition by any person pursuant to section 78 of the Code which states that 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 misrepresentation 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. If the petition is filed within the statutory period and the candidate is subsequently declared by final judgment to be disqualified before the election, he 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 the Comelec shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.14 The fifteen-day period in section 78 for deciding the petition is merely directory. 15 As stated in the law, in order to justify the cancellation of the certificate of candidacy under section 78, it is essential that the false representation mentioned therein pertain to a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate the right to run for the elective post for which he filed the certificate of candidacy. Although the law does not specify what would be considered as a "material representation," the Court has interpreted this phrase in a line of decisions applying section 78 of the Code. In Abella vs. Larrazabal, supra, a petition was filed with the Comelec seeking the disqualification of private respondent Larrazabal for alleged false statements in her certificate of candidacy regarding residence. The Court held that the challenge made against private respondent's claimed residence was properly classified as a proceeding under section 78, despite the fact that it was filed only on the very day of the election.16 Meanwhile, in Labo vs. Commission on Elections,17 the disqualification proceeding filed by respondent pursuant to section 78 of the Code sought to cancel the certificate of candidacy filed by petitioner Ramon Labo, who ran for mayor of Baguio City in the last May 11, 1992 elections, based on the ground that Labo made a false representation when he stated therein that he is natural-born citizen of the Philippines. The Court, speaking through Justice Abdulwahid A. Bidin, held that Labo, having failed to submit any evidence to prove his reacquisition of Philippine citizenship, is not a Filipino citizen and respondent Comelec did not commit any grave abuse of discretion in cancelling his certificate of candidacy. The Court went on to say that the possession of citizenship, being an indispensable requirement for holding public office, may not be dispensed with by the fact of having won the elections for it "strikes at the very core of petitioner Labo's qualification to assume the contested office." A similar issue was dealt with in the Frivaldo vs. Commission on Elections cases18 wherein Frivaldo's qualification for public office was questioned in a petition filed by petitioner Paul R. Lee, praying that Frivaldo be disqualified from seeking or holding any public office or position and that his certificate of candidacy be cancelled by reason of his not yet being a citizen of the Philippines. The Court held that Frivaldo had reacquired Philippine citizenship by virtue of his repatriation under P.D. 725 and was qualified to hold the position of governor of Sorsogon.

The Court has likened a proceeding under section 78 to a quo warranto proceeding under section 253 since they both deal with the qualifications of a candidate. In the case of Aznar vs. Commission on Elections,19 wherein a petition was filed asking the Comelec to disqualify private respondent Emilio Osmena on the ground that he does not possess the requisite Filipino citizenship, the Court said There are two instances where a petition questioning the qualifications of a registered candidate to run for the office for which his certificate of candidacy was filed can be raised under the Omnibus Election Code (B.P. Blg. 881), to wit: (1) Before election, pursuant to Section 78 thereof which provides that: Sec. 78. Petition to deny due course or to 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 misrepresentation 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. and (2) After election, pursuant to Section 253 thereof, viz.: Sec. 253. Petition for quo warranto. Any voter contesting the election of any Member of the Batasang Pambansa20, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the results of the election. (emphasis supplied) The only difference between the two proceedings is that, under section 78, the qualifications for elective office are misrepresented in the certificate of candidacy and the proceedings must be initiated before the elections, whereas a petition for quo warranto under section 253 may be brought on the basis of two grounds (1) ineligibility or (2) disloyalty to the Republic of the Philippines, and must be initiated within ten days after the proclamation of the election results. Under section 253, a candidate is ineligible if he is disqualified to be elected to office, 21 and he is disqualified if he lacks any of the qualifications for elective office. In still another case, where the petition to disqualify petitioner was based upon an alleged false representation in the certificate of candidacy as to the candidate's age, the Court once again drew a parallel between a petition forquo warranto and a petition to cancel a certificate of candidacy when it stated that ". . . if a person qualified to file a petition to disqualify a certain candidate fails to file the petition within the 25-day period prescribed by Section 78 of the Code for whatever reasons, the elections laws do not leave him completely helpless as he has another chance to raise the disqualification of the candidate by filing a petition for quo warranto within ten (10) days from the proclamation of the results of the election, as provided under Section 253 of the Code." 22 Therefore, it may be concluded that the material misrepresentation contemplated by section 78 of the Code refer to qualifications for elective office. This conclusion is strengthened by the fact that the consequences imposed upon a candidate guilty of having made a false representation in his certificate of candidacy are grave to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws.23 It could not have been the intention of the law to deprive a person of such a basic and substantive political right to be voted for a public office upon just any innocuous mistake. Petitioner has made no allegations concerning private respondent's qualifications to run for the office of mayor. Aside from his contention that she made a misrepresentation in the use of the

surname "Salcedo," petitioner does not claim that private respondent lacks the requisite residency, age, citizenship or any other legal qualification necessary to run for a local elective office as provided for in the Local Government Code.24 Thus, petitioner has failed to discharge the burden of proving that the misrepresentation allegedly made by private respondent in her certificate of candidacy pertains to a material matter. Aside from the requirement of materiality, a false representation under section 78 must consist of a "deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible."25 In other words, it must be made with an intention to deceive the electorate as to one's qualifications for public office. The use of a surname, when not intended to mislead or deceive the public as to one's identity, is not within the scope of the provision. There is absolutely no showing that the inhabitants of Sara, Iloilo were deceived by the use of such surname by private respondent. Petitioner does not allege that the electorate did not know who they were voting for when they cast their ballots in favor of "Ermelita Cacao Salcedo" or that they were fooled into voting for someone else by the use of such name. It may safely be assumed that the electorate knew who private respondent was, not only by name, but also by face and may have even been personally acquainted with her since she has been residing in the municipality of Sara, Iloilo since at least 1986.26 Bolstering this assumption is the fact that she has been living with Neptali Salcedo, the mayor of Sara for three consecutive terms, since 1970 and the latter has held her out to the public as his wife.27 Also arguing against petitioner's claim that private respondent intended to deceive the electorate is the fact that private respondent started using the surname "Salcedo" since 1986, several years before the elections. In her application for registration of her rice and corn milling business filed with the Department of Trade and Industry in 1993, private respondent used the name "Ermelita Cacao Salcedo."28 From 1987 to 1997, she also used the surname "Salcedo" in the income tax returns filed by herself and by Neptali Salcedo.29 The evidence presented by private respondent on this point, which has remained uncontested by petitioner, belie the latter's claims that private respondent merely adopted the surname "Salcedo" for purposes of improving her chances of winning in the local elections by riding on the popularity of her husband. Thus, we hold that private respondent did not commit any material misrepresentation by the use of the surname "Salcedo" in her certificate of candidacy. Having disposed of the major issues, we will now proceed to tackle the secondary issues raised in the petition. Petitioner claims that the following circumstances constitute grave abuse of discretion on the part of the Comelec: (1) the October 6, 1998 en banc Resolution of the Comelec, sustaining the validity of private respondent's certificate of candidacy, merely duplicated the dissenting opinion of Commissioner Desamito of the Second Division in the August 12, 1998 Resolution; (2) Chairman Pardo, the ponente of the en banc Resolution, and Commissioner Guiani; both members of the Second Division who ruled in favor of petitioner in the August 12, 1998 Resolution, reversed their positions in the en banc resolution; and (3) the en banc Resolution was promulgated on the very same day that Chairman Pardo took his oath of office as Associate Justice of the Supreme Court. Petitioner does not indicate what legal provision or equitable principle the Comelec transgressed by the commission of these acts. We find nothing legally assailable with the Comelec's adoption in its en banc Resolution of the reasoning contained in the dissenting opinion of Commissioner Desamito; nor is the en banc Resolution rendered infirm by the mere change of position adopted by Chairman Pardo and Guiani of the Second Division. Precisely, the purpose of a motion for reconsideration is allow the adjudicator a second opportunity to review the case and to grapple with the issues therein, deciding anew a question previously raised.30 There is no legal proscription imposed upon the deciding body against adopting a position contrary to one previously taken. Finally, the fact that the decision was promulgated on the day Chairman Pardo, the ponente of the en bancResolution, took his oath of office as Associate Justice of the Supreme Court does not give ground to question the Comelec decision for then Chairman Pardo enjoys the presumption of regularity in the performance of his official duties, a presumption which petitioner has failed to rebut. At any rate, the date of promulgation is not necessarily the date of signing. In upholding the validity of private respondent's certificate of candidacy, we reiterate that "[t]he sanctity of the people's will must be observed at all times if our nascent democracy is to be

preserved. In any challenge having the effect of reversing a democratic voice, expressed through the ballot, this Court should be ever so vigilant in finding solutions which would give effect to the will of the majority, for sound public policy dictates that all elective offices are filled by those who have received the highest number of votes cast in an election. When a challenge to a winning candidate's qualifications however becomes inevitable, the ineligibility ought to be so noxious to the Constitution that giving effect to the apparent will of the people would ultimately do harm to our democratic institutions."31 Since there appears to be no dispute as to private respondent's qualifications to hold the office of municipal mayor, the will of the electorate must prevail. WHEREFORE, the Court hereby AFFIRMS the en banc Resolution of the Commission on Elections dated October 6, 1998 denying the petition to cancel private respondent's certificate of candidacy. No pronouncement as to costs. SO ORDERED. G.R. No. 150605 December 10, 2002

VIII.8 On May 11, 2001, the COMELEC Second Division sent a telegram informing the petitioner that a disqualification case was filed against him and that the petition was remanded to the Regional Election Director for investigation. 9 At the time of the elections on May 14, 2001, the Regional Election Director had yet to hear the disqualification case. Consequently, petitioner was included in the list of candidates for district representative and was voted for. The initial results showed that petitioner was the winning candidate. On May 16, 2001, before the counting could be finished, respondent Locsin joined as intervenor in SPA No. 128 and filed a "Most Urgent Motion to Suspend Proclamation of Respondent [herein petitioner]" with the COMELEC Second Division.10 Respondent Locsin alleged that "the evidence on record against respondent is very strong and unless rebutted remains." She urged the Commission to set the hearing of the disqualification case and prayed for the suspension of the proclamation of the respondent "so as not to render the present disqualification case moot and academic." A copy of the Motion was allegedly served on petitioner by registered mail but no registry receipt was attached thereto.11 On May 18, 2001, respondent Locsin filed a "Second Most Urgent Motion to Suspend Proclamation of Respondent" stating "there is clear and convincing evidence showing that the respondent is undoubtedly guilty of the charges against him and this remains unrebutted by the respondent." A copy of the Motion was sent to the petitioner and the corresponding registry receipt was attached to the pleading.12 The records, however, do not show the date the petitioner received the motion. On the same day, May 18, 2001, the COMELEC Second Division issued an Ex-Parte Order13 directing the Provincial Board of Canvassers of Leyte to suspend the proclamation of petitioner in case he obtains the highest number of votes by reason of "the seriousness of the allegations in the petition for disqualification."14 It also directed the Regional Election Director to speed up the reception of evidence and to forward immediately the complete records together with its recommendation to the Office of the Clerk of the Commission. 15 As a result, petitioner was not proclaimed as winner even though the final election results showed that he garnered 71,350 votes as against respondent Locsin's 53,447 votes.16 At the time that the COMELEC Second Division issued its Order suspending his proclamation, the petitioner has yet to be summoned to answer the petition for disqualification. Neither has said petition been set for hearing. It was only on May 24, 2001 that petitioner was able to file an Answer to the petition for his disqualification with the Regional Election Director, alleging that: (a) he has not received the summons together with the copy of the petition; (b) he became aware of the matter only by virtue of the telegram sent by the COMELEC Second Division informing him that a petition was filed against him and that the Regional Election Director was directed to investigate and receive evidence therewith; and (c) he obtained a copy of the petition from the COMELEC Regional Office No. 8 at his own instance.17 Petitioner further alleged that the maintenance, repair and rehabilitation of barangay roads in the municipalities of Matag-ob and Kananga were undertaken without his authority, participation or directive as City Mayor of Ormoc. He attached in his Answer the following: (a) Affidavit of Alex B. Borinaga;18 (b) Copy of the Excerpt from the Minutes of the Regular Session of Barangay Monterico;19 (c) Affidavit of Wilfredo A. Fiel;20 (d) Supplemental Affidavit of Wilfredo A. Fiel;21 and (e) Affidavit of Arnel Y. Padayao.22 On May 25, 2001, petitioner filed a Motion to Lift Order of Suspension,23 alleging that (a) he did not receive a copy of the Motion to Suspend his Proclamation and hence, was denied the right to rebut and refute the allegations in the Motion; (b) that he did not receive a copy of the summons on the petition for disqualification and after personally obtaining a copy of the petition, filed the requisite answer only on May 24, 2001; and (c) that he received the telegraph Order of the COMELEC Second Division suspending his proclamation only on May 22, 2001. He attached documentary evidence in support of his Motion to Lift the Suspension of his proclamation, and requested the setting of a hearing on his Motion.24 On May 30, 2001, an oral argument was conducted on the petitioner's Motion and the parties were ordered to submit their respective memoranda.25 On June 4, 2001, petitioner submitted his Memorandum26 in support of his Motion assailing the suspension of his proclamation on the grounds that: (a) he was not afforded due process; (b) the order has no legal and factual basis; and (c) evidence of his guilt is patently inexistent for the purpose of suspending his proclamation. He

EUFROCINO M. CODILLA, SR., petitioner, vs. HON. JOSE DE VENECIA, ROBERTO P. NAZARENO, in their official capacities as Speaker and Secretary-General of the House of Representatives, respectively, and MA. VICTORIA L. LOCSIN, respondents. DECISION PUNO, J.: In a democracy, the first self-evident principle is that he who has been rejected by the people cannot represent the people. Respondent Ma. Victoria L. Locsin lost to petitioner Eufrocino M. Codilla, Sr. by 17,903 votes in the May 14, 2001 elections as Representative of the 4th legislative district of Leyte. The most sophisticated legal alchemy cannot justify her insistence that she should continue governing the people of Leyte against their will. The enforcement of the sovereign will of the people is not subject to the discretion of any official of the land. This is a Petition for Mandamus and Quo Warranto directed against respondents Speaker Jose De Venecia and Secretary-General Roberto P. Nazareno of the House of Representatives to compel them to implement the decision of the Commission on Elections en banc by (a) administering the oath of office to petitioner as the duly-elected Representative of the 4th legislative district of Leyte, and (b) registering the name of the petitioner in the Roll of Members of the House of Representatives, and against respondent Ma. Victoria L. Locsin for usurping, intruding into, and unlawfully holding and exercising the said public office on the basis of a void proclamation. The facts are uncontroverted. Petitioner and respondent Locsin were candidates for the position of Representative of the 4th legislative district of Leyte during the May 14, 2001 elections. At that time, petitioner was the Mayor of Ormoc City while respondent Locsin was the sitting Representative of the 4th legislative district of Leyte. On May 8, 2001, one Josephine de la Cruz, a registered voter of Kananga, Leyte, filed directly with the COMELEC main office a Petition for Disqualification1 against the petitioner for indirectly soliciting votes from the registered voters of Kananga and Matag-ob, Leyte, in violation of Section 68 (a) of the Omnibus Election Code. It was alleged that the petitioner used the equipments and vehicles owned by the City Government of Ormoc to extract, haul and distribute gravel and sand to the residents of Kananga and Matag-ob, Leyte, for the purpose of inducing, influencing or corrupting them to vote for him. Attached to the petition are the (a) Affidavits of Basilio Bates,2 Danilo D. Maglasang,3 Cesar A. Laurente;4 (b) Joint Affidavit of Agripino C. Alferez and Rogelio T. Salvera;5 (c) Extract Records from the Police Blotter executed by Police Superintendent Elson G. Pecho;6 and (d) Photographs showing government dump trucks, haulers and surfacers and portions of public roads allegedly filled-in and surfaced through the intercession of the respondent.7 The case was docketed as SPA No. 01-208 and assigned to the COMELEC's Second Division. On May 10, 2001, the COMELEC Second Division issued an Order delegating the hearing and reception of evidence on the disqualification case to the Office of the Regional Director of Region

prayed that his proclamation as winning congressional candidate be expediently made, even while the disqualification case against him continue upon due notice and hearing. He attached the following additional evidence in his Memorandum: (a) Copy of certification issued by PNP Senior Inspector Benjamin T. Gorre;27 (b) Certification issued by Elena S. Aviles, City Budget Officer; 28 (c) Copy of certification issued by Wilfredo A. Fiel, City Engineer of Ormoc; 29 (d) Joint Affidavit of Antonio Patenio and Pepito Restituto;30and (e) Affidavits of Demetrio Brion,31 Igmedio Rita32 and Gerardo Monteza.33 Respondent Locsin's memorandum also contained additional affidavits of his witnesses.34 Petitioner's Motion to Lift the Order of Suspension, however, was not resolved. Instead, on June 14, 2001, the COMELEC Second Division promulgated its Resolution35 in SPA No. 01208 which found the petitioner guilty of indirect solicitation of votes and ordered his disqualification. It directed the "immediate proclamation of the candidate who garnered the highest number of votes xxx." A copy of said Resolutionwas sent by fax to the counsel of petitioner in Cebu City in the afternoon of the following day. 36 By virtue of the said Resolution, the votes cast for petitioner, totaling 71,350, were declared stray even before said Resolution could gain finality. On June 15, 2001, respondent Locsin was proclaimed as the duly elected Representative of the 4th legislative district of Leyte by the Provincial Board of Canvassers of Leyte. It issued a Certificate of Canvass of Votes and Proclamation of the Winning Candidates for Member of the House of Representatives stating that "MA. VICTORIA LARRAZABAL LOCSIN obtained a total of FIFTY THREE THOUSAND FOUR HUNDRED FORTY SEVEN (53,447) votes representing the highest number of votes legally cast in the legislative district for said office."37 Respondent Locsin took her oath of office on June 18, 2001 and assumed office on June 30, 2001. On June 20, 2001, petitioner seasonably filed with the COMELEC en banc a Motion for Reconsideration38 from the June 14, 2001 Resolution of the COMELEC Second Division which ordered his disqualification, as well as an Addendum to the Motion for Reconsideration. 39 Petitioner alleged in his Motion for Reconsideration that the COMELEC Second Division erred: (1) in disqualifying petitioner on the basis solely of the dubious declaration of the witnesses for respondent Locsin; (2) in adopting in toto the allegations of the witnesses for respondent Locsin; and (3) in promulgating the resolution in violation of its own rules of procedure and in directing therein the immediate proclamation of the second highest 'vote getter.' Respondent Locsin and her co-petitioner in SPA No. 01-208 filed a joint Opposition to the Motion for Reconsideration.40 On June 21, 2001, petitioner filed with the COMELEC en banc a Petition for Declaration of Nullity of Proclamation,41 docketed as SPC No. 01-324, assailing the validity of the proclamation of respondent Locsin who garnered only the second highest number of votes. Respondent Locsin filed her Answer alleging that: (1) the Commission lost jurisdiction to hear and decide the case because of the proclamation of Locsin and that any question on the "election, returns, and qualification" of Locsin can only be taken cognizance of by the House of Representatives Electoral Tribunal (HRET); (2) the case should be filed and heard in the first instance by a Division of the Commission and not directly by the Commission en banc; and (3) the proclamation of Locsin was valid because she received the highest number of valid votes cast, the votes of Codilla being stray. On June 28, 2001, petitioner filed an Urgent Manifestation42 stating that he was deprived of a fair hearing on the disqualification case because while the documentary evidence adduced in his Memorandum was in support of his Motion for the lifting of the suspension of his proclamation, the COMELEC Second Division instead ruled on the main disqualification case. In consonance with his prayer that a full-dress hearing be conducted on the disqualification case, he submitted Affidavits of additional witnesses43 which he claims would refute and substantially belie the allegations of petitioner's/intervenor's witnesses. A Reply,44Rejoinder45 and Sur-Rejoinder46 were respectively filed by the parties. Consequently, the motion for reconsideration in SPA No. 01-208 and the petition for declaration of nullity in SPC No. 01-324 were submitted for resolution. From the records, it appears that initially, a "Resolution" penned by Commissioner Rufino S.B. Javier, dated July 24, 2001, was submitted to the Office of the Chairman, dismissing the petition for declaration of nullity for lack of jurisdiction and denying the motion for reconsideration filed by petitioner Codilla.47 Commissioners Florentino A. Tuason, Jr. and Resurreccion Z. Borra submitted their respective dissenting opinions48 to the Javier resolution. It bears emphasis that Commissioner Tuason, Jr. was the ponente of the Resolution of the COMELEC Second Division which ordered the

disqualification of petitioner but after considering the additional evidence presented by the latter, he concluded that the totality of the evidence was clearly in petitioner's favor. Equally worth mentioning is the fact that Commissioner Ralph C. Lantion, who was the Presiding Commissioner of the Second Division, also dissented and voted to grant Codilla's motion for reconsideration on the ground that "[T]he people of Leyte have spoken and I respect the electorate's will. x x x." 49 On August 29, 2001, then COMELEC Chairman Alfredo L. Benipayo issued a "Vote and Opinion and Summary of Votes" reversing the resolution of the Second Division and declaring the proclamation of respondent Locsin as null and void. The dispositive portion reads: "JUDGMENT WHEREFORE, in view of all the foregoing considerations, I concur with Commissioner Resurreccion Z. Borra, Commissioner Florentino A. Tuason, Jr. and Commissioner Ralph C. Lantion, in SPA No. 01-208, to GRANT the motion for reconsideration and to REVERSE the resolution of the Commission (Second Division) promulgated on June 1, 2001, disqualifying Codilla; and subsequently, in SPC No. 01-324, to GRANT the petition of Eufrocino M. Codilla, Sr., and declare as null and void the proclamation of losing candidate Locsin. Accordingly: 1. On the Motion for Reconsideration of the disqualification resolution against Codilla, promulgated by the Commission (Second Division) on June 14, 2001 (SPA No. 01-208), I vote: (a) to GRANT the Motion for Reconsideration of respondent-movant Eufrocino M. Codilla, Sr., and to REVERSE the Resolution of the Commission (Second Division) promulgated on June 14, 2001, for insufficiency of evidence; (b) to lift the order of suspension of proclamation of petitioner Codilla, issued by the Commission (Second Division) on May 18, 2001, having been issued without hearing and without any finding that the evidence of guilt of petitioner Codilla is strong and, thus, null and void; (c) to nullify the order contained in the Resolution of the Commission (Second Division) promulgated on June 14, 2001, for "(t)he immediate proclamation of the candidate who garnered the highest number of votes, to the exclusion of respondent" and the concurrent order for "the Provincial Board of Canvasser (sic) of Leyte to immediately reconvene and thereafter proclaim forthwith the candidate who obtained the highest number of votes counting out the Respondent" the same being violative of election laws, established jurisprudence, and resolutions of the Commission; (d) to nullify the ruling contained in the Resolution of the Commission (Second Division) promulgated o June 14, 2001, that the votes of respondent Codilla are "considered stray and invalid" said ruling being issued on the basis of an inapplicable decision, and contrary to established jurisprudence; (e) to order the Provincial Board of Canvassers of Leyte, upon the finality of this resolution, to reconvene and proclaim petitioner Codilla as the winning candidate for Representative of the Fourth Legislative district of Leyte to comply with its ministerial duty to proclaim the candidate who garnered the highest number of votes in the elections for that position; and (f) to order intervenor-oppositor Locsin, upon the finality of this resolution, to vacate the office of Representative of the House of Representatives representing the Fourth legislative district of Leyte and, for this purpose, to inform the House of Representatives through the Honorable Speaker of this resolution for its attention and guidance; and

2. On the petition for Declaration of Nullity of proclamation of respondent Ma. Victoria L. Locsin (SPC No. 01-324), I vote: (a) to GRANT the petition of Eufrocino M. Codilla, Sr., and declare as null and void the proclamation of losing candidate Locsin, the proclamation being violative of election laws, established jurisprudence, and resolutions of the Commission on Elections; (b) to lift the order of suspension of proclamation of petitioner Codilla, issued by the Commission (Second Division) on May 18, 2001, in SPA No. 01-208, having been issued without hearing and without any finding that the evidence of guilt of petitioner Codilla is strong and, thus, null and void; (c) to nullify the order contained in the Resolution of the Commission (Second Division) promulgated on June 14, 2001, in SPA No. 01-208, for "(t)he immediate proclamation of the candidate who garnered the highest number of votes, to the exclusion of respondent" and the concurrent order for "the provincial Board of Canvasser (sic) of Leyte to immediately reconvene and thereafter proclaim forthwith the candidate who obtained the highest number of votes counting out the Respondent" the same being violative of election laws, established jurisprudence, and resolutions of the Commission; (d) to nullify the ruling contained in the Resolution of the Commission (Second Division) promulgated on June 14, 2001, in SPA No. 01-208, that the votes of respondent Codilla are "considered stray and invalid" said ruling being issued on the basis of an inapplicable decision, and contrary to established jurisprudence; (e) to order the provincial Board of Canvassers of Leyte, upon the finality of this resolution, to reconvene and proclaim petitioner Codilla as the winning candidate for Representative of the Fourth legislative district of Leyte he (sic) having garnered the highest number of votes in the elections for the position; and (f) to order respondent Locsin, upon the finality of this resolution, to vacate the office of Representative of the House of Representatives representing the Fourth Legislative district of Leyte and, for this purpose, to inform the House of Representatives through the Honorable Speaker of this resolution for its attention and guidance. Summary of Votes Considering the FOUR (4) VOTES of the Chairman and Commissioners Resurreccion Z. Borra, Florentino A. Tuason, Jr., and Ralph C. Lantion, to grant the Motion for Reconsideration of Codilla and reverse the disqualification Resolution of the Commission (Second Division) in SPA No. 01-208, promulgated on June 14, 2001, and as an inevitable consequence, in voting to grant the petition for declaration of nullity of the proclamation of Ma. Victoria L. Locsin in SPC No. 01-324, the verdict/opinion of the Chairman and the three (3) Commissioners taken together now stands, as it is, the MAJORITY DECISION of the Commission En Banc in both cases; and the "Resolution" submitted by three (3) Commissioners, namely, Commissioner Rufino S.B. Javier, Commissioner Luzviminda G. Tancangco, and Commissioner Mehol K. Sadain, is considered, as it is, the MINORITY DECISION of the Commission En Banc in both cases. The MAJORTIY DECISION was arrived at after proper consultation with those who joined the majority. The Chairman and the three (3) Commissioners comprising the majority decided that no one will be assigned to write a Majority Decision. Instead, each one will write his own separate opinion. Commissioners Borra, Tuason, Jr. and the undersigned Chairman submitted separate opinions. Commissioner Lantion wrote an explanation on his vote." 50 The aforequoted judgment was adopted in a "Vote of Adoption" signed by Commissioners Ralph C. Lantion, Resurreccion Z. Borra and Florentino A. Tuason, Jr. 51 Respondent Locsin did not appeal from this decision annulling her proclamation. Instead, she filed a "Comment and Manifestation" 52 with the COMELEC en banc questioning the procedure and the manner by which the decision was issued. In addition, respondent Locsin requested and

was issued an opinion by House of Representatives Executive Director and Chief Legal Counsel Leonardo B. Palicte III declaring that the COMELEC has no jurisdiction to nullify the proclamation of respondent Locsin after she had taken her oath and assumed office since it is the HRET which is the sole judge of election, returns and qualifications of Members of the House. 53 Relying on this opinion, respondent Locsin submitted a written privileged speech to the House during its regular session on September 4, 2001, where she declared that she will not only disregard but will openly defy and disobey the COMELEC en banc resolution ordering her to vacate her position. 54 On September 6, 2001, the COMELEC en banc issued an Order 55 constituting the members of the Provincial Board of Canvassers of Leyte to implement the aforesaid decision. It likewise ordered the Board to reconvene and "proclaim the candidate who obtained the highest number of votes in the district, as the duly-elected Representative of the Fourth Legislative district of Leyte, and accordingly issue a Certificate of Canvass and Proclamation of Winning Candidate for Member of the House of Representatives x x x, based on the city/municipal certificates of canvass submitted beforehand to the previous Provincial Board of Canvassers of Leyte x x x." On September 12, 2001, petitioner Codilla was proclaimed by the Provincial Board of Canvassers as the duly-elected Representative of the 4th legislative district of Leyte, having obtained a total of 71,350 votes representing the highest number of votes cast in the district.56 On the same day, petitioner took his oath of office before Executive Judge Fortunito L. Madrona of the Regional Trial Court of Ormoc City.57 On September 14, 2001, petitioner wrote the House of Representatives, thru respondent Speaker De Venecia, informing the House of the August 29, 2001 COMELEC en banc resolution annulling the proclamation of respondent Locsin, and proclaiming him as the duly-elected Representative of the 4th legislative district of Leyte.58 Petitioner also served notice that "I am assuming the duties and responsibilities as Representative of the fourth legislative district of Leyte to which position I have been lawfully elected and proclaimed. On behalf of my constituents, I therefore expect that all rights and privileges intended for the position of Representative of the fourth legislative district of Leyte be accorded to me, including all physical facilities and staff support." On the basis of this letter, a Memorandum59 dated October 8, 2001 was issued by Legal Affairs Deputy SecretaryGeneral Gaudencio A. Mendoza, Jr., for Speaker De Venecia, stating that "there is no legal obstacle to complying with the duly promulgated and now final and executory COMELEC Decision of August 29, 2001 x x x." These notwithstanding, and despite receipt by the House of Representatives of a copy of the COMELEC en banc resolution on September 20, 2001,60 no action was taken by the House on the letter-appeal of petitioner. Hence, petitioner sought the assistance of his party, LAKAS-NUCDUMDP, which sent a letter61 addressed to respondent Speaker De Venecia, dated October 25, 2001, and signed by Party President Teofisto T. Guingona, Jr., Secretary-General Heherson T. Alvarez, and Region VIII Party Chairman Sergio Antonio F. Apostol, requesting the House of Representatives to act decisively on the matter in order that petitioner "can avail of whatever remedy is available should their action remain unfavorable or otherwise undecisive." In response, Speaker De Venecia sent a letter62 dated October 30, 2001, stating that: "We recognize the finality of the COMELEC decision and we are inclined to sustain it. However, Rep. Locsin has officially notified the HOUSE in her privilege speech, inserted in the HOUSE Journal dated September 4, 2001, that she shall 'openly defy and disobey' the COMELEC ruling. This ultimately means that implementing the decision would result in the spectacle of having two (2) legislators occupying the same congressional seat, a legal situation, the only consideration, that effectively deters the HOUSE's liberty to take action. In this light, the accepted wisdom is that the implementation of the COMELEC decision is a matter that can be best, and with finality, adjudicated by the Supreme Court, which, hopefully, shall act on it most expeditiously." (emphases supplied) Hence, the present petition for mandamus and quo warranto. Petitioner submits that by virtue of the resolution of the COMELEC en banc which has become final and executory for failure of respondent Locsin to appeal therefrom, it has become the ministerial

duty: (1) of the Speaker of the House of Representatives, as its Administrative Head and Presiding Officer, to implement the said resolution of the COMELEC en banc by installing him as the dulyelected Representative of the 4th legislative district of Leyte; and (2) of the Secretary-General, as official custodian of the records of the House, to formally register his name in the Roll of Members of the House and delete the name of respondent Locsin therefrom. Petitioner further contends that respondent Locsin has been usurping and unlawfully holding the public office of Representative of the 4th legislative district of Leyte considering that her premature proclamation has been declared null and void by the COMELEC en banc. He alleges that the action or inaction of public respondents has deprived him of his lawful right to assume the office of Representative of the 4th legislative district of Leyte. In his Comment,63 public respondent Speaker De Venecia alleged that mandamus will not lie to compel the implementation of the COMELEC decision which is not merely a ministerial duty but one which requires the exercise of discretion by the Speaker of the House considering that: (1) it affects the membership of the House; and (2) there is nothing in the Rules of the House of Representatives which imposes a duty on the House Speaker to implement a COMELEC decision that unseats an incumbent House member. In his Comment,64 public respondent Secretary-General Nazareno alleged that in reading the name of respondent Locsin during the roll call, and in allowing her to take her oath before the Speakerelect and sit as Member of the House during the Joint Session of Congress, he was merely performing official acts in compliance with the opinions65 rendered by House of Representatives Chief Counsel and Executive Director Leonardo C. Palicte III stating that the COMELEC has no jurisdiction to declare the proclamation of respondent Locsin as null and void since it is the HRET which is the sole judge of all election, returns and qualifications of Members of the House. He also contends that the determination of who will sit as Member of the House of Representatives is not a ministerial function and cannot, thus, be compelled by mandamus. Respondent Locsin, in her Comment,66 alleged that the Supreme Court has no original jurisdiction over an action for quo warranto involving a member of the House of Representatives for under Section 17, Article VI of the Constitution it is the HRET which is the sole judge of all contests relating to the election, returns and qualifications of Members of the House of Representatives. She likewise asserts that this Court cannot issue the writ of mandamus against a co-equal legislative department without grossly violating the principle of separation of powers. She contends that the act of recognizing who should be seated as a bona fide member of the House of Representatives is not a ministerial function but a legislative prerogative, the performance of which cannot be compelled by mandamus. Moreover, the prayer for a writ of mandamus cannot be directed against the Speaker and Secretary-General because they do not have the authority to enforce and implement the resolution of the COMELEC. Additionally, respondent Locsin urges that the resolution of the COMELEC en banc is null and void for lack of jurisdiction. First, it should have dismissed the case pending before it after her proclamation and after she had taken her oath of office. Jurisdiction then was vested in the HRET to unseat and remove a Member of the House of Representatives. Second, the petition for declaration of nullity is clearly a pre-proclamation controversy and the COMELEC en banc has no original jurisdiction to hear and decide a pre-proclamation controversy. It must first be heard by a COMELEC Division. Third, the questioned decision is actually a "hodge-podge" decision because of the peculiar manner in which the COMELEC disposed of the case. Finally, respondent Locsin asserts that the matter of her qualification and eligibility has been categorically affirmed by the HRET when it dismissed the quo warranto case filed against her, docketed as HRET Case No. 01-043, entitled "Paciano Travero vs. Ma. Victoria Locsin," on the ground that "the allegations stated therein are not proper grounds for a petition for quo warranto against a Member of the House of Representatives under section 253 of the Omnibus Election Code and Rule 17 of the HRET Rules, and that the petition was filed late."67 In his Reply,68 petitioner asserts that the remedy of respondent Locsin from the COMELEC decision was to file a petition for certiorari with the Supreme Court, not to seek an opinion from the Chief Legal Counsel of the House of Representatives; that the HRET has no jurisdiction over a petition for declaration of nullity of proclamation which is based not on ineligibility or disloyalty, but by reason that the candidate proclaimed as winner did not obtain the highest number of votes; that the petition for annulment of proclamation is a pre-proclamation controversy and, hence, falls within the exclusive jurisdiction of the COMELEC pursuant to section 242 of B.P. Blg. 881 69 and section 3,

Article IX (C) of the Constitution; that respondent Speaker De Venecia himself recognizes the finality of the COMELEC decision but has decided to refer the matter to the Supreme Court for adjudication; that the enforcement and implementation of a final decision of the COMELEC involves a ministerial act and does not encroach on the legislative power of Congress; and that the power to determine who will sit as Member of the House does not involve an exercise of legislative power but is vested in the sovereign will of the electorate. The core issues in this case are: (a) whether the proclamation of respondent Locsin by the COMELEC Second Division is valid; (b) whether said proclamation divested the COMELEC en banc of jurisdiction to review its validity; and (c) assuming the invalidity of said proclamation, whether it is the ministerial duty of the public respondents to recognize petitioner Codilla, Sr. as the legally elected Representative of the 4th legislative district of Leyte vice respondent Locsin. I Whether the proclamation of respondent Locsin is valid. After carefully reviewing the records of this case, we find that the proclamation of respondent Locsin is null and void for the following reasons: First. The petitioner was denied due process during the entire proceedings leading to the proclamation of respondent Locsin. COMELEC Resolution Nos. 340270 sets the procedure for disqualification cases pursuant to section 68 of the Omnibus Election Code, viz: "C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING SAME GROUNDS FOR DISQUALIFICATION (1) The verified petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code and the verified petition to disqualify a candidate for lack of qualifications or possessing same grounds for disqualification, may be filed any day after the last day for filing of certificates of candidacy but not later than the date of proclamation. (2) The petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code shall be filed in ten (10) legible copies by any citizen of voting age, or duly registered political party, organization or coalition of political parties against any candidate who in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of: 2.a having given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; 2.b having committed acts of terrorism to enhance his candidacy; 2.c having spent in his election campaign an amount in excess of that allowed by the Omnibus Election Code; 2.d having solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104 of the Omnibus Election Code; 2.e having violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6 of the Omnibus Election Code, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. xxxxxxxxx

(4) Upon payment of the filing fee of P1,000.00 and legal research fee of P20.00, the offices concerned shall docket the petition and assign to it a docket number which must be consecutive, according to the order of receipt and must bear the year and prefixed as SPA with the corresponding initial of the name of the office, i.e. SPA (RED) No. C01-001; SPA (PES) No. C01-001; (5) Within three (3) days from filing of the petitions, the offices concerned shall issue summons to the respondent candidate together with a copy of the petition and its enclosures, if any; (6) The respondent shall be given three (3) days from receipt of summons within which to file his verified answer (not a motion to dismiss) to the petition in ten (10) legible copies, serving a copy thereof upon the petitioner. Grounds for Motion to Dismiss may be raised as an affirmative defense; (7) The proceeding shall be summary in nature. In lieu of the testimonies, the parties shall submit their affidavits or counter-affidavits and other documentary evidences including their position paper; (8) The hearing must be completed within ten (10) days from the date of the filing of the answer. The hearing officer concerned shall submit to the Clerk of the Commission through the fastest means of communication, his findings, reports and recommendations within five (5) days from the completion of the hearing and reception of evidence together with the complete records of the case; (9) Upon receipt of the records of the case of the findings, reports and recommendation of the hearing officer concerned, the Clerk of the Commission shall immediately docket the case consecutively and calendar the same for raffle to a division; (10) The division to whom the case is raffled, shall after consultation, assign the same to a member who shall pen the decision, within five (5) days from the date of consultation." Resolution No. 3402 clearly requires the COMELEC, through the Regional Election Director, to issue summons to the respondent candidate together with a copy of the petition and its enclosures, if any, within three (3) days from the filing of the petition for disqualification. Undoubtedly, this is to afford the respondent candidate the opportunity to answer the allegations in the petition and hear his side. To ensure compliance with this requirement, the COMELEC Rules of Procedure requires the return of the summons together with the proof of service to the Clerk of Court of the COMELEC when service has been completed, viz: "Rule 14. Summons xxxxxxxxx Section 5. Return.- When the service has been completed by personal service, the server shall give notice thereof, by registered mail, to the protestant or his counsel and shall return the summons to the Clerk of Court concerned who issued it, accompanied with the proof of service. Section 6. Proof of Service.- Proof of service of summons shall be made in the manner provided for in the Rules of Court in the Philippines." Thereafter, hearings, to be completed within ten (10) days from the filing of the Answer, must be conducted. The hearing officer is required to submit to the Clerk of the Commission his findings, reports and recommendations within five (5) days from the completion of the hearing and reception of evidence together with the complete records of the case. (a) Petitioner was not notified of the petition for his disqualification through the service of summons nor of the Motions to suspend his proclamation.

The records of the case do not show that summons was served on the petitioner. They do not contain a copy of the summons allegedly served on the petitioner and its corresponding proof of service. Furthermore, private respondent never rebutted petitioner's repeated assertion that he was not properly notified of the petition for his disqualification because he never received summons.71 Petitioner claims that prior to receiving a telegraphed Order from the COMELEC Second Division on May 22, 2001, directing the District Board of Canvassers to suspend his proclamation, he was never summoned nor furnished a copy of the petition for his disqualification. He was able to obtain a copy of the petition and the May 22 Order of the COMELEC Second Division by personally going to the COMELEC Regional Office on May 23, 2001. Thus, he was able to file his Answer to the disqualification case only on May 24, 2001. More, the proclamation of the petitioner was suspended in gross violation of section 72 of the Omnibus Election Code which provides: "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 to office." (emphases supplied) In the instant case, petitioner has not been disqualified by final judgment when the elections were conducted on May 14, 2001. The Regional Election Director has yet to conduct hearing on the petition for his disqualification. After the elections, petitioner was voted in office by a wide margin of 17,903. On May 16, 2001, however, respondent Locsin filed a Most Urgent Motion for the suspension of petitioner's proclamation. The Most Urgent Motion contained a statement to the effect that a copy was served to the petitioner through registered mail. The records reveal that no registry receipt was attached to prove such service.72 This violates COMELEC Rules of Procedure requiring notice and service of the motion to all parties, viz: "Section 4. Notice.- Notice of a motion shall be served by the movant to all parties concerned, at least three (3) days before the hearing thereof, together with a copy of the motion. For good cause shown, the motion may be heard on shorter notice, especially on matters which the Commission or the Division may dispose of on its own motion. The notice shall be directed to the parties concerned and shall state the time and place of the hearing of the motion. Section 5. Proof of Service.- No motion shall be acted upon by the Commission without proof of service of notice thereof, except when the Commission or a Division is satisfied that the rights of the adverse party or parties are not affected." Respondent's Most Urgent Motion does not fall under the exceptions to notice and service of motions. First, the suspension of proclamation of a winning candidate is not a matter which the COMELEC Second Division can dispose of motu proprio. Section 6 of R.A. No. 6646 73 requires that the suspension must be "upon motion by the complainant or any intervenor", viz: "Section 6. Effect of Disqualification Case.- Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason, a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission (COMELEC) shall continue with the trial or hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong." (emphases supplied)

Second, the right of an adverse party, in this case, the petitioner, is clearly affected. Given the lack of service of the Most Urgent Motion to the petitioner, said Motion is a mere scrap of paper. 74 It cannot be acted upon by the COMELEC Second Division. On May 18, 2001 at exactly 5:00 p.m.,75 respondent Locsin filed a Second Most Urgent Motion for the suspension of petitioner's proclamation. Petitioner was served a copy of the Second Motion again by registered mail. A registry receipt76 was attached evidencing service of the Second Most Urgent Motion to the petitioner but it does not appear when the petitioner received a copy thereof. That same day, the COMELEC Second Division issued an Order suspending the proclamation of petitioner. Clearly, the petitioner was not given any opportunity to contest the allegations contained in the petition for disqualification. The Order was issued on the very same day the Second Most Urgent Motion was filed. The petitioner could not have received the Second Most Urgent Motion, let alone answer the same on time as he was served a copy thereof by registered mail. Under section 6 of R.A. No. 6646, the COMELEC can suspend proclamation only when evidence of the winning candidate's guilt is strong. In the case at bar, the COMELEC Second Division did not make any specific finding that evidence of petitioner's guilt is strong. Its only basis in suspending the proclamation of the petitioner is the "seriousness of the allegations" in the petition for disqualification. Pertinent portion of the Order reads: "Without giving due course to the petition xxx the Commission (2 nd Division), pursuant to Section 72 of the Omnibus Election Code in relation to Section 6, Republic Act No. 6646 xxx and considering the serious allegations in the petition, hereby directs the Provincial Board of Canvassers of Leyte to suspend the proclamation of respondent, if winning, until further orders."77 (emphases supplied) We hold that absent any finding that the evidence on the guilt of the petitioner is strong, the COMELEC Second Division gravely abused its power when it suspended his proclamation. (b) The COMELEC Second Division did not give ample opportunity to the petitioner to adduce evidence in support of his defense in the petition for his disqualification. All throughout the proceeding, no hearing was conducted on the petition for disqualification in gross violation of section 6 of R.A. No. 6646 which specifically enjoins the COMELEC to "continue with the trial or hearing of the action, inquiry, or protest." This is also in violation of COMELEC Resolution No. 3402 requiring the Regional Election Director to complete the hearing and reception of evidence within ten (10) days from the filing of the Answer, and to submit his findings, reports, and recommendations within the five (5) days from completion of the hearing and the reception of evidence. Petitioner filed a Motion to Lift the Order of Suspension of his proclamation on May 25, 2001. Although an oral argument on this Motion was held, and the parties were allowed to file their respective memoranda, the Motion was not acted upon. Instead, the COMELEC Second Division issued a Resolution on the petition for disqualification against the petitioner. It was based on the following evidence: (a) the affidavits attached to the Petition for Disqualification; (b) the affidavits attached to the Answer; and (c) the respective memoranda of the parties. On this score, it bears emphasis that the hearing for Motion to Lift the Order of Suspension cannot be substituted for the hearing in the disqualification case. Although intrinsically linked, it is not to be supposed that the evidence of the parties in the main disqualification case are the same as those in the Motion to Lift the Order of Suspension. The parties may have other evidence which they may deem proper to present only on the hearing for the disqualification case. Also, there may be evidence which are unavailable during the hearing for the Motion to Lift the Order of Suspension but which may be available during the hearing for the disqualification case. In the case at bar, petitioner asserts that he submitted his Memorandum merely to support his Motion to Lift the Order of Suspension. It was not intended to answer and refute the disqualification case against him. This submission was sustained by the COMELEC en banc. Hence, the members of the COMELEC en banc concluded, upon consideration of the additional affidavits attached in his Urgent Manifestation, that the evidence to disqualify the petitioner was insufficient. More specifically, the ponente of the challenged Resolution of the COMELEC Second Division held:

"Indeed, I find from the records that the May 30, 2001 hearing of the COMELEC (Second Division) concerns only the incident relating to the Motion to Lift Order of Suspension of Proclamation. It also appears that the order for the submission of the parties' respective memoranda was in lieu of the parties' oral argument on the motion. This would explain the fact that Codilla's Memorandum refers mainly to the validity of the issuance of the order of suspension of proclamation. There is, however, no record of any hearing on the urgent motion for the suspension of proclamation. Indeed, it was only upon the filing of the Urgent Manifestation by Codilla that the Members of the Commission (Second Division) and other Members of the Commission en banc had the opportunity to consider Codilla's affidavits. This time, Codilla was able to present his side, thus, completing the presentation of evidentiary documents from both sides." 78 (emphases supplied) Indeed, careful reading of the petitioner's Memorandum shows that he confined his arguments in support of his Motion to Lift the Order of Suspension. In said Memorandum, petitioner raised the following issues: (a) he was utterly deprived of procedural due process, and consequently, the order suspending his proclamation is null and void; (b) the said order of suspension of proclamation has no legal and factual basis; and (c) evidence of guilt on his part is patently inexistent for the purpose of directing the suspension of his proclamation.79 He urged the COMELEC Second Division to conduct a full dress hearing on the main disqualification case should the suspension be lifted. 80 (c) the Resolution of the COMELEC Second Division disqualifying the petitioner is not based on substantial evidence. The Resolution of the COMELEC Second Division cannot be considered to be based on substantial evidence. It relied merely on affidavits of witnesses attached to the petition for disqualification. As stressed, the COMELEC Second Division gave credence to the affidavits without hearing the affiants. In reversing said Resolution, the COMELEC en banc correctly observed: "Lacking evidence of Codilla, the Commission (Second Division) made its decisions based mainly on the allegation of the petitioner and the supporting affidavits. With this lopsided evidence at hand, the result was predictable. The Commission (Second Division) had no choice. Codilla was disqualified."81 Worse, the Resolution of the COMELEC Second Division, even without the evidence coming from the petitioner, failed to prove the gravamen of the offense for which he was charged. 82 Petitioner allegedly violated section 68 (a) of the Omnibus Election Code which reads: "Section 68. Disqualifications.- Any candidate who, in 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 official functions, xxx shall be disqualified from continuing as candidate, or if he has been elected, from holding office" To be disqualified under the above-quoted provision, the following elements must be proved: (a) the candidate, personally or through his instructions, must have given money or other material consideration; and (b) the act of giving money or other material consideration must be for the purpose of influencing, inducing, or corrupting the voters or public officials performing electoral functions. In the case at bar, the petition for disqualification alleged that (a) petitioner ordered the extraction, hauling and distribution of gravel and sand, and (b) his purpose was to induce and influence the voters of Kananga and Matag-ob, Leyte to vote for him. Pertinent portion of the petition reads: "[T]he respondent [herein petitioner], within the election period, took advantage of his current elective position as City Mayor of Ormoc City by illegally and unlawfully using during the prohibited period, public equipments and vehicles belonging to and owned by the City Government of Ormoc City in extracting, hauling and distributing gravel and sand to the residents and voters of the Municipalities of Kananga and Matag-ob Leyte, well within the territorial limits of the 4th Congressional District of Leyte, which acts were executed without period, and clearly for the illicit purpose of unduly inducing or directly corrupting various voters of Kananga and Matag-ob, within

the 4th legislative district of Leyte, for the precise purpose of inducing and influencing the voters/beneficiaries of Kananga and Matag-ob, Leyte to cast their votes for said respondent." 83 The affidavits relied upon by the COMELEC Second Division failed to prove these allegations. For instance, Cesar A. Laurente merely stated that he saw three (3) ten-wheeler dump trucks and a Hyundai Payloader with the markings "Ormoc City Government" extracting and hauling sand and gravel from the riverbed adjacent to the property owned by the Codilla family. 84 Agripino C. Alferez and Rogelio T. Sulvera in their Joint Affidavit merely stated that they saw white trucks owned by the City Government of Ormoc dumping gravel and sand on the road of Purok 6, San Vicente, Matag-ob, Leyte. A payloader then scattered the sand and gravel unloaded by the white trucks.85 On the other hand, Danilo D. Maglasang, a temporary employee of the City Government of Ormoc assigned to check and record the delivery of sand and gravel for the different barangays in Ormoc, stated as follows: "3. That on April 20, 2001, I was ordered by Engr. Arnel Padayo, an employee of the City Engineering Office, Ormoc City to go to Tagaytay, Kangga (sic), Leyte as that will be the source of the sand and gravel. I inquired why we had to go to Kananga but Engr. Padayao said that it's not a problem as it was Mayor Eufrocino M. Codilla, Sr. who ordered this and the property is owned by the family of Mayor Codilla. We were to deliver sand and gravel to whoever requests from Mayor Codilla."86 Similarly, the Affidavit of Basilio Bates cannot prove the offense charged against the petitioner. He alleged that on April 18, 2001, a white truck with the marking "City Government of Ormoc" came to his lot at Montebello, Kananga, Leyte and unloaded mixed sand and that the driver of the truck told him to "vote for Codilla as a (sic) congressman during election." 87 His statement is hearsay. He has no personal knowledge of the supposed order of the petitioner to distribute gravel and sand for the purpose of inducing the voters to vote for him. The same could be said about the affidavits of Randy T. Merin,88 Alfredo C. De la Pea,89 Miguel P. Pandac,90 Paquito Bregeldo, Cristeta Alferez , Glicerio Rios,91 Romulo Alkuino, Sr.,92 Abner Casas,93 Rita Trangia,94 and Judith Erispe95attached to respondent Locsin's Memorandum on the Motion to Lift the Suspension of Proclamation. Also valueless are the affidavits of other witnesses96 of respondent Locsin, all similarly worded, which alleged that the petitioner ordered the repair of the road in Purok 6, Barangay San Vicente, Matag-ob, Leyte and the flattening of the area where the cockfights were to be held. These allegations are extraneous to the charge in the petition for disqualification. More importantly, these allegations do not constitute a ground to disqualify the petitioner based on section 68 of the Omnibus Election Code. To be sure, the petition for disqualification also ascribed other election offenses against the petitioner, particularly section 261 of the Omnibus Election Code, viz: "Section 261. Prohibited Acts.- The following shall be guilty of an election offense: (a) Vote-buying and vote-selling.- (1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or make 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. xxxxxxxxx (o) Use of public funds, money deposited in trust, equipment, facilities owned or controlled by the government for an election campaign.- Any person who uses under any guise whatsoever directly or indirectly, xxx (3) any equipment, vehicle, facility, apparatus, or paraphernalia owned by the government or by its political subdivisions,

agencies including government-owned or controlled corporations, or by the Armed Forces of the Philippines for any election campaign or for any partisan political activity x x x." However, the 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.97 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 his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted. xxxxxxxxx Section 268. Jurisdiction.- 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." The COMELEC Second Division grievously erred when it decided the disqualification case based on section 261 (a) and (o), and not on section 68 of the Omnibus Election Code. (d) Exclusion of the votes in favor of the petitioner and the proclamation of respondent Locsin was done with undue haste. The COMELEC Second Division ordered the exclusion of the votes cast in favor of the petitioner, and the proclamation of the respondent Locsin, without affording the petitioner the opportunity to challenge the same. In the morning of June 15, 2001, the Provincial Board of Canvassers convened, and on the strength of the said Resolution excluding the votes received by the petitioner, certified that respondent Locsin received the highest number of votes. On this basis, respondent Locsin was proclaimed. Records reveal that the petitioner received notice of the Resolution of the COMELEC Second Division only through his counsel via a facsimile message in the afternoon of June 15, 2001 98 when everything was already fait accompli. Undoubtedly, he was not able to contest the issuance of the Certificate of Canvass and the proclamation of respondent Locsin. This is plain and simple denial of due process. The essence of due process is the opportunity to be heard. When a party is deprived of that basic fairness, any decision by any tribunal in prejudice of his rights is void. Second. The votes cast in favor of the petitioner cannot be considered "stray" and respondent cannot be validly proclaimed on that basis. The Resolution of the COMELEC Second Division in SPA No. 01-208 contains two dispositions: (1) it ruled that the petitioner was disqualified as a candidate for the position of Congressman of the Fourth District of Leyte; and (2) it ordered the immediate proclamation of the candidate who garnered the highest number of votes, to the exclusion of the respondent [herein petitioner]. As previously stated, the disqualification of the petitioner is null and void for being violative of due process and for want of substantial factual basis. Even assuming, however, that the petitioner was

validly disqualified, it is still improper for the COMELEC Second Division to order the immediate exclusion of votes cast for the petitioner as stray, and on this basis, proclaim the respondent as having garnered the next highest number of votes. (a) The order of disqualification is not yet final, hence, the votes cast in favor of the petitioner cannot be considered "stray." Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code require a final judgment before the election for the votes of a disqualified candidate to be considered "stray." Hence, when a candidate has not yet been disqualified by final judgment during the election day and was voted for, the votes cast in his favor cannot be declared stray. To do so would amount to disenfranchising the electorate in whom sovereignty resides.99 For in voting for a candidate who has not been disqualified by final judgment during the election day, the people voted for him bona fide, without any intention to misapply their franchise, and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of government. 100 This principle applies with greater force in the case at bar considering that the petitioner has not been declared by final judgment to be disqualified not only before but even after the elections. The Resolution of the COMELEC Second Division disqualifying the petitioner did not attain finality, and hence, could not be executed, because of the timely filing of a Motion for Reconsideration. Section 13, Rule 18 of the COMELEC Rules of Procedure on Finality of Decisions and Resolutions reads: "Sec. 13. Finality of Decisions or Resolutions.- (a) In ordinary actions, special proceedings, provisional remedies and special reliefs, a decision or resolution of the Commission en banc shall become final and executory after thirty (30) days from its promulgation. (b) In Special Actions and Special Cases a decision or resolution of the Commission en banc shall become final and executory after five (5) days in Special Actions and Special Cases and after fifteen (15) days in all other proceedings, following their promulgation. (c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a Division shall become final and executory after the lapse of five (5) days in Special Actions and Special Cases and after fifteen (15) days in all other actions or proceedings, following its promulgation." (emphasis supplied) In this wise, COMELEC Resolution No. 4116,101 issued in relation to the finality of resolutions or decisions in disqualification 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; (2) the decision or resolution of a Division on disqualification cases shall become final and executory after the lapse of five (5) days unless a motion for reconsideration is seasonably filed; (3) where the ground for disqualification case is by reason of non-residence, citizenship, violation of election laws and other analogous cases and on the day of the election the resolution has not become final and executory the BEI shall tally and count the votes for such disqualified candidate; (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." Considering the timely filing of a Motion for Reconsideration, the COMELEC Second Division gravely abused its discretion in ordering the immediate disqualification of the petitioner and ordering the exclusion of the votes cast in his favor. Section 2, Rule 19 of the COMELEC Rules of Procedure is very clear that a timely Motion for Reconsideration shall suspend the execution or implementation of the resolution, viz: Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a decision, resolution, order, or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not pro forma, suspends the execution or implementation of the decision, resolution, order or ruling." (emphases supplied) (b) Respondent Locsin, as a mere second placer, cannot be proclaimed. More brazen is the proclamation of respondent Locsin which violates the settled doctrine that the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified.102 In every election, the people's choice is the paramount consideration and their expressed will must at all times be given effect. When the majority speaks and elects into office a candidate by giving him the highest number of votes cast in the election for the office, no one can be declared elected in his place. 103 In Domino v. COMELEC,104 this Court ruled, viz: "It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed winner and imposed as representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. To simplistically assume that the second placer would have received that (sic) other votes would be to substitute our judgment for the mind of the voters. He could not be considered the first among the qualified candidates because in a field which excludes the qualified candidate, the conditions would have substantially changed. xxxxxxxxx The effect of a decision declaring a person ineligible to hold an office is only that the election fails entirely, that the wreath of victory cannot be transferred from the disqualified winner to the repudiated loser because the law then as now only authorizes a declaration in favor of the person

who has obtained a plurality of votes, and does not entitle the candidate receiving the next highest number of votes to be declared elected. In such case, the electors have failed to make a choice and the election is a nullity. To allow the defeated and repudiated candidate to take over the elective position despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the people's right to elect officials of their choice."105 Respondent Locsin proffers a distinction between a disqualification based on personal circumstances such as age, residence or citizenship and disqualification based on election offenses. She contends that the election of candidates later disqualified based on election offenses like those enumerated in section 68 of the Omnibus Election Code should be invalidated because they violate the very essence of suffrage and as such, the votes cast in his favor should not be considered. 106 This contention is without merit. In the recent case of Trinidad v. COMELEC,107 this Court ruled that the effect of a judgment disqualifying a candidate, after winning the election, based on personal circumstances or section 68 of the Omnibus Election Code is the same: the second placer could not take the place of the disqualified winner. II Whether the proclamation of respondent Locsin divested the COMELEC en banc of jurisdiction to review its validity. Respondent Locsin submits that the COMELEC en banc has no jurisdiction to annul her proclamation. She maintains that the COMELEC en banc was been divested of jurisdiction to review the validity of her proclamation because she has become a member of the House of Representatives. Thus, she contends that the proper forum to question her membership to the House of Representatives is the House of Representative Electoral Tribunal (HRET). We find no merit in these contentions. First. The validity of the respondent's proclamation was a core issue in the Motion for Reconsideration seasonably filed by the petitioner. In his timely Motion for Reconsideration with the COMELEC en banc, petitioner argued that the COMELEC Second Division erred thus: "(1) in disqualifying petitioner on the basis solely of the dubious declaration of the witnesses for respondent Locsin; (2) in adopting in toto the allegations of the witnesses for respondent Locsin; and (3) in promulgating the resolution in violation of its own rules of procedure and in directing therein the immediate proclamation of the second highest 'vote getter.'" (emphases supplied) In support of his third assignment of error, petitioner argued that "the Second Division's directive for the immediate proclamation of the second highest vote-getter is premature considering that the Resolution has yet to become final and executory."108 Clearly, the validity of respondent Locsin's proclamation was made a central issue in the Motion for Reconsideration seasonably filed by the petitioner. Without doubt, the COMELEC en banc has the jurisdiction to rule on the issue. The fact that the Petition for Nullity of Proclamation was filed directly with the COMELEC en banc is of no moment. Even without said Petition, the COMELEC en banc could still rule on the nullity of respondent's proclamation because it was properly raised in the Motion for Reconsideration. Section 3, Article IX-C of the 1987 Constitution empowers the COMELEC en banc to review, on motion for reconsideration, decisions or resolutions decided by a division, viz:

"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 decision shall be decided by the Commission en banc." Pursuant to this Constitutional mandate, the COMELEC Rules of Procedure provides: "Rule 19. Motions for Reconsideration.Section 1. Grounds for Motion for Reconsideration.- A motion for reconsideration may be filed on the grounds that the evidence is insufficient to justify the decision, order or ruling, or that the said decision, order or ruling is contrary to law. Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a decision, resolution, order, or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not pro forma, suspends the execution or implementation of the decision, resolution, order or ruling." Section 3. Form and Contents of Motion for Reconsideration.- The motion shall be verified and shall point out specifically the findings or conclusions of the decision, resolution, order or ruling which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or resolutions. Section 4. Effect of Motion for Reconsideration on Period to Appeal.- A motion to reconsider a decision, resolution, order or ruling when not pro forma, suspends the running of the period to elevate the matter to the Supreme Court. Section 5. How Motion for Reconsideration Disposed Of.- Upon the filing of a motion to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof, notify the Presiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc. Section 6. Duty of the Clerk of Court of the Commission to set Motion for Hearing.- The Clerk of Court concerned shall calendar the motion for reconsideration for the resolution of the Commission en banc within ten (10) days from the certification thereof." (emphases supplied) Since the petitioner seasonably filed a Motion for Reconsideration of the Order of the Second Division suspending his proclamation and disqualifying him, the COMELEC en banc was not divested of its jurisdiction to review the validity of the said Order of the Second Division. The said Order of the Second Division was yet unenforceable as it has not attained finality; the timely filing of the motion for reconsideration suspends its execution. It cannot, thus, be used as the basis for the assumption in office of the respondent as the duly elected Representative of the 4th legislative district of Leyte. Second. It is the House of Representatives Electoral Tribunal (HRET) which has no jurisdiction in the instant case. Respondent contends that having been proclaimed and having taken oath as representative of the 4th legislative district of Leyte, any question relative to her election and eligibility should be brought before the HRET pursuant to section 17 of Article VI of the 1987 Constitution. 109 We reject respondent's contention. (a) The issue on the validity of the Resolution of the COMELEC Second Division has not yet been resolved by the COMELEC en banc.

To stress again, at the time of the proclamation of respondent Locsin, the validity of the Resolution of the COMELEC Second Division was seasonably challenged by the petitioner in his Motion for Reconsideration. The issue was still within the exclusive jurisdiction of the COMELEC en banc to resolve. Hence, the HRET cannot assume jurisdiction over the matter. In Puzon vs. Cua,110 even the HRET ruled that the "doctrinal ruling that once a proclamation has been made and a candidate-elect has assumed office, it is this Tribunal that has jurisdiction over an election contest involving members of the House of Representatives, could not have been immediately applicable due to the issue regarding the validity of the very COMELEC pronouncements themselves." This is because the HRET has no jurisdiction to review resolutions or decisions of the COMELEC, whether issued by a division or en banc. (b) The instant case does not involve the election and qualification of respondent Locsin. Respondent Locsin maintains that the proper recourse of the petitioner is to file a petition for quo warranto with the HRET. A petition for quo warranto may be filed only on the grounds of ineligibility and disloyalty to the Republic of the Philippines.111 In the case at bar, neither the eligibility of the respondent Locsin nor her loyalty to the Republic of the Philippines is in question. There is no issue that she was qualified to run, and if she won, to assume office. A petition for quo warranto in the HRET is directed against one who has been duly elected and proclaimed for having obtained the highest number of votes but whose eligibility is in question at the time of such proclamation. It is evident that respondent Locsin cannot be the subject of quo warranto proceeding in the HRET. She lost the elections to the petitioner by a wide margin. Her proclamation was a patent nullity. Her premature assumption to office as Representative of the 4th legislative district of Leyte was void from the beginning. It is the height of absurdity for the respondent, as a loser, to tell petitioner Codilla, Sr., the winner, to unseat her via a quo warranto proceeding. III Whether it is the ministerial duty of the public respondents to recognize petitioner Codilla, Sr. as the legally elected Representative of the 4th legislative district of Leyte vice respondent Locsin. Under Rule 65, section 3 of the 1997 Rules of Civil Procedure, any person may file a verified petition for mandamus "when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law."112 For a petition for mandamus to prosper, it must be shown that the subject of the petition for mandamus is a ministerial act or duty, and not purely discretionary on the part of the board, officer or person, and that the petitioner has a well-defined, clear and certain right to warrant the grant thereof. The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment.113 In the case at bar, the administration of oath and the registration of the petitioner in the Roll of Members of the House of Representatives representing the 4th legislative district of Leyte is no

longer a matter of discretion on the part of the public respondents. The facts are settled and beyond dispute: petitioner garnered 71,350 votes as against respondent Locsin who only got 53, 447 votes in the May 14, 2001 elections. The COMELEC Second Division initially ordered the proclamation of respondent Locsin; on Motion for Reconsideration the COMELEC en banc set aside the order of its Second Division and ordered the proclamation of the petitioner. The Decision of the COMELEC en banc has not been challenged before this Court by respondent Locsin and said Decision has become final and executory. In sum, the issue of who is the rightful Representative of the 4th legislative district of Leyte has been finally settled by the COMELEC en banc, the constitutional body with jurisdiction on the matter. The rule of law demands that its Decision be obeyed by all officials of the land. There is no alternative to the rule of law except the reign of chaos and confusion. IN VIEW WHEREOF, the Petition for Mandamus is granted. Public Speaker of the House of Representatives shall administer the oath of petitioner EUFROCINO M. CODILLA, SR., as the dulyelected Representative of the 4th legislative district of Leyte. Public respondent Secretary-General shall likewise register the name of the petitioner in the Roll of Members of the House of Representatives after he has taken his oath of office. This decision shall be immediately executory. SO ORDERED. G.R. No. 134047 December 8, 1999 AMADO S. BAGATSING, ERNESTO M. MACEDA, and JAIME LOPEZ, petitioners, vs. COMMISSION ON ELECTIONS and JOSE L. ATIENZA, respondents.

KAPUNAN, J.: In this petition for certiorari petitioners seek to annul and set aside the Resolution dated June 4, 1998 of the Commission on Elections (COMELEC) First Division directing the proclamation of private respondent as Mayor of the City of Manila for having been issued with grave abuse of discretion amounting to lack, or excess, of jurisdiction. The backdrop of the instant case reveals the following antecedent facts: Petitioners Amado S. Bagatsing, Ernesto M. Maceda and Jaime Lopez and herein private respondent Jose L. Atienza were candidates for the position of Mayor of Manila in the May 11, 1998 elections. On May 18, 1998, seven (7) days after the elections, petitioners filed with the COMELEC a complaint for disqualification against private respondent, docketed as SPA No. 98-319, on the ground that the latter allegedly caused the disbursement of public funds in the amount of Three Million Three Hundred Seventy-Five Thousand (P3,375,000.00) Pesos, more or less, within the prohibited fortyfive-day period before the elections in violation of Article 22, Section 261 (g) (2) 1 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code of the Philippines. The alleged disbursement was intended to be distributed in the form of financial assistance to the public school teachers of the City of Manila who manned the precinct polls in that city during the elections. On May 20, 1998, the COMELEC (First Division) * issued an order which dispositively reads as follows: PREMISES CONSIDERED, it appearing that the evidence presented consisting of disbursement voucher and the general payroll evidencing payment to the teachers in the form of financial assistance dated May 5, 1998, in violation of Section 68 of the Omnibus Election Code, which provides:

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 Section 89, 95, 96, 97 and 104; or (e) violated any 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 to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived hi (sic) statues (sic) as permanent resident or immigrant of foreign country in accordance with the residence requirement provided for in the election laws (Sec. 25, 1971 EC) (emphasis ours). show a probable cause of commission of election offenses which are grounds for disqualification, and the evidence in support of disqualification is strong, the City Board of Canvassers of Manila is hereby directed to complete the canvassing of election returns of the City of Manila, but to suspend proclamation of respondent Jose L. Atienza, Jr. should he obtain the winning number of votes for the position of City Mayor of Manila, until such time when the petition for disqualification against him shall have been resolved. The Executive Director of this Commission is directed to cause the immediate implementation of this Order. SO ORDERED.
2

proclamation of the respondent with the Court before which the criminal case is pending and the said Court may order the suspension of the proclamation, if the evidence of guilt is strong. The applicability of COMELEC Resolution No. 2050 on cases of such nature as the one at bench, had been upheld by the Supreme Court in Lozano vs. Commission on Elections, G.R. 94628, October 28, 1991, when it declared: Resolution No. 2050 specifically mandates a definite policy and procedure for disqualification cases. The COMELEC Rules of Procedure speak of special actions, which include disqualification cases, in general. Hence, as between a specific and a general rule, the former shall necessarily prevail. It is thus, a good law which could govern this case. Considering therefore, that the petition for disqualification was filed after the election but before respondent's proclamation, the Commission En Banc, conformably with Resolution No. 2050, hereby dismisses the same as a disqualification case but refers Petitioners' charges of election offense against respondent to the Law Department for appropriate action. 3 The decretal portion of the resolution reads: WHEREFORE, in view of the foregoing, the Commission FIRST DIVISION hereby GRANTS the Motion to lift the order of suspension of respondents proclamation. The Order of the First Division suspending respondent's proclamation as City Mayor of Manila is SET ASIDE. The City Board of Canvassers of Manila is hereby DIRECTED to CONVENE, COMPLETE the CANVASS and PROCLAIM the candidate obtaining the highest number of votes for said position. Petitioners' complaints against respondent for violation of the Omnibus Election Code is hereby referred to the Law Department for preliminary investigation. SO ORDERED.
4

On May 21, 1998, private respondent filed a Motion for Reconsideration and sought to set aside the afore-quoted order directing his proclamation as mayor. On June 4, 1998, the COMELEC (First Division) * rendered a resolution ratiocinating thusly: The Commission En Banc finds correct respondent's reliance on COMELEC Resolution No. 2050 for his cause. The Resolution, promulgated by the Commission in order to formulate the rules governing the disposition of cases of disqualification filed by virtue of Section 68 of the Omnibus Election Code in relation to Section 6 of Republic Act 6646 otherwise known as the Electoral Reform Law of 1987, pertinently provides: 2. Any complaint for disqualification based on Section 68 of the Omnibus Election Code, filed after the elections against a candidate who has already been proclaimed as winner shall be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department of the Commission. Where a similar complaint is filed after the elections but before proclamation of the respondent candidate, the complaint shall nevertheless, be dismissed as a or disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department. If, before proclamation, the Law Department makes a prima facie finding of guilt and the corresponding information had been filed with the appropriate trial court, the complainant may file a petition for suspension of the

That same day at around eleven o'clock in the morning, petitioners filed a Motion to Suspend Immediate Intended Proclamation of Respondent. In the afternoon of the same day, petitioners likewise filed a Motion for Reconsideration and a Second Motion to Suspend Immediate Intended Proclamation of Respondent before COMELEC en banc. Meanwhile, the City Board of Canvassers of Manila reconvened at three o'clock in the afternoon of the same day, June 4, 1998, and proclaimed private respondent as the duly elected Mayor of the City of Manila. 5 On June 25, 1999, without waiting for the resolution of their motion for reconsideration pending before the COMELEC en banc, petitioners filed the instant petition to set aside the June 4, 1998 Resolution of the COMELEC's First Division. Records reveal, however, that said motion for reconsideration was denied for reconsideration pending before the COMELEC en banc was denied in its Order of July 2, 1998 at the instance of herein petitioners themselves for the reason that they had already filed a petition before this Court docketed as G.R. No. 134047. 6 The ground for the petition at bar, as therein promulgated, is as follows: 6.1 Respondent acted whimsically, capriciously and arbitrarily when it dismissed outright the Petition for Disqualification docketed SPA No. 98-319 against

respondent Atienza on the basis of Comelec Resolution 2050 which had already been modified by this Honorable Court in the case of Sunga vs. Comelec (supra). Therefore the dismissal by the Comelec must be struck down as having been issued in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction. 7 The only issue for our consideration is whether or not the COMELEC First Division committed grave abuse of discretion in issuing the Resolution dated June 4, 1998 dismissing the disqualification case against private respondent and referring the same to its Law Department for preliminary investigation. COMELEC Resolution No. 2050, adopted on November 3, 1988, reads: WHEREAS, there remain pending before the Commission, a number of cases of disqualification filed by virtue of the provisions of Section 68 of the Omnibus Election Code in relation to Section 6 of R.A. 6646, otherwise known as the Electoral Reforms Law of 1987; WHEREAS, opinions of the members of the Commission on matters of procedure in dealing with cases of this nature and the manner of disposing of the same have not been uniform; WHEREAS, in order to avoid conflicts of opinion in the disposition or disqualification cases contemplated under Section 68 of the Omnibus Election Code in relation to Section 6 of Rep. Act 6646, there is a strongly felt need to lay down a definite policy in the disposition of this specific class of disqualification cases; NOW, THEREFORE, on motion duly seconded, the Commission en banc: RESOLVED, as it hereby resolves, to formulate the following rules governing the disposition of cases of disqualification filed by virtue of Section 68 of the Omnibus Election Code in relation to Section 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987: 1. Any complaint for the disqualification of a duly registered candidate based upon any of the grounds specifically enumerated under Section 68 of the Omnibus Election Code, filed directly with the Commission before an election in which the respondent is a candidate, shall be inquired into by the Commission for the purpose of determining whether the acts complained of have in fact been committed. Where the inquiry by the Commission results in a finding before election, that the respondent candidate did in fact commit the acts complained, the Commission shall order the disqualification of the respondent candidate from continuing as such candidate. In case such complaint was not resolved before the election, the Commission may motu proprio, or an (sic) motion of any of the parties, refer the complaint to the law Department of the Commission as the instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election laws. Such recourse may be availed of irrespective of whether the respondent has been elected or has lost in the election. 2. Any complaint for disqualification based on Section 68 of the Omnibus Election Code in relation to Section 6 of Rep. Act No. 6646 filed after the election against a candidate who has already been proclaimed as winner shall be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department of the Commission.

Where a similar complaint is filed after election but before proclamation of the respondent candidate, the complaint shall, nevertheless, be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department. If, before proclamation, the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the proclamation of the respondent with the court before which the criminal case is pending and the said court may order the suspension of the proclamation if the evidence of guilt is strong. 3. The Law Department shall terminate the preliminary investigation within thirty (30) days from receipt of the referral and shall submit its study, report and recommendation to the Commission en banc within five (5) days from the conclusion of the preliminary investigation. If it makes a prima faciefinding of guilt, it shall submit with such study the Information for filing with the appropriate court. The above-quoted resolution covers two (2) different aspects: First, as contemplated in paragraph 1, a complaint for disqualification filed before the election must be inquired into by the COMELEC for the purpose of determining whether the acts complained of have in fact been committed. Where the inquiry results in finding before the election, the COMELEC shall order the candidate's disqualification. In case the complaint was not resolved before the election, the COMELEC may motu propio or on motion of any the parties, refer the said complaint to the Law Department of the COMELEC for preliminary investigation. Second, paragraph 2 refers to a complaint for disqualification filed after the election against a candidate who has not yet been proclaimed or who has already been proclaimed as a winner. In both cases, the complaint shall be dismissed as a disqualification case but shall referred to the Law Department of the COMELEC for preliminary investigation. However, if before proclamation, the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the proclamation of the respondent with the court before which the criminal case is pending and the said court may order the suspension of the proclamation of the evidence of guilt is strong. Petitioners contend that said resolution is no longer a good law since it has been nullified in toto by this Court inSunga v. COMELEC. 8 Contrary to petitioners' contention, the Court not nullify in toto COMELEC Resolution No. 2050 in the recent case of Sunga v. COMELEC. There we held that: . . . We discern nothing in COMELEC Resolution No. 2050 declaring, ordering or directing the dismissal of a disqualification case filed before the election but which remained unresolved after the election. What the Resolution mandates in such a case is for the Commission to refer the complaint to its Law Department for investigation to determine whether the acts complained of have in fact been committed by the candidate sought to be disqualified. The findings of the Law Department then become the basis for disqualifying the erring candidate. This is totally different from the other two situations contemplated by Resolution No. 2050 i.e., a disqualification case filed after the election but before the proclamation of winners and that filed after the election and the proclamation of winners, wherein it was specifically directed by the same Resolution to be dismissed as a disqualification case. Moreover, Resolution No. 2050 as interpreted in Silvestre v. Dauvit infringes on Sec. 6 of RA No. 6646, which provides: Sec. 6. Effects of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before and election to be disqualified and he is voted for and

receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong (emphasis supplied). Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion, i.e., until judgment is rendered thereon. The word "shall" signifies that this requirement of the law is mandatory, operating to impose a positive duty which must be enforced. The implication is that the COMELEC is left with no discretion but to proceed with the disqualification case even after the election. Thus, in providing for the outright dismissal of the disqualification case which remains unresolved after the election, Silvestre v. Duavit in effect disallows what RA No. 6646 imperatively requires. . . . 9 What the Court found objectionable therein was the second paragraph of paragraph 1 of Resolution No. 2050 as said provision clearly infringes on Section 6 of R.A. No. 6646 which mandates that should a disqualification case be not resolved before an election, the COMELEC shall continue with the trial and hearing of the case. It should not be referred to the Law Department as the resolution provides. The COMELEC's failure to distinguish between a complaint for disqualification filed before an election and one filed after an election resulted in the controversy. There, the COMELEC misapplied the rules pertaining to complaints filed after the election to a case clearly filed prior to the May 8, 1995 elections. As we have already mentioned above, the rules on disposition and resolution of cases filed before or after an election vary. 10 Consequently, the Sunga case cannot apply to the instant case because here, the disqualification case was filed on May 18, 1998, seven (7) days after the May 11, 1998 elections. Therefore, the provisions of paragraph 2 of Resolution No. 2050 must apply, in that, the complaint shall be dismissed as a disqualification case, but referred to the Law Department of the COMELEC for preliminary investigation. This is exactly what the COMELEC ruled in its assailed resolution of June 4, 1998, and rightly so. Petitioners likewise fault the COMELEC for not ordering the suspension of respondent's proclamation as mayor despite their timely-filed "Motion to Suspend Immediate Intended Proclamation of Respondent" and which motion was reiterated in a second motion. COMELEC did not err in not ordering the suspension of respondent's proclamation. The second paragraph of paragraph 2 of Resolution No. 2050 provides that where a complaint is filed after the elections but before proclamation, as in this case, the complaint must be dismissed as a disqualified case but shall be referred to the Law Department for preliminary investigation. If before the proclamation, the Law Department makes a prima faciefinding of guilt and the corresponding information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the proclamation of respondent with the court before which the criminal case is pending and that court may order the suspension of the proclamation if the evidence of guilt is strong. 11 It appearing that none of the foregoing circumstances obtain herein as there is no prima facie finding of guilt yet, a suspension of respondent's proclamation is not warranted. The mere pendency of a disqualification case against a candidate, and a winning candidate at that, does not justify the suspension of his proclamation after winning in the election. To hold otherwise would unduly encourage the filing of baseless and malicious petitions for disqualification if only to effect the suspension of the proclamation of the winning candidate, not only to his damage and prejudice but also to the defeat of the sovereign will of the electorate, and for the undue benefit of undeserving third parties. 12 Before we end, a word of caution to herein petitioners and to future litigants and counsels predisposed to invoke this Court's jurisdiction without waiting for the resolution of whatever pending motions and motions for reconsideration they have before trial courts and tribunals exercising specialized jurisdiction: The Court will not countenance the practice of taking any shortcuts of the established rules of pocedure pertaining to the hierarchy of courts and remedies of last resort. When the petitioners filed the instant petition for certiorari on June 25, 1999, they knew pretty well that the motion for reconsideration they filed to assail the June 4, 1998 resolution of the First Division of the Commission was still pending with the COMELEC en banc. Notwithstanding that knowledge, they went to this Court to seek another remedy which was not exactly available to them at that time. This practice falls short of forum-shopping in the technical sense and will not be allowed.

WHEREFORE, the instant petition is hereby DISMISSED. SO ORDERED. G.R. No. 125955 June 19, 1997 WILMER GREGO, petitioner, vs. COMMISSION ON ELECTIONS and HUMBERTO BASCO, respondents.

ROMERO, J.: The instant special civil action for certiorari and prohibition impugns the resolution of the Commission on Elections (COMELEC) en banc in SPA No. 95-212 dated July 31, 1996, dismissing petitioner's motion for reconsideration of an earlier resolution rendered by the COMELEC's First Division on October 6, 1995, which also dismissed the petition for disqualification 1 filed by petitioner Wilmer Grego against private respondent Humberto Basco. The essential and undisputed factual antecedents of the case are as follows: On October 31, 1981, Basco was removed from his position as Deputy Sheriff by no less than this Court upon a finding of serious misconduct in an administrative complaint lodged by a certain Nena Tordesillas. The Court held: WHEREFORE, FINDING THE RESPONDENT DEPUTY SHERIFF HUMBERTO BASCO OF THE CITY COURT OF MANILA GUILTY OF SERIOUS MISCONDUCT IN OFFICE FOR THE SECOND TIME, HE IS HEREBY DISMISSED FROM THE SERVICE WITH FORFEITURE OF ALL RETIREMENT BENEFITS AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS. xxx xxx xxx
2

Subsequently, Basco ran as a candidate for Councilor in the Second District of the City of Manila during the January 18, 1988, local elections. He won and, accordingly, assumed office. After his term, Basco sought re-election in the May 11, 1992 synchronized national elections. Again, he succeeded in his bid and he was elected as one of the six (6) City Councilors. However, his victory this time did not remain unchallenged. In the midst of his successful re-election, he found himself besieged by lawsuits of his opponents in the polls who wanted to dislodge him from his position. One such case was a petition for quo warranto 3 filed before the COMELEC by Cenon Ronquillo, another candidate for councilor in the same district, who alleged Basco's ineligibility to be elected councilor on the basis of the Tordesillas ruling. At about the same time, two more cases were also commenced by Honorio Lopez II in the Office of the Ombudsman and in the Department of Interior and Local Government. 4 All these challenges were, however, dismissed, thus, paving the way for Basco's continued stay in office. Despite the odds previously encountered, Basco remained undaunted and ran again for councilor in the May 8, 1995, local elections seeking a third and final term. Once again, he beat the odds by emerging sixth in a battle for six councilor seats. As in the past, however, his right to office was again contested. On May 13, 1995, petitioner Grego, claiming to be a registered voter of Precinct No. 966, District II, City of Manila, filed with the COMELEC a petition for disqualification, praying for

Basco's disqualification, for the suspension of his proclamation, and for the declaration of Romualdo S. Maranan as the sixth duly elected Councilor of Manila's Second District. On the same day, the Chairman of the Manila City Board of Canvassers (BOC) was duly furnished with a copy of the petition. The other members of the BOC learned about this petition only two days later. The COMELEC conducted a hearing of the case on May 14, 1995, where it ordered the parties to submit simultaneously their respective memoranda. Before the parties could comply with this directive, however, the Manila City BOC proclaimed Basco on May 17, 1995, as a duly elected councilor for the Second District of Manila, placing sixth among several candidates who vied for the seats. 5 Basco immediately took his oath of office before the Honorable Ma. Ruby Bithao-Camarista, Presiding Judge, Metropolitan Trial Court, Branch I, Manila. In view of such proclamation, petitioner lost no time in filing an Urgent Motion seeking to annul what he considered to be an illegal and hasty proclamation made on May 17, 1995, by the Manila City BOC. He reiterated Basco's disqualification and prayed anew that candidate Romualdo S. Maranan be declared the winner. As expected, Basco countered said motion by filing his Urgent Opposition to: Urgent Motion (with Reservation to Submit Answer and/or Motion to Dismiss Against Instant Petition for Disqualification with Temporary Restraining Order). On June 5, 1995, Basco filed his Motion to Dismiss Serving As Answer pursuant to the reservation he made earlier, summarizing his contentions and praying as follows: Respondent thus now submits that the petitioner is not entitled to relief for the following reasons: 1. The respondent cannot be disqualified on the ground of Section 40 paragraph b of the Local Government Code because the Tordesillas decision is barred by laches, prescription, res judicata, lis pendens, bar by prior judgment, law of the case and stare decisis; 2. Section 4[0] par. B of the Local Government Code may not be validly applied to persons who were dismissed prior to its effectivity. To do so would make it ex post facto, bill of attainder, and retroactive legislation which impairs vested rights. It is also a class legislation and unconstitutional on the account. 3. Respondent had already been proclaimed. And the petition being a preproclamation contest under the Marquez v. Comelec Ruling, supra, it should be dismissed by virtue of said pronouncement. 4. Respondent's three-time election as candidate for councilor constitutes implied pardon by the people of previous misconduct (Aguinaldo v. Comelec G.R. 105128; Rice v. State 161 SCRA 401; Montgomery v. Newell 40 SW 2d 4181; People v. Bashaw 130 P. 2nd 237, etc.). 5. As petition to nullify certificate of candidacy, the instant case has prescribed; it was premature as an election protest and it was not brought by a proper party in interest as such protest.: PRAYER WHEREFORE it is respectfully prayed that the instant case be dismissed on instant motion to dismiss the prayer for restraining order denied (sic). If this Honorable Office is not minded to dismiss, it is respectfully prayed that instant motion be considered as respondent's answer. All other reliefs and remedies just and proper in the premises are likewise hereby prayed for.

After the parties' respective memoranda had been filed, the COMELEC's First Division resolved to dismiss the petition for disqualification on October 6, 1995, ruling that "the administrative penalty imposed by the Supreme Court on respondent Basco on October 31, 1981 was wiped away and condoned by the electorate which elected him" and that on account of Basco's proclamation on May 17, 1995, as the sixth duly elected councilor of the Second District of Manila, "the petition would no longer be viable." 6 Petitioner's motion for reconsideration of said resolution was later denied by the COMELEC en banc in its assailed resolution promulgated on July 31, 1996. 7 Hence, this petition. Petitioner argues that Basco should be disqualified from running far any elective position since he had been "removed from office as a result of an administrative case" pursuant to Section 40 (b) of Republic Act No. 7160, otherwise known as the Local Government Code (the Code), which took effect on January 1, 1992. 8 Petitioner wants the Court to likewise resolve the following issues, namely: 1. Whether or not Section 40 (b) of Republic Act No. 7160 applies retroactively to those removed from office before it took effect on January 1, 1992; 2. Whether or not private respondent's election in 1988, 1992 and in 1995 as City Councilor of Manila wiped away and condoned the administrative penalty against him; 3. Whether or not private respondent's proclamation as sixth winning candidate on May 17, 1995, while the disqualification case was still pending consideration by COMELEC, is void ab initio; and 4. Whether or not Romualdo S. Maranan, who placed seventh among the candidates for City Councilor of Manila, may be declared a winner pursuant to Section 6 of Republic Act No. 6646. While we do not necessarily agree with the conclusions and reasons of the COMELEC in the assailed resolution, nonetheless, we find no grave abuse of discretion on its part in dismissing the petition for disqualification. The instant petition must, therefore, fail. We shall discuss the issues raised by petitioner in seriatim. I. Does Section 40 (b) of Republic Act No. 7160 apply retroactively to those removed from office before it took effect on January 1, 1992? Section 40 (b) of the Local Government Code under which petitioner anchors Basco's alleged disqualification to run as City Councilor states: Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position: xxx xxx xxx (b) Those removed from office as a result of an administrative case; xxx xxx xxx In this regard, petitioner submits that although the Code took effect only on January 1, 1992, Section 40 (b) must nonetheless be given retroactive effect and applied to Basco's dismissal from office which took place in 1981. It is stressed that the provision of the law as worded does not mention or even qualify the date of removal from office of the candidate in order for disqualification

thereunder to attach. Hence, petitioner impresses upon the Court that as long as a candidate was once removed from office due to an administrative case, regardless of whether it took place during or prior to the effectivity of the Code, the disqualification applies. 9 To him, this interpretation is made more evident by the manner in which the provisions of Section 40 are couched. Since the past tense is used in enumerating the grounds for disqualification, petitioner strongly contends that the provision must have also referred to removal from office occurring prior to the effectivity of the Code. 10 We do not, however, subscribe to petitioner's view. Our refusal to give retroactive application to the provision of Section 40 (b) is already a settled issue and there exist no compelling reasons for us to depart therefrom. Thus, inAguinaldo v. COMELEC, 11 reiterated in the more recent cases of Reyes v. COMELEC 12 and Salalima v.Guingona, Jr., 13 we ruled, thus: The COMELEC applied Section 40 (b) of the Local Government Code (Republic Act 7160) which provides: Sec. 40. The following persons are disqualified from running for any elective local positions: xxx xxx xxx (b) Those removed from office as a result of an administrative case. Republic Act 7160 took effect only on January 1, 1992. The rule is: xxx xxx xxx . . . Well-settled is the principle that while the Legislature has the power to pass retroactive laws which do not impair the obligation of contracts, or affect injuriously vested rights, it is equally true that statutes are not to be construed as intended to have a retroactive effect so as to affect pending proceedings, unless such intent is expressly declared or clearly and necessarily implied from the language of the enactment. . . . (Jones v. Summers, 105 Cal. App. 51, 286 Pac. 1093; U.S. v. Whyel 28 (2d) 30; Espiritu v. Cipriano, 55 SCRA 533 [1974], cited in Nilo v. Court of Appeals, 128 SCRA 519 [1974]. See also Puzon v. Abellera, 169 SCRA 789 [1989]; Al-Amanah Islamic Investment Bank of the Philippines v. Civil Service Commission, et al., G.R. No. 100599, April 8, 1992). There is no provision in the statute which would clearly indicate that the same operates retroactively. It, therefore, follows that [Section] 40 (b) of the Local Government Code is not applicable to the present case. (Emphasis supplied). That the provision of the Code in question does not qualify the date of a candidate's removal from office and that it is couched in the past tense should not deter us from applying the law prospectively. The basic tenet in legal hermeneutics that laws operate only prospectively and not retroactively provides the qualification sought by petitioner. A statute, despite the generality in its language, must not be so construed as to overreach acts, events or matters which transpired before its passage. Lex prospicit, non respicit. The law looks forward, not backward. 14

II. Did private respondent's election to office as City Councilor of Manila in the 1988, 1992 and 1995 elections wipe away and condone the administrative penalty against him, thus restoring his eligibility for public office? Petitioner maintains the negative. He quotes the earlier ruling of the Court in Frivaldo v. COMELEC 15 to the effect that a candidate's disqualification cannot be erased by the electorate alone through the instrumentality of the ballot. Thus: . . . (T)he 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. . . . At first glance, there seems to be a prima facie semblance of merit to petitioner's argument. However, the issue of whether or not Basco's triple election to office cured his alleged ineligibility is actually beside the point because the argument proceeds on the assumption that he was in the first place disqualified when he ran in the three previous elections. This assumption, of course, is untenable considering that Basco was NOT subject to any disqualification at all under Section 40 (b) of the Local Government Code which, as we said earlier, applies only to those removed from office on or after January 1, 1992. In view of the irrelevance of the issue posed by petitioner, there is no more reason for the Court to still dwell on the matter at length. Anent Basco's alleged circumvention of the prohibition in Tordesillas against reinstatement to any position in the national or local government, including its agencies and instrumentalities, as well as government-owned or controlled corporations, we are of the view that petitioner's contention is baseless. Neither does petitioner's argument that the term "any position" is broad enough to cover without distinction both appointive and local positions merit any consideration. Contrary to petitioner's assertion, the Tordesillas decision did not bar Basco from running for any elective position. As can be gleaned from the decretal portion of the said decision, the Court couched the prohibition in this wise: . . . AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS. In this regard, particular attention is directed to the use of the term "reinstatement." Under the former Civil Service Decree, 16 the law applicable at the time Basco, a public officer, was administratively dismissed from office, the term "reinstatement" had a technical meaning, referring only to an appointive position. Thus: Art. VIII. PERSONNEL POLICIES AND STANDARDS. Sec. 24. Personnel Actions. xxx xxx xxx (d) Reinstatement. Any person who has been permanently APPOINTED to a position in the career service and who has, through no delinquency or misconduct, been separated therefrom, may be reinstated to a position in the same level for which he is qualified. xxx xxx xxx (Emphasis supplied).

The Rules on Personnel Actions and Policies issued by the Civil Service Commission on November 10, 1975, 17 provides a clearer definition. It reads: RULE VI. OTHER PERSONNEL ACTIONS Sec. 7. Reinstatement is the REAPPOINTMENT of a person who was previously separated from the service through no delinquency or misconduct on his part from a position in the career service to which he was permanently appointed, to a position for which he is qualified. (Emphasis supplied). In light of these definitions, there is, therefore, no basis for holding that Basco is likewise barred from running for an elective position inasmuch as what is contemplated by the prohibition in Tordesillas is reinstatement to anappointive position. III. Is private respondent's proclamation as sixth winning candidate on May 17, 1995, while the disqualification case was still pending consideration by COMELEC, void ab initio? To support its position, petitioner argues that Basco violated the provisions of Section 20, paragraph (i) of Republic Act No. 7166, Section 6 of Republic Act No. 6646, as well as our ruling in the cases of Duremdes v.COMELEC, 18 Benito v. COMELEC 19 and Aguam v. COMELEC. 20 We are not convinced. The provisions and cases cited are all misplaced and quoted out of context. For the sake of clarity, let us tackle each one by one. Section 20, paragraph (i) of Rep. Act 7166 reads: Sec. 20. Procedure in Disposition of Contested Election Returns. xxx xxx xxx (i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election. xxx xxx xxx The inapplicability of the abovementioned provision to the present case is very much patent on its face considering that the same refers only to a void proclamation in relation to contested returns and NOT to contested qualifications of a candidate. Next, petitioner cites Section 6 of Rep. Act 6646 which states: Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason, a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (Emphasis supplied). This provision, however, does not support petitioner's contention that the COMELEC, or more properly speaking, the Manila City BOC, should have suspended the proclamation. The use of the word "may" indicates that the suspension of a proclamation is merely directory and permissive in nature and operates to confer discretion. 21What is merely made mandatory, according to the

provision itself, is the continuation of the trial and hearing of the action, inquiry or protest. Thus, in view of this discretion granted to the COMELEC, the question of whether or not evidence of guilt is so strong as to warrant suspension of proclamation must be left for its own determination and the Court cannot interfere therewith and substitute its own judgment unless such discretion has been exercised whimsically and capriciously. 22 The COMELEC, as an administrative agency and a specialized constitutional body charged with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall, 23 has more than enough expertise in its field that its findings or conclusions are generally respected and even given finality. 24 The COMELEC has not found any ground to suspend the proclamation and the records likewise fail to show any so as to warrant a different conclusion from this Court. Hence, there is no ample justification to hold that the COMELEC gravely abused its discretion. It is to be noted that Section 5, Rule 25 of the COMELEC Rules of Procedure
25

states that:

Sec. 5. Effect of petition if unresolved before completion of canvass. . . . (H)is proclamation shallbe suspended notwithstanding the fact that he received the winning number of votes in such election. However, being merely an implementing rule, the same must not override, but instead remain consistent with and in harmony with the law it seeks to apply and implement. Administrative rules and regulations are intended to carry out, neither to supplant nor to modify, the law. 26 Thus, in Miners Association of the Philippines, Inc. v. Factoran, Jr., 27 the Court ruled that: We reiterate the principle that the power of administrative officials to promulgate rules and regulations in the implementation of a statute is necessarily limited only to carrying into effect what is provided in the legislative enactment. The principle was enunciated as early as 1908 in the case of United States v. Barrias. The scope of the exercise of such rule-making power was clearly expressed in the case ofUnited States v. Tupasi Molina, decided in 1914, thus: "Of course, the regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself can not be extended. So long, however, as the regulations relate solely to carrying into effect the provision of the law, they are valid. Recently, the case of People v. Maceren gave a brief delineation of the scope of said power of administrative officials: Administrative regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and should be for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself cannot be extended (U.S. v. Tupasi Molina, supra). An administrative agency cannot amend an act of Congress (Santos v. Estenzo, 109 Phil. 419, 422; Teoxon vs. Members of the Board of Administrators, L-25619, June 30, 1970, 33 SCRA 585; Manuel vs. General Auditing Office, L-28952, December 29, 1971, 42 SCRA 660; Deluao v. Casteel, L-21906, August 29, 1969, 29 SCRA 350). The rule-making power must be confined to details for regulating the mode or proceeding to carry into effect the law as it has been enacted. The power cannot be extended to amending or expanding the statutory requirements or to embrace matters not covered by the statute. Rules that subvert the statute cannot be sanctioned (University of Santo Tomas v. Board of Tax Appeals, 93 Phil. 376, 382, citing 12 C.J. 845-46. As to invalid regulations, see Collector of Internal Revenue v. Villaflor, 69 Phil. 319; Wise & Co. v. Meer, 78 Phil. 655, 676; Del Mar v. Phil. Veterans Administration, L-27299, June 27, 1973, 51 SCRA 340, 349). xxx xxx xxx

. . . The rule or regulations should be within the scope of the statutory authority granted by the legislature to the administrative agency (Davis, Administrative Law, p. 194, 197, cited in Victorias Milling Co., Inc. v. Social Security Commission, 114 Phil. 555, 558). In case of discrepancy between the basic law and a rule or regulation issued to implement said law, the basic law prevails because said rule or regulations cannot go beyond the terms and provisions of the basic law (People v. Lim, 108 Phil. 1091). Since Section 6 of Rep. Act 6646, the law which Section 5 of Rule 25 of the COMELEC Rules of Procedure seeks to implement, employed the word "may," it is, therefore, improper and highly irregular for the COMELEC to have used instead the word "shall" in its rules. Moreover, there is no reason why the Manila City BOC should not have proclaimed Basco as the sixth winning City Councilor. Absent any determination of irregularity in the election returns, as well as an order enjoining the canvassing and proclamation of the winner, it is a mandatory and ministerial duty of the Board of Canvassers concerned to count the votes based on such returns and declare the result. This has been the rule as early as in the case of Dizon v. Provincial Board of Canvassers of Laguna 28 where we clarified the nature of the functions of the Board of Canvassers, viz.: The simple purpose and duty of the canvassing board is to ascertain and declare the apparent result of the voting. All other questions are to be tried before the court or other tribunal for contesting elections or in quo warranto proceedings. (9 R.C.L., p. 1110) To the same effect is the following quotation: . . . Where there is no question as to the genuineness of the returns or that all the returns are before them, the powers and duties of canvassers are limited to the mechanical or mathematical function of ascertaining and declaring the apparent result of the election by adding or compiling the votes cast for each candidate as shown on the face of the returns before them, and then declaring or certifying the result so ascertained. (20 C.J., 200-201) [Emphasis supplied] Finally, the cases of Duremdes, Benito and Aguam, supra, cited by petitioner are all irrelevant and inapplicable to the factual circumstances at bar and serve no other purpose than to muddle the real issue. These three cases do not in any manner refer to void proclamations resulting from the mere pendency of a disqualification case. In Duremdes, the proclamation was deemed void ab initio because the same was made contrary to the provisions of the Omnibus Election Code regarding the suspension of proclamation in cases of contested election returns. In Benito, the proclamation of petitioner Benito was rendered ineffective due to the Board of Canvassers' violation of its ministerial duty to proclaim the candidate receiving the highest number of votes and pave the way to succession in office. In said case, the candidate receiving the highest number of votes for the mayoralty position died but the Board of Canvassers, instead of proclaiming the deceased candidate winner, declared Benito, a mere second-placer, the mayor. Lastly, in Aguam, the nullification of the proclamation proceeded from the fact that it was based only on advanced copies of election returns which, under the law then prevailing, could not have been a proper and legal basis for proclamation. With no precedent clearly in point, petitioner's arguments must, therefore, be rejected. IV. May Romualdo S. Maranan, a seventh placer, be legally declared a winning candidate?

Obviously, he may not be declared a winner. In the first place, Basco was a duly qualified candidate pursuant to our disquisition above. Furthermore, he clearly received the winning number of votes which put him in sixth place. Thus, petitioner's emphatic reference to Labo v. COMELEC, 29 where we laid down a possible exception to the rule that a second placer may not be declared the winning candidate, finds no application in this case. The exception is predicated on the concurrence of two assumptions, namely: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate. Both assumptions, however, are absent in this case. Petitioner's allegation that Basco was well-known to have been disqualified in the small community where he ran as a candidate is purely speculative and conjectural, unsupported as it is by any convincing facts of record to show notoriety of his alleged disqualification. 30 In sum, we see the dismissal of the petition for disqualification as not having been attended by grave abuse of discretion. There is then no more legal impediment for private respondent's continuance in office as City Councilor for the Second District of Manila. WHEREFORE, the instant petition for certiorari and prohibition is hereby DISMISSED for lack of merit. The assailed resolution of respondent Commission on Elections (COMELEC) in SPA 95-212 dated July 31, 1996 is hereby AFFIRMED. Costs against petitioner. SO ORDERED. G.R. No. 135716 September 23, 1999 FERDINAND TRINIDAD, petitioner, vs. COMMISSION ON ELECTIONS and MANUEL C. SUNGA, respondents.

YNARES-SANTIAGO, J.: The instant Petition for Certiorari questions the June 22, 1998 Resolution 1 of the Commission on Elections (hereinafter referred to as COMELEC) in SPA No. 95-213, disqualifying petitioner as a candidate for Mayor of Iguig, Cagayan, in the May 8, 1995 elections. It also questions the October 13, 1998 COMELEC Resolution 2which not only denied petitioner's Motion for Reconsideration, but also annulled his proclamation as elected Mayor in the May 11, 1998 elections. This case has been filed before this Court when the Petition for Disqualification of private respondent (SPA No. 95-213) was dismissed by the COMELEC. Acting on the Petition for Certiorari of private respondent, this court, inSunga v. Commission on Elections, 3 ordered the COMELEC to reinstate SPA No. 95-213 and act thereon. The facts of the case, as found in Sunga v. Commission on Elections, supra, are as follows: Petitioner (herein private respondent) Manuel C. Sunga was one of the candidates for the position of Mayor in the Municipality of Iguig, Province of Cagayan, in the May 8, 1995 elections. Private respondent (herein petitioner) Ferdinand B. Trinidad, then incumbent mayor, was a candidate for re-election in the same municipality.1wphi1.nt On 22 April 1995, Sunga filed with the COMELEC a letter-complaint for disqualification against Trinidad, accusing him of using three (3) local government vehicles in his campaign, in violation of Section 261, par. (o), Art. XXII, of BP Blg. 881 (Omnibus Election Code, as amended). On 7 May 1995, Sunga filed another letter-complaint with the COMELEC charging Trinidad this time with violation of Sec. 261, par. (e) (referring to threats, intimidation, terrorism or other forms of coercion) of the Omnibus Election Code, in addition

to the earlier violation imputed to him in the first letter-complaint. This was followed by an Amended Petition for disqualification consolidating the charges in the two (2) letters-complaint, including vote buying, and providing more specific details of the violations committed by Trinidad. The case was docketed as SPA No. 95-213. In a Minute Resolution dated 25 May 1995, the COMELEC 2nd Division referred the complaint to its Law Department for investigation. Hearings were held wherein Sunga adduced evidence to prove his accusations. Trinidad, on the other hand, opted not to submit any evidence at all. Meanwhile, the election results showed that Trinidad garnered the highest number of votes, while Sunga trailed second. On 10 May 1995 Sunga moved for the suspension of the proclamation of Trinidad. However, notwithstanding the motion, Trinidad was proclaimed the elected mayor, prompting Sunga to file another motion to suspend the effects of the proclamation. Both motions were not acted upon by the COMELEC 2nd Division. On 28 June 1995 the COMELEC Law Department submitted its Report to the COMELEC En Bancrecommending that Trinidad be charged in court for violation of the following penal provisions of the Omnibus Election Code: (a) Sec. 261, par. (a), on vote buying; (b) Sec. 261, par. (e), on threats, intimidation, terrorism or other forms of coercion; and, (c) Sec. 261, par. (o), on use of any equipment, vehicle owned by the government or any of its political subdivisions. The Law Department likewise recommended to recall and revoke the proclamation of Ferdinand D. Trinidad as the duly elected Mayor of Iguig, Cagayan; proclaim Manuel C. Sunga as the duly elected Mayor, and, direct Sunga to take his oath and assume the duties and functions of the office. The COMELEC En Banc approved the findings of the Law Department and directed the filing of the corresponding informations in the Regional Trial Court against Trinidad. Accordingly, four (4) informations for various election offenses were filed in the Regional Trial Court of Tuguegarao, Cagayan. The disqualification case, on the other hand, was referred to the COMELEC 2nd Division for hearing. On 2 May 1996 Sunga filed a Second Urgent Motion to Suspend the Effects and Annul the Proclamation with Urgent Motion for Early Resolution of the Petition. But in its 17 May 1996 Resolution, the COMELEC 2nd Division dismissed the petition for disqualification, . . . . His motion for reconsideration having been denied by the COMELEC En Banc, Sunga filed the instant petition contending that the COMELEC committed grave abuse of discretion in dismissing the petition for disqualification . . . . As we have mentioned, above, private respondent's Petition with this Court was granted and COMELEC was ordered to reinstate SPA No. 95-213 and hear the same. 4 Finally, on June 22, 1998, the COMELEC 1st Division (former 2nd Division) promulgated the first questioned Resolution disqualifying petitioner as a candidate in the May 8, 1995 elections. 5 Petitioner filed a Motion for Reconsideration, 6 claiming denial of due process. Private respondent filed his Opposition to the Motion, 7 at the same time moving for the cancellation of petitioner's proclamation as elected Mayor in the 1998 elections and praying that he be proclaimed Mayor instead. On October 13, 1998, the COMELEC En Banc denied petitioner's Motion for Reconsideration and also annulled his proclamation as duly elected Mayor of Iguig, Cagayan in the May 11, 1998 elections. 8 Private respondent's motion to be declared Mayor was, however, denied. Commissioner Teresita Dy-Liacco Flores rendered a dissenting opinion insofar as the Resolution annulled the

proclamation of petitioner as Mayor in the May 11, 1998 elections, which she found to be "bereft of any legal basis." Petitioner alleges that the questioned Resolutions were promulgated without any hearing conducted and without his evidence having been considered by the COMELEC, in violation of his right to due process. He also contends that the portion of the October 13, 1998 Resolution annulling his proclamation as Mayor in the May 11, 1998 elections was rendered without prior notice and hearing and that he was once more effectively denied due process. Petitioner also adopts the stand of Commissioner Dy-Liacco Flores that his disqualification, if any, under SPA No. 95-213 cannot extend beyond the three-year term to which he was elected on May 8, 1995, in relation to which the corresponding Petition for his disqualification was lodged. In his Comment, 9 private respondent assails the arguments raised in the Petition and prays that he be proclaimed as the elected Mayor in the 1998 elections. Petitioner filed a Reply 10 to private respondent's Comment on February 24, 1999. Meanwhile, on February 25, 1999, the criminal cases filed against the petitioner with the Regional Trial Court of Tuguegarao, Cagayan were dismissed. 11 On March 8, 1999, the Solicitor General filed a Comment for the COMELEC, 12 reiterating the argument that the COMELEC is empowered to disqualify petitioner from continuing to hold public office and at the same time, barring private respondent's moves to be proclaimed elected in the 1998 elections. Respective Memoranda were filed by both parties. The issues before us may be summarized as follows: 1. Was petitioner deprived of due process in the proceedings before the COMELEC insofar as his disqualification under the May 8, 1995 elections was concerned? 2. Was petitioner deprived of due process in the proceedings before the COMELEC insofar as his disqualification under the May 11, 1998 elections was concerned? 3. May petitioner's proclamation as Mayor under the May 11, 1998 elections be cancelled on account of the disqualification case filed against him during the May 8, 1995 elections? 4. May private respondent, as the candidate receiving the second highest number of votes, be proclaimed as Mayor in the event of petitioner's disqualification? The Commission on Elections is the agency vested with exclusive jurisdiction over election contests involving regional, provincial and city officials, as well as appellate jurisdiction over election contests involving elective municipal and barangay officials. Unless the Commission is shown to have committed a grave abuse of discretion, its decision and rulings will not be interfered with by this Court. 13 Guided by this doctrine, we find that no violation of due process has attached to the COMELEC's June 22, 1998 Resolution. Petitioner complains that while the COMELEC reinstated SPA No. 95-213, it conducted no hearing and private respondent no evidence. 14 Yet, this does not equate to a denial of due process. As explained in Paat v. Court of Appeals 15 . . . . Due process does not necessarily mean or require a hearing, but simply an opportunity or right to be heard (Pepsi Cola Distributors of the Phil. V. NLRC, G.R. No. 100686, August 15, 1995). One may be heard, not solely by verbal presentation but also, and perhaps many times more creditably and predictable

than oral argument, through pleadings (Concerned Officials of MWSS v. Vasquez, G.R. No. 109113, January 25, 1995). 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 (Ibid.) Indeed, deprivation of due process cannot be successfully invoked where a party was given a chance to be heard on his motion for reconsideration (Rodriguez v. Project 6 Market Service Cooperative, G.R. No. 79968, August 23, 1995), as in the instant case, when private respondents were undisputedly given the opportunity to present their side when they filed a letter of reconsideration dated June 28, 1989 which was, however, denied in an order of July 12, 1989 of Executive Director Baggayan. In Navarro III vs. Damasco (G.R. No. 101875, July 14, 1995), we ruled that: The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek a reconsideration of the action or ruling complained of. A formal or trial type hearing is not at all times and in all instances essential. The requirements are satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is the absolute lack of notice or hearing. In the case at bar, petitioner was able to file an Answer with Counter Petition and Motion to Dismiss. 16 He was also able to submit his counter-affidavit and sworn statements of forty-eight (48) witnesses. While he complains that these were not considered by the Hearing Officer, he, himself, admits that the COMELEC did not rely on the findings of the Hearing Officer but referred the case to its Second Division. Thus, by the time the Second Division reviewed his case, petitioner's evidence were already in place. Moreover, petitioner was also given a chance to explain his arguments further in the Motion for Reconsideration which he filed before the COMELEC. Clearly, in the light of the ruling in Paat, no deprivation of due process was committed. Considering that petitioner was afforded an opportunity to be heard, through his pleadings, there is really no denial of procedural due process. 17 Being interrelated, we shall discuss the second and third issues together. We note that petitioner's term as Mayor under the May 8, 1995 elections expired on June 30, 1998. 18 Thus, when the first questioned Resolution was issued by COMELEC on June 22, 1998, petitioner was still serving his term. However, by the time the Motion for Reconsideration of petitioner was filed on July 3, 1998, the case had already become moot and academic as his term had already expired. So, too, the second questioned Resolution which was issued on October 13, 1998, came at a time when the issue of the case had already been rendered moot and academic by the expiration of petitioner's challenged term of office. In Malaluan v. Commission on Elections, 19 this Court clearly pronounced that expiration of the challenged term of office renders the corresponding petition moot and academic. Thus: It is significant to note that the term of office of the local officials elected in the May, 1992 elections expired on June 30, 1995. This petition, thus, has become moot and academic insofar as it concerns petitioner's right to the mayoralty seat in his municipality (Amatong v. COMELEC, G.R. No. 71003, April 28, 1988, En Banc, Minute Resolution; Artano v. Arcillas, G.R. No. 76823, April 26, 1988, En Banc, Minute Resolution) because expiration of the term of office contested in the election protest has the effect of rendering the same moot and academic (Atienza v. Commission on Elections, 239 SCRA 298; Abeja v. Tanada, 236 SCRA 60; Yorac v. Magalona, 3 SCRA 76). When the appeal from a decision in an election case has already become moot, the case being an election protest involving the office of the mayor the term of which had expired, the appeal is dismissible on that ground, unless the rendering of a decision on the merits would be of practical value (Yorac v. Magalona, supra). This rule we established in the case of Yorac v. Magalona which was dismissed because it had been mooted by the expiration of the term of office of the Municipal Mayor of Saravia, Negros Occidental. . . . . (emphasis, ours)

With the complaint for disqualification of private respondent rendered moot and academic by the expiration of petitioner's term of office therein contested, COMELEC acted with grave abuse of discretion in proceeding to disqualify petitioner from his reelected term of office in its second questioned Resolution on the ground that "it comes as a matter of course after his disqualification in SPA No. 95-213 promulgated after the 1998 election." While it is true that the first questioned Resolution was issued eight (8) days before the term of petitioner as Mayor expired, said Resolution had not yet attained finality and could not effectively be held to have removed petitioner from his office. 20 Indeed, removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected for another term. 21 In this regard, therefore, we agree with the dissenting opinion of Commissioner Teresita Dy-Liacco Flores in the second questioned Resolution that petitioner's disqualification under SPA No. 95-213 cannot extend beyond the term to which he was elected in 1995. 22 Yet another ground to reverse the COMELEC's annulment of petitioner's proclamation under the 1998 elections is the undeniable fact that petitioner was not accorded due process insofar as this issue is concerned. To be sure, this was not part of the first questioned Resolution which only touched on the matter raised in the complaint the May 8, 1995 elections. Private respondent merely prayed for the annulment of petitioner's proclamation as winner in the 1998 elections in his Opposition to the Motion for Reconsideration. It was with grave abuse of discretion, then, that the COMELEC went on to annul petitioner's proclamation as winner of the 1998 elections without any prior notice or hearing on the matter. 23 As per the Certificate of Canvass, 24 petitioner obtained 5,920 votes as against the 1,727 votes obtained by private respondent and 15 votes garnered by the third mayoral candidate, Johnny R. Banatao. This gives petitioner a high 77.26% of the votes cast. There is no doubt, therefore, that petitioner received his municipality's clear mandate. This, despite the disqualification case filed against him by private respondent. This further lends support to our decision to bar his disqualification insofar as the May 11, 1998 elections is concerned. Indeed, in election cases, it is fundamental that the people's will be at all times upheld. As eloquently stressed in Frivaldo v. Commission on Elections 25 This Court has time and again liberally and equitably construed the electoral laws of our country to give fullest effect to the manifest will of our people, for in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held: . . . (L)aws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections (Benito v. Commission on Elections, 235 SCRA 436, 442 [August 17, 1994]). Finally, we see no error in the COMELEC's rejection of private respondent's move to be declared as Mayor on account of petitioner's disqualification. To begin with, the issue had been rendered moot and academic by the expiration of petitioner's challenged term of office. Second, even in law and jurisprudence, private respondent cannot claim any right to the office. As held by the COMELEC, the succession to the office of the mayor shall be in accordance with the provisions of the Local Government Code which, in turn, provides that the vice mayor concerned shall become the mayor. 26 Also, in Nolasco v. Commission on Elections, 27 citing Reyes v. Commission on Elections, 28 we already rejected, once and for all, the position that the candidate who obtains the second highest number of votes may be proclaimed the winner in the event of disqualification or failure of the candidate with the highest number of votes to hold office. This court ratiocinated thus That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled (Frivaldo v. COMELEC, 174 SCRA 245 [1989]; Labo, Jr. v. COMELEC, 176 SCRA 1 [1989]; Abella v. COMELEC, 201 SCRA 253 [1991]; Labo, Jr. v. COMELEC,

211 SCRA 297 [1992]; Benito v. COMELEC, 235 SCRA 436 [1994]). The doctrinal instability caused by see-sawing rulings (Compare Topacio v. Paredes, 23 Phil. 238 [1912] with Ticson v. COMELEC, 103 SCRA 687 [1981]; Geronimo v. Ramos, 136 SCRA 435 [1985] with Santos v. COMELEC, 137 SCRA 740 [1985]) has since been removed. In the latest ruling (Aquino v. COMELEC, G.R. No. 120265, September 18, 1995) on the question, this Court said: To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances. Private respondent claims that there are compelling reasons to depart from this doctrine. He argues that since the disqualification case filed against the petitioner for the 1995 elections has been rendered moot and academic, it is with the 1998 elections that its impact must be felt. He also claims that justice should be given him as victim of petitioner's dilatory tactics. We are not persuaded. On the other hand, the fact that despite the disqualification case filed against petitioner relating to the 1995 elections, he still won the mandate of the people for the 1998 elections, leads us to believe that the electorate truly chose petitioner and repudiated private respondent. To allow private respondent, a defeated and repudiated candidate, to take over the mayoralty despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the people's right to elect officials of their choice. 29 Therefore, the Resolution of the COMELEC dated October 13, 1998 which annulled petitioner's proclamation as Mayor of Iguig, Cagayan in the May 11, 1998 elections should be set aside. On the other hand, the petition filed before the COMELEC against petitioner for election offenses committed during the May 1995 elections should be dismissed for being moot and academic, the term of office to which petitioner was elected having already expired. WHEREFORE, the petition is partly GRANTED. The Resolution of the COMELEC, dated October 13, 1998 is SET ASIDE insofar as it annuls the proclamation of petitioner as winner in the May 11, 1998 elections. Insofar as the May 8, 1995 elections is concerned, we find the issues related thereto rendered moot and academic by expiration of the term of office challenged and, accordingly, DISMISS the petition lodged in connection therewith. No costs.1wphi1.nt SO ORDERED. G.R. No. 154198 January 20, 2003

of her late husband.2Petitioners request was supported by the Appeal-Petition containing several signatures of people purporting to be members of the electorate of Barangay Sto. Tomas. 3 On July 14, 2002, Election Officer Ludivico L. Asuncion issued a directive to the Chairman and Members of the Barangay Board of Canvassers of Sto. Tomas as follows: Just in case the names "BETTY" or "PETRONILA" or the surname "RULLODA" is written on the ballot, read the same as it is written but add the words "NOT COUNTED" like "BETTY NOT COUNTED" or "RULLODA NOT COUNTED."4 Based on the tally of petitioners watchers who were allowed to witness the canvass of votes during the July 15, 2002 elections, petitioner garnered 516 votes while respondent Remegio Placido received 290 votes.5 Despite this, the Board of Canvassers proclaimed Placido as the Barangay Chairman of Sto. Tomas.6 After the elections, petitioner learned that the COMELEC, acting on the separate requests of Andres Perez Manalaysay and Petronila Rulloda to be substituted as candidates for Barangay Chairman of Barangay La Fuente, Sta. Rosa, Nueva Ecija and Barangay Sto. Tomas, San Jacinto, Pangasinan, respectively, issued Resolution No. 5217 dated July 13, 2002 which states: PREMISES CONSIDERED, the Commission RESOLVED, as it hereby RESOLVES, to ADOPT the recommendation of the Law Department as follows: 1. To deny due course the Certificates of Candidacy of ANDRES PEREZ MANALAYSAY and PETRONILA S. RULLODA; and 2. To direct the Election Officer of Sta. Rosa, Nueva Ecija and San Jacinto, Pangasinan to delete the name of ANDRES PEREZ MANALAYSAY, candidate for Barangay Chairman in Barangay La Fuente, Sta. Rosa, Nueva Ecija; and the name of PETRONILA S. RULLODA, candidate for Barangay Captain in Barangay Sto. Tomas, San Jacinto, Pangasinan. Let the Law Department implement this resolution. SO ORDERED.7 The above-quoted Resolution cited as authority the COMELECs Resolution No. 4801 dated May 23, 2002, setting forth the guidelines on the filing of certificates of candidacy in connection with the July 15, 2002 synchronized Barangay and Sangguniang Kabataan elections, more particularly Section 9 thereof which reads: Sec. 9. Substitution of candidates. There shall be no substitution of candidates for barangay andsangguniang kabataan officials.8 Hence, petitioner filed the instant petition for certiorari, seeking to annul Section 9 of Resolution No. 4801 and Resolution No. 5217, both of the COMELEC, insofar as they prohibited petitioner from running as substitute candidate in lieu of her deceased husband; to nullify the proclamation of respondent; and to proclaim her as the duly elected Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan. Private respondent Remegio Placido filed his Comment, arguing that since the barangay election is non-partisan, substitution of candidates is not allowed. Moreover, petitioner did not file any certificate of candidacy; hence, there was only one candidate for Barangay Chairman of Sto. Tomas, namely, respondent Placido.9 Public respondent COMELEC also filed its Comment. It contends that its Resolution No. 4801 was issued not pursuant to its quasi-judicial functions but as an incident of its inherent administrative functions over the conduct of the barangay elections. Therefore, the same may not be the subject of review in a petition for certiorari. Further, the COMELEC alleges that it did not commit grave abuse

PETRONILA S. RULLODA, petitioner, vs. COMMISSION ON ELECTIONS (COMELEC), ELECTION OFFICER LUDIVICO L. ASUNCION OF SAN JACINTO, PANGASINAN; BARANGAY BOARD OF CANVASSERS OF BRGY. STO. TOMAS, SAN JACINTO, PANGASINAN, Board of Election Tellers of Prec. Nos. 30A/30A1, 31A, 31A1, and 32A1, and REMEGIO PLACIDO,respondents. YNARES-SANTIAGO, J.: In the barangay elections of July 15, 2002, Romeo N. Rulloda and Remegio L. Placido were the contending candidates for Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan. On June 22, 2002, Romeo suffered a heart attack and passed away at the Mandaluyong City Medical Center. 1 His widow, petitioner Petronila "Betty" Rulloda, wrote a letter to the Commission on Elections on June 25, 2002 seeking permission to run as candidate for Barangay Chairman of Sto. Tomas in lieu

of discretion in denying due course to petitioners certificate of candidacy and in proclaiming respondent considering that he was the only candidate for Barangay Chairman of Sto. Tomas. 10 We find merit in the petition. At the outset, there is no dispute that petitioner garnered 516 votes while respondent got only 290 votes. Respondents did not deny this in their respective Comments. In our jurisdiction, an election means the choice or selection of candidates to public office by popular vote through the use of the ballot, and the elected officials which are determined through the will of the electorate. An election is the embodiment of the popular will, the expression of the sovereign power of the people. The winner is the candidate who has obtained a majority or plurality of valid votes cast in the election. Sound policy dictates that public elective offices are filled by those who receive the highest number of votes cast in the election for that office. For, in all republican forms of government the basic idea is that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election.11 Respondents base their argument that the substitution of candidates is not allowed in barangay elections on Section 77 of the Omnibus Elections Code, which states: Section 77. Candidates in case of death, disqualification or withdrawal of another. If after the last day of 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 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 by the entire electorate of the country, with the Commission. Private respondent argues that inasmuch as the barangay election is non-partisan, there can be no substitution because there is no political party from which to designate the substitute. Such an interpretation, aside from beingnon sequitur, ignores the purpose of election laws which is to give effect to, rather than frustrate, the will of the voters.12 It is a solemn duty to uphold the clear and unmistakable mandate of the people. It is well-settled that in case of doubt, political laws must be so construed as to give life and spirit to the popular mandate freely expressed through the ballot.13 Contrary to respondents claim, the absence of a specific provision governing substitution of candidates in barangay elections can not be inferred as a prohibition against said substitution. Such a restrictive construction cannot be read into the law where the same is not written. Indeed, there is more reason to allow the substitution of candidates where no political parties are involved than when political considerations or party affiliations reign, a fact that must have been subsumed by law. Private respondent likewise contends that the votes in petitioners favor can not be counted because she did not file any certificate of candidacy. In other words, he was the only candidate for Barangay Chairman. His claim is refuted by the Memorandum of the COMELEC Law Department as well as the assailed Resolution No. 5217, wherein it indubitably appears that petitioners letter-request to be allowed to run as Barangay Chairman of Sto. Tomas in lieu of her late husband was treated as a certificate of candidacy.14 To reiterate, it was petitioner who obtained the plurality of votes in the contested election. Technicalities and procedural niceties in election cases should not be made to stand in the way of the true will of the electorate. Laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections.15

Election contests involve public interest, and technicalities and procedural barriers must yield if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. The Court frowns upon any interpretation of the law that would hinder in any way not only the free and intelligent casting of the votes in an election but also the correct ascertainment of the results. 16 WHEREFORE, in view of the foregoing, the instant petition is GRANTED. The assailed Resolution No. 5217 of the Commission on Elections, insofar as it denied due course to petitioners certificate of candidacy, is declared NULL and VOID. The proclamation of respondent Remegio L. Placido as Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan is SET ASIDE, and the Board of Canvassers of the said Barangay is ORDERED to proclaim petitioner as the duly elected Barangay Chairman thereof. SO ORDERED G.R. No. 136351 July 28, 1999 JOEL G. MIRANDA, petitioner, vs. ANTONIO M. ABAYA and the COMMISSION ON ELECTIONS, respondents. EN BANC

MELO, J.: Before us is a petition for certiorari with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction questioning the resolution of the ComelecEn Banc dated December 8, 1998 in SPA Case No. 98-288 which disposed: ACCORDINGLY, judgment is hereby rendered to: 1. AMEND and RECTIFY the dispositive portion of the Resolution of the Commission (First Division) in SPA No. 98-019 promulgated on May 5, 1998, to read as follows: WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the Petition. Respondent JOSE "PEMPE" MIRANDA's certificate of candidacy for the position of mayor of Santiago City in the May 11, 1998 national and local elections is hereby DENIED DUE COURSE AND/OR CANCELLED. SO ORDERED. 2. ANNUL the election and proclamation of respondent JOEL G. MIRANDA as mayor of Santiago City in the May 11, 1998 election and CANCEL the Certificate of Canvass and Proclamation (C.E. form 25) issued therefor; 3. DIRECT THE City board of Canvassers of Santiago City to RECONVENE, PREPARE a new certificate of canvass & proclamation and PROCLAIM the winning candidate among those voted upon as the duly elected mayor of Santiago City in the May 11, 1998 election; and 4. DIRECT the Clerk of Court of the Commission to furnish copies of this Decision to the Office of the President of the Philippines; the

Department of Interior and Local Government; the Department of Finance, and the Secretary of the Sangguniang Panglunsod of Santiago City. SO ORDERED.

resolving to GRANT the motion for reconsideration, thus nullifying the substitution by petitioner Joel G. Miranda of his father as candidate for the mayoralty post of Santiago City. On December 9, 1998, petitioner sought this Court's intercession via a petition for certiorari, with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction. On December 11, 1998, the Court resolved to issue a temporary ( restraining order and to require respondents to comment on the petition. On December p 14, 1998, private respondent filed his Comment (pp. 140-187 and 188-234, Rollo) and on p February 16, 1999, the Comelec, through its counsel, the Solicitor General, filed its . Comment (pp. 254-265, Rollo). The Court required petitioner to file a consolidated reply within 10 days from notice, but petitioner twice asked for an extension of the period. 9 Without granting the motions for extension of time to file consolidated reply, the Court 0 decided to resolve the controversy in favor of petitioner. 9 Tersely, the issues in the present case may be summarized as follows: 1 , R o l l o . ) 1. Whether the annulment of petitioner's substitution and proclamation was issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction; and 2. Whether the order of the Comelec directing the proclamation of the private respondent was issued with grave abuse of discretion amounting to lack of jurisdiction.

The aforementioned resolution dated December 8, 1998 reversed and set aside the earlier resolution of the First Division of the Comelec dated May 16, 1998, dismissing private respondent's petition to declare the substitution of Jose "Pempe" Miranda by petitioner as candidate for the City of Santiago's mayoralty post void. Briefly, the pertinent factual backdrop is summarized as follows: On March 24, 1998, Jose "Pempe" Miranda, then incumbent mayor of Santiago City, Isabela, filed his certificate of candidacy for the same mayoralty post for the synchronized May 11, 1998 elections. On March 27, 1998, private respondent Antonio M. Abaya filed a Petition to Deny Due Course to and/or Cancel Certificate of Candidacy (pp. 26-33, Rollo), which was docketed as SPA No. 98-019. The petition was GRANTED by the Comelec in its resolution dated May 5, 1998 (pp. 36-43, Rollo). The Comelec further ruled to DISQUALIFY Jose "Pempe" Miranda. On May 6, 1998, way beyond the deadline for filing a certificate of candidacy, petitioner Joel G. Miranda filed his certificate of candidacy for the mayoralty post, supposedly as a substitute for his father, Jose "Pempe" Miranda. During the May 11, 1998 elections; petitioner and private respondent vied for the mayoralty seat, with petitioner garnering 22,002 votes, 1,666 more votes than private respondent who got only 20,336 votes. On May 13, 1998, private respondent filed a Petition to Declare Null and Void Substitution with Prayer for Issuance of Writ of Preliminary Injunction and/or Temporary Restraining Order, which was docketed as SPA No. 98-288. He prayed for the nullification of petitioner's certificate of candidacy for being void ab initio because the certificate of candidacy of Jose "Pempe" Miranda, whom petitioner was supposed to substitute, had already been cancelled and denied due course. On May 16, 1998, Comelec's First Division dismissed SPA No. 98-288 motu proprio (pp. 57-61, Rollo). Private respondent moved for reconsideration (pp. 62-72, Rollo). On December 8, 1998, the Comelec En Banc rendered the assailed decision aforequoted,

The Court finds neither lack of jurisdiction nor grave abuse of discretion attended the annulment of the substitution and proclamation of petitioner. On the matter of jurisdiction, there is no question that the case at hand is within the exclusive original jurisdiction of the Comelec. As early as in Herrera vs. Barretto (25 Phil, 245 [1913]), this Court had occasion to apply the following principles: Jurisdiction is the authority to hear and determine a cause the right to act in a case. Since it is the power to hear and determine, it does not depend either upon the regularity of the exercise of that power or upon the rightfulness of the decision made. Jurisdiction should therefore be distinguished from the exercise of jurisdiction. The authority to decide a cause at all, and not the decision rendered therein, is what makes up jurisdiction. Where there is jurisdiction over the subject matter, as we have said before, the decision of all other questions arising in the case is but an exercise of that jurisdiction.

On the issue of soundness of the disposition in SPA No. 98-288, the Court finds that the Comelec's action nullifying the substitution by and proclamation of petitioner for the mayoralty post of Santiago City, Isabela is proper and legally sound. Petitioner insists that the substitution at bar is allowed under Section 77 of the Omnibus Election Code which provides:

Sec. 77. Candidates in case of death, disqualification or withdrawal. 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. Petitioner capitalizes on the fact that the Comelec ruled to disqualify Jose "Pempe" Miranda in the May 5, 1998 resolution and he heavily relies upon the above-quoted provision allowing substitution of a candidate who has been disqualified for any cause. While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the Code. Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted. If the intent of the lawmakers were otherwise, they could have so easily and conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under the provisions of Section 78 of the Code. More importantly, under the express provisions of Section 77 of the Code, not just any person, but only "an official candidate of a registered or accredited political party" may be substituted. In Bautista vs. Comelec (G.R. No. 133840, November 13, 1998) this Court explicitly ruled that "a cancelled certificate does not give rise to a valid candidacy" (p.13). A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at all. The law clearly provides: Sec. 73. Certificate of candidacy No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein. By its express language, the foregoing provision of law is absolutely mandatory. It is but logical to say that any person who attempts to run for an elective office but does not file a certificate of candidacy, is not a candidate at all. No amount of votes would catapult him into office. In Gador vs. Comelec (95 SCRA 431 [1980]), the Court held that a certificate of candidacy filed beyond the period fixed by law is void, and the person who filed it is not, in law, a candidate. Much in the same manner as a person who filed no certificate of candidacy at all and a person who filed it out of time, a person whose certificate of candidacy is cancelled or denied due course is no candidate at all. No amount of votes should entitle him to the elective office aspired for.

The evident purposes of the law in requiring the filing of certificates of candidacy and in fixing the time limit therefor are: (a) to enable the voters to know, at least sixty days before the regular election, the candidates among whom they are to make the choice, and (b) to avoid confusion and inconvenience in the tabulation of the votes cast. For if the law did not confine the choice or election by the voters to the duly registered candidates, there might be as many persons voted for as there are voters, and votes might be cast even for unknown or fictitious persons as a mark to identify the votes in favor of a candidate for another office in the same election. (Monsale vs. Nice, 83 Phil. 758 [1949]). It is at once evident that the importance of a valid certificate of candidacy rests at the very core of the electoral process. It cannot be taken lightly, lest there be anarchy and chaos. Verily, this explains why the law provides for grounds for the cancellation and denial of due course to certificates of candidacy. After having considered the importance of a certificate of candidacy, it can be readily understood why in Bautista we ruled that a person with a cancelled certificate is no candidate at all. Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered or accredited party may be substituted, there demonstrably cannot be any possible substitution of a person whose certificate of candidacy has been cancelled and denied due course. Also, under ejusdem generis rule, where a general word or phrase (such as "disqualification for any cause" in this case) follows an enumeration of particular and specific words of the same class (such as the words "dies" and "withdraws" in the instant case) or where the latter follow the former, the general word or phrase is to be construed to include, or to be restricted to persons, things or cases akin to, resembling, or of the same kind or class as those specifically mentioned (see: Vera vs. Cuevas, 90 SCRA 379 [1979]). A deceased candidate is required to have duly filed a valid certificate of candidacy, otherwise his political party would not be allowed to field a substitute candidate in his stead under Section 77 of the Code. In the case of withdrawal of candidacy, the withdrawing candidate is required to have duly filed a valid certificate of candidacy in order to allow his political party to field a substitute candidate in his stead. Most reasonable it is then, under the foregoing rule, to hold that a valid certificate of candidacy is likewise an indispensable requisite in the case of a substitution of a disqualified candidate under the provisions of Section 77 of the Code, just as it is in the two previous instances. Furthermore, interpretatio talis in ambiguis semper freinda est, ut euiatur inconveniens et absurdum, meaning, where there is ambiguity, such interpretation as will avoid inconvenience and absurdity shall in all cases be adopted. To include those disqualified candidates whose certificate of candidacy had likewise been denied due course and/or cancelled among those who may be substituted under Section 77 of the Omnibus Election Code, leads to the absurdity where a substitute is allowed to take the place of somebody who had not been a candidate in the first place a person who did not have a valid certificate of candidacy prior to substitution. Nemo dat quod non habet. What right can a non-candidate pass on to his substitute? Clearly, there is none because no one can give what he does not have. Even on the most basic and fundamental principles, it is readily understood that the concept of a substitute presupposes the existence of the person to be substituted, for how can a person take the place of somebody who does not exist or who never was. The Court has no other choice but to rule that in all the instances enumerated in Section 77 of the Omnibus Election Code, the existence of a valid certificate of candidacy seasonably filed is a requisite sine qua non. All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Section 77 of the Code. Besides, if we were to allow the so-called "substitute" to file a "new" and "original" certificate of candidacy beyond the period for the filing thereof, it would be a crystalline case of unequal protection of the law, an act abhorred by our Constitution.

From the foregoing discussion it is evident that the controversy at hand is not a simple case of hair-splitting. A candidate may not be qualified to run for election but may have filed a valid certificate of candidacy. Another candidate may likewise be not qualified and at the same time not have a valid certificate of candidacy, for which reason, said certificate of candidacy is also cancelled and/or denied due course. Or, a third candidate may be qualified but, his certificate of candidacy may be denied due course and/or cancelled. This is possible because the grounds for disqualification (see: Omnibus Election Code, Section 68 Disqualifications) are totally separate and distinct from the grounds for cancellation and/or denying due course to a certificate of candidacy (Ibid., Section 69 nuisance candidates; and Section 78 material misrepresentation). Only the candidate who had a valid certificate of candidacy may be substituted. The question to settle next is whether or not aside from Joel "Pempe" Miranda being disqualified by the Comelec in its May 5, 1998 resolution, his certificate of candidacy had likewise been denied due course and cancelled. The Court rules that it was. Private respondent's petition in SPA No. 98-019 specifically prayed for the following: WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent for the position of Mayor for the City of Santiago be not given due course and/or cancelled. Other reliefs just and equitable in the premises are likewise prayed for. ( From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998 R in SPA No. 98-019, it is sufficiently clear that the prayer specifically and particularly o sought in the petition was GRANTED, there being no qualification on the matter l whatsoever. The disqualification was simply ruled over and above the granting of the l specific prayer for denial of due course and cancellation of the certificate of candidacy. It o may be stressed at this instance that the legal consequences of this May 5, 1998 , resolution are independent of the issue of whether or not the Comelec was correct in reviving SPA No. 98-019 by consolidating it with SPA No. 98-288 in its December 8, 1998 p resolution. . 3 As regards the procedural matter in the present petition for certiorari, the following 1 considerations are also in point: ; E It may be relevantly stressed that the review powers of the Supreme Court over decisions m of the Constitutional Commissions, in general, and the Commission on Elections, in p particular, were rather particularly defined and "limited" by the 1987 Constitution, as h they were also circumscribed in the 1973 Constitution, to a petition for review a on certiorariunder Rule 65. In Dario vs. Mison (176 SCRA 84 [1989]), the Court held: s i . . . We affirm the teaching of Aratuc vs. Commission of Elections, 88 s SCRA 251 [1979]) as regards recourse to this Court with respect to rulings of the Civil Service Commission which is that judgments of o the Commission may be brought to the Supreme Court u through certiorari alone, under Rule 65 of the Rules of Court. r s In Aratuc, .we declared: ) In resolving the petition filed by private respondent specifying a very particular relief, the Comelec ruled favorably in the following manner: SO ORDERED. It is at once evident from these constitutional and statutory modifications that there is a definite tendency to enhance and invigorate the role of the Commission on Elections as the independent constitutional body charged with the safeguarding of free, peaceful and honest elections. The framers of

the new Constitution must be presumed to have definite knowledge of what it means to make the decisions, orders and rulings of the Commission "subject to review by the Supreme Court." And since instead of maintaining that provision intact, it ordained that the Commission's actuations be instead "brought to the Supreme Court on certiorari", We cannot insist that there was no intent to change the nature of the remedy, considering that the limited scope of certiorari, compared to a review, is well known in remedial law. xxx xxx xxx . . . It should also be noted that under the new Constitution, as under the 1973 Charter, "any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari," which, as Aratuc tells us, "technically connotes something less than saying that the same "shall be subject to review by the Supreme Court," which in turn suggests an appeal by review by petition for review under Rule 45. Therefore, our jurisdiction over cases emanating from the Civil Service Commission is limited to complaints of lack or excess of jurisdiction or grave abuse of discretion tantamount to lack or excess of jurisdiction, complaints that justify certiorari under Rule 65.

Even assuming for the sake of argument that the Comelec committed an error in the exercise of its jurisdiction in the present case, such is not within the province of certiorari, as a remedial measure, to correct. The only issue that may be taken cognizance of in the present case is whether or not the Comelec committed grave abuse of discretion in rendering the assailed decision. It is well-settled that an act of a court or tribunal may only be considered to have been done in grave abuse of discretion when the same was performed in a capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility (Intestate Estate of Carmen de Luna vs. Intermediate Appellate Court, 170 SCRA 246 [1989]; Litton Mills vs. Galleon Traders, 163 SCRA 489 [1988]; Butuan Bay Export Co. vs. Court of Appeals, 97 SCRA 297 [1980]). An error of judgment committed in the exercise of its legitimate jurisdiction is not the same as "grave abuse of discretion". An abuse of discretion is not sufficient by itself to justify the issuance of a writ of certiorari. The abuse must be grave and patent, and it must be shown that the discretion was exercised arbitrarily and despotically (Soriano vs. Atienza, 171 SCRA 284 [1989]). Petitioner posits that the Comelec committed grave abuse of discretion when it annulled the substitution by and proclamation of petitioner, who under Section 77 of the Omnibus Election Code, was allowed to substitute for disqualified the candidate Jose "Pempe" Miranda. Petitioner also contends that it was an act of grave abuse of discretion for the Comelec to direct the proclamation of private respondent as the winning candidate in the ( May 11, 1998 election. p p Petitioner further faults the Comelec for amending the dispositive portion of its resolution . in SPA No. 98-019, which was not elevated to it on review, the same having already attained finality by then. 1 1 1 While it may be conceded that the Comelec stepped overboard and acted in excess of its jurisdiction when it motu proprio took cognizance of SPA No. 98-019, the decision in 1 which was by then already final, it does not necessarily follow that the Comelec also 1 committed grave abuse of discretion in resolving to grant private respondent's motion for 2 reconsideration by nullifying)the substitution of petitioner Joel G. Miranda. Evidently, what is under review before us in this certiorari proceedings is SPA No. 98-288, and not SPA No. 98-019. The question to answer is: will the Comelec's act which may constitute an excess of jurisdiction in SPA No. 98-019 be tantamount to an act of grave abuse of discretion in its judgment in the separate and distinct case of SPA No. 98-288 as well? Clearly, non sequitur. SPA No. 98-288 should be judged on its own accord, and not under the shadow of SPA No. 98-019. Comelec committed no grave abuse of discretion, in resolving SPA No. 98-288 in favor of private respondent. As earlier pointed out, the result in the dispositive portion of the December 8, 1998 resolution pertaining to the issues involved in SPA No. 98-288 is correct insofar as it annulled the election and proclamation of Joel G. Miranda. But even assuming for the sake of argument that it is not, still, this supposed error does not constitute grave abuse of discretion which may be annulled and reversed in the present petition for certiorari. As earlier elucidated too, the crux of the Comelec's disposition in SPA No. 98-288 is the fact that former candidate Jose "Pempe" Miranda's certificate of candidacy was denied due course and cancelled. There is no dispute that the complaint or petition filed by private respondent in SPA No. 98-019 is one to deny due course and to cancel the certificate of candidacy of Jose "Pempe" Miranda (Rollo, pp. 26-31). There is likewise no question that the said petition was GRANTED without any qualification whatsoever. It is rather clear, therefore, that whether or not the Comelec granted any further relief in SPA No. 98-019 by disqualifying the candidate, the fact remains that the said petition was granted and that the certificate of candidacy of Jose "Pempe" Miranda was denied due

To emphasize this procedural point, then Commissioner, later to become a distinguished Member of this Court, Mr. Justice Florenz Regalado responded to Commissioner Bernas' query during the deliberations of the 1987 Constitution thusly: FR. BERNAS. So, for purposes of the record, now, what is the intention of the Committee? What are the grounds for certiorari? MR. REGALADO. The Committee refers specifically to a technical term of review by certiorari would be relying on the provision of Rule XLV [Should be LXV] of the Rules of Court that laid down the three grounds. (I RECORD OF THE CONSTITUTIONAL COMMISSION, p. 539, as cited in Bernas, S.J, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 Edition, p. 903.) Thus, we have to be guided by jurisprudence relating to review by certiorari under Rule 65. Generally, certiorari lies where a court has acted without or in excess of jurisdiction or with grave abuse of discretion. "Without jurisdiction" refers to an absolute want of jurisdiction; "excess of jurisdiction" refers to the case where the court has jurisdiction, but it transcended the same or acted without any statutory authority; "grave abuse of discretion" implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction.

course and cancelled. In fact, it was not even necessary for the Comelec to reiterate this in its December 8, 1998 resolution. At best, the Comelec's motu proprio act of resurrecting SPA No. 98-019 should be treated as a mere surplusage. The fact that the certificate of candidacy of Joel "Pempe" Miranda was denied due course and cancelled did not depend on the en banc resolution dated December 8, 1998 of the Comelec. It stems from the fact that the May 5, 1998 resolution GRANTED private respondent's Petition to Deny Due Course to and/or Cancel Certificate of Candidacy. Verily, there is clear basis to find that there indeed was a blatant misrepresentation in the instant case and that it was a valid ground for the granting of the petition in SPA No. 98-019. Also, there appears to be sound basis to rule that a certificate of candidacy which has been denied due course on account of misrepresentation is, in every legal contemplation, no certificate at all. Ergo, there is nothing to substitute. If this judgment, rendered in the Comelec's rightful exercise of its jurisdiction in SPA No. 98-288 may, at all, be considered flawed, this blemish would only constitute an error of judgment and definitely not grave abuse of discretion. And, of course, errors of judgment may not be corrected by certiorari. It may be noted that Commissioner Flores raised this supposed error in her dissenting opinion (pp. 93-99, Rollo). However, her legal opinion failed to convince the majority of the collegiate body and was not adopted by the Commission en banc. This Court in the present certiorari proceedings cannot substitute its judgment for that of the Comelec without violating the Constitution and the Rules of Court on the matter. The Comelec's decision is not subject to appeal to this Court. We may only strike out a Comelec decision if it was rendered without jurisdiction, in excess thereof, or with grave abuse of discretion amounting to lack of jurisdiction. The Court cannot accede to the reasoning that this Court should now acquiesce and submit to the sovereign will of the electorate, as expressed by their votes. We should always be reminded that ours is a government of laws not of men. If this Court should fold its arms and refuse to apply the law at every "clamor" of the majority of the supposed constituency, where shall order and justice lie? Without the least intention to degrade, where shall "people power" end, and where shall "law and justice" begin? Would the apparent results of the canvassing of votes justify this Court in refusing to apply the law instead? The answers to the foregoing are obvious. The Court cannot choose otherwise but to exercise its sacred duty to uphold the Constitution and the laws of the Republic for and under which it exists. Besides, only history will discern whether Jose "Pempe" Miranda's filing of a certificate of candidacy for a 4th term and the intended substitution by his son was a ploy to perpetrate the Mirandas in power by way of a political dynasty disdained and abhorred by our Constitution which declared: Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law. ( A r t i c l e I I , 1 9 8 7 C

The invalidation of petitioner's supposed substitution of Jose "Pempe" Miranda brings about the disqualification of petitioner in the mayoralty race. In this regard, what was said in Nolasco vs. Commission on Elections (275 SCRA 763 [1997]) may be recalled: Our case law is now settled that in a mayoralty election, the candidate who obtained the second highest number of votes, in this case Alarilla, cannot be proclaimed winner in case the winning candidate is disqualified. Thus, we reiterated the rule in the fairly recent case of Reyes v. Comelec (254 SCRA 514 [1996]), viz.: xxx xxx xxx We likewise find no grave abuse of discretion on the part of the Comelec in denying petitioner Julius O. Garcia's petition to be proclaimed mayor in view of the disqualification of Renato U. Reyes. That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled. The doctrinal instability caused by seesawing rulings has since been removed. In the latest ruling on the question, this Court said: To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances. Garcia's plea that the votes case for Reyes be invalidated is without merit. The votes cast for Reyes are presumed to have been cast in the belief that Reyes was qualified and for that reason can be treated as stray, void and meaningless. The subsequent finding that he is disqualified cannot retroact to the date of the elections as to invalidate the votes cast for him. Consequently, respondent Comelec committed grave abuse of discretion insofar as it failed to follow the above doctrine, a descendant of our ruling in Labo v. Comelec (176 SCRA 1[1989]).

EMMANUEL SINACA, petitioner, 8 vs. 2 MIGUEL MULA and COMMISSION ON ELECTIONS, respondents. 7 8 3 ) DAVIDE, JR., C.J.: Thus, the Comelec committed grave abuse of discretion insofar as it failed to follow the above-cited settled ruling consistently applied by this Court since the case of Labo vs.Comelec (176 SCRA 1 [1989]), Aquino vs. Comelec, 248 SCRA 400 [1995], Reyes vs. Comelec (254 SCRA 514 [1996]); and Nolasco vs. Comelec (275 SCRA 763 [1997]). Even as the Court cannot accede to the contention that, in view of the election results pointing to petitioner as the electors' choice for the mayoralty post, we should now close our eyes to the pertinent provisions of the Omnibus Election Code on the matter, nevertheless, the Court duly notes that the said election results point to the fact that private respondent was not then the choice of the people of Santiago City, Isabela. This Court has no authority under any law to impose upon and compel the people of Santiago City to accept private respondent as their mayor. The law on succession under section 44 of Republic Act 7160, otherwise known as the Local Government Code, would then apply. Said provision relevantly states: Sec. 44. Permanent Vacancies in the Offices of the Governor, ViceGovernor, Mayor, and Vice Mayor, (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor, or vice mayor, the highest ranking sanggunian member, or, in case of his permanent disability, the second highest ranking sanggunian member, shall become governor, vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein. xxx xxx xxx For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, 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. For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election. WHEREFORE, the petition is hereby partly DENIED, insofar as the Comelec ruling to ANNUL the election and proclamation of petitioner is being AFFIRMED. The petition is, however, hereby GRANTED so as to MODIFY the resolution of the Comelec in SPA No. 98288 by DELETING the portion directing the city board of canvassers to reconvene and proclaim the winning candidate from among those voted upon during the May 11, 1998 elections. The law on succession should be enforced. Accordingly, the restraining order issued in this case is forthwith LIFTED. SO ORDERED. G.R. No. 135691 September 27, 1999 Before us is a special civil action for certiorari, mandamus and prohibition, with a prayer for preliminary injunction and/or temporary restraining order assailing the Resolution of 6 October 1998, of respondent Commission on Elections (hereafter COMELEC) in SPA No. 98-292, declaring as invalid the substitution of mayoralty candidate Teodoro F. Sinaca, Jr. by herein petitioner Emmanuel D. Sinaca. 1 The records disclose that in the 11 May 1998 elections, the two opposing factions of the ruling party LAKAS-NUCD-UMPD (hereafter LAKAS) filled in separate candidates for the position of mayor of the Municipality of Malimano, Surigao del Norte. One faction headed by Robert Z. Barbers (hereafter "BARBERS Wing") nominated Grachil G. Canoy (hereafter CANOY), while the other group lead by Francisco T. MATUGAS (hereafter "MATUGAS Wing") endorsed the candidacy of Teodoro F. Sinaca, Jr. (hereafter TEODORO). Miguel H. Mula (hereafter MULA), a candidate for vice-mayor and belonging to the "BARBERS Wing," filed before the COMELEC a petition for disqualification against TEODORO which was docketed as SPA 98-021. On 8 May 1998, the Second Division of the COMELEC issued a resolution disqualifying TEODORO as candidate for mayor of the Municipality of Malimono, Surigao del Norte and ordering the cancellation of his certificate of candidacy because of prior conviction of bigamy, a crime involving moral turpitude. 2 On 10 May 1998, TEODORO filed a motion for reconsideration of the aforesaid resolution. On even date, herein petitioner Emmanuel D. Sinaca, (hereafter EMMANUEL), an independent candidate, withdrew his certificate of candidacy for Sangguniang Bayan Member, joined and became a member of the LAKAS party and was nominated by the LAKAS "MATUGAS Wing" as the substitute mayoralty candidate for the Municipality of Malimono, Surigao del Norte. On the basis of said nomination, EMMANUEL filed his certificate of candidacy 3 attached thereto is his certificate of nomination as LAKAS mayoralty candidate signed by Governor Francisco T. MATUGAS (hereafter MATUGAS), as party provincial chairman together with EMMANUEL's written acceptance of the party's nomination.4 On 11 May 1998, MULA filed through mail another petition for disqualification, this time against EMMANUEL, which was received by the COMELEC on 14 May 1998 and was docketed as SPA No. 98-292. In his petition MULA contended that the nomination of EMMANUEL as substitute candidate is illegal on the following grounds: a) The substitute, before he filed his Certificate of Candidacy as LAKAS candidate, was an independent candidate. Being so, he cannot rightfully substitute the disqualified one; b) The nomination of respondent substitute bears only the approval of Provincial Chairman Matugas and without consultation and consent of the higher political hierarchy especially Mr. Robert Ace Barbers who has also a say on nomination of candidates within his jurisdiction, as evidenced by an authority hereto attached as Annex "E";

c) Substitution generally takes place when by reason of a candidate's disqualification the party to which he belongs loses such representation. In the instant case, the disqualification did not at all prejudice LAKAS NUCDUMDP because Mr. Garchil G. Canoy is still there representing the party after the disqualification. The substitution is a redundancy and not necessary under the circumstances, more so that it was done with malice and without the required consensus of the political hierarchy. 5 In his answer, EMMANUEL moved for the dismissal of the petition for the following reasons: a) The petition does not state a cause of action as it is not based on any of the grounds for disqualification as provided under Sec. 68 of the Omnibus Election Code and Sec. 40(A) of the Local Government Code of 1991; b) The issue of who in LAKAS has the authority to nominate candidates for local officials, is an intra-party matter hence beyond the jurisdiction of the Comelec; c) Gov. Matugas was duly authorized by LAKAS as its Provincial Chairman and official candidate for Provincial Governor to nominate the party's local candidates; and d) The petition is already moot and academic because of the proclamation of EMMANUEL as mayor of the Municipality of Malimono, Surigao del Norte. 6 On 28 May 1998, the COMELEC Second Division dismissed the petition for disqualification and upheld the candidacy for mayor of EMMANUEL. 7 The pertinent part of the resolution reads: It is therefore clear, that candidate for governor Matugas was clothed with the authority to nominate the respondent as substitute candidate for the position of mayor of Malimono, Surigao del Norte, vice the disqualified candidate, Apropos thereto, Section 77 of the Omnibus Election Code states: xxx xxx xxx Considering that on May 10, 1998 the proper nomination was issued by the official of the party authorized therefor, it stands to reason that the substitution was valid, respondent having accepted the nomination and his certificate of candidacy dated May 10, 1998, correspondingly filed. Respondent is correct in stating that the question of nomination is a party concern which is beyond the ambit of the Commission. What matters is, the candidate has been certified as a party member and the nomination duly issued in his favor.1wphi1.nt Be that as it may, the petition is rendered moot and academic by the proclamation of respondent on May 12, 1998, as evidenced by the certificate of

canvass and proclamation of winning candidates for municipal offices with SN 16671298 and his oath of office dated May 13, 1998, which forms part of the record of this case. WHEREFORE, premises considered, the Commission (Second Division) RESOLVES to DISMISS the instant petition for lack of merit. MULA filed a motion for reconsideration raising in the main that the signature alone of MATUGAS in the nomination was not sufficient because the party's authority to nominate was given to both MATUGAS and Senator Robert S. Barbers (hereafter BARBERS), in their joint capacity, and that the nomination of EMMANUEL is void since he was an independent candidate prior to his nomination. 8 On 6 October 1998, the COMELEC en banc issued a Resolution 9 which set aside the resolution dated 28 May 1998 of the Second Division and disqualified EMMANUEL, for the following reasons: In the motion for reconsideration, petitioner argues that the signature only of Governor Matugas in the nomination was not sufficient because the party's authority to nominate was given to both Governor Matugas and Senator Robert Barbers, in their joint capacity. We do not have to resolve this issue because the more important issue is whether respondent is disqualified as a substitute candidate. He was an independent candidate for councilor at the time he filed his certificate of candidacy for mayor as a substitute of a disqualified candidate. Thus, he did not belong to the same political party as the substituted candidate. We sustain petitioner's position. We declare that the substitution of disqualified mayoralty candidate Teodoro F. Sinaca, Jr. by respondent Emmanuel D. Sinaca was not valid because the latter was an independent candidate for councilor prior to his nomination as substitute candidate in place of the withdrawing candidate who was a Lakas party member. IN VIEW WHEREOF, the Commission en banc hereby resolves to SET ASIDE the Commission (Second Division)'s resolution dated May 28, 1998. We declare Emmanuel D. Sinaca DISQUALIFIED to be a substitute candidate for mayor of Malimono, Surigao del Norte, and ANNUL his proclamation as such being void ab initio. Upon finality of this resolution, he is ordered to vacate the position of mayor of the municipality of Malimono, Surigao del Norte, to which the vice-mayor elected in the May 11, 1998 elections shall succeed by operation of law. Not satisfied therewith, EMMANUEL is now before us alleging that the COMELEC committed grave abuse of discretion in issuing the assailed Resolution. EMMANUEL principally contends that his nomination as a substitute candidate was regular and valid hence, his proclamation as mayor of the Municipality of Malimono, Surigao del Norte must be upheld. In the assailed resolution, the COMELEC disqualified EMMANUEL solely on the basis that he was an independent candidate prior to his nomination as a substitute candidate. The rule on substitution of an official candidate of a registered or accredited political party who dies, withdraws or is disqualified for any cause after the last day for the filing of certificates of candidacy is governed by Sec. 77 of the Omnibus Election Code which provides: 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 maybe 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. Thus, under the said provision it is necessary, among others, that the substitute candidate must be of the same political party as the original candidate and must be duly nominated as such by the political party. In the instant case, there was substantial compliance with the above said requirements. EMMANUEL was properly nominated as substitute candidate by the LAKAS party "MATUGAS wing" to which TEODORO, the disqualified candidate, belongs, as evidenced by the Certificate of Nomination and Acceptance signed by MATUGAS, the Party's provincial chairman. 10 That EMMANUEL is a bona fide member of the LAKAS party is shown not only by the certificate of membership, 11 which is being controverted for having been presented as new evidence for the first time before this court, but more importantly by his certificate of candidacy filed before the COMELEC stating therein that he belongs to the LAKAS party. 12 A certificate of candidacy is in the nature of a formal manifestation to the whole world of the candidate's political creed or lack of political creed. 13 It is a statement of a person seeking to run for a public office certifying that he announces his candidacy for the office mentioned and that he is eligible for the office, the name of the political party to which he belongs, if he belongs to any, and his post-office address for all election purposes being as well stated. 14 The certificate of candidacy of EMMANUEL permitted the placing of his name before the electorate. It constituted an authorized badge, which the voter could scrutinize before casting his ballot. Thus, with the declaration of EMMANUEL in his certificate of candidacy that he is affiliated with the LAKAS party, he was effectively voted by the electorate not as an independent candidate, but as a member of the LAKAS party. His allegation in the certificate of candidacy as to political party to which he belongs is sufficient to make the electorate conscious of the platform of the said political party. 15 The fact that EMMANUEL was an independent candidate prior to his nomination is immaterial. What is more significant is that he had previously withdrawn his certificate of candidacy as independent candidate for Sangguniang member before he filed his certificate of candidacy as a substitute for TEODORO at which time he was, for all intents and purposes, already deemed a member of the LAKAS party "MATUGAS wing." As such, EMMANUEL is obliged to pursue and carry out the party's ideology, political ideas and platforms of government. As the official candidate of an organized political party, he is bound by the party's rule. He owes loyalty to the party, its tenet and its policies, its platforms and programs of government. To the electorate he represents the party, its principles, ideals and objectives. 16 Even the fact that EMMANUEL only became a member of the LAKAS party after the disqualification of TEODORO, will not affect the validity of the substitution. There is nothing in the Constitution or the statute which requires as a condition precedent that a substitute candidate must have been a member of the party concerned for a certain period of time before he can be nominated as such. Section 77 of the Omnibus Election Code only mandates that a substitute candidate should be a person belonging to and certified by the same political party as the candidate to be replaced. We cannot provide for an additional requirement or condition not provided under the said provision without encroaching into the domain of the legislative department. As aptly observed by Commissioner Teresita Dy-Liacco Flores in her dissenting opinion, to wit: . . . . With due respect to the majority opinion, I find that at the time the substitute candidate filed his certificate of candidacy for mayor and at the time of his election as such, he was an independent candidate no more. He was, at that time, a nominee of the LAKAS NUCD-UMDP Political Party. This fact is evidenced by the Certificate of Nomination and Acceptance dated 10 May 1998 executed by the Provincial Chairman of the said party of Surigao del Norte and by herein respondent. This certificate bonafide member of the said party. To rule that respondent was still an independent candidate and not a member of the LAKAS NUCD-UMDP political party at the time of filing his certificate of

candidacy as a substitute candidate for mayor is to arrogate upon this Commission what would have been the sole and exclusive prerogative of any political organization to determine party membership and its nominees to elective positions. It is an accepted fact that, in this country, politicians switch party affiliations more frequently than the ebb and flow of the tides. 17 The argument advanced by private respondent MULA that MATUGAS has no authority to nominate a candidate without the concurrence of BARBERS is devoid or merit. Firstly, MATUGAS, was designated by the LAKAS National Headquarters through its Deputy Secretary General and National Secretariat Executive Director Reynaldo L. Maclang, as the party officer authorized to nominate, sign, attest under oath, and issue Certificates of Nomination and Acceptance for the Party's official candidates for the positions of Board Members, City Councilors, Municipal Mayors, Vice-mayors and councilors for the Province of Surigao del Norte. 18 This authorization which was dated March 26, 1998 replaced and/or modified the former authorization given by the party of both BARBERS and MATUGAS. 19 Both BARBERS and MATUGAS were given separate and distinct authorizations when the mother of BARBERS ran for governor against MATUGAS. Secondly, there are only two official candidates for mayor of Malimono, Surigao del Norte, namely TEODORO and CANOY, 20 both of whom are members of the LAKAS party but from different factions. TEODORO was indorsed by the "MATUGAS wing" and CANOY by the "BARBERS Wing." The certificates of candidacy of these candidates were never questioned despite the fact that they belong to the same political party and were separately and independently endorsed by either BARBERS or MATUGAS. Therefore, if the absence of a joint nomination is to be considered fatal to the validity of the certificate of candidacy of TEODORO or CANOY, then there would in effect no candidates running for mayor in the Municipality of Malimono, Surigao del Norte. Verily, it stands to reason that with the disqualification of TEODORO, who is a member of the LAKAS "MATUGAS wing," the substitute must come from the same faction as the candidate to be substituted and since it was MATUGAS who indorsed the nomination of TEODORO, then MATUGAS' nomination of EMMANUEL in substitution of TEODORO is sufficient and in order. There is also no irregularity in the act of EMMANUEL in joining a political party. The right of individuals to form an association as guaranteed by the fundamental law includes the freedom to associate or refrain from association.21 No man is compelled by law to become a member of a political party; or after having become such, to remain a member. He may join such a party for whatever reason reasons seems good to him, and may quit the party for any cause, good, bad, or indifferent, or without cause. 22 The decision of a candidate on whether to run as an independent candidate or to join a political party, group or aggrupation is left entirely to his discretion. 23 We also agree with the contention of EMMANUEL that the decision as to which member a party shall nominate as its candidate is a party concern which is not cognizable by the courts. A political party has the right to identify the people who constitute the association and to select a standard bearer who best represents the party's ideologies and preference. 24 Political parties are generally free to conduct their internal affairs free from judicial supervision; this common-law principle of judicial restraint, rooted in the constitutionally protected right of free association, serves the public interest by allowing the political processes to operate without undue interference. 25 Thus, the rule is that the determination of disputes as to party nominations rests with the party, in the absence of statutes giving the court's jurisdiction. 26 Quintessentially, where there is no controlling statute or clear legal right involved, the court will not assume jurisdiction to determine factional controversies within a political party, but will leave the matter for determination by the proper tribunals of the party itself or by the electors at the polls. 27 Similarly, in the absence of specific constitutional or legislative regulations defining how nominations are to be made, or prohibiting nominations from being made in certain ways, political parties may handle party affairs, including nominations, in such manner as party rules may establish. 28

An election in which the voters have fully, fairly, and honestly expressed their will is not invalid even though an improper method is followed in the nomination of candidates. 29 This is because in determining the effect of a particular irregularity in a party nomination for office on the result of the general election, the pivotal issue is whether the irregularity complained of has prevented a full, fair, and free expression of the public will. Thus, in the absence of a statutory provision to the contrary, an election may not even be invalidated by the fact that the nomination of the successful candidate was brought about by fraud, and not in the manner prescribed by the statute, provided it appears that noncompliance with the law did not prevent a fair and free vote. 30 None of the situations adverted to above are obtaining in the case at bar as to warrant this Court's intervention in ascertaining the propriety of EMMANUEL's nomination as a substitute candidate by the LAKAS "MATUGAS wing." Finally, the issue as to the validity of EMMANUEL's nomination as substitute candidate has been rendered moot and academic by his proclamation on May 12, 1998, by the Board of Canvassers of Malimono as the duly elected municipal mayor and after he has assumed into office. The fact that the nomination of a substitute lacks the signature of one of the authorized signatory is but a technicality which cannot be used to frustrate the will of the electorate. It has been held that the provisions of the election law regarding certificates of candidacy, such as signing and swearing on the same, as well as the information required to be stated therein, are considered mandatory prior to the elections. Thereafter, they are regarded as merely directory. With respect to election laws, it is an established rule of interpretation that mandatory provisions requiring certain steps before election will be construed as directory after the elections, to give effect to the will of the electorate. Thus, even if the certificate of candidacy was not duly signed or if it does not contain the required data, the proclamation of the candidate as winner may not be nullified on such ground. The defects in the certificate should have been questioned before the election; they may not be questioned after the election without invalidating the will of the electorate, which should not be done. 30 In Guzman v. Board of Canvassers, 32 the Court held that the "will of the people cannot be frustrated by a technicality that the certificate of candidacy had not been properly sworn to. This legal provision is mandatory and non-compliance therewith before the election would be fatal to the status of the candidate before the electorate, but after the people have expressed their will, the result of the election cannot be defeated by the fact that the candidate has not sworn to his certificate of candidacy." Thus, were a candidate has received popular mandate, overwhelmingly and clearly expressed, all possible doubts should be resolved in favor of the candidate's eligibility for to rule otherwise is to defeat the will of the people. 33Above and beyond all, the determination of the true will of the electorate should be paramount. It is their voice, not ours or of anyone else, that must prevail. This, in essence, is the democracy we continue to hold sacred. 34 WHEREFORE, the petition is GRANTED. The assailed resolution of 6 October 1998 of the COMELEC en banc is hereby REVERSED and SET ASIDE and another one rendered declaring EMMANUEL SINACA as having been duly elected mayor of the Municipality of Malimono, Surigao del Norte.1wphi1.nt SO ORDERED.