EN BANC [G.R. No. 93867 : December 18, 1990.] 192 SCRA 358 SIXTO S. BRILLANTES, JR., Petitioner, vs.

HAYDEE B. YORAC, in her capacity as ACTING CHAIRPERSON of the COMMISSION ON ELECTIONS , Respondent. DECISION CRUZ, J.: The petitioner is challenging the designation by the President of the Philippines of Associate Commissioner Haydee B. Yorac as Acting Chairman of the Commission on Elections, in place of Chairman Hilario B. Davide, who had been named chairman of the fact-finding commission to investigate the December 1989 coup d' etat attempt. The qualifications of the respondent are conceded by the petitioner and are not in issue in this case. What is the power of the President of the Philippines to make the challenged designation in view of the status of the Commission on Elections as an independent constitutional body and the specific provision of Article IX-C, Section 1(2) of the Constitution that "(I)n no case shall any Member (of the Commission on Elections) be appointed or designated in a temporary or acting capacity." The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where President Elpidio Quirino designated the Solicitor General as acting member of the Commission on Elections and the Court revoked the designation as contrary to the Constitution. It is also alleged that the respondent is not even the senior member of the Commission on Elections, being outranked by Associate Commissioner Alfredo E. Abueg, Jr.
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The petitioner contends that the choice of the Acting Chairman of the Commission on Elections is an internal matter that should be resolved by the members themselves and that the intrusion of the President of the Philippines violates their independence. He cites the practice in this Court, where the senior Associate Justice serves as Acting Chief Justice in the absence of the Chief Justice. No designation from the President of the Philippines is necessary. In his Comment, the Solicitor General argues that no such designation is necessary in the case of the Supreme Court because the temporary succession cited is provided for in Section 12 of the Judiciary Act of 1948. A similar rule is found in Section 5 of BP 129 for the Court of Appeals. There is no such arrangement, however, in the case of the Commission on Elections. The designation made by the President of the Philippines should therefore be sustained for reasons of "administrative expediency," to prevent disruption of the functions of the COMELEC. Expediency is a dubious justification. It may also be an overstatement to suggest that the operations of the Commission on Elections would have been disturbed or stalemated if the President of the Philippines had not stepped in and designated an Acting Chairman. There did not seem to be any such problem. In any event, even assuming that difficulty, we do not agree that "only the President (could) act to fill the hiatus," as the Solicitor General maintains. Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional Commissions as "independent." Although essentially executive in nature, they are not under the control of the President of the Philippines in the discharge of their respective functions. Each of these Commissions conducts its own proceedings under the applicable

laws and its own rules and in the exercise of its own discretion. Its decisions, orders and rulings are subject only to review on Certiorari by this Court as provided by the Constitution in Article IX-A, Section 7. The choice of a temporary chairman in the absence of the regular chairman comes under that discretion. That discretion cannot be exercised for it, even with its consent, by the President of the Philippines. A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause need be established to justify its revocation. Assuming its validity, the designation of the respondent as Acting Chairman of the Commission on Elections may be withdrawn by the President of the Philippines at any time and for whatever reason she sees fit. It is doubtful if the respondent, having accepted such designation, will not be estopped from challenging its withdrawal.
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It is true, as the Solicitor General points out, that the respondent cannot be removed at will from her permanent position as Associate Commissioner. It is no less true, however, that she can be replaced as Acting Chairman, with or without cause, and thus deprived of the powers and perquisites of that temporary position. The lack of a statutory rule covering the situation at bar is no justification for the President of the Philippines to fill the void by extending the temporary designation in favor of the respondent. This is still a government of laws and not of men. The problem allegedly sought to be corrected, if it existed at all, did not call for presidential action. The situation could have been handled by the members of the Commission on Elections themselves without the participation of the President, however well-meaning. In the choice of the Acting Chairman, the members of the Commission on Elections would most likely have been guided by the seniority rule as they themselves would have appreciated it. In any event, that choice and the basis thereof were for them and not the President to make. The Court has not the slightest doubt that the President of the Philippines was moved only by the best of motives when she issued the challenged designation. But while conceding her goodwill, we cannot sustain her act because it conflicts with the Constitution. Hence, even as this Court revoked the designation in the Bautista case, so too must it annul the designation in the case at bar. The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost among which is the security of tenure of its members. That guaranty is not available to the respondent as Acting Chairman of the Commission on Elections by designation of the President of the Philippines. WHEREFORE, the designation by the President of the Philippines of respondent Haydee B. Yorac as Acting Chairman of the Commission on Elections is declared UNCONSTITUTIONAL, and the respondent is hereby ordered to desist from serving as such. This is without prejudice to the incumbent Associate Commissioners of the Commission on Elections restoring her to the same position if they so desire, or choosing another member in her place, pending the appointment of a permanent Chairman by the President of the Philippines with the consent of the Commission on Appointments.
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THE NACIONALISTA PARTY, petitioner, vs. FELIX ANGELO BAUTISTA, Solicitor General of the Philippines, respondent.

Manuel C. Briones, Claro M. Recto, Jesus Barrera, J. Antonio Araneta, Antonio Barredo and Jose W. Diokno for petitioner. Respondent Felix Angelo Bautista in his own behalf. PADILLA, J.: The prayer of the petition filed in this case reads, as follows: Wherefore, petitioner respectfully prays that after due hearing a writ of prohibition issue commanding the respondent Solicitor General to desist forever from acting as acting member of the Commission on Election under the designation rendered to him by President Quirino on November 9, 1949 unless he is legally appointed as regular member of the said Commission on Elections . . . It is averred, in support of the prayer, that on 9 November 1949, while the respondent held, as he still holds, the office of Solicitor General of the Philippines, the President designated him as acting member of the Commission on Elections, and on that same date the respondent took the oath of office and forthwith proceeded to assume and perform the duties of the office; that at the time of the respondent's designation he had not resigned from the office of Solicitor General of the Philippines nor does he intend to do so but continues to exercise all the powers and duties of the last mentioned office. It is contended that such designation invalid, illegal, and unconstitutional, because there was on 9 November 1949 no vacancy in the Commission on Elections, for the acceptance, approval, or granting of the application for retirement filed by Commissioner Francisco Enage on such date constitutes or amounts to abuse of discretion and was done in bad faith by the President and therefore null and void; and because Commissioner Enage is entitled to leave and until after the expiration of such leave he does not cease to be a member of the Commission on Elections. The contention that the granting of the retirement application of Commissioner Enage constitutes an abuse of discretion and was made in bad faith is based upon the allegation and claim that the Commissioner "had voted to suspend the elections in Negros Occidental and Lanao and the Liberal Party fears he might vote to annul said elections." It is claimed, in the alternative, that even if there was on that date a vacancy in the Commission on Elections, still the respondent's designation to act as such member

of the Commission, in addition to his duties as Solicitor General, pending the appointment of a permanent member, is invalid, illegal, and unconstitutional, because membership in the Commission is a permanent constitutional office with a fixed tenure, and therefore, no designation of a person or officer in an acting capacity could and can be made; because a member of the Commission cannot at the same time hold any other office; and because the respondents as Solicitor General belongs to the executive department and cannot assume the powers and duties of a member in the Commission. There are other averments that do not go to the root of the main question raised in this case, such as the subordinate position of the office of the office of the respondent to that of the Secretary of Justice who as a member of the Cabinet campaigned for the election of the present incumbent to the presidency of the Republic; the defense of the President made by the respondent in the impeachment proceedings in Congress an din the emergency powers cases in this Court; the alleged advice given the President by his advisers, among whom was the respondent, not to suspend the elections in Occidental Negros and Lanao; the alleged setting aside or revocation of the Commission's resolutions on the suspension of elections in Occidental Negros and Lanao by the respondent and Chairman Vera, and, for these reasons, it is claimed that impartiality of judgment in matters concerning the last elections cannot be expected of the respondent, thereby impairing the independence of the Commission on Elections. The answer of the respondent admits his designation as acting members of the Commission on Elections in a temporary capacity pending the appointment of a permanent one and retention of his office as Solicitor General, and denies the other averments, conclusions, claims and contentions set out in the petition. The respondent contends that his designation is lawful and valid, not only because the power to appoint vested in the President includes the power to designate, but also because it is expressly so provided in Commonwealth Act No. 588; and that the offices held by him, one permanent and the note temporary, are not incompatible. The claim that the office held by Commissioner Francisco Enage is not vacant is not vacant for the reasons given by the petitioner is without foundation in law and

in fact, because Francisco Enage as member of the Commission on Election applied for retirement in 1941 and reiterated his application in 1946 and 1948 and the President of the Philippines granted it on 9 November 1949, and because even if he were entitled to leave he did not apply for it. So that upon acceptance of his application for retirement without applying for leave, even if he were entitled thereto, Francisco Enage vacated his office in the Commission on Elections. Whether the granting of the application for retirement constitutes an abuse of discretion or was done in bad faith buy the President, as alleged and claimed by the petitioner, is a subject matter into which are not at liberty to inquire because of the well known principle of separation of powers. Besides, the President of the President of the Philippines is not a party to these proceedings. Nevertheless, as petitioner predicated its conclusion of "bad faith" and "abuse of discretion" upon the allegation that the Commission "had voted to suspend the elections in Negros Occidental and Lanao and the Liberal Party fears he might vote to annul said elections," it may be stated to set matters aright that there is no legal basis for this allegation, because the Commission on Elections cannot vote to suspend an election but may vote to recommend or may recommend only to the President the suspension of an election "when for any serious cause the holding of an election should become impossible in any political division or subdivision," pursuant to section 8 of Republic Act No. 180, and because the Commission on Election cannot "vote to annul said elections" for it has no power to annul the election. What at most it may do is to express its views in the report to be submitted to the President and the Congress on the manner in which such election was conducted, pursuant to section 4, Article X, of the Constitution. As there was a vacancy in the membership of the Commission on Elections, the next point to determine is whether the designation of the respondent as Acting Member of the Commissions on Elections, in addition to his duties as Solicitor General, pending the appointment of a permanent of Commissioner Francisco Enage, is unlawful and unconstitutional. Under the constitution, the Commission of Elections is an independent body or institution. (Article X of the Constitution), just as the General Auditing Office is an independent office (Article XI of the Constitution). Whatever may be the nature of the functions of the Commissions on Elections, the fact that the framers of the Constitution wanted it to be independent from the other departments of the Government. The membership of the Commission is for a fixed period of nine

years, except as to first members appointed who were to hold office for nine, six and three years. With these periods, it was intention to have one position vacant every three years, so that no President can appoint more than one Commissioner thereby preserving and safeguarding the independence and impartiality of the Commission. But despite all the precautions, the constitution failed to plug the loophole or forestall the possibility that a member or members die, resign, retire, as in the case, or be removed by impeachment or disqualified, or become physically or mentally incapable, to perform the duties and functions of the office. By death, resignation, retirement, or removal by impeachment, a vacancy in the Commission is created. In these cases the President may appoint the Commissioner for the unexpired term. When such an event should come to pass the limitation to one appointment by a President would be ineffectual. By disqualification or incapacity no vacancy is created. When this possibility should eventuate to two Commission's function would be stopped or paralyzed. Perhaps, a designation of other members during the incumbents' temporary disability would not harm the public interest and common weal. But at the case at bar is not one of disqualification or incapacity creating no vacancy but of a retirement resulting in a vacancy. The principle or rule that the power to appoint implies or includes the authority to designate, in the same way that the power carries with it the authority to remove, under the theory that the whole includes and is greater than the part, is not absolute but subject to certain limitations. Thus, justice of the Court of Appeals appointed by the President with the consent of the Commission on Appointments of the Congress may be removed by impeachment only (sec. 24, Rep. Act No. 296); the President may remove a member of the judiciary only upon recommendation of the Supreme Court, after inquiry, in the case of judges of the court of First Instance (sec. 67, Rep. Act No. 296), and upon recommendation of the judge of the Court of the First Instance or on President's own motion, after investigation, in the case of justices of the peace (sec. 97, Rep. Act No. 296); and the President or the department head may remove an officer or employee in a Civil Service, appointed by him or by the department head upon the recommendation of the bureau of head, only for causes as provided by law (sec. 4, Article XII, of the Constitution). Likewise, if it were not for the express provision of law (secs. 9 and 27, Rep. Act No. 296), the President could not a designate a justice of the Court of Appeals or a judge of the Court of the First Instance to fill temporarily a vacant office of the justice in the Supreme Court or in the Court of Appeals; and he cannot certainly designate an attorney to fill

temporarily such vacancy in the Supreme Court or in the Court of Appeals, but must appoint him ad interim, if Congress is not in session, or nominate him, if Congress is in session. The President cannot designate an attorney to fill temporarily a vacant position of a judge in a Court of First instance or of a justice of the peace. By the very nature of their functions, the members of the Commission on Elections must be independent. They must be made to feel that they are secured in the tenure of their office and entitled to fixed emolument during their incumbency (economic security) so as to make them impartial in the performance of their functions, their powers and duties. they are not allowed to do certain things, such as to engage in the practice of a profession; to intervene, directly or indirectly, in the management or control of any private enterprise; or to be financially interested in any contract with the Government or any subdivision or instrumentality thereof (sec. 3 Article X, of the Constitution). These safeguards are all conducive or tend to create or bring about a condition or state of mind that will lead the members of the Commission to perform with impartiality their great and important task and functions. That independence and impartiality may be shaken and destroyed by a designation of a person or officer to act temporarily in the Commission on Elections. And, although Commonwealth Act No. 588 provides that such temporary designation "shall in no case continue beyond the date of the adjournment of the regular session of the National Assembly (Congress) following such designation does not remove the cause for the impairment of the independence of one designated in a temporary capacity to the Commission on Elections. It would be more in keeping with the intent, purpose and aim of the framers of the Constitution to appoint a permanent Commissioner than to designated, tested by the nature and character of the functions he has to perform in both offices, but in the broad sense there is an incompatibility, because his duties and functions as Solicitor General require that all his time be devoted to their efficient performance. Nothing short of that is required and expected of him. Before proceeding to dispose of the last point involved in this controversy we notice that the petitioner alleges that it is organized and registered under the laws of the Philippines. It does not aver that it is incorporated to entitle it to bring this action. It may be organized and registered as a political party in or with the Commission on Elections for the purposes of the Revised Election Code (Republic

Act No. 180 ), but for the purpose of bringing an action in the courts of justice such organization and registration are not sufficient. It has to be incorporated under Act 1459 for "only natural or juridical persons may be parties in a civil action. "(Sec. 1, Rule 3) But this technical defect may be cured by allowing the substitution of the real parties in interest for the petitioner. The last point is whether prohibition is the proper remedy. Strictly speaking, there are no proceedings of the Commission on Elections in the exercise of its judicial or ministerial functions, which are being performed by it or without or in excess of its jurisdiction, or with grave abuse of its discretion (sec 2, Rule 67). The only basis for the petition is that the designation of the respondent as temporary member of the Commission on Elections is illegal and invalid be cause it offends against the Constitution. This special civil action as our Rule call it, or this extraordinary legal remedy following the classical or chancery nomenclature, is in effect to test the validity or legality of the respondent's designation in a temporary capacity as member of the Commission on Elections pending the appointment of a permanent member or Commissioner. It is in the nature of a quo warranto, and as such it may only be instituted by the party who claims to be entitled to the office (sec. 6, Rule 680 or by the Solicitor General (sec. 3,4, Rule 68). The authorities and decisions of courts are almost unanimous that prohibition will not lie to determine the title of a de facto judicial officer, since its only function is to prevent a usurpation of jurisdiction by a subordinate court (High's Extraordinary Legal Remedies, 3d ed., p. 715; Tayko vs. Capistrano, 53 Phil., 866, 871). In the case at bar, however, as we have found that the respondent's designation to act temporarily a member of the Commission on Elections is unlawful because it offends against the provision of the Constitution creating the Commission on Elections, the dismissal of the petition would deny and deprive the parties that are affected by such designation of a remedy and relief, because no one is entitled now to the office and a party who is not entitled to the office may not institute quo warrant proceedings, and the respondent as Solicitor General, the only other party who may institute the proceedings, would not proceed against himself. In these circumstances, it is incumbent upon and the duty of this Court to grant a remedy. There are cases involving a situation similar to the one under the consideration wherein it was ruled that the remedy of prohibition may lie. In his treatise entitled " Extraordinary Legal Remedies," High on this point says:

Thus, when the legislature have, by an unconstitutional statute, referred to a body of judges the determination of the validity of a statute concerning the liability of the state upon bonds issued in aid of railways, prohibition will lie to prevent such body from acting upon the matters thus submitted. So when an act of legislature delegates to a judge powers partly judicial and partly of a legislative character, as regards the determination of petitions for the incorporation of villages, the act being held unconstitutional because assuming to delegate legislative powers to a court or judicial body, prohibition will lie to prevent the exercise of the powers thus conferred. (High's Extraordinary Legal Remedies, 3d ed., p. 708; Emphasis supplied) Prohibition will not be granted as a substitute for quo warranto for the purpose of trying title to a judicial office by restraining an intruder or de facto officer from acting, on the ground that he is an intruder or a de facto officer. (22 R.C.L., 17) However, in Chambers vs. Jennings (1702) 2 Salk. 553, 91 Eng. Reprint 469, involving an action in the Court of Honor, "Holt, Ch. J., doubted whether there was or could be any such court, but said a prohibition would lie to a pretend court. (77 A. l. R., 247.) (Emphasis supplied.) Thus, in Ex parte Roundtree (1874) 51 Ala. 42, where the statute in question purported to create "the law and equity court of Morgan county," and , in contravention of the Constitution, which provided that the judges of inferior courts should be elected by the people, declared that the circuit judge of a designated court should act as judge of the new court, it was held that prohibition was a proper remedy, and in fact, "the only adequate remedy," to prevent the circuit judge from presiding in the court created, and taking or exercising jurisdiction of a certain cause therein pending against the petitioner, and proceeding against the petitioner, who had been summoned as a juror. The supreme Court declared that if a court against which a writ of prohibition is sought is one of established jurisdiction, a plea that the subject matter of a particular suit lies without its jurisdiction, or that the party is not amenable to its cognizance, will ordinarily afford full relief; "but when the question involves the legal existence and construction of a court, a denial of all jurisdiction and not of the particular jurisdiction proposed to be exercised, a prohibition . . . is the only adequate remedy. So, in Curtis vs. Cornish (1912) 109 Me. 384, 84 A. 799, where a statute was plainly unconstitutional in so far as it provided for the creation of a tribunal of justices to hear and consider accusations of corrupt practices in elections, made no

provision for exemptions, and denied the right of appeal, except as to questions of the eligibility of candidates to public office (so that in particular case there was no means of review except through certiorari or writ of error, neither of which would lie until after the unconstitutional tribunal should have completed its hearings and made futile findings which it had no jurisdiction to make, and both of which were otherwise so defective under the circumstances as to be remedies in form rather than in substance,) it was held proper to determine an issue as to the constitutionality of the statute in a prohibition proceeding. In state ex rel. Hovey vs. Noble (1889) 118 Ind., 350, 21 N. E., 244, 4 L.R.A., 101, 10 Am. St. Rep., 143, where a writ of prohibition was issued against certain persons to prevent their acting as supreme court commissioners by appointment made under an unconstitutional statute, the somewhat lengthy opinion contains no suggestion of doubt as to the propriety of the remedy in view of the conclusion that statute in its entirety was utterly void. The statute purported to create the offices of commissioners of the supreme court as well as to provide for the appointment of commissioners. (113 A.L. R., 799.) The foregoing authorities are invoked in view of the peculiar and extraordinary circumstances obtaining in this case already referred to, to wit: that as no one is entitled to the office there is no party who in his name may institute quo warrantoproceedings, and that the respondent the only other party who may institute the proceedings in the name of the Republic of the Philippines, would not proceed against himself. Were it not for this anomalous situation where there would be no remedy to redress a constitutional transgression, we would adhere strictly to the time-honored rule that to test the right to an office quo warranto proceedings is the proper remedy. The petitioner is granted five days within which to amend its petition so as to substitute the real parties in interest for it (the petitioner), or to show that it is a juridical person entitled to institute these proceedings. Otherwise, or of the petitioner does not amend its petition or does not show that it is a juridical entity, the petition will be dismissed. After the amendment or showing referred to shall have been made, the writ prayed for will issue, without costs. Moran, C.J. and Bengzon, J., concur. Separate Opinions REYES, J., concurring:

I concur, except as to the requirement that petitioner amend its petition. Under the rules, objection to the personality of petitioner is deemed waived if not pleaded. OZAETA, J., concurring: I concur in granting the petition for prohibition. I do not deem it necessary to pass upon the disputed propriety and legality of the acceptance by the President of Commissioner Enage's application for retirement under the circumstances alleged in the petition, specially because said commissioner is not a party in this case. Assuming the existence of a vacancy, I agree with the majority that the designation of the respondent Solicitor General as acting member of the Commission on Elections is contrary to the Constitution. My views are briefly as follows: The Commission on Elections is an independent office created by the Constitution (section 1, Article X). It is not appended to either the Executive, the Legislative, or the Judicial Department of the Government. The Constitution provides that the Chairman and the two other members shall be appointed by the President with the consent of the Commission on Appointments for a term of nine years and may not be reappointed. They may be removed from office only by impeachment as provided in the Constitution. Their salaries shall neither be increased nor be diminished during their term of office. The purpose of the Constitution in providing a fixed and secure tenure of office for the members of the Commission with a fixed salary which may neither be increased nor be diminished during their term of office, is to insure and preserve the independence of that body in the impartial performance of its important and delicate task of enforcing and administering all laws relative to the conduct of elections. That purpose would be defeated if, instead of appointing an incumbent for a fixed term removable only by impeachment, the President should fill the position by designation, which he can change at will. Such method would also destroy the schedule of rotation provided by the Constitution whereby a new member of the Commission is appointed every three years.

The President's letter of designation, dated November 9, 1949, and addressed to the respondent, reads in part as follows: In the interest of the public service and pursuant to the provisions of Commonwealth Act No. 588, you are hereby designated Acting Member of the Commission on Elections, in addition to your duties as Solicitor General, pending the appointment of a permanent member to fill the vacancy caused by the retirement of Commissioner Francisco Enage, effective at the beginning of office hours today. Commonwealth Act No. 588 is entitled "An Act authorizing the President of the Philippines to make temporary appointments in certain public offices." It was approved on August 12, 1940, i.e., before the approval of the amendment to the Constitution whereby the Commission on Elections was created. Said Act expressly and only refers to a "an officer in the Executive Department of the Government," whose position the President is authorized to fill temporarily by designating "another officer already in the service or any other competent person." Since a member of the Commission on Elections is not an officer in the Executive Department of the Government but is as independent of the executive as a judicial officer is in the performance of his duties, it is to me clear that the Act cited is not applicable. It cannot be and has never been applied to a judicial officer. Respondent's designation, being repugnant to the constitution, is null and void ab initio. It is idle to discuss and decide in this case whether or not the President may designate an acting member of the Commission on Elections when a regular member thereof is unable to perform the duties of his office owing to illness, absence, or other cause. We could decide that question only when such a case should arise. Upon the propriety of prohibition as a remedy, I concur in the opinion of Mr. Justice Padilla. However, I do not deem it necessary to require the petitioner to amend the petition as a matter of formality, especially in the absence of any question raised on that point by the adverse party. Paras and Tuason, JJ., concur. MONTEMAYOR, J., concurring and dissenting:

It is unnecessary for me to state the facts and issues involved in this case for the reason that they are well stated in the learned majority opinion penned by Mr. Justice Padilla. I concur in the majority opinion except where it denies to the Chief Executive the right to temporarily fill a permanent vacancy in the Commission on Elections, it is valid only in the present case in the sense that it may not bind Commissioner Enage who took no part in these proceedings. As a rule and unless qualified by constitutional or statutory provision the power to appoint includes the lesser power to designate. There are times and occasions a temporary designation, particularly in the Commission on Elections is necessary and imperative. There are only three Commissioner in the Commission. Should one of the three Commissioners be disqualified, or be on leave or be sick and unable to perform his duties, and should there be a deadlock in voting between the two remaining Commissioners, the President must necessarily designate another to act temporarily as Commissioner so as not to interrupt or hamper the functions of the Commission. He cannot make a permanent appointment for the reason that there is a vacancy. In case two of the Commissioners are absent on leave or sick or disqualified, designation of one or two persons temporarily act in the Commission would still be more necessary and imperative. Fortunately, the majority opinion concedes, though it seems, reluctantly and rather indirectly that in such cases the Chief Executive may make designations temporarily. With this concession, I deem it unnecessary to elaborate on this point. Now let us go to the main issue of the legality or illegality of temporarily filing a permanent vacancy with a designation as what happened in the present case. The majority holds that in a case of permanent vacancy, the legal and proper thing to do is for the President to make a permanent or ad interim appointment for the reason that to designate one to act temporarily in the Commission would impair the independence of that body, provided for and guaranteed by the Constitution. I fail to see any difference or distinction between designation to temporarily fill a vacancy and ad interim appointment to permanently fill the same vacancy in the Commission on Elections in relation to and in their effect on the independence of that entity. The majority opinion fails to show such alleged distinction or difference otherwise enlighten us on the point. Both designation and ad

interim appointment in my opinion if conferred on the right and proper person do not and will not affect the Commission's independence. I suppose the majority starts from the theory that a person designated temporarily to the Commission cannot act independently because his tenure being temporary, precarious and at the pleasure of the President, he is, so to speak, always, always under the thumb of the Chief Executive who may withdraw the designation and put him out the moment he (the one designated) acted against the interests of the President or of his party. So to keep the designation and continue acting in the Commission, the one designated sacrifices the independence of the Commission, the one designated sacrifices the independence of the Commission and his own self-respect and does the President's bidding. The flaw in this theory, however, is that it assumes or presupposes the appointing power to be so utterly lacking in mental honesty, fair dealing and plain decency, and the person designated equally devoid of character, and independence of judgment, but cursed with mistaken sense of loyalty to the one designating him. I believe that we should not indulge in or entertain such a presumption unless there be valid grounds for the same, based on the proof. But assuming for a moment all these evils to be possible, they may and do equally apply to designations to be made by the President where there is no vacancy but only disqualification, physical disability or absence of any of the Commissioners, so that from the point of view of the majority, in every case of designation to the Commission, whether to temporarily fill a vacancy or in case merely disqualification, sickness or absence of any of the Commissioners, the independence of that body is always menaced and impaired. It seems that the main, if not the whole objection on the part of the petitioner to the designation made in this particular case lies in the fact that the person designated, the Solicitor General, had previously been representing the Chief Executive in the impeachment proceedings before Congress and in the emergency powers cases brought before this Court; that by reason thereof, said Solicitor General's loyalty to the Chief Executive has so crystallized and definitely settled that in acting now in the Commission, he would consciously be guided and his decisions colored by such loyalty, especially since the present Chief Executive as a candidate in the last presidential election is interested in the acts of the Commission in regard to said elections. But as the majority opinion itself states, there is not much, if any, that the

Commission on Election can do a favor or to prejudice a presidential candidate. According to the majority, the Commission may not suspend the election in any province as two of its Commissioners had voted in a resolution approved by them. Neither may the Commission annul the elections in any province or district as the said two Commissioners had supposedly threatened to do if the elections in some provinces were not postponed. There would therefore be not much, if any, then a person designated by the Chief Executive under these circumstances could do even if want only disposed. Had the President in this case designated someone else say, a Judge of the Court of First Instance or a Justice of the Court of Appeals or any practising attorney, it is to be doubted if said designation would have been questioned. Going back to the alleged impairment of the independence of the Commission by a designation to temporarily fill a permanent vacancy, the same danger so much predicted and feared by the majority and the petitioner would equally be present in case of a permanent, though ad interim appointment. To me, it would even be worse because the hazard through which a person with an ad ]interim appointment has to go is greater. In the case of a designation as was done in the present case, supposing that the Chief Executive held the withdrawal of the designation as a sword of Damocles over the head of the Solicitor General so that the moment the latter displeased the President with his actuations in the Commission the designation will instantly be withdrawn, in such a case Solicitor General Bautista would not suffer or lose anything. Perhaps, after all, the loss of the designation to the Commission was a welcome relief to him because the designation meant additional work and even embarrassment to him as is happening in his case. He did not lose his post as Solicitor general and he would be but glad to return to it. But not so with one favored with an ad interim appointment. Such a person if an officer of the government losses and forfeits his official post the moment he accepts the ad interim appointment. if he is a practising attorney he has to dispose of his pending cases, and dissolve his connections with his law firm, if any, as well as give up all control or management of any private enterprise which may be affected by the functions of his office, including financial interest in any contract with the Government. (Art. X, section 3, Philippine Constitution.) We must bear in mind that in these examples we are assuming or presupposing an appointing power who is evil-minded, lacking in mental honesty and disposed to go to any extremes to

achieve his desires. Let us also remember that we have here the party system where the Chief Executive ordinarily is a member and is the head of the majority party in power. If the person with an ad interim appointments fails to act in the Commission in accordance with the dictates and desires of the President, his confirmation may easily be blocked in the Commission on Appointments. The Commission on Appointments in order to accommodate the Chief Executive may not only fail to confirm the appointment but may even reject it for supposed lack of qualification in training, education, and experience or even of character qualification. The appointee is naturally embarrassed if not disgraced. He loses the appointment; he had already lost his official post that he vacated when he accepted the ad interim appointment, and if he is a private practitioner, he had lost at least temporarily his clients in his law office. So, I say that if a person designated temporarily to fill a permanent vacancy and one given an ad interim appointment to fill a similar vacancy were both persons with a distorted sense of loyalty to the appointing power, and lacking in the character and dignity and a sense of duty, were similarly situated, and under the same pressure and threat from the appointing power, there might be more temptations in the case of the person with anad interim appointment to abuse his powers and discretion in the Commission to favor the Chief Executive, for the reason that the danger and alternative consequences are far greater and more serious. Considering the circumstances surrounding the designation of Solicitor General Bautista to act in the Commission in a temporary capacity the majority opinion has well said that we may not inquire into the motives prompting said designation. Taking a casual view of the case, it is possible that a happier designation, of someone else could have been made, not in the sense that Solicitor General Bautista is not qualified by the education, training and experience or by character to act in the Commission, for he appears to be fully qualified for this post, but because any other person who has had no association or connection with the President if designated would have aroused no speculation or suspicion or fear about his actuations in the Commission. But in favor of the action of the President, it is said that he believed that he was merely following a precedent set by the late President Quezon who, in 1941, designated the then Solicitor General Roman Ozaeta, to act temporarily in the Commission on Elections. Said designation is published in the Official Gazette. Justice Ozaeta, however says that he does not recall any such designation in his favor. There is no reason whatsoever to doubt

even for a moment Justice Ozaeta's word. It is highly possible that the designation through officially made may not have been communicated to him and he never acted in the Commission, perhaps because subsequently there was no longer any necessity or occasion for him to do so. Hence his lack of knowledge or inability at recollection. Be that as it may, the President was informed of this precedent and according to Solicitor General Bautista, he was designated merely, if not exclusively on the strength of such precedent. One may ask why the President could not and did not make a permanent appointment to fill the vacancy in the Commission. We are not in a position to give the right answer. Any answer that one may give would at best be confined to the realm of speculation. But it is not hard to imagine that to permanently fill a vacancy in a constitutional body like the Commission on Elections vested with important delicate functions, with remuneration to the members thereof relatively high, and naturally requiring high and special qualifications of character, training and experience, the Chief Executive may need time to select the right person. To be sure that his appointment will be confirmed, he might find it necessary or advisable to consult the members of the Commission on Appointments or the leaders thereof. The person he has in mind may not be immediately available. He may be absent from the capital or if he is present and is consulted he may need time to decide whether to accept or decline the appointment tendered or offered. Even if he has decided to accept the offer he may need time to wind up his private affairs and dispose of his pending legal cases if actively practicing the legal profession. On the other hand, the need for someone to act in the Commission to fill the vacancy even temporarily, was pressing and imperative. There were only two remaining Commissioners and one of them had disqualified himself on some matters pending hearing and action before the Commission. And the Nacionalista Party was threatening to ask for his absolute disqualification in all cases regarding the presidential elections. Furthermore, at least according to the press, there was an alleged difference of opinion about some phases of the presidential elections between these two remaining Commissioners with the possibility , if not probability, of a deadlock or tie when it came to a vote. The President may have deemed it necessary to act quickly. All these things may, or might have prompted the Chief Executive to designate Solicitor General Bautista to act temporarily in the Commission. Of course, he

could have designated someone else, not perhaps better qualified but less subject to objection and speculation. But that was the problem, the privilege and the right of the Chief Executive. I am, as it were, merely thinking out loud. But I believe and hold that the Chief Executive has the inherent right to designate one to act temporarily in an office to fill a vacancy even in the Commission on Elections. That the power may be abused is no argument against its existence. Section 9 of Republic Act No. 296 provides that in case of vacancy in the Supreme Court or in the event that any of the Justices is absent, disabled or incapacitated to perform his duties , the requisite number of Justices necessary to constitute a quorum or to render a judgment in any given case, is not present, the President of the Philippines upon recommendation of the Chief Justices of the Court of Appeals. The majority or District Judges as may be necessary to sit temporarily as Justices of the Supreme Court. Section 27 of the same Act makes a similar provision for the Court of Appeals. The majority claims that were it not for those legal provisions, the President would have no power to make designations for the two courts. I disagree. I believe that the President has the inherent power to make temporary designations in the two courts, power necessarily included in his power to appoint the justices in said courts. Sections 9 and 27 of Republic Act No. 296 merely limit such power. Without such legal provisions, the President may designate anyone legally qualified , even from outside the Judiciary, in order not to hamper or paralyze the functions of these two tribunals. But there is another aspect of these two legal provisions. Considering them, the Legislature has evidently seen no objection to or anomaly in the President filing temporarily a permanent vacancy in these two courts by a mere designation. The legislature does not see any danger to the independence of the Supreme Court or the Court of Appeals by the President making a designation to temporarily fill a vacancy occurring in said Courts, a danger so much emphasized and feared by the majority. I do not see the danger myself. In conclusion I hold that the President has the right to designate one to act temporarily to fill a vacancy where he has the right to make the permanent appointment, and that in the present case the Chief Executive has the right to designate the Solicitor General to act temporarily to fill a vacancy in the Commission on Elections especially under circumstances urgently calling for the

services of one to act in said Commission. Whether the designation was a happy one, advisable or expedient, is beside the point. As long as the President's designation is valid and constitutional, we may not pass upon its wisdom or propriety. If I have dwelt a little extensively in this opinion on the power of designation, it is because I regard the present case and its implications very important and of farreaching consequences. This Court is defining and limiting the power of appointment of the Chief Executive, not only for the present incumbent but for administrations to come, and I feel it may duty to explain my views on the point. TORRES, J., concurring in the dissenting opinion of Mr. Justice Montemayor: In addition to the views expressed in his dissenting opinion by Mr. Justice Montemayor in which I fully concur, I deem it proper, however, to say a few words about a theory expounded by counsel of petitioner during the hearing of this case before this Court. Elaborating on the meaning of the word "independent" found at the beginning of section 1 of Article X of the Constitution, as amended, it has been argued that such word means that the Commission on Elections created thereby is an independent body and, as such, its organization and functions should not be interfered with by the Executive. Section 1 of Article X of the Constitution says that "There shall be an independent Commission on Elections composed of a Chairman and two other members to be appointed by the President with the consent of the Commission on Appointments, . . . ." Does the word "independent" used in the above-quoted constitutional provision mean that the Commission on Elections is a body completely separate, not dependent, not subject to control by other governmental entities, selfgoverning? My answer is, yes, and no. The Commission on Elections is independent as regards the exercise of its functions; except as provided in section 2 of Article X of the Constitution it can not be interfered with by any other governmental instrumentality, because it was created as a special body charged with the duty of conducting the elections, and as stated this court in Sumulong vs. Commission on Elections, 40 Off. Gaz., 3663, the power to review the acts of said

Commission should, as a general proposition, be used sparingly but firmly in appropriate cases. Aside from what I have just stated, I hold that the Commission on Elections is not absolutely independent. Under the scheme of our Government as provided in the Constitution, which was framed with the United States Constitution as the model, it consists of three powers or branches known as the legislative, the executive and the judicial branch. This does not mean that each branch or power is completely independent of each other; on the contrary, they are coordinated powers or branches, each linked or connected with the other in such a way that the idea frequently expounded by some that, for instance, the judicial branch is independent from the other two branches, finds no support when we have to deal with practical cases wherein the question of separation of powers is involved. In effect, in my humble opinion, it is unthinkable to maintain that one of those three powers or branches of the Government is independent of the others, if we take into consideration, that the Executive has to depend on or deal with the legislative branch whenever it wants legislation or appropriation for funds approved by the latter branch in order to carry out is governmental program and maintain the complicated machinery of the Government. It has to submit for confirmation of the Commission nominations or appointments made by it; and it has to deal with the legislative branch in order to assure the success of his administration. On the other hand, the legislative branch, whose functions consists mainly of passing legislative measures, sees to it that the executive branch puts into effect the legislative program by carrying into execution the measures approved by it during the legislative session. Finally, in the judicial branch, the judicial officers, high and low, are appointed by the President, with the confirmation of the corresponding body of the legislative branch, and, what is more important, the funds which are necessary for the judiciary to function are recommended by the executive in the budget prepared by it and approved by the legislature. In the light of what has just been briefly described, could anyone still maintain that the three branches of the Government are so separate and independent of each other that not a single branch has anything to do with the other two?

It is for this reason that the late Mr. Justice Holmes of the Supreme Court of the United States, in its now famous dissenting opinion in the cases of Springer vs. Government of the Philippine Islands and Agoncillo vs. Government of the Philippine Islands, 72 Law. ed., U.S., 277, pp. 852-853, said: The great ordinances of the Constitution do not establish and divide fields of black and white, Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other. Property must not be taken without compensation, but with the help of a phrase (the police power) some property may be taken or destroyed for public use without paying for it, if you do not take too much. When we come to the fundamental distinctions it is still more obvious that they must be received with a certain latitude or our government could not go on. xxxxxxxxx It does not seem to need argument to show that however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into watertight compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the Constitution requires. In the light of the above, I can not, therefore, conceive a governmental instrumentality, such as the Commission on Elections established by the Constitution, completely disassociated, disconnected from the other governmental entities created by the Constitution or the law. The Government is a machinery composed of many parts, each intended to perform a certain function within the whole of the same, so as to accomplish the purpose for which it has been built. The fact that a specific place is found in the Constitution for the Commission on Elections does not necessarily mean that such body shall work and function in entire disregard of the other governmental entities. The Commission on Elections was organized when the Executive filled the positions created by section 1 of Article X of the Constitution, and is now carrying out its functions by means of yearly appropriations included in the general budget of the Government passed by the Congress and approved by the Executive. This

means that the Commission on Elections did not come into being spontaneously but through positive acts of the Executive and the Congress.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 199082 July 23, 2013

JOSE MIGUEL T. ARROYO, Petitioner, vs. DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE LIMA, in her capacity as Secretary of the Department of Justice; HON. SIXTO BRILLANTES, JR., in his capacity as Chairperson of the Commission on Elections; and the JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE and FACT-FINDING TEAM, Respondents. x-----------------------x G.R. No. 199085 BENJAMIN S. ABALOS, SR., Petitioner, vs. HON. LEILA DE LIMA, in capacity as Secretary of Justice; HON. SIXTO S. BRILLANTES, JR., in his capacity as COMELEC Chairperson; RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO V. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM AND AUGUSTO C. LAGMAN, in their capacity as COMELEC COMMISSIONERS; CLARO A. ARELLANO, GEORGE C. DEE, JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D. VILLARET, in their capacity as CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE ON THE 2004 AND 2007 ELECTION FRAUD,Respondents. x-----------------------x G.R. No. 199118 GLORIA MACAPAGAL-ARROYO, Petitioner, vs. COMMISSION ON ELECTIONS, represented by Chairperson Sixto S. Brillantes, Jr., DEPARTMENT OF JUSTICE, represented by Secretary Leila M. De Lima, JOINT DOJCOMELEC PRELIMINARY INVESTIGATION COMMITTEE, SENATOR AQUILINO M. PIMENTEL III, and DOJ-COMELEC FACT FINDING TEAM, Respondents. RESOLUTION PERALTA, J.: For resolution are the separate motions for reconsideration filed by movants Gloria Macapagal Arroyo (GMA)1 in G.R. No. 199118 and Jose Miguel T. Arroyo (Mike Arroyo )2 in G.R. No. 199082 praying that the Court take a second look at our September 18, 2012 Decision3 dismissing their petitions and supplemental petitions against respondents Commission on Elections (Comelec), the Department of Justice (DOJ), Senator Aquilino M. Pimentel III

(Senator Pimentel), Joint DOJ-Comelec Preliminary Investigation Committee (Joint Committee) and DOJ-Comelec Fact-Finding Team (Fact-Finding Team), et al. For a better perspective, we briefly state the relevant factual and procedural antecedents as found by the Court in the assailed decision, to wit: On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011 creating and constituting a Joint Committee and Fact-Finding Team (referred to as Joint Panel) on the 2004 and 2007 National Elections electoral fraud and manipulation cases. The Joint Committee was mandated to conduct the necessary preliminary investigation on the basis of the evidence gathered and the charges recommended by the Fact-Finding Team. The Fact-Finding Team, on the other hand, was created for the purpose of gathering real, documentary, and testimonial evidence which can be utilized in the preliminary investigation to be conducted by the Joint Committee. Pursuant to Section 74 of the Joint Order, on August 23, 2011, the Joint Committee promulgated its Rules of Procedure. In its Initial Report5 dated October 20, 2011, the Fact-Finding Team concluded that manipulation of the results in the May 14, 2007 senatorial elections in the provinces of North and South Cotabato, and Maguindanao was indeed perpetrated.6 The Fact-Finding Team recommended, among others, that petitioner Benjamin S. Abalos, Sr. (Abalos) be subjected to preliminary investigation for electoral sabotage for conspiring to manipulate the election results in North and South Cotabato; that GMA and Abalos be subjected to another preliminary investigation for manipulating the election results in Maguindanao;7 and, that Mike Arroyo be subjected to further investigation.8 The case was docketed as DOJ-Comelec Case No. 001-2011. Meanwhile, on October 17, 2011, Senator Pimentel filed a ComplaintAffidavit9 for Electoral Sabotage against petitioners and twelve others, and several John Does and Jane Does. The case was docketed as DOJ-Comelec Case No. 002-2011. On October 24, 2011, the Joint Committee issued two subpoenas against petitioners in DOJComelec Case Nos. 001-2011 and 002-2011.10 On November 3, 2011, petitioners, through counsel, appeared before the Joint Committee11 and respondents therein were ordered to submit their Counter-Affidavits by November 14, 2011.12 Thereafter, petitioners filed before the Court separate Petitions for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction assailing the creation of the Joint Panel.13 The petitions were eventually consolidated. On November 14, 2011, Mike Arroyo filed a Motion to Defer Proceedings14 before the Joint Committee, in view of the pendency of his petition before the Court. On the same day, GMA filed before the Joint Committee an Omnibus Motion Ad Cautelam15 to require Senator Pimentel to furnish her with documents referred to in his complaint-affidavit and for the production of election documents as basis for the charge of electoral sabotage. GMA prayed that she be allowed to file her counter-affidavit within ten (10) days from receipt of the requested documents.16Petitioner Abalos, for his part, filed a Motion to Suspend Proceedings (Ex Abundante Ad Cautelam),17 in view of the pendency of his petition brought before the Court. In an Order18 dated November 15, 2011, the Joint Committee denied the aforesaid motions of petitioners. GMA, subsequently, filed a motion for reconsideration.19 On November 16, 2011, the Joint Committee promulgated a Joint Resolution which was later indorsed to the Comelec.20 On November 18, 2011, the Comelec en banc issued a Resolution21 approving and adopting the Joint Resolution subject to modifications. The Comelec resolved, among others, that an information for electoral sabotage be filed against GMA and Abalos, while the charges against Mike Arroyo be dismissed for insufficiency of evidence.

On even date, pursuant to the above Resolution, the Comelecs Law Department filed with the Regional Trial Court (RTC), Pasay City, an Information against petitioner GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang H. Bedol, for violation of Section 42(b)(3) of Republic Act (RA) No. 9369, amending Section 27 (b) of RA 6646, docketed as Criminal Case No. RPSY-1104432-CR.22 The case was raffled to Branch 112 and the corresponding Warrant of Arrest was issued which was served on GMA on the same day.23 On November 18, 2011, GMA filed with the RTC an Urgent Omnibus Motion Ad Cautelam24 with leave to allow the Joint Committee to resolve the motion for reconsideration filed by GMA, to defer issuance of a warrant of arrest and a hold departure order, and to proceed to judicial determination of probable cause. She, likewise, filed with the Comelec a Motion to Vacate Ad Cautelam25 praying that its Resolution be vacated for being null and void. The RTC, nonetheless, issued a Warrant for her arrest which was duly served. GMA was later arraigned and she entered a plea of "not guilty." She was, for some time, on hospital arrest but was able to obtain temporary liberty when her motion for bail was granted. At present, she is again on hospital arrest by virtue of a warrant issued in another criminal case. On September 18, 2012, the Court rendered the assailed Decision, the dispositive portion of which reads: WHEREFORE, premises considered, the petitions and supplemental petitions are DISMISSED. Comelec Resolution No. 9266 dated August 2, 2011, Joint Order No. 001-2011 dated August 15, 2011, and the Fact- Finding Teams Initial Report dated October 20, 2011, are declared VALID. However, the Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and 2007 National Elections is declared INEFFECTIVE for lack of publication. In view of the constitutionality of the Joint Panel and the proceedings having been conducted in accordance with Rule 112 of the Rules on Criminal Procedure and Rule 34 of the Comelec Rules of Procedure, the conduct of the preliminary investigation is hereby declared VALID. Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where the criminal cases for electoral sabotage against petitioners GMA and Abalos are pending, proceed with dispatch. SO ORDERED.26 Hence, these motions for reconsideration. Issues Mike Arroyo reiterates his arguments on the independence of the Comelec as basis in nullifying the subject joint DOJ-Comelec resolutions. Echoing Justice Arturo Brion in his Dissenting and Concurring Opinion,27 Mike Arroyo insists that the creation of the Joint Panel undermines the decisional independence of the Comelec.28 Mike Arroyo also maintains that the DOJ should conduct preliminary investigation only when deputized by the Comelec but not exercise concurrent jurisdiction.29 Finally, as has been repeatedly pointed out in his earlier pleadings before the Court, Mike Arroyo claims that the proceedings involving the electoral sabotage case were rushed because of pressures from the executive branch of the government.30 For her part, GMA claims that in availing of the procedural remedies available, she merely exercised her earnest efforts to defend herself and should not have been deemed by the Court as acts which purportedly tend to demonstrate that she either waived or forfeited her right to submit her counter-affidavit and countervailing evidence.31 Citing several cases decided by the

Court, she likewise faults the Court in not upholding her right to ask for additional time within which to submit her counter-affidavit and countervailing evidence.32 GMA highlights that the subject Comelec Resolution creating the Joint Panel is different from the previous Comelec resolutions requesting the DOJ Secretary to assign prosecutors to assist the Comelec, as the latter emphasize the role of the DOJ as deputized agency in the conduct of preliminary investigation. She maintains that it is the Comelec and not the Joint Committee that has the primary, if not exclusive, authority to conduct preliminary investigation of election cases.33 In their Consolidated Comment,34 respondents defend the creation of the Joint Committee and argue that it does not undermine the independence of the Comelec as a constitutional body because it is still the Comelec that ultimately determines probable cause.35 As to the conduct of the preliminary investigation, respondents maintain that no rights were violated as GMA was afforded the opportunity to defend herself, submit her counter-affidavit and other countervailing evidence.36 They, thus, consider GMAs claim of availing of the remedial measures as "delaying tactics" employed to thwart the investigation of charges against her by the Joint Committee.37 The Courts Ruling Clearly from the above discussion, movants raise issues that have been thoroughly explained by the Court in the assailed decision. The issues were all addressed and the explanation was exhaustive, thus, we find no reason to disturb the Courts conclusions. At any rate, if only to address the motions of the movants herein and to put an end to the questions attached to the creation of the Joint Panel and, consequently, to the performance of their assigned tasks, we hereby reiterate our findings and conclusions made in the assailed decision. This is not the first time that the Court is confronted with the issue of whether the Comelec has the exclusive power to investigate and prosecute cases of violations of election laws. In Barangay Association for National Advancement and Transparency (BANAT) Party-List v. Commission on Elections,38 the constitutionality of Section 4339 of RA 936940 had already been raised by petitioners therein and addressed by the Court. While recognizing the Comelecs exclusive power to investigate and prosecute cases under Batas Pambansa Bilang 881 or the Omnibus Election Code, the Court pointed out that the framers of the 1987 Constitution did not have such intention. This exclusivity is thus a legislative enactment that can very well be amended by Section 43 of RA 9369. Therefore, under the present law, the Comelec and other prosecuting arms of the government, such as the DOJ, now exercise concurrent jurisdiction in the investigation and prosecution of election offenses. Indeed, as aptly pointed out by GMA, there is a discrepancy between Comelec Resolution No. 346741 dated January 12, 2001 and Joint Order No. 001-2011, dated August 15, 2011, creating and constituting a Joint Committee and Fact-Finding Team on the 2004 and 2007 National Elections electoral fraud and manipulation cases. However, GMA seemed to miss the date when these two resolutions were promulgated by the Comelec. It is noteworthy that Comelec Resolution No. 3467 was issued when Section 265 of the Omnibus Election Code was still effective, while Joint Order No. 001-2011 as well as Comelec Resolution Nos. 873342 and 905743 mentioned in the assailed decision but missed out by GMA in her motion, were issued during the effectivity of Section 43 of RA 9369, giving the Comelec and other prosecuting arms of the government the concurrent jurisdiction to investigate and prosecute election offenses. This amendment paved the way for the discrepancy. In Comelec Resolution No. 3467, the Comelec maintained the continuing deputation of prosecutors and the Comelec Law Department was tasked to supervise the investigatory and prosecutory functions of the task force pursuant to the mandate of the Omnibus Election Code. However, with the amendment, the Comelec likewise changed the tenor of the later resolutions to reflect the new mandate of the Comelec and other prosecuting arms of the government now exercising concurrent jurisdiction. Thus, the Comelec Law Department and the Office of the Chief State Prosecutor of the DOJ were tasked to jointly

supervise the investigatory and prosecutory functions of the Comelec-DOJ Task Force. Considering, therefore, that the later resolutions, including Joint Order No. 001-2011, were issued pursuant to Section 43 of RA 9369 amending Section 265 of BP 881 which was declared "constitutional" in Banat, there is no reason for us to declare otherwise. To maintain the previous role of other prosecuting arms of the government as mere deputies despite the amendment would mean challenging Section 43 of RA 9369 anew which has already been settled in Banat. To be sure, the creation of a Joint Committee is not repugnant to the concept of "concurrent jurisdiction" authorized by the amendatory law. As we explained in our September 18, 2012 Decision: x x x The doctrine of concurrent jurisdiction means equal jurisdiction to deal with the same subject matter. Contrary to the contention of the petitioners, there is no prohibition on simultaneous exercise of power between two coordinate bodies. What is prohibited is the situation where one files a complaint against a respondent initially with one office (such as the Comelec) for preliminary investigation which was immediately acted upon by said office and the re-filing of substantially the same complaint with another office (such as the DOJ). The subsequent assumption of jurisdiction by the second office over the cases filed will not be allowed. Indeed, it is a settled rule that the body or agency that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others. xxxx None of these problems would likely arise in the present case. The Comelec and the DOJ themselves agreed that they would exercise their concurrent jurisdiction jointly. Although the preliminary investigation was conducted on the basis of two complaints the initial report of the Fact-Finding Team and the complaint of Senator Pimentel both complaints were filed with the Joint Committee. Consequently, the complaints were filed with and the preliminary investigation was conducted by only one investigative body. Thus, we find no reason to disallow the exercise of concurrent jurisdiction jointly by those given such authority. This is especially true in this case given the magnitude of the crimes allegedly committed by petitioners. The joint preliminary investigation also serves to maximize the resources and manpower of both the Comelec and the DOJ for the prompt disposition of the cases.44 Notwithstanding the grant of concurrent jurisdiction, the Comelec and the DOJ nevertheless included a provision in the assailed Joint Order whereby the resolutions of the Joint Committee finding probable cause for election offenses shall still be approved by the Comelec in accordance with the Comelec Rules of Procedure.45 With more reason, therefore, that we cannot consider the creation of the Joint Committee as an abdication of the Comelecs independence enshrined in the 1987 Constitution. Finally, we focus on the validity of the preliminary investigation conducted by the Joint Committee. The procedure in conducting the preliminary investigation is governed by Rule 112 of the Revised Rules on Criminal Procedure and Rule 34 of the Comelec Rules of Procedure. Under both Rules,46 the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense, within ten (10) days from receipt of the subpoena, with the complaint and supporting affidavits and documents.47Also in both Rules, respondent is given the right to examine evidence, but such right of examination is limited only to the documents or evidence submitted by complainants which she may not have been furnished and to copy them at her expense.48 As to the alleged denial of GMAs right to examine documents, we maintain that no right was violated in view of the limitation of such right as set forth above. We reiterate our explanation in the assailed decision, to wit:

While it is true that Senator Pimentel referred to certain election documents which served as bases in the allegations of significant findings specific to the protested municipalities involved, there were no annexes or attachments to the complaint filed. As stated in the Joint Committees Order dated November 15, 2011 denying GMAs Omnibus Motion Ad Cautelam, Senator Pimentel was ordered to furnish petitioners with all the supporting evidence. However, Senator Pimentel manifested that he was adopting all the affidavits attached to the Fact-Finding Teams Initial Report. Therefore, when GMA was furnished with the documents attached to the Initial Report, she was already granted the right to examine as guaranteed by the Comelec Rules of Procedure and the Rules on Criminal Procedure. Those were the only documents submitted by the complainants to the Committee. If there are other documents that were referred to in Senator Pimentels complaint but were not submitted to the Joint Committee, the latter considered those documents unnecessary at that point (without foreclosing the relevance of other evidence that may later be presented during the trial) as the evidence submitted before it were considered adequate to find probable cause against her. x x x49
1wphi 1

Neither was GMAs right violated when her motion for extension of time within which to submit her counter-affidavit and countervailing evidence was consequently denied. The Rules use the term "shall" in requiring the respondent to submit counter-affidavit and other countervailing evidence within ten (10) days from receipt of the subpoena. It is settled that the use of the word "shall" which is a word of command, underscores the mandatory character of the rule.50 As in any other rule, though, liberality in the application may be allowed provided that the party is able to present a compelling justification for the non-observance of the mandatory rules. In the 2008 Revised Manual for Prosecutors, investigating prosecutors allow or grant motions or requests for extension of time to submit counter-affidavits when the interest of justice demands that respondent be given reasonable time or sufficient opportunity to engage the services of counsel; examine voluminous records submitted in support of the complaint or undertake research on novel, complicated or technical questions or issues of law and facts of the case.51 In this case, GMA claimed that she could not submit her counteraffidavit within the prescribed period because she needed to examine documents mentioned in Senator Pimentels complaintaffidavit. It appeared, however, that said documents were not submitted to the Joint Committee and the only supporting documents available were those attached to the Initial Report of the Fact-Finding Team. Admittedly, GMA was furnished those documents. Thus, at the time she asked for the extension of time within which to file her counter-affidavit, she very well knew that the documents she was asking were not in the record of the case. Obviously, she was not furnished those documents because they were not submitted to the Joint Committee. Logically, she has no right to examine said documents. We cannot, therefore, fault the Joint Committee in consequently denying her motion for extension to file counter-affidavit as there was no compelling justification for the non-observance of the period she was earlier required to follow. And as we held in the assailed decision: There might have been overzealousness on the part of the Joint Committee in terminating the investigation, endorsing the Joint Resolution to the Comelec for approval, and in filing the information in court. However, speed in the conduct of proceedings by a judicial or quasijudicial officer cannot per se be instantly attributed to an injudicious performance of functions. The orderly administration of justice remains the paramount consideration with particular regard to the peculiar circumstances of each case. To be sure, petitioners were given the opportunity to present countervailing evidence. Instead of complying with the Joint Committees directive, several motions were filed but were denied by the Joint Committee. Consequently, petitioners right to submit counteraffidavit and countervailing evidence was forfeited. Taking into account the constitutional right to speedy disposition of cases and following the procedures set forth in the Rules on Criminal Procedure and the Comelec Rules of Procedure, the Joint Committee finally reached its conclusion and referred the case to the Comelec. The latter, in turn, performed its task and filed the information in court. Indeed, petitioners were given the opportunity to be heard. They even

actively participated in the proceedings and in fact filed several motions before the Joint Committee. Consistent with the constitutional mandate of speedy disposition of cases, unnecessary delays should be avoided.52 Finally, in our assailed decision, we already took judicial notice that not only did GMA enter a plea of "not guilty," she also filed a Motion for Bail and after due hearing, it was granted. Apparently, she benefited from the RTC Order giving her temporary liberty. In filing the motion before the RTC and actively participating therein, she has chosen to seek judicial remedy before the RTC where the electoral sabotage case is pending instead of the executive remedy of going back to the Joint Committee for the submission of her counter-affidavit and countervailing evidence. Besides, as thoroughly discussed in the assailed decision, the irregularity or even the absence of preliminary investigation does not impair the validity of the information filed against her. WHEREFORE, premises considered, the Motions for Reconsideration are DENIED for lack of merit. SO ORDERED. DIOSDADO M. PERALTA Associate Justice WE CONCUR: MARIA LOURDES P. A. SERENO Chief Justice Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-13827 September 28, 1962

BENJAMIN MASANGCAY, petitioner, vs. THE COMMISSION ON ELECTIONS, respondent. Godofredo A. Ramos and Ruby Salazar-Alberto for petitioner. Office of the Solicitor General and Dominador D. Dayot for respondent.

BAUTISTA ANGELO, J.: Benjamin Masangcay, with several others, was on October 14, 1957 charged before the Commission on Election with contempt for having opened three boxes bearing serial numbers l8071, l-8072 and l-8073 containing official and sample ballots for the municipalities of the province of Aklan, in violation of the instructions of said Commission embodied in its resolution promulgated September 2, 1957, and its unnumbered resolution date March 5, 1957, inasmuch as he opened said boxes not the presence of the division superintendent of schools of Aklan, the provincial auditor, and the authorized representatives of the Nacionalista Party, the Liberal Party and the Citizens' Party, as required in the aforesaid resolutions, which are punishable under

Section 5 of the Revised Election Code and Rule 64 of the Rules of Court. Masangcay was then the provincial treasurer of Aklan designated by the Commission in its resolution in Case CE-No. 270, part II 2 (b) thereof, to take charge of the receipt and custody of the official ballots, election forms and supplies, as well as of their distribution, among the different municipalities of the province. In compliance with the summons issued to Masangcay and his co-respondents to appear and show cause why they should not be punished for contempt on the basis of the aforementioned charge, they all appeared before the Commission on October 21, 1957 and entered a plea of not guilty. Thereupon, evidence was presented by both the prosecution and the defense, and on December 16, 1957 the Commission rendered its decision finding Masangcay and his corespondent Molo guilty as charged and sentencing each of them to suffer three months imprisonment and pay a fine of P500, with subsidiary imprisonment of two months in case of insolvency, to be served in the provincial jail of Aklan. The other respondents were exonerated for lack of evidence. Masangcay brought the present petition for review raising as main issue the constitutionality of Section 5 of the Revised Election Code which grants the Commission on Elections as well as its members the power to punish acts of contempt against said body under the same procedure and with the same penalties provided for in Rule 64 of the Rules of Court in that the portion of said section which grants to the Commission and members the power to punish for contempt is unconstitutional for it infringes the principle underlying the separation of powers that exists among the three departments of our constitutional form of government. In other words, it is contended that, even if petitioner can be held guilty of the act of contempt charged, the decision is null and void for lack of valid power on the part of the Commission to impose such disciplinary penalty under the principle of separation of powers. There is merit in the contention that the Commission on Elections lacks power to impose the disciplinary penalty meted out to petitioner in the decision subject of review. We had occasion to stress in the case of Guevara v. The Commission on Elections 1 that under the law and the constitution, the Commission on Elections has only the duty to enforce and administer all laws to the conduct of elections, but also the power to try, hear and decide any controversy that may be submitted to it in connection with the elections. In this sense, said, the Commission, although it cannot be classified a court of justice within the meaning of the Constitution (Section 30, Article VIII), for it is merely an administrative body, may however exercise quasi-judicial functions insofar as controversies that by express provision law come under its jurisdiction. The difficulty lies in drawing the demarcation line between the duty which inherently is administrative in character and a function which calls for the exercise of the quasi-judicial function of the Commission. In the same case, we also expressed the view that when the Commission exercises a ministerial function it cannot exercise the power to punish contempt because such power is inherently judicial in nature, as can be clearly gleaned from the following doctrine we laid down therein: . . . In proceeding on this matter, it only discharged a ministerial duty; it did not exercise any judicial function. Such being the case, it could not exercise the power to punish for contempt as postulated in the law, for such power is inherently judicial in nature. As this Court has aptly said: 'The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders and mandates courts, and, consequently, in the administration of justice (Slade Perkins v. Director of Prisons, 58 Phil., 271; U.S. v. Lee Hoc, 36 Phil., 867; In Re Sotto, 46 O.G., 2570; In Re Kelly, Phil., 944). The exercise of this power has always been regarded as a necessary incident and attribute of courts (Slade Perkins v. Director of Prisons, Ibid.). Its exercise by administrative bodies has been invariably limited to making effective the power to elicit testimony (People v. Swena, 296 P., 271). And the exercise of that power by an administrative body in furtherance of its administrative function has been held invalid (Langenberg v. Lecker, 31 N.E., 190; In Re Sims, 37 P., 135; Roberts v. Hacney, 58 SW., 810).
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In the instant case, the resolutions which the Commission tried to enforce and for whose violation the charge for contempt was filed against petitioner Masangcay merely call for the exercise of an administrative or ministerial function for they merely concern the procedure to be followed in the distribution of ballots and other election paraphernalia among the different municipalities. In fact, Masangcay, who as provincial treasurer of Aklan was the one designated to take charge of the receipt, custody and distribution of election supplies in that province, was charged with having opened three boxes containing official ballots for distribution among several municipalities in violation of the instructions of the Commission which enjoin that the same cannot be opened except in the presence of the division superintendent of schools, the provincial auditor, and the authorized representatives of the Nacionalista Party, the Liberal Party, and the Citizens' Party, for he ordered their opening and distribution not in accordance with the manner and procedure laid down in said resolutions. And because of such violation he was dealt as for contempt of the Commission and was sentenced accordingly. In this sense, the Commission has exceeded its jurisdiction in punishing him for contempt, and so its decision is null and void. Having reached the foregoing conclusion, we deem it unnecessary to pass on the question of constitutionality raised by petitioner with regard to the portion of Section 5 of the Revised Election Code which confers upon the Commission on Elections the power to punish for contempt for acts provided for in Rule 64 of our rules of court. WHEREFORE, the decision appealed from insofar as petitioner Benjamin Masangcay is concerned, as well as the resolution denying petitioner's motion for reconsideration, insofar as it concerns him, are hereby reversed, without pronouncement as to costs. Bengzon, C. J., Padilla, Labrador, Concepcion, Barrera, Paredez, Dizon, Regala and Makalintal, JJ., concur. Reyes, J. B. L., J., took no part. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 155717 October 23, 2003

ALBERTO JARAMILLA, petitioner, vs. COMMISSION ON ELECTIONS, ANTONIO SUYAT, MUNICIPAL BOARD OF CANVASSERS OF STA. CRUZ, ILOCOS SUR, THE NEW MUNICIPAL BOARD OF CANVASSERS (COMELEC), AND IRENEO CORTEZ,respondents. DECISION AZCUNA, J.: For review before the Court is the instant petition for certiorari1 with prayer for temporary restraining order and preliminary injunction ascribing grave abuse of discretion to public respondent Commission on Elections (COMELEC) in issuing its en banc resolution dated October 24, 2002. The antecedent facts, as summarized in the COMELEC resolution,2 are as follows:

[Respondent] Antonio Suyat and [petitioner] Alberto J. Jaramilla both ran for the position of Member of the Sangguniang Bayan in the Municipality of Sta. Cruz, Ilocos Sur in the May 14, 2001 elections. On May 16, 2001, the Municipal Board of Canvassers of Sta. Cruz, proclaimed the winning candidates for the offices of Mayor, Vice-Mayor and eight (8) members of the Sangguniang Bayan. The Certificate of Canvass of Votes and Proclamation shows the following results and ranking with respect to the members of the Sangguniang Bayan, to wit: Name of Candidates Total Votes Obtained

1. RAGUCOS, Ma. Luisa Laxamana 6,324 2. ABAYA, Juan Jr., Andaquig 3. GINES, Fidel Cudiamat 4. QUILOP, Renato Avila 5. BILIGAN, Osias Depdepen 6. RUIZ, Agustin Turgano 7. JARAMILLA, Alberto Jimeno 8. CORTEZ, Ireneo Habon 6,013 5,789 5,227 5,130 4,972 4,815 4,807

In the tabulated results issued by the Election Officer and Chairperson of the Municipal Board of Canvassers of Sta. Cruz, it is shown that [respondent Suyat] obtained Four thousand seven hundred seventy nine (4,779) votes and was ranked no. 9. Upon review by [respondent Suyat], he discovered that [petitioner] was credited with only twenty three (23) votes per Election Return from Precinct No. 34A1. However, when the figures were forwarded to the Statement of Votes by Precinct, [petitioner] was credited with seventy three (73) votes for Precinct No. 34A1 or fifty (50) votes more than what he actually obtained. If the entry were to be corrected, the affected candidates would be ranked as follows: 7. CORTEZ, Ireneo Habon 4,807 8. SUYAT, Antonio 9. JARAMILLA, Alberto 4,779 4,765

On June 13, 2001, respondent Suyat filed before the COMELEC en banc an Urgent Motion for Issuance of Order to Reconvene,3 which the latter treated as a Petition for Correction of Manifest Error. Petitioner countered in his Answer4 that said petition should be dismissed for having been filed out of time and for lack of the required certification of non-forum shopping. On October 24, 2002, COMELEC en banc issued the assailed resolution, the dispositive portion of which reads:5 WHEREFORE, premises considered, the Motion/Petition is hereby GRANTED. The proclamation of Respondent ALBERTO J. JARAMILLA [herein petitioner] is ANNULLED. A New Municipal Board of Canvassers is hereby created composed of the following: Atty. NELIA AUREUS Chairman Atty. MICHAEL D. DIONEDA Vice Chairman

Atty. ALLEN FRANCIS F. ABAYA Member The New Board is hereby directed to immediately convene at the Comelec Session Hall, Intramuros, Manila, after due notice to parties and effect a correction in the entry in the Statement of Votes by Precinct particularly the votes for Respondent Alberto Jaramilla [herein petitioner], who should be credited with twenty three (23) votes only. Thereafter, the New Board shall prepare a corrected Certificate of Canvass and Proclamation on the basis of the New Statement of Votes and proclaim the Petitioner [herein private respondent Suyat] as the eighth (8th) Board Member of Sta. Cruz, Ilocos Sur. Mr. Ireneo Habon Cortez shall be declared the 7th Municipal Board Member. The New Board shall use the Comelec copies of the election returns and Statement of Votes pertaining to the instant case. SO ORDERED. Hence the present recourse by petitioner anchored on the following grounds: I. THAT THE COMMISSION ON ELECTION ERRED IN NOT DISMISSING THE CASE CONSIDERING THAT THE PETITION FILED BEFORE THE COMELEC WAS FILED BEYOND THE PRESCRIPTIVE PERIOD AS SET FORTH IN THE COMELEC RULES OF PROCEDURE. II. THAT THE COMMISSION ON ELECTION ERRED IN GIVING DUE COURSE TO THE PETITION INSTEAD OF DISMISSING IT CONSIDERING THAT THE PETITION LACKED A CERTIFICATION AGAINST FORUM-SHOPPING. III. THAT THE COMMISSION ON ELECTION ERRED IN NOT DISMISSING THE CASE FOR FAILURE TO PAY THE DOCKET OR FILING FEE ON TIME.6 Before discussing the merits, although not raised in the petition, the Court deems it appropriate to discuss the jurisdiction of the COMELEC en banc in election cases. Article IX-C of the Constitution states in part that: 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 preproclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.7 As stated in the provision, and in line with the Courts recent pronouncement in Milla v. Balmores-Laxa,8 election cases including pre-proclamation controversies should first be heard and decided by a division of the COMELEC, and then by the commission en banc if a motion for reconsideration of the division is filed.
1a\^/phi 1.net

It must be noted however that this provision applies only in cases where the COMELEC exercises its adjudicatory or quasi-judicial powers, and not when it merely exercises purely administrative functions. This doctrine was laid out in Castromayor v. COMELEC,9 and reiterated in subsequent cases.10 Accordingly, when the case demands only the exercise by the COMELEC of its administrative functions, such as the correction of a manifest mistake in the addition of votes or an erroneous tabulation in the statement of votes, the COMELEC en banc can directly act on it in the exercise of its constitutional function to decide questions affecting elections.11 The Petition for Correction of Manifest Errors in the case at bar alleges an erroneous copying of figures from the election return to the Statement of Votes by Precinct. Such an error in the tabulation of the results, which merely requires a clerical correction without the necessity of opening ballot boxes or examining ballots, demands only the exercise of the administrative power of the COMELEC. Hence, the Commission en banc properly assumed original jurisdiction over the aforesaid petition.

Now we proceed to the merits of the case. Petitioner bewails the fact that the COMELEC took cognizance of respondent Suyats petition for correction despite its having been filed beyond the 5-day reglementary period fixed in the COMELEC Rules of Procedure and its lack of certification against forum-shopping.12 Petitioner overlooks the fact that the COMELEC has the discretion to suspend its rules or any portion thereof in the interest of justice. Section 4, Rule 1 of the COMELEC Rules expressly provides that: SEC. 4. Suspension of the Rules In the interest of justice and in order to obtain speedy disposition of all matters pending before the commission, these rules or any portion thereof may be suspended by the Commission. The COMELEC therefore has authority to suspend the reglementary periods provided by the rules, or the requirement of certification of non-forum shopping for that matter, in the interest of justice and speedy resolution of the cases before it.13 Petitioner next points out respondent Suyats omission to pay the prescribed filing fees.
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As correctly pointed out by the Office of the Solicitor General, the COMELEC is not constrained to dismiss a case before it by reason of non-payment of filing fees.14 Section 18, Rule 40 the COMELEC Rules of Procedure states: SEC 18. Nonpayment of Prescribed Fees If the fees above prescribed are not paid, the Commission may refuse to take action thereon until they are paid and may dismiss the action or the proceeding.15 The use of the word "may" in the aforecited provision readily shows that the COMELEC is conferred the discretion whether to entertain the petition or not in case of non-payment of legal fees.16 And even if it were not afforded such discretion, as discussed above, it is authorized to suspend its rules or any portion thereof in the interest of justice.17 It is noteworthy that petitioner only raised issues on the foregoing technicalities, without questioning the COMELECs finding of manifest error in the tabulation of votes. Even at the COMELEC stage, his denial in his Answer18 was unsubstantiated by any rebuttal evidence to disprove the submitted photocopies of the election returns and statement of votes, which clearly showed the erroneous addition of 50 votes in his favor. The COMELECs unquestioned findings of fact are therefore sustained. The Court reiterates that factual findings of the COMELEC based on its own assessments and duly supported by evidence, are given conclusive weight in the absence of arbitrariness or grave abuse of discretion.19 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.20 Adherence to technicality that would put a stamp on a palpably void proclamation, with the inevitable result of frustrating the peoples will, can never be countenanced.21 WHEREFORE, finding no grave abuse of discretion committed by public respondent COMELEC, its Resolution en banc dated October 24, 2002 is AFFIRMED. The petition is DISMISSED. No pronouncement as to costs. SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Tinga, JJ., concur. Ynares-Santiago, J., on official leave.

EN BANC

[G.R. No. 149147. June 18, 2003]

FELIX BAROT, petitioner, vs. COMMISSION ON ELECTIONS CITY BOARD OF CANVASSERS OF TANJAY CITY and ROLANDO TABALOC,respondents. DECISION
CARPIO-MORALES, J.:

Before this Court is a petition for certiorari and prohibition with prayer for temporary restraining order under Rule 64 of the 1997 Rules of Civil Procedure seeking to set aside the August 3, 2001 En Banc Resolution of the Commission on Elections (COMELEC) in SPC No. 01-195. Felix Barot (petitioner) and Rolando Tabaloc (private respondent) were candidates for councilor of Tanjay City, Negros Oriental in the May 14, 2001 elections.
[1]

On May 17, 2001, the Board of Canvassers (BOC) of Tanjay City proclaimed the winning candidates for mayor, vice-mayor, and ten councilors including petitioner who was proclaimed the 10th.
[2]

On May 29, 2001, BOC Chair Erlinda H. Nochefranca sent a Memorandum to the COMELEC En Banc requesting for authority to correct the erroneous entries in the Certificate of Canvass of Votes and Proclamation of the Winning Candidates, and to proclaim private respondent in place of petitioner. In said Memorandum, Nochefranca alleged that the erroneous entries were made due to oversight as a result of which votes for some candidates for mayor down to the city councilors were increased and petitioner was inadvertently proclaimed as the 10th winning member of the Sangguniang Panlungsod when it should have been private respondent who actually received more votes than petitioner.
[3] [4]

Attached to the Memorandum was a Sworn Statement executed by Assistant City Treasurer Virginia C. Reyes who was the tabulator of the BOC wherein she alleged that in the course of transferring the entries from the Statement of Votes to the Summary of Votes, she erred by copying the
[5]

grand totals instead of the subtotals per page, thus overstating several entries appearing in the Summary of Votes. The COMELEC, which docketed the Memorandum of Nochefranca as SPC No. 01-195 (the petition), set it for hearing on June 13, 25 and 27, 2001 during which the members of the BOC presented evidence. No appearance was made by or for petitioner. The COMELEC thereafter required the candidates to file their respective comments to the petition.
[6]

Petitioner subsequently filed an opposition to the petition on the following grounds:

[7]

1.

This Honorable Commission has no jurisdiction to rule on this Petition because it was filed outside the mandatory periods for filing petitions of this nature and that there is no proof that proper filing and docketing fees have been paid. The petitioner is not a proper party in filing this petition. The filing of this petition does not speak well of what the COMELEC stands for which is an impartial body and does not side any candidate or party. The correction of manifest errors is proper only before proclamation of a winning candidate[;] after proclamation[,] the proper action is an election protest.
[8] [9]

2.

3.

By the assailed Resolution of August 3, 2001, the COMELEC En Banc granted the petition and disposed as follows: WHEREFORE, the premises considered, this Commission RESOLVED, as it hereby RESOLVES, to GRANT the instant petition requesting for authority to correct erroneous entries in the certificate of canvass of votes and proclamation of winning candidates for city offices in the City of Tanjay, Negros Oriental. The proclamation of herein respondent FELIX BAROT as the tenth (10th) winning candidate for the position of Member of Sangguniang Panlungsod of Tanjay City is hereby ordered SUSPENDED and/or if one has already been made, the same is hereby ordered ANNULED. ACCORDINGLY, the City Board of Canvassers of Tanjay City is hereby directed to RECONVENE and effect the necessary corrections in the Certificates of Canvass and Proclamation of Winning Candidates in the City of Tanjay and on the basis thereof PROCLAIM the winning candidates according to their ranks. (Underscoring supplied) Hence, the present petition upon the following grounds:

1.

The respondent COMELEC denied the petitioner his day in Court when it railroaded the hearing of the case in the Commission a quo. While it gave the petitioner the opportunity to be heard, the observance of due process was but a farce and diluted exercise. This COMELEC had no jurisdiction to rule on the Petition filed by the City Board of Canvassers of Tanjay City because it was filed outside the mandatory periods for filing petitions of this nature and that there is no proof that proper filing and docketing fees have been paid. The respondent City Board of Canvassers of Tanjay City is not a proper party in filing the original petition before the COMELEC. The filing of the petition [SPC-01-195] does not speak well of what the COMELEC stands for, which is an impartial body and does not side with any candidate or party. The correction of manifest errors is proper only before proclamation of a winning candidate[;] after proclamation[,] the proper action is an election contest. The private respondent Rolando Tabaloc has filed an Election Protest now docketed as EPC NO. 2001-51, this change of position of respondent Tabaloc should be construed as a tacit recognition of the due election of your petitioner Felix Barot.
[10]

2.

3.

4.

5.

By Resolution of August 21, 2001, this Court granted a Temporary Restraining Order enjoining the COMELEC and the BOC to cease and desist from implementing the assailed COMELEC Resolution of August 3, 2001.
[11]

In the present petition, petitioner posits that as the dates of hearing of the petition scheduled by the COMELEC were too successive in nature without taking into account that petitioner comes from the province, he was denied due process, and had he been given his day, he would have proven his detractors wrong.
[12]

And petitioner maintains that the COMELEC has no jurisdiction over the petition as it was filed beyond the reglementary period. For, so petitioner contends, since the proclamation was made on May 17, 2001, the petition to correct manifest error should have been filed within 5 days thereafter or a petition to annul proclamation should have been filed within 10 days also thereafter, citing the case of Mentang v. Commission on Elections.
[13]

In another vein, petitioner posits that even if there were manifest errors in the Certificate of Canvass of Votes, correction should have been

done before proclamation, he citing Section 34 of COMELEC Resolution No. 3848 which provides:
[14]

SECTION 34. Manifest Error. (a) Where it is clearly shown before proclamation that manifest errors were committed in the tabulation or the tallying of election returns, or certificates of canvass, during the canvassing, the Board may motu propio, or upon verified petition by any candidate, political party, organization or coalition of political parties, after due notice and hearing, correct the errors committed. There is manifest error in the tabulation or tallying of the results during canvassing where: 1. 2. A copy of the Election Returns/Certificate of Canvass was tabulated more than once; Two or more copies of the Election Returns of one precinct, or two or more copies of Certificate of Canvass of one city or municipality were tabulated; There was a mistake in the copying of the figures from the Election Return/ Certificate of Canvass into the Statement of Votes; Election Returns from non-existent precincts were included in the canvass for another district; or There was a mistake in the addition of the votes of any candidate. x x x (Emphasis and underscoring supplied) Finally, petitioner posits that there is no proof that proper filing and docketing fees were paid, hence, the COMELEC did not acquire jurisdiction over the petition, and that Nochefranca is not among those who may file an action before the COMELEC, he citing Sections 2 and 3, Rule 5 of the COMELEC Rules of Procedure which read:
[15]

3. 4. 5.

Section 2. Who may be parties. Only natural or juridical persons or entities duly authorized by law, such as a voter, a candidate, or registered political parties, organization or coalition of political parties, including parties or organizations under the party list system, and any such person permitted by these Rules to bring an action or proceeding may be parties in any action or proceeding before the Commission. Section 3. Parties in Interest. All actions filed with the Commission must be prosecuted and defended in the name of the real party in interest. (Italics in the original)

The present petition is bereft of merit. As correctly argued by the COMELEC, while petitioner was unable to attend the scheduled hearings of the petition, he was given the opportunity to file his comment thereon and he in fact filed an opposition thereto. Petitioner was thus able to air his side of the case.
[16]

Due process does not necessarily mean or require a hearing, but simply an opportunity or right to be heard. One may be heard, not solely by verbal presentation but also perhaps many times more creditably and predictable than oral argument, through pleadings. xxx The essence of due process is simply an opportunity to be heard or as applied to administrative proceedings, an opportunity to explain ones side or an opportunity to seek 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. (Emphasis supplied; citations omitted)
[17]

As to the claim that the petition was not filed within the reglementary period, it should be noted that the 5-day period to file a petition for correction may be done after proclamation as provided under paragraph (b), Section 5, Rule 27 of the COMELEC Rules: Section 5. Pre-proclamation Controversies Which May Be Filed Directly with the Commission. xxx (b) If the petition involves the illegal composition or proceedings of the board under subparagraph (1) of paragraph (a) above, it must be filed immediately when the board begins to act as such, or at the time of the appointment of the member whose capacity to sit as such is objected to if it comes after the canvassing of the board, or immediately at the point where the proceedings are or begin to be illegal. If the petition is for correction, it must be filed not later than five (5) days following the date of proclamation and must implead all candidates who may be adversely affected thereby. x x x (Emphasis and underscoring supplied)

The petition may also be made before proclamation as provided in Section 34 of Resolution No. 3848 which furnishes instructions for the Municipal, City, District and Provincial Boards of Canvassers in connection with the May 14, 2001 national and local elections. At all events, Section 4, Rule 1 of the COMELEC Rules provides: Section 4. Suspension of the Rules. In the interest of justice and in order to obtain speedy disposition of all the matters pending before the Commission, these rules or any portion thereof may besuspended by the Commission. (Italics in the original; emphasis and underscoring supplied) The COMELEC thus has the discretion to suspend its rules or any portion thereof in the interest of justice such that even if the petition was filed 12 days after the proclamation, the COMELEC may, in the interest of justice, disregard the reglementary periods provided by the rules and resolve the matter filed before it. As to the allegation of lack of proof of proper payment of filing and docketing fees, the COMELEC Rules of Procedure provides: Rule 40 Fees and Charges xxx Section 8. Where fees are to be paid. The fees herein before provided shall be paid by the party concerned to the Cash Division, Administrative Services Department of the Commission, at the time of request or demand. If the fees are not paid, the Commission may refuse to take action thereon until they are paid. (Emphasis and underscoring supplied) From the immediately-quoted COMELEC Rule, even assuming arguendo that the required fees were not paid, the COMELEC has the discretion to take action or not in a case. But even if it was not afforded such discretion, as discussed above, it can suspend its rules or any portion thereof in the interest of justice. On the claim that the petition was not filed by the proper party, the same does not lie. For under the earlier-quoted Section 34 of Resolution No. 3848, the BOC may even motupropio, after due notice and hearing, correct errors committed in the tabulation. What should prevent it from itself filing the petition for correction before the COMELEC? WHEREFORE, the petition is hereby DISMISSED for lack of merit. The Temporary Restraining Order issued on August 21, 2001 is hereby LIFTED. The COMELEC and the City Board of Canvassers of

Tanjay City are hereby DIRECTED to implement COMELEC En Banc Resolution dated August 3, 2001 issued in SPC No. 01-195. Costs against petitioner. SO ORDERED.

EN BANC

[G.R. No. 152163. November 18, 2002]

SABDULLAH T. MACABAGO, petitioner, vs. COMMISSION ON ELECTIONS and JAMAEL M. SALACOP, respondents. DECISION
CALLEJO, SR., J.:

On May 22, 2001, petitioner Sabdullah T. Macabago was proclaimed by the Municipal Board of Canvassers as the winning candidate for the position of Municipal Mayor of Saguiran, Lanao del Sur. Petitioner had a lead of 198 votes over his adversary, private respondent Jamael M. Salacop. On June 1, 2001, private respondent filed a petition with the Commission on Elections (COMELEC) against petitioner and the proclaimed Vice-Mayor and Municipal Councilors, as well as the members of the Municipal Board of Canvassers, docketed as SPC-01-234, to annul the elections and the proclamation of candidates in the Municipality of Saguiaran, Lanao del Sur. Private respondent alleged that there was a massive substitution of voters, rampant and pervasive irregularities in voting procedures in Precincts Nos. 19, 20, 28 and 29, and a failure of the Board of Election Inspectors (BEI) to comply with Sections 28 and 29 of Comelec Resolution No. 3743 and Section 193 of the Omnibus Election Code, thus rendering the election process in those precincts a sham and a mockery and the proclamation of the winning candidates a nullity. Private respondent further averred that if his petition were to be given due course, he would win by a margin of one hundred ninety-four (194) votes over the votes of petitioner. He thus prayed: WHEREFORE, foregoing premises considered, it is most respectfully prayed of this Honorable Commission that the election results in Precincts 19, 20, 28 and 29 be ordered set aside and considered excluded and the proclamation of the winning candidates in the said municipality be ANNULLED to reflect the genuine desire of the majority of the people.

All other reliefs, deemed just and equitable under the circumstances are likewise prayed for.
[1]

In support of his petition, private respondent appended thereto photocopies of random Voters Registration Records (VRRs) evidencing the fraud and deceit that allegedly permeated the electoral process, as well as affidavits tending to prove that serious irregularities were committed in the conduct of the elections in the subject precincts.
[2]

In his answer, petitioner denied the truth of the material allegations in the petition and averred that it raised a pre-proclamation controversy. He further alleged that the grounds relied upon by private respondent would be proper in an election protest but not in a pre-proclamation controversy.
[3]

The COMELEC En Banc took cognizance of the petition and on February 11, 2002, issued an order directing the Election Officer of Saguiran, Lanao del Sur, to bring to and produce before the COMELEC Office in Manila the original VRRs of the questioned precincts for technical examination: WHEREFORE, premises considered, the Commission hereby RESOLVES to direct Mr. Ibrahim M. Macadato, the Election Officer of Saguiran, Lanao del Sur to produce the subject original VRRs of the questioned precincts here in Manila for the appertaining technical examination. SO ORDERED.
[4]

In the same order, the COMELEC declared that contrary to petitioners claims, the petition did not allege a pre-proclamation controversy. The Commission characterized the petition as one for the annulment of the election or declaration of failure of election in the municipality, a special action covered by Rule 26 of the COMELEC Rules of Procedure. Accordingly, the COMELEC set aside the docketing of the petition as a Special Case (SPC) and ordered the redocketing thereof as a Special Action (SPA). After its examination of the evidence submitted by petitioner, the COMELEC concluded that there was convincing proof of massive fraud in the conduct of the elections in the four (4) precincts that necessitated a technical examination of the original copies of the VRRs and their comparison with the voters signatures and fingerprints. The COMELEC further noted that since the lead of Macabago was only 124 votes vis--vis the 474 voters of the contested precincts, the outcome of the petition would adversely affect the result of the elections in the Municipality. In issuing said Order, the COMELEC relied on its broad powers under the 1987 Constitution and the pronouncement of this Court in Pantaleon Pacis vs. Commission on Elections, and Tupay Loong vs. Commission on Elections, et al.
[5] [6]

Forthwith, petitioner filed with this Court the instant special civil action for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, praying for the reversal of the February 11, 2002 order of the COMELEC En Banc. Petitioner alleged that: 6.1. PUBLIC RESPONDENT COMELEC EN BANC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT TOOK COGNIZANCE OF AND PASSED UPON THE PETITION IN SPC NO. 01-234 IN VIOLATION OF SECTION 3, RULE 3 OF THE COMELEC RULES OF PROCEDURE. 6.2. PUBLIC RESPONDENT COMELEC EN BANC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT ISSUED ITS ORDER ON FEBRUARY 11, 2002 FOR THE TECHNICAL EXAMINATION OF THE VOTERS REGISTRATION RECORDS OF THE REGISTERED VOTERS OF PRECINCT NOS. 19, 20, 28 & 29 OF THE MUNICIPALITY OF SAGUIARAN, LANAO DEL SUR.
[7]

The kernel issues posed in the case at bar are (a) whether petitioners recourse to this Court under Rule 65 of the 1997 Rules of Civil Procedure, as amended, is in order; and (b) whether the COMELEC acted without jurisdiction or committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in taking cognizance of the petition of private respondent and in issuing the assailed Order. On the first issue, petitioner avers that he was impelled to file the instant petition without first filing with the COMELEC a motion for a reconsideration of its order because under the COMELEC Rules of Procedure, a motion for a reconsideration of an interlocutory order of the COMELEC En Banc is a prohibited pleading, and that the COMELEC acted with grave abuse of discretion amounting to excess or lack of jurisdiction in issuing the assailed order. Private respondent on the other hand insists that under Rule 64 of the 1997 Rules of Civil Procedure, a special civil action for certiorari filed with this Court is proper only for the nullification of a final order or resolution of the COMELEC and not of its interlocutory order or resolution such as the assailed order in this case. Section 1, Rule 64, as amended, reads: SECTION 1. Scope. This Rule shall govern the review of judgments and final orders or resolutions of the Commission on Elections and the Commission on Audit.
[8]

Under Section 2 of the same Rule, a judgment or final order or resolution of the COMELEC may be brought by the aggrieved party to this Court on certiorari under Rule 65, as amended, except as therein provided. We ruled in Elpidio M. Salva, et al. vs. Hon. Roberto L. Makalintal, et al. that Rule 64 of the Rules applies only to judgments or final orders of the COMELEC in the exercise of its quasi-judicial functions. The rule does not apply to interlocutory orders of the COMELEC in the exercise of its quasi-judicial functions or to its administrative orders. In this case, the assailed order of the COMELEC declaring private respondents petition to be one for annulment of the elections or for a declaration of a failure of elections in the municipality and ordering the production of the original copies of the VRRs for the technical examination is administrative in nature. Rule 64, a procedural device for the review of final orders, resolutions or decision of the COMELEC, does not foreclose recourse to this Court under Rule 65 from administrative orders of said Commission issued in the exercise of its administrative function.
[9] [10] [11]

It bears stressing that under Article VIII, Section 1 of the Constitution, judicial power is vested in the courts. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Judicial power is an antidote to and a safety net against whimsical, despotic and oppressive exercise of governmental power. The aggrieved party may seek redress therefrom through the appropriate special civil action provided by the Rules of Court. As to acts of the COMELEC, the special civil action may be one for certiorari pursuant to Article IX(A), Section 7 of the Constitution. As a general rule, an administrative order of the COMELEC is not a proper subject of a special civil action for certiorari. But when the COMELEC acts capriciously or whimsically, with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing such an order, the aggrieved party may seek redress from this Court via a special civil action for certiorari under Rule 65 of the Rules.
[12] [13]

Private respondent cannot find solace in the pronouncement in Ruperto Ambil, Jr. vs. Commission on Elections, et al. because the subject matter of the petition therein was an interlocutory order of a Division of the COMELEC. This Court held that the remedy of the aggrieved party was first to file a motion for a reconsideration of the order with the COMELEC En Banc. The raison detre therefor is that under Rule 3, Section 6(c) of the COMELEC Rules of Procedure, any motion for a reconsideration of a decision, resolution, order or ruling of a Division of the COMELEC has to be referred to and resolved by the Commission sitting En
[14]

Banc. A motion for reconsideration filed with the COMELEC En Bancof an order, ruling or resolution of a Division thereof is a plain, speedy and adequate remedy therefrom. We now resolve the second issue. Irrefragably, the petition before the COMELEC does not pose a pre-proclamation controversy as defined in Article XX, Section 241 of Republic Act No. 7166, thus: SEC. 241. Definition. A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission.
[15]

Pre-proclamation controversies are properly limited to challenges directed against the Board of Canvassers and proceedings before said Board relating to particular election returns to which private respondent should have made specific verbal objections subsequently reduced to writing. The proceedings are summary in nature; thus, the reception of evidence aliunde, e.g. the original copies of the VRRs, is proscribed. In fine, in pre-proclamation proceedings, the COMELEC is not to look beyond or behind election returns which are on their face regular and authentic returns. Issues such as fraud or terrorism attendant to the election process, the resolution of which would compel or necessitate the COMELEC to pierce the veil of election returns which appear to be prima facie regular, on their face, are anathema to a pre-proclamation controversy. Such issues should be posed and resolved in a regular election protest.
[16] [17]

In his petition with the COMELEC, private respondent alleged that fraud and irregularities allegedly perpetrated by unscrupulous individuals who substituted for the registered voters and voted for the latter in the subject precincts, in conspiracy with the Board of Election Inspectors, or abetted by the members thereof, attended the electoral process in the subject precincts. The fraud and the irregularities catalogued by private respondent required the reception of evidence aliunde. As stated earlier, such grounds are not proper bases for a pre-proclamation controversy but are appropriate for a regular election contest within the original jurisdiction of the Regional Trial Court. Indeed, the Court held in Dimangadap Dipatuan vs. Commission on Elections, et al.:
[18]

That the padding of the List of Voters may constitute fraud, or that the Board of Election Inspectors may have fraudulently conspired in its preparation, would not be a valid basis for a pre-proclamation controversy either. For, whenever irregularities, such as fraud, are asserted, the proper course of action is an election protest.

Such irregularities as fraud, vote-buying and terrorism are proper grounds in an election contest but may not as a rule be invoked to declare a failure of election and to disenfranchise the greater number of the electorate through the misdeeds, precisely, of only a relative few. Otherwise, elections will never be carried out with the resultant disenfranchisement of the innocent voters, for the losers will always cry fraud and terrorism (GAD vs. COMELEC, G.R. No. 78302, May 26, 1987, 150 SCRA 665). Neither is private respondents petition before the COMELEC one for declaration of a failure of elections in Saguiran, Lanao del Sur. Section 6, Article 1 of R.A. No. 7166 provides when a failure of election occurs SEC. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by the law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect (Sec. 7, 1978 EC).
[19]

Under Section 5, Article 1 of the aforementioned law, the matter of the postponement or declaration of failure of election and the calling of a special election as provided for in Section 6, shall be decided by the COMELEC sitting En Banc by a majority of its members: SEC. 5. Postponement of election. The postponement, declaration of failure of election and the calling of special elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a majority vote of its members. The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election. (Sec. 4, p. 1, RA 7166).
[20]

Before the COMELEC can grant a verified petition seeking to declare a failure of election, the concurrence of two (2) conditions must be established, namely: (a) no voting has taken place in the precincts concerned on the date fixed by law or, even if there was voting, the election nevertheless resulted in a failure to elect; (b) the votes cast would affect the result of the election. The Court declared in Ricardo Canicosa vs.

Commission on Elections, et al., that there are only three (3) instances where a failure of election may be declared, namely:
[21]

x x x (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes; (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud, or other analogous causes.
[22]

While fraud is a ground to declare a failure of election, such fraud must be one that prevents or suspends the holding of an election, including the preparation and transmission of the election returns. Failure to elect must be understood in its literal sensewhich is, nobody emerges as a winner. The barefaced fact that a candidate has been proclaimed and has assumed office does not deprive the COMELEC of its authority to annul any canvass and illegal proclamation. A petition for the annulment of election is not the same as one involving a pre-proclamation controversy. In the fairly recent case of Tomas T. Banaga, Jr. vs. Commission on Elections, et al. with a factual backdrop similar to this case, the Court held:
[23] [24] [25]

We have painstakingly examined the petition filed by petitioner Banaga before the COMELEC. But we found that petitioner did not allege at all that elections were either not held or suspended. Neither did he aver that although there was voting, nobody was elected. On the contrary, he conceded that an election took place for the office of vice-mayor of Paraaque City, and that private respondent was, in fact, proclaimed elected to that post. While petitioner contends that the election was tainted with widespread anomalies, it must be noted that to warrant a declaration of failure of election the commission of fraud must be such that it prevented or suspended the holding of an election, or marred fatally the preparation and transmission, custody and canvass of the election returns. These essential facts ought to have been alleged clearly by the petitioner below, but he did not. Private respondent alleged in his petition with the COMELEC En Banc that the elections ensued in the subject precincts and that petitioner herein emerged as the winner and was in fact proclaimed as such by the Board of Election Inspectors. In sum then, the grounds alleged by private respondent in his petition before the COMELEC are those for a regular election protest and are not proper in a pre-proclamation controversy; nor is such petition one for annulment of the elections or for a declaration of failure of elections in the

municipality of Saguiran, Lanao del Sur. The COMELEC should have ordered the dismissal of the petition instead of issuing the assailed order. The COMELEC thus committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the same. The error is correctible by the special civil action for certiorari. PREMISES CONSIDERED, the petition is GRANTED. The assailed order is SET ASIDE. The petition of herein private respondent with the public respondent is DISMISSED, without prejudice to the filing of a regular election protest, the period for the filing of which is deemed suspended by the filing of the petition before the Commission on Elections which gave rise to the petition at bar. SO ORDERED.
Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 106270-73 February 10, 1994 SULTAN MOHAMAD L. MITMUG, petitioner, vs. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF LUMBABAYABAO, LANAO DEL SUR, and DATU GAMBAI DAGALANGIT, respondents. Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner. Brillantes, Nachura, Navarro & Arcilla for private respondent.

BELLOSILLO, J.: The turnout of voters during the 11 May 1992 election in Lumba-Bayabao, Lanao del Sur, was abnormally low. As a result, several petitions were filed seeking the declaration of failure of election in precincts where less than 25% of the electorate managed to cast their votes. But a special election was ordered in precincts where no voting actually took place. The Commission on Elections (COMELEC) ruled that for as long as the precincts functioned and conducted actual voting during election day, low voter turnout would not justify a declaration of failure of election. We are now called upon to review this ruling. Petitioner SULTAN MOHAMAD L. MITMUG and private respondent DATU GAMBAI DAGALANGIT were among the candidates for the mayoralty position of Lumba-Bayabao during the 11 may 1992 election. There were sixty-seven (67) precincts in the municipality. As was heretofore stated, voter turnout was rather low, particularly in forty-nine (49) precincts where the average voter turnout was 22.26%, i.e., only 2,330 out of 9,830 registered voters therein cast their votes. Five (5) of these precincts did not conduct actual voting at all. 1

Consequently, COMELEC ordered the holding of a special election on 30 May 1992 in the five (5) precincts which failed to function during election day. On 30 July 1992 another special election was held for a sixth precinct. 2 In the interim, petitioner filed a petition seeking the annulment of the special election conducted on 30 May 1992 alleging various irregularities such as the alteration, tampering and substitution of ballots. But on 13 July 1992, COMELEC considered the petition moot since the votes in the subject precincts were already counted. 3 Other petitions seeking the declaration of failure of election in some or all precincts of LumbaBayabao were also filed with COMELEC by other mayoralty candidates, to wit: 1. SPA No. 92-324: On 6 June 1992, private respondent Datu Gamba Dagalangit filed an urgent petition praying for the holding of a special election in Precinct No. 22-A alleging therein that when the ballot box was opened, ballots were already torn to pieces. On 14 July 1992, the petition was granted and a special election for Precinct No. 22-A was set for 25 July 1992. 4 2. SPC No. 92-336: On 16 June 19992, Datu Elias Abdusalam, another mayoralty candidate, filed a petition to declare failure of election in twenty-nine (29) more precincts as a result of alleged tampering of ballots 5 and clustering of precincts. 6 On 16 July 1992, the petition was
dismissed. COMELEC ruled that there must be a situation where there is absolute inability to vote before a failure of election can be declared. 7 Since voting was actually conducted in the contested precincts, there was no basis for the petition.

3. SPA No 92-368: On 20 June 1992, private respondent filed another petition, this time seeking to exclude from the counting the ballots cast in six (6) precincts on the ground that the integrity of the ballot boxes therein was violated. 8 Again, on 14 July 1992, COMELEC considered the petition
moot, as the issue raised therein was related to that of SPA No. 92-311 which on 9 July 1992 was already set aside as moot. 9

4. SPA No. 92-347: On 1 July 1992, Datu Bagato Khalid Lonta, a fourth mayoralty candidate, filed a petition which in the main sought the declaration of failure of election in all sixty-seven (67) precincts of Lumba-Bayabao, Lanao del Sur, on the ground of massive disenfranchisement of voters. 10 On 9
July 1992, COMELEC dismissed the petition, ruling that the allegations therein did not support a case of failure of election. 11

On 8 July 1992, petitioner filed a motion to intervene in these four (4) petitions. 12 But COMELEC
treated the same as a motion for reconsideration and promptly denied it considering that under the COMELEC Rules of Procedure such motion was a prohibited pleading. 13

Thereafter, a new board of Election Inspectors was formed to conduct the special election set for 25 July 1992. Petitioner impugned the creation of this Board. Nevertheless, on 30 July 1992, the new Board convened and began the canvassing of votes. Finally, on 31 July 1992, private respondent was proclaimed the duly elected Mayor of Lumba-Bayabao, Lanao del Sur. On 3 August 1992, petitioner instituted the instant proceedings seeking the declaration of failure of election in forty-nine (49) precincts where less than a quarter of the electorate were able to cast their votes. He also prayed for the issuance of a temporary restraining order to enjoin private respondent from assuming office. On 10 August 1992, petitioner lodged an election protest with the Regional trial Court of Lanao del Sur disputing the result not only of some but all the precincts of Lumba-Bayabao, del Sur. 14 Respondents, on the other hand, assert that with the filing of an election protest, petitioner is already deemed to have abandoned the instant petition.

It may be noted that when petitioner filed his election protest with the Regional Trial Court of Lanao del Sur, he informed the trial court of the pendency of these proceedings. Paragraph 3 of his protest states "[T]hat on August 3, 1992, your protestant filed a Petition for Certiorari with the Supreme Court . . . docketed as G.R. No. 106270 assailing the validity of the proclamation of the herein protestee. . . ." 15 Evidently, petitioner did not intend to abandon his recourse with this Court.
On the contrary, he intended to pursue it. Where only an election protest ex abundante ad cautela is filed, the Court retains jurisdiction to hear the petition seeking to annul an election. 16

The main issue is whether respondent COMELEC acted with grave abuse of discretion amounting to lack of jurisdiction in denying motu proprio and without due notice and hearing the petitions seeking to declare a failure of election in some or all of the precincts in LumbaBayabao, Lanao del Sur. After all, petitioner argues, he has meritorious grounds in support thereto, viz., the massive disenfranchisement of voters due to alleged terrorism and unlawful clustering of precincts, which COMELEC should have at least heard before rendering its judgment. Incidentally, a petition to annul an election is not a pre-proclamation controversy. Consequently, the proclamation of a winning candidate together with his subsequent assumption of office is not an impediment to the prosecution of the case to its logical conclusion. 17 Under the COMELEC Rules of Procedure, within twenty-four (24) hours from the filing of a verified petition to declare a failure to elect, notices to all interested parties indicating therein the date of hearing should be served through the fastest means available. 18 The hearing of the case
will also be summary in nature. 19

Based on the foregoing, the clear intent of the law is that a petition of this nature must be acted upon with dispatch only after hearing thereon shall have been conducted. Since COMELEC denied the other petitions 20 which sought to include forty-three (43) more precincts in a special
election without conducting any hearing, it would appear then that there indeed might have been grave abuse of discretion in denying the petitions.

However, a closer examination of the COMELEC Rules of Procedure, particularly Sec. 2, Rule 26, thereof which was lifted from Sec. 6, B.P. 881, otherwise known as the Omnibus Election Code of the Philippines, indicates otherwise. It reads Sec. 2. Failure of election. If, on account of force majeure, violence, terrorism, fraud or other analogous causes the election in any precinct has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody of canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty (30) days after the cessation of the cause of such postponement or suspension of the election or failure to elect. Before COMELEC can act on a verified petition seeking to declare a failure of election, two (2) conditions must concur: first, no voting has taken place in the precinct or precincts on the date fixed by law or, even if there was voting, the election nevertheless results in failure to elect; and, second, the votes not cast would affect the result of the election. 21 In the case before us, it is indubitable that the votes not cast will definitely affect the outcome of the election. But, the first requisite is missing, i.e., that no actual voting took place, or even if

there is, the results thereon will be tantamount to a failure to elect. Since actual voting and election by the registered voters in the questioned precincts have taken place, the results thereof cannot be disregarded and excluded. 22 COMELEC therefore did not commit any abuse of
discretion, much less grave, in denying the petitions outright. There was no basis for the petitions since the facts alleged therein did not constitute sufficient grounds to warrant the relief sought. For, the language of the law expressly requires the concurrence of these conditions to justify the calling of a special election. 23

Indeed, the fact that a verified petition is filed does not automatically mean that a hearing on the case will be held before COMELEC will act on it. The verified petition must still show on its face that the conditions to declare a failure to elect are present. In the absence thereof, the petition must be denied outright. Considering that there is no concurrence of the two (2) conditions in the petitions seeking to declare failure of election in forty-three (43) more, precincts, there is no more need to receive evidence on alleged election irregularities. Instead, the question of whether there have been terrorism and other irregularities is better ventilated in an election contest. These irregularities may not as a rule be invoked to declare a failure of election and to disenfranchise the electorate through the misdeeds of a relative few. 24 Otherwise, elections will never be carried out with the resultant disenfranchisement of innocent
voters as losers will always cry fraud and terrorism.

There can be failure of election in a political unit only if the will of the majority has been defiled and cannot be ascertained. But, if it can be determined, it must be accorded respect. After all, there is no provision in our election laws which requires that a majority of registered voters must cast their votes. All the law requires is that a winning candidate must be elected by a plurality of valid votes, regardless of the actual number of ballots cast. 25 Thus, even if less than 25% of the
electorate in the questioned precincts cast their votes, the same must still be respected. There is prima facie showing that private respondent was elected through a plurality of valid votes of a valid constituency.

WHEREFORE, there being no grave abuse of discretion, the Petition for Certiorari is DISMISSED. SO ORDERED. Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Melo, Quiason, Puno, Vitug and Kapunan, JJ., concur. Nocon, J., is on leave. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 189698 February 22, 2010

ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners, vs. COMMISSION ON ELECTIONS, Respondent. RESOLUTION

PUNO, C.J.: Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission on Elections (COMELEC) motion for reconsideration, and the movants-intervenors motions for reconsideration-in-intervention, of this 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. 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 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 Code18 and rendered ineffective Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only upon the start of the campaign period corresponding to the positions for which they are running,19 an elected official is not deemed to have resigned from his office upon the filing of his certificate of candidacy for the same or any other elected office or position. In fine, an elected official may run for another position without forfeiting his seat. These laws and regulations implement Section 2(4), Article IX-B of the 1987 Constitution, which prohibits civil service officers and employees from engaging in any electioneering or partisan political campaign. The intention to impose a strict limitation on the participation of civil service officers and employees in partisan political campaigns is unmistakable. The exchange between Commissioner Quesada and Commissioner Foz during the deliberations of the Constitutional Commission is instructive: MS. QUESADA. xxxx Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I quote: "No officer or employee in the civil service shall engage, directly or indirectly, in any partisan political activity." This is almost the same provision as in the 1973 Constitution. However, we in the government service have actually experienced how this provision has been violated by the direct or indirect partisan political activities of many government officials. So, is the Committee willing to include certain clauses that would make this provision more strict, and which would deter its violation? MR. FOZ. Madam President, the existing Civil Service Law and the implementing rules on the matter are more than exhaustive enough to really prevent officers and employees in the public service from engaging in any form of partisan political activity. But the problem really lies in implementation because, if the head of a ministry, and even the superior officers of offices and agencies of government will themselves violate the constitutional injunction against partisan political activity, then no string of words that we may add to what is now here in this draft will really implement the constitutional intent against partisan political activity. x x x20 (italics supplied) To emphasize its importance, this constitutional ban on civil service officers and employees is presently reflected and implemented by a number of statutes. Section 46(b)(26), Chapter 7 and Section 55, Chapter 8 both of Subtitle A, Title I, Book V of the Administrative Code of 1987 respectively provide in relevant part: Section 44. Discipline: General Provisions: xxxx (b) The following shall be grounds for disciplinary action: xxxx (26) Engaging directly or indirectly in partisan political activities by one holding a non-political office. xxxx

Section 55. Political Activity. No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of his candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code. Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention by civil service officers and employees in partisan political activities an election offense, viz.: SECTION 261. Prohibited Acts. The following shall be guilty of an election offense: xxxx (i) Intervention of public officers and employees. Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer. The intent of both Congress and the framers of our Constitution to limit the participation of civil service officers and employees in partisan political activities is too plain to be mistaken. But Section 2(4), Article IX-B of the 1987 Constitution and the implementing statutes apply only to civil servants holding apolitical offices. Stated differently, the constitutional ban does not cover elected officials, notwithstanding the fact that "[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters."21 This is because elected public officials, by the very nature of their office, engage in partisan political activities almost all year round, even outside of the campaign period.22 Political partisanship is the inevitable essence of a political office, elective positions included.23 The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as express their views on political issues, or mention the names of certain candidates for public office whom they support. This is crystal clear from the deliberations of the Constitutional Commission, viz.: MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2, Section 1, subparagraph 4, lines 13 and 14. On line 13, between the words "any" and "partisan," add the phrase ELECTIONEERING AND OTHER; and on line 14, delete the word "activity" and in lieu thereof substitute the word CAMPAIGN. May I be allowed to explain my proposed amendment? THE PRESIDING OFFICER (Mr. 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 Vice-President, in the example, running this time, let us say, for President, retains his position during the entire election period and can still use the resources of his office to support his campaign.38

Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the Legislature need not address every manifestation of the evil at once; it may proceed "one step at a time."39 In addressing a societal concern, it must invariably draw lines and make choices, thereby creating some inequity as to those included or excluded.40 Nevertheless, as long as "the bounds of reasonable choice" are not exceeded, the courts must defer to the legislative judgment.41 We may not strike down a law merely because the legislative aim would have been more fully achieved by expanding the class.42 Stated differently, the fact that a legislative classification, by itself, is underinclusive will not render it unconstitutionally arbitrary or invidious.43 There is no constitutional requirement that regulation must reach each and every class to which it might be applied;44 that the Legislature must be held rigidly to the choice of regulating all or none. Thus, any person who poses an equal protection challenge must convincingly show that the law creates a classification that is "palpably arbitrary or capricious."45 He must refute all possible rational bases for the differing treatment, whether or not the Legislature cited those bases as reasons for the enactment,46 such that the constitutionality of the law must be sustained even if the reasonableness of the classification is "fairly debatable."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. x x x 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 caseby-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 cross-referring to the rules made by the Civil Service Commission. The rule pertinent to our inquiry states: 30. Candidacy for local office: Candidacy for a nomination or for election to any National, State, county, or municipal office is not permissible. The prohibition against political activity extends not merely to formal announcement of candidacy but also to the preliminaries leading to such announcement and to canvassing or soliciting support or doing or permitting to be done any act in furtherance of candidacy. The fact that candidacy, is merely passive is immaterial; if an employee acquiesces in the efforts of friends in furtherance of such candidacy such acquiescence constitutes an infraction of the prohibitions against political activity. (italics supplied) Section 9(b) requires the immediate removal of violators and forbids the use of appropriated funds thereafter to pay compensation to these persons.64

(3) Broadrick was a class action brought by certain Oklahoma state employees seeking a declaration of unconstitutionality of two sub-paragraphs of Section 818 of 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 non-fundamental right of appointive officials and employees to seek elective office. En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing76 and Morial, et al. v. Judiciary Commission of the State of Louisiana, et al.77 to buttress his dissent. Maintaining that resign-to-run provisions are valid only when made applicable to specified officials, he explains: U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions when applied to specified or particular officials, as distinguished from all others,78 under a classification that is germane to the purposes of the law. These resign-to-run legislations were not expressed in a general and sweeping provision, and thus did not violate the test of being germane to the purpose of the law, the second requisite for a valid classification. Directed, as they were, to particular officials, they were not overly encompassing as to be overbroad. (emphasis in the original)

1avvphi1

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-to-run provisions, while others are not. Ruled the United States Supreme Court: Article XVI, 65, of the Texas Constitution provides that the holders of certain offices automatically resign their positions if they become candidates for any other elected office, unless the unexpired portion of the current term is one year or less. The burdens that 65 imposes on candidacy are even less substantial than those imposed by 19. The two provisions, of course, serve essentially the same state interests. The District Court found 65 deficient, however, not because of the nature or extent of the provision's restriction on candidacy, but because of the manner in which the offices are classified. According to the District Court, the classification system cannot survive equal protection scrutiny, because Texas has failed to explain sufficiently why some elected public officials are subject to 65 and why others are not. As with the case of 19, we conclude that 65 survives a challenge under the Equal Protection Clause unless appellees can show that there is no rational predicate to the classification scheme. The history behind 65 shows that it may be upheld consistent with the "one step at a time" approach that this Court has undertaken with regard to state regulation not subject to more vigorous scrutiny than that sanctioned by the traditional principles. Section 65 was enacted in 1954 as a transitional provision applying only to the 1954 election. Section 65 extended the terms of those offices enumerated in the provision from two to four years. The provision also staggered the terms of other offices so that at least some county and local offices would be contested at each election. The automatic resignation proviso to 65 was not added until 1958. In that year, a similar automatic resignation provision was added in Art. XI, 11, which applies to officeholders in home rule cities who serve terms longer than two years. Section 11 allows home rule cities the option of extending the terms of municipal offices from two to up to four years. Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms of 1958. That the State did not go further in applying the automatic resignation provision to those officeholders whose terms were not extended by 11 or 65, absent an invidious purpose, is not the sort of malfunctioning of the State's lawmaking process forbidden by the Equal Protection Clause. A regulation is not devoid of a rational predicate simply because it happens to be incomplete. The Equal Protection Clause does not forbid Texas to restrict one elected officeholder's candidacy for another elected office unless and until it places similar restrictions on other officeholders. The provision's language and its history belie any notion that 65 serves the invidious purpose of denying access to the political process to identifiable classes of potential candidates. (citations omitted and italics supplied) Furthermore, it is unfortunate that the dissenters took the Morial line that "there is no blanket approval of restrictions on the right of public employees to become candidates for public office" out of context. A correct reading of that line readily shows that the Court only meant to confine its ruling to the facts of that case, as each equal protection challenge would necessarily have to involve weighing governmental interests vis--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, 2009101 even as her position as Justice Secretary includes supervision over the City and Provincial Prosecutors,102 who, in turn, act as Vice-Chairmen of the respective Boards of Canvassers.103 The Judiciary has not been spared, for a Regional Trial Court Judge in the South has thrown his hat into the political arena. We cannot allow the tilting of our electoral playing field in their favor. For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of RA 9369, which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally overbroad. IN VIEW WHEREOF, the Court RESOLVES to GRANT the 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. REYNATO S. PUNO Chief Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice RENATO C. CORONA Associate Justice PRESBITERO J. VELASCO, JR. CONCHITA CARPIO MORALES Associate Justice ANTONIO EDUARDO B. NACHURA

Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice DIOSDADO M. PERALTA Associate Justice MARIANO C. DEL CASTILLO Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice

Associate Justice ARTURO D. BRION Associate Justice LUCAS P. BERSAMIN Associate Justice ROBERTO A. ABAD Associate Justice JOSE PORTUGAL PEREZ Associate Justice

JOSE C. MENDOZA Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO Chief Justice

Footnotes
1

Penned by Justice Antonio Eduardo B. Nachura, the Decision was promulgated on a vote of 8-6. Justices Corona, Chico-Nazario, Velasco, Leonardo-De Castro, Brion, Bersamin, and Del Castillo concurred. Justices Peralta, Abad and Villarama joined the Dissenting Opinion of Chief Justice Puno, while Justices Carpio and Carpio Morales wrote separate Dissenting Opinions.
2

SEC. 15. Official Ballot. xxxx For this purpose, the Commission shall set the deadline for the filing of the certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon that start of the campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or-controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy. (italics supplied)

SECTION 66. Candidates holding appointive office or positions. 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.
3 4

SECTION 4. Effects of Filing Certificates of Candidacy.- a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other 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.
5

Sec. 2. Rules applicable. The procedure in original cases for certiorari, prohibition, mandamus, quo warranto and habeas corpus shall be in accordance with the applicable provisions of the Constitution, laws, and Rules 46, 48, 49, 51, 52 and this Rule, subject to the following provisions: a) All references in said Rules to the Court of Appeals shall be understood to also apply to the Supreme Court; b) The portions of ssaid Rules dealing strictly with and specifically intended for appealed cases in the Court of Appeals shall not be applicable; and c) Eighteen (18) clearly legible copies of the petition shall be filed, together with proof of service on all adverse parties. The proceedings for disciplinary action against members of the judiciary shall be governed by the laws and Rules prescribed therefor, and those against attorneys by Rule 139-B, as amended.
6

Section 1. Period for filing. A party may file a motion for reconsideration of a judgment or final resolution within fifteen (15) days from notice thereof, with proof of service on the adverse party.
7

Secretary of Agrarian Reform et al. v. Tropical Homes, G.R. Nos. 136827 & 136799, July 31, 2001, 362 SCRA 115.
8

Tahanan Development Corporation v. Court of Appeals, G.R. No. 155771, 15 November 1982, 118 SCRA 273.
9

Director of Lands v. Court of Appeals, G.R. No. L-45168, September 25, 1979, 93 SCRA 238.
10

Mago v. Court of Appeals, G.R. No. 115624, February 25, 1999, 300 SCRA 600. G.R. No. 115044, January 27, 1995, 240 SCRA 649.

11

12

Heirs of Geronimo Restrivera v. De Guzman, G.R. No. 146540, July 14, 2004, 434 SCRA 456; Office of the Ombudsman v. Rolando S. Miedes, G.R. No. 176409, February 27, 2008, 547 SCRA 148.
13

See Mago v. Court of Appeals, supra note 10.

14

Manila Railroad Company v. Attorney-General, 20 Phil. 523, 529 (1912). See also Director of Lands v. Court of Appeals, supra note 9 at 246, and Mago v. Court of Appeals, supra note 10 at 234.
15

Manila Railroad Company v. Attorney-General, id. at 530. Motion for Leave to Intervene dated December 14, 2009, p. 2.

16

SECTION 14. Repealing Clause. Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended accordingly. (italics supplied)
17

SECTION 67. Candidates holding elective office. Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.
18 19

SECTION 11. Official Ballot. xxxx 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 vicepresident, 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, x x x. (italics supplied)

20

Record of the Constitutional Commission, Vol. I, p. 536. Section 2(1), Article IX-B, 1987 Constitution. Dissenting Opinion of Justice Antonio T. Carpio, p. 5. Dissenting Opinion of Justice Conchita Carpio Morales, p. 6. Record of the Constitutional Commission, Vol. I, p. 573. G.R. No. 147387, December 10, 2003, 417 SCRA 503. Id. at 525-528. Tan Chong v. Secretary of Labor, 79 Phil. 249.

21

22

23

24

25

26

27

28

Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven and London: Yale University Press), 33-34 (1921).
29

Villanueva, Jr. v. Court of Appeals, et al., G.R. No. 142947, March 19, 2002, 379 SCRA 463, 469 citing 21 Corpus Juris Secundum 190.

30

Id. at 469-470. Id. at 470. Supra note 29. Id. at 470.

31

32

33

34

The Philippine Judges Association, et al. v. Prado, et al., G.R. No. 105371, November 11, 1993, 227 SCRA 703, 712.
35

Id.

36

The National Police Commission v. De Guzman, et al., G.R. No. 106724, February 9, 1994, 229 SCRA 801, 809.
37

People v. Cayat, 68 Phil. 12, 18 (1939). Decision, p. 23. Greenberg v. Kimmelman, 99 N.J. 552, 577, 494 A.2d 294 (1985).

38

39

40

New Jersey State League of Municipalities, et al. v. State of New Jersey, 257 N.J. Super. 509, 608 A.2d 965 (1992).
41

Taxpayers Ass'n of Weymouth Tp. v. Weymouth Tp., 80 N.J. 6, 40, 364 A.2d 1016 (1976).
42

Robbiani v. Burke, 77 N.J. 383, 392-93, 390 A.2d 1149 (1978).

43

De Guzman, et al. v. Commission on Elections, G.R. No. 129118, July 19, 2000, 336 SCRA 188, 197; City of St. Louis v. Liberman, 547 S.W.2d 452 (1977); First Bank & Trust Co. v. Board of Governors of Federal Reserve System, 605 F.Supp. 555 (1984); Richardson v. Secretary of Labor, 689 F.2d 632 (1982); Holbrook v. Lexmark International Group, Inc., 65 S.W.3d 908 (2002).
44

State v. Ewing, 518 S.W.2d 643 (1975); Werner v. Southern California Associated Newspapers, 35 Cal.2d 121, 216 P.2d 825 (1950).
45

Chamber of Commerce of the U.S.A. v. New Jersey, 89 N.J. 131, 159, 445 A.2d 353 (1982).
46

Werner v. Southern California Associated Newspapers, supra note 44.

47

Newark Superior Officers Ass'n v. City of Newark, 98 N.J. 212, 227, 486 A.2d 305 (1985); New Jersey State League of Municipalities, et al. v. State of New Jersey, supra note 40.
48

New Jersey State League of Municipalities, et al. v. State of New Jersey, supra note 40.
49

Taule v. Santos, et al., G.R. No. 90336, August 12, 1991, 200 SCRA 512, 519. Id.

50

51

Dissenting Opinion of Chief Justice Reynato S. Puno, pp. 60-61. 476 F.2d 187 (1973). 413 U.S. 548, 93 S.Ct. 2880 (1973). 413 U.S. 601, 93 S.Ct. 2908 (1973). Section 9(a) of the Hatch Act provides: An employee in an Executive agency or an individual employed by the government of the District of Columbia may not(1) use his official authority or influence for the purpose of interfering with or affecting the result of an election; or (2) take an active part in political management or in political campaigns. For the purpose of this subsection, the phrase an active part in political management or in political campaigns' means those acts of political management or political campaigning which were prohibited on the part of employees in the competitive service before July 19, 1940, by determinations of the Civil Service Commission under the rules prescribed by the President.

52

53

54

55

56

Section 818 of Oklahomas Merit System of Personnel Administration Act provides: (1) No person in the classified service shall be appointed to, or demoted or dismissed from any position in the classified service, or in any way favored or discriminated against with respect to employment in the classified service because of his political or religious opinions or affiliations, or because of race, creed, color or national origin or by reason of any physical handicap so long as the physical handicap does not prevent or render the employee less able to do the work for which he is employed. (2) No person shall use or promise to use, directly or indirectly, any official authority or influence, whether possessed or anticipated, to secure or attempt to secure for any person an appointment or advantage in appointment to a position in the classified service, or an increase in pay or other advantage in employment in any such position, for the purpose of influencing the vote or political action of any person, or for consideration; provided, however, that letters of inquiry, recommendation and reference by public employees of public officials shall not be considered official authority or influence unless such letter contains a threat, intimidation, irrelevant, derogatory or false information. (3) No person shall make any false statement, certificate, mark, rating, or report with regard to any test, certification or appointment made under any provision of this Act or in any manner commit any fraud preventing the impartial execution of this Act and rules made hereunder. (4) No employee of the department, examiner, or other person shall defeat, deceive, or obstruct any person in his or her right to examination, eligibility, certification, or appointment under this law, or furnish to any person any special or secret information for the purpose of effecting (sic) the rights or prospects of any person with respect to employment in the classified service.

(5) No person shall, directly or indirectly, give, render, pay, offer, solicit, or accept any money, service, or other valuable consideration for or on account of any appointment, proposed appointment, promotion, or proposed promotion to, or any advantage in, a position in the classified service. (6) No employee in the classified service, and no member of the Personnel Board shall, directly or indirectly, solicit, receive, or in any manner be concerned in soliciting or receiving any assessment, subscription or contribution for any political organization, candidacy or other political purpose; and no state officer or state employee in the unclassified service shall solicit or receive any such assessment, subscription or contribution from an employee in the classified service. (7) No employee in the classified service shall be a member of any national, state or local committee of a political party, or an officer or member of a committee of a partisan political club, or a candidate for nomination or election to any paid public office, or shall take part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote. (8) Upon a showing of substantial evidence by the Personnel Director that any officer or employee in the state classified service, has knowingly violate any of the provisions of this Section, the State Personnel Board shall notify the officer or employee so charged and the appointing authority under whose jurisdiction the officer or employee serves. If the officer or employee so desires, the State Personnel Board shall hold a public hearing, or shall authorize the Personnel Director to hold a public hearing, and submit a transcript thereof, together with a recommendation, to the State Personnel Board. Relevant witnesses shall be allowed to be present and testify at such hearings. If the officer or employee shall be found guilty by the State Personnel Board of the violation of any provision of this Section, the Board shall direct the appointing authority to dismiss such officer or employee; and the appointing authority so directed shall comply.
57

See also Anderson v. Evans, 660 F2d 153 (1981).

58

Morial, et al. v. Judiciary Commission of the State of Louisiana, et al., 565 F.2d 295 (1977).
59

391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968).

60

See, e.g., Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973); Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972); Bullock v. Carter, 405 U.S. 134, 140-141, 92 S.Ct. 849, 854-855, 31 L.Ed.2d 92 (1972); Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971); Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 10-11, 21 L.Ed.2d 24 (1968).
61

United States Civil Service Commission v. National Association of Letter Carriers, AFLCIO, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796.
62

Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). See Grayned v. City of Rockford, 408 U.S. 104, 108-114, 92 S.Ct. 2294, 2298-2302, 33 L.Ed.2d 222 (1972); Colten v. Kentucky, 407 U.S. 104, 110-111, 92 S.Ct. 1953, 1957-1958, 32 L.Ed.2d 584 (1972); Cameron v. Johnson, 390 U.S. 611, 616, 88 S.Ct. 1335, 1338, 20 L.Ed.2d 182 (1968).
63

Section 9(a), Hatch Act.

64

In 1950, Section 9(b) of the Hatch Act was amended by providing the exception that the Civil Service Commission, by unanimous vote, could impose a lesser penalty, but in no case less than 90 days suspension without pay. In 1962, the period was reduced to 30 days suspension without pay. The general rule, however, remains to be removal from office.
65

560 F.2d 22 (1977). The relevant charter provisions read as follows: xxxx (5) No appointed official, employee or member of any board or commission of the city, shall be a member of any national, state or local committee of a political party or organization, or an officer of a partisan political organization, or take part in a political campaign, except his right privately to express his opinion and to cast his vote. (6) No appointed official or employee of the city and no member of any board or commission shall be a candidate for nomination or election to any public office, whether city, state or federal, except elected members of boards or commissions running for re-election, unless he shall have first resigned his then employment or office. xxxx

66

67

See also Davis, R., Prohibiting Public Employee from Running for Elective Office as Violation of Employees Federal Constitutional Rights, 44 A.L.R. Fed. 306.
68

Alderman v. Philadelphia Housing Authority, 496 F.2d 164, 171 n. 45 (1974). Fernandez v. State Personnel Board, et al., 175 Ariz. 39, 852 P.2d 1223 (1993). Dissenting Opinion of Chief Justice Reynato S. Puno, pp. 51-56.

69

70

71

Carver v. Dennis, 104 F.3d 847, 65 USLW 2476 (1997); American Constitutional Law Foundation, Inc. v. Meyer, 120 F.3d 1092, 1101 (1997); NAACP, Los Angeles Branch v. Jones, 131 F.3d 1317, 1324 (1997); Brazil-Breashears v. Bilandic, 53 F.3d 789, 792 (1995). See also Bullock v. Carter, supra note 60, quoted in Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508 (1982).
72

Newcomb v. Brennan, 558 F.2d 825 (1977). 677 F.2d 622, 624 (1982). Newcomb v. Brennan, supra note 72. Id. Supra note 71. Supra note 58.

73

74

75

76

77

78

The provision in question in Clements covers District Clerks, County Clerks, County Judges, County Treasurers, Criminal District Attorneys, County Surveyors, Inspectors of Hides and Animals, County Commissioners, Justices of the Peace, Sheriffs, Assessors and Collectors of Taxes, District Attorneys, County Attorneys, Public Weighers, and Constables. On the other hand, the provision in Morial covers judges running for nonjudicial elective office.
79

Decision, pp. 25-26. Magill v. Lynch, supra note 65. Dissenting Opinion of Chief Justice Reynato S. Puno, p. 63. Decision, p. 27, citing Mancuso v. Taft, supra note 52.

80

81

82

83

See rollo, p.3, where the titular heading, as well as the first paragraph of Resolution 8678, refers to the contents of said Resolution as the "Guidelines on 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."
84

The Sangguniang Kabataan elections, although nonpartisan in character, are not relevant to the present inquiry, because they are unlikely to involve the candidacies of appointive public officials.
85

Dissenting Opinion of Chief Justice Reynato S. Puno, pp. 64-65. Smith v. Ehrlich, 430 F. Supp. 818 (1976). Broadrick v. Oklahoma, supra note 54. Magill v. Lynch, supra note 65. Id. Id. Id. Id. Broadrick v. Oklahoma, supra note 54. Id. Id. Mining v. Wheeler, 378 F. Supp. 1115 (1974). Broadrick v. Oklahoma, supra note 54. Aiello v. City of Wilmington, Delaware, 623 F.2d 845 (1980). Motion for Reconsideration dated December 16, 2009, p. 2.

86

87

88

89

90

91

92

93

94

95

96

97

98

99

Id. at p. 3, citing Comelec wants SC to reverse ruling on govt execs, Philippine Daily Inquirer, 11 December 2009, available at http://politics.inquirer.net/view.php?article=20091211-241394.
100 101

Id., citing Devanadera files COC for Quezon congress seat, The Philippine Star, 15 December 2009, available at http:://www.philstar.com/Article.aspx?articleId=532552&publicationSubCategoryId=67.
102

Revised administrative code, title 3, book iv, Chapter 8, Sec. 39 Republic Act No. 6646, Sec. 20.

103

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION CARPIO, J.: I concur with the ponencia of Chief Justice Reynato S. Puno. The filing of a Certificate of Candidacy for an elective position is, by the very nature of the act, an electioneering or partisan political activity. Two provisions of the Constitution, taken together, mandate that civil service employees cannot engage in any electioneering or partisan political activity except to vote. Thus, the Constitution provides: Section 2(4), Article IX-B of the Constitution No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political activity. Section 5(3), Article XVI of the Constitution No member of the military shall engage, directly or indirectly, in any partisan political activity, except to vote. During the deliberations of the Constitutional Commission on these provisions of the Constitution, it was clear that the exercise of the right to vote is the only non-partisan political activity a citizen can do. All other political activities are deemed partisan. Thus, Commissioner Christian Monsod declared that, "As a matter of fact, the only non partisan political activity one can engage in as a citizen is voting."1 Indisputably, any political activity except to vote is a partisan political activity. Section 79(b) of the Omnibus Election Code implements this by declaring that any act designed to elect or promote the election of a candidate is an electioneering or partisan political activity, thus: The term "election campaign" or "partisan political activity"refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office xxx."

Filing a certificate of candidacy is obviously a partisan political activity. First, the mere filing of a Certificate of Candidacy is a definitive announcement to the world that a person will actively solicit the votes of the electorate to win an elective public office. Such an announcement is already a promotion of the candidates election to public office. Indeed, once a person becomes an official candidate, he abandons the role of a mere passive voter in an election, and assumes the role of a political partisan, a candidate promoting his own candidacy to public office. Second, only a candidate for a political office files a Certificate of Candidacy. A person merely exercising his or her right to vote does not. A candidate for a political office is necessarily a partisan political candidate because he or she is contesting an elective office against other political candidates. The candidate and the electorate know that there are, more often than not, other candidates vying for the same elective office, making the contest politically partisan. Third, a candidate filing his or her Certificate of Candidacy almost always states in the Certificate of Candidacy the name of the political party to which he or she belongs. The candidate will even attach to his or her Certificate of Candidacy the certification of his or her political party that he or she is the official candidate of the political party. Such certification by a political party is obviously designed to promote the election of the candidate. Fourth, the constitutional ban prohibiting civil servants from engaging in partisan political activities is intended, among others, to keep the civil service non-partisan. This constitutional ban is violated when a civil servant files his or her Certificate of Candidacy as a candidate of a political party. From the moment the civil servant files his or her Certificate of Candidacy, he or she is immediately identified as a political partisan because everyone knows he or she will prepare, and work, for the victory of his or her political party in the elections. Fifth, the constitutional ban prohibiting civil servants from engaging in partisan political activities is also intended to prevent civil servants from using their office, and the resources of their office, to promote their candidacies or the candidacies of other persons. We have seen the spectacle of civil servants who, after filing their certificates of candidacies, still cling to their public office while campaigning during office hours. Sixth, the constitutional ban prohibiting civil servants from engaging in partisan political activities is further intended to prevent conflict of interest. We have seen Comelec officials who, after filing their certificates of candidacies, still hold on to their public office. Finally, filing of a Certificate of Candidacy is a partisan political act that ipso facto operates to consider the candidate deemed resigned from public office pursuant to paragraph 3, Section 11 of R.A. No. 8436, as amended by R.A. No. 9369, as well as Section 66 of the Omnibus Election Code, as amended. Accordingly, I vote to grant respondent Comelecs Motion for Reconsideration. ANTONIO T. CARPIO Associate Justice

Footnotes
1

Records of the Constitutional Commission, Vol. I, p. 543.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION NACHURA, J.: I vote to maintain this Courts December 1, 2009 Decision. The automatic resignation rule on appointive government officials and employees running for elective posts is, to my mind, unconstitutional. I therefore respectfully register my dissent to the resolution of the majority granting the motion for reconsideration. I earnestly believe that by this resolution, the majority refused to rectify an unjust rule, leaving in favor of a discriminatory state regulation and disregarding the primacy of the peoples fundamental rights to the equal protection of the laws. Let it be recalled that, on December 1, 2009, the Court rendered its Decision granting the petition and declaring as unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act (R.A.) No. 9369, Section 66 of the Omnibus Election Code (OEC) and Section 4(a) of Commission on Elections (COMELEC) Resolution No. 8678.1 Claiming to have legal interest in the matter in litigation, Senator Manuel A. Roxas filed, on December 14, 2009, his Omnibus Motion for Leave of Court to: (a) Intervene in the Instant Case; (b) Admit Attached Motion for Reconsideration; and (c) If Necessary, Set the Instant Case for Oral Arguments.2 On the same date, respondent COMELEC, through its Law Department, moved for the reconsideration of the aforesaid December 1, 2009 Decision.3 Expressing a similar desire, Franklin M. Drilon, a former senator and a senatorial candidate in the 2010 elections, filed, on December 17, 2009, his Motion for Leave to Intervene and to Admit the Attached Motion for Reconsideration in Intervention.4 On December 28, 2009, the Integrated Bar of the Philippines (IBP), Cebu City Chapter, also filed its Motion for Leave to Intervene5 and Motion for Reconsideration in Intervention.6 In a related development, on January 8, 2010, the Office of the Solicitor General (OSG), which initially represented the COMELEC in the proceedings herein, this time disagreed with the latter, and, instead of moving for the reconsideration of the December 1, 2009 Decision, moved for clarification of the effect of our declaration of unconstitutionality.7 Subsequently, Tom V. Apacible, a congressional candidate in the 2010 elections, filed, on January 11, 2010, his Motion to Intervene and for the Reconsideration of the Decision dated December 1, 2009.8 In its January 12, 2010 Resolution,9 the Court required petitioners to comment on the aforesaid motions. On February 1, 2010, petitioners filed their consolidated comment on the motions. Parenthetically, petitioner Quinto admitted that he did not pursue his plan to run for an elective office.10 Petitioner Tolentino, on the other hand, disclosed that he filed his certificate of candidacy

but that he had recently resigned from his post in the executive department. These developments could very well be viewed by the Court as having rendered this case moot and academic. However, I refuse to proceed to such a conclusion, considering that the issues, viewed in relation to other appointive civil servants running for elective office, remain ubiquitously present. Thus, the issues in the instant case could fall within the classification of controversies that are capable of repetition yet evading review. I then implore that the Court rule on the motions. The intervention The motions for intervention should be denied. Section 2, Rule 19 of the Rules of Court explicitly states that motions to intervene may be filed at any time "before the rendition of judgment."11 Obviously, as this Court already rendered judgment on December 1, 2009, intervention may no longer be allowed.12 The movants, Roxas, Drilon, IBP-Cebu City Chapter, and Apacible, cannot claim to have been unaware of the pendency of this much publicized case. They should have intervened prior to the rendition of this Courts Decision on December 1, 2009. To allow their intervention at this juncture is unwarranted and highly irregular.13 While the Court has the power to suspend the application of procedural rules, I find no compelling reason to excuse movants procedural lapse and allow their much belated intervention. Further, a perusal of their pleadings-in-intervention reveals that they merely restated the points and arguments in the earlier dissenting opinions of Chief Justice Puno and Senior Associate Justices Carpio and Carpio Morales. These very same points, incidentally, also constitute the gravamen of the motion for reconsideration filed by respondent COMELEC. Thus, even as the Court should deny the motions for intervention, it is necessary to, pass upon the issues raised therein, because they were the same issues raised in respondent COMELECs motion for reconsideration. The COMELECs motion for reconsideration Interestingly, in its motion for reconsideration, the COMELEC does not raise a matter other than those already considered and discussed by the Court in the assailed decision. As aforesaid, the COMELEC merely echoed the arguments of the dissenters. I remain unpersuaded. I wish to reiterate the Courts earlier declaration that the second proviso in the third paragraph of Section 13 of R.A. No. 9369, Section 66 of the OEC and Section 4(a) of COMELEC Resolution No. 8678 are unconstitutional for being violative of the equal protection clause and for being overbroad. In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their certificates of candidacy (CoCs), but not considering as resigned all other civil servants, specifically the elective ones, the law unduly discriminates against the first class. The fact alone that there is substantial distinction between the two classes does not justify such disparate treatment. Constitutional law jurisprudence requires that the classification must and should be germane to the purposes of the law. As clearly explained in the assailed decision, whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain. Indeed, a candidate, whether holding an appointive or an elective office, may use his position to promote his candidacy or to wield a dangerous or coercive influence on the electorate. Under the same scenario, he may also, in the discharge of his official duties, be swayed by political considerations. Likewise, he may neglect his or her official duties, as he will predictably prioritize his campaign. Chief Justice Puno, in his dissent to the assailed decision, even acknowledges that the "danger of systemic abuse" remains present whether the involved candidate holds an appointive or an elective office, thus

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 tolerableeven innocuousparticularly 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 a reigning political party to advance its own agenda through a "carefully orchestrated use of [appointive and/or elective] officials" coming from various levels of the bureaucracy.14 To repeat for emphasis, classifying candidates, whether they hold appointive or elective positions, and treating them differently by considering the first as ipso facto resigned while the second as not, is not germane to the purposes of the law, because, as clearly shown, the measure is not reasonably necessary to, nor does it necessarily promote, the fulfillment of the state interest sought to be served by the statute. In fact, it may not be amiss to state that, more often than not, the elective officials, not the appointive ones, exert more coercive influence on the electorate, with the greater tendency to misuse the powers of their office. This is illustrated by, among others, the proliferation of "private armies" especially in the provinces. It is common knowledge that "private armies" are backed or even formed by elective officials precisely for the latter to ensure that the electorate will not oppose them, be cowed to submit to their dictates and vote for them. To impose a prohibitive measure intended to curb this evil of wielding undue influence on the electorate and apply the prohibition only on appointive officials is not only downright ineffectual, but is also, as shown in the assailed decision, offensive to the equal protection clause. Furthermore, as the Court explained in the assailed decision, this ipso facto resignation rule is overbroad. It covers all civil servants holding appointive posts without distinction, regardless of whether they occupy positions of influence in government or not. Certainly, a utility worker, a messenger, a chauffeur, or an industrial worker in the government service cannot exert the same influence as that of a Cabinet member, an undersecretary or a bureau head. Parenthetically, it is also unimaginable how an appointive utility worker, compared to a governor or a mayor, can form his own "private army" to wield undue influence on the electorate. It is unreasonable and excessive, therefore, to impose a blanket prohibitionone intended to discourage civil servants from using their positions to influence the voteson all civil servants without considering the nature of their positions. Let it be noted, that, despite their employment in the government, civil servants remain citizens of the country, entitled to enjoy the civil and political rights granted to them in a democracy, including the right to aspire for elective public office. In addition, this general provision on automatic resignation is directed to the activity of seeking any and all public elective offices, whether partisan or nonpartisan in character, whether in the national, municipal or barangay level. No compelling state interest has been shown to justify such a broad, encompassing and sweeping application of the law. It may also be pointed out that this automatic resignation rule has no pretense to be the exclusive and only available remedy to curb the uncontrolled exercise of undue influence and the feared "danger of systemic abuse." As we have explained in the assailed decision, our Constitution and our body of laws are replete with provisions that directly address these evils. We reiterate our earlier pronouncement that specific evils require specific remedies, not overly broad measures that unduly restrict guaranteed freedoms. It should be stressed that when the Court struck down (in the earlier decision) the assailed provisions, the Court did not act in a manner inconsistent with Section 2(4) of Article IX-B of the Constitution, which reads: Sec. 2. x x x.

(4) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political activity. or with Section 5(3), Article XVI of the Constitution, which reads: Sec. 5. x x x. (3) Professionalism in the armed forces and adequate remuneration and benefits of its members shall be a prime concern of the State. The armed forces shall be insulated from partisan politics. No member of the military shall engage, directly or indirectly, in any partisan political activity, except to vote. Neither does the Courts earlier ruling infringe on Section 55, Chapter 8, Title I, Book V of the Administrative Code of 1987, which reads: Sec. 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 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. "Partisan political activity" includes every form of solicitation of the electors vote in favor of a specific candidate.15Section 79(b) of the OEC defines "partisan political activity" as follows: SEC. 79. Definitions.As used in this Code: xxxx (b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include: (1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate; (2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate; (3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office; (4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or (5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nominations for candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as election campaign or partisan political activity. Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article. Given the aforequoted Section 79(b), it is obvious that the filing of a Certificate of Candidacy (CoC) for an elective position, while it may be a political activity, is not a "partisan political activity" within the contemplation of the law. The act of filing is only an announcement of ones intention to run for office. It is only an aspiration for a public office, not yet a promotion or a solicitation of votes for the election or defeat of a candidate for public office. In fact, even after the filing of the CoC but before the start of the campaign period, there is yet no candidate whose election or defeat will be promoted. Rosalinda A. Penera v. Commission on Elections and Edgar T. Andanar16instructs that any person who files his CoC shall only be considered a candidate at the start of the campaign period. Thus, in the absence of a "candidate," the mere filing of CoC cannot be considered as an "election campaign" or a "partisan political activity." Section 79 of the OEC does not even consider as "partisan political activity" acts performed for the purpose of enhancing the chances of aspirants for nominations for candidacy to a public office. Thus, when appointive civil servants file their CoCs, they are not engaging in a "partisan political activity" and, therefore, do not transgress or violate the Constitution and the law. Accordingly, at that moment, there is no valid basis to consider them as ipso facto resigned from their posts. There is a need to point out that the discussion in Farias v. The Executive Secretary,17 relative to the differential treatment of the two classes of civil servants in relation to the ipso facto resignation clause, is obiter dictum. That discussion is not necessary to the decision of the case, the main issue therein being the constitutionality of the repealing clause in the Fair Election Act. Further, unlike in the instant case, no direct challenge was posed in Farias to the constitutionality of the rule on the ipso facto resignation of appointive officials. In any event, the Court en banc, in deciding subsequent cases, can very well reexamine, as it did in the assailed decision, its earlier pronouncements and even abandon them when perceived to be incorrect. Let it also be noted that Mancuso v. Taft18 is not the heart of the December 1, 2009 Decision. Mancuso was only cited to show that resign-to-run provisions, such as those which are specifically involved herein, have been stricken down in the United States for unduly burdening First Amendment rights of employees and voting rights of citizens, and for being overbroad. Verily, in our jurisdiction, foreign jurisprudence only enjoys a persuasive influence on the Court. Thus, the contention that Mancuso has been effectively overturned by subsequent American cases, such as United States Civil Service Commission v. National Association of Letter Carriers19 and Broadrick v. State of Oklahoma,20 is not controlling. Be that as it may, a closer reading of these latter US cases reveals that Mancuso is still applicable. On one hand, Letter Carriers and Broadrick, which are based on United Public Workers of America v. Mitchell,21involve provisions prohibiting Federal employees from engaging in partisan political activities or political campaigns. In Mitchell, the appellants sought exemption from the implementation of a sentence in the Hatch Act, which reads: "No officer or employee in the executive branch of the Federal Government x x x shall take any active part in political management or in political campaigns."22 Among the appellants, only George P. Poole violated the provision23 by being a ward executive committeeman of a political party and by being politically active on election day as a worker at the polls and a paymaster for the services of other party workers.24

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.25 In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the 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.26 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.27 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 his candidacy 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.28 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. Thus, in Magill v. Lynch,29 the same collegial court which decided Mancuso was so careful in its analysis that it even remanded the case for consideration on the overbreadth claim. The Magill court stated thusPlaintiffs 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.30 As observed by the Court (citing Clements v. Fashing31) in the December 1, 2009 Decision, U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run rules when applied to specified or particular officials, as distinguished from all others, 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. In fact, Morial v. Judiciary Commission of the State of Louisiana,32 where the resign-to-run provision pertaining to judges running for political offices was upheld, declares that "there is no blanket approval of restriction on the right of public employees to become candidates for public office."33 The Morial court instructed thus Because the judicial office is different in key respects from other offices, the state may regulate its judges with the differences in mind. For example the contours of the judicial function make inappropriate the same kind of particularized pledges of conduct in office that are the very stuff of campaigns for most non-judicial offices. A candidate for the mayoralty can and often should announce his determination to effect some program, to reach a particular result on some question of city policy, or to advance the interests of a particular group. It is expected that his decisions in office may be predetermined by campaign commitment. Not so the candidate for judicial office. He cannot, consistent with the proper exercise of his judicial powers, bind himself to decide particular cases in order to achieve a given programmatic result. Moreover, the judge acts on individual cases and not broad programs. The judge legislates but interstitially; the

progress through the law of a particular judge's social and political preferences is, in Mr. Justice Holmes' words, "confined from molar to molecular motions." As one safeguard of the special character of the judicial function, Louisiana's Code of Judicial Conduct bars candidates for judicial office from making "pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office." Candidates for nonjudicial office are not subject to such a ban; in the conduct of his campaign for the mayoralty, an erstwhile judge is more free to make promises of post-campaign conduct with respect both to issues and personnel, whether publicly or privately, than he would be were he a candidate for reelection to his judgeship. The state may reasonably conclude that such pledges and promises, though made in the course of a campaign for non-judicial office, might affect or, even more plausibly, appear to affect the post-election conduct of a judge who had returned to the bench following an electoral defeat. By requiring resignation of any judge who seeks a non-judicial office and leaving campaign conduct unfettered by the restrictions which would be applicable to a sitting judge, Louisiana has drawn a line which protects the state's interests in judicial integrity without sacrificing the equally important interests in robust campaigns for elective office in the executive or legislative branches of government. This analysis applies equally to the differential treatment of judges and other office holders. A judge who fails in his bid for a post in the state legislature must not use his judgeship to advance the cause of those who supported him in his unsuccessful campaign in the legislature. In contrast, a member of the state legislature who runs for some other office is not expected upon his return to the legislature to abandon his advocacy of the interests which supported him during the course of his unsuccessful campaign. Here, too, Louisiana has drawn a line which rests on the different functions of the judicial and non-judicial office holder.34 Indeed, for an ipso facto resignation rule to be valid, it must be shown that the classification is reasonably necessary to attain the objectives of the law. Here, as already explained in the assailed decision, the differential treatment in the application of this resign-to-run rule is not germane to the purposes of the law, because whether one holds an appointive office or an elective one, the evils sought to be prevented are not effectively addressed by the measure. Thus, the ineluctable conclusion that the concerned provisions are invalid for being unconstitutional. Without unnecessarily preempting the resolution of any subsequent actual case or unwittingly giving an advisory opinion, the Court, in the December 1, 2009 Decision, in effect, states that what should be implemented are the other provisions of Philippine laws (not the concerned unconstitutional provisions) that specifically and directly address the evils sought to be prevented by the measure. It is highly speculative then to contend that members of the police force or the armed forces, if they will not be considered as resigned when they file their COCs, is a "disaster waiting to happen." There are, after all, appropriate laws in place to curb abuses in the government service. The invalidation of the ipso facto resignation provisions does not mean the cessation in operation of other provisions of the Constitution and of existing laws. Section 2(4) of Article IX-B and Section 5(3), Article XVI of the Constitution, and Section 55, Chapter 8, Title I, Book V of the Administrative Code of 1987 still apply. So do other statutes, such as the Civil Service Laws, OEC, the Anti-Graft Law, the Code of Conduct and Ethical Standards for Public Officials and Employees, and related laws. Covered civil servants running for political offices who later on engage in "partisan political activity" run the risk of being administratively charged.35 Civil servants who use government funds and property for campaign purposes, likewise, run the risk of being prosecuted under the Anti-Graft and Corrupt Practices Act or under the OEC on election offenses. Those who abuse their authority to promote their candidacy shall be made liable under the appropriate laws. Let it be stressed at this point that the said laws provide for specific remedies for specific evils, unlike the automatic resignation provisions that are sweeping in application and not germane to the purposes of the law.

To illustrate, we hypothetically assume that a municipal election officer, who is an employee of the COMELEC, files his CoC. Given the invalidation of the automatic resignation provisions, the said election officer is not considered as ipso facto resigned from his post at the precise moment of the filing of the CoC. Thus, he remains in his post, and his filing of a CoC cannot be taken to be a violation of any provision of the Constitution or any statute. At the start of the campaign period, however, if he is still in the government service, that is, if he has not voluntarily resigned, and he, at the same time, engages in a "partisan political activity," then, he becomes vulnerable to prosecution under the Administrative Code, under civil service laws, under the Anti-Graft and Corrupt Practices Act or under the OEC. Upon the proper action being filed, he could, thus, be disqualified from running for office, or if elected, prevented from assuming, or if he had already assumed office, be removed from, office. At this juncture, it may even be said that Mitchell, Letter Carriers and Broadrick, the cases earlier cited by Chief Justice Puno and Associate Justices Carpio and Carpio-Morales, support the proposition advanced by the majority in the December 1, 2009 Decision. While the provisions on the ipso facto resignation of appointive civil servants are unconstitutional for being violative of the equal protection clause and for being overbroad, the general provisions prohibiting civil servants from engaging in "partisan political activity" remain valid and operational, and should be strictly applied. The COMELECs motion for reconsideration should, therefore, be denied. The OSGs motion for clarification In its motion, the OSG pleads that this Court clarify whether, by declaring as unconstitutional the concerned ipso facto resignation provisions, the December 1, 2009 Decision intended to allow appointive officials to stay in office during the entire election period.36 The OSG points out that the official spokesperson of the Court explained before the media that "the decision would in effect allow appointive officials to stay on in their posts even during the campaign period, or until they win or lose or are removed from office."37 I pose the following response to the motion for clarification. The language of the December 1, 2009 Decision is too plain to be mistaken. The Court only declared as unconstitutional Section 13 of R.A. No. 9369, Section 66 of the OEC and Section 4(a) of COMELEC Resolution No. 8678. The Court never stated in the decision that appointive civil servants running for elective posts are allowed to stay in office during the entire election period. The only logical and legal effect, therefore, of the Courts earlier declaration of unconstitutionality of the ipso facto resignation provisions is that appointive government employees or officials who intend to run for elective positions are not considered automatically resigned from their posts at the moment of filing of their CoCs. Again, as explained above, other Constitutional and statutory provisions do not cease in operation and should, in fact, be strictly implemented by the authorities. Let the full force of the laws apply. Then let the axe fall where it should. ANTONIO EDUARDO B. NACHURA Associate Justice Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 163193 June 15, 2004

SIXTO S. BRILLANTES, JR., petitioner, JOSE CONCEPCION, JR., JOSE DE VENECIA, EDGARDO J. ANGARA, DR. JAIME Z. GALVEZ-TAN, FRANKLIN M. DRILON, FRISCO SAN JUAN, NORBERTO M. GONZALES, HONESTO M. GUTIERREZ, ISLETA, AND JOSE A. BERNAS, Petitioners-in-Intervention, vs. COMMISSION ON ELECTIONS, respondent. DECISION CALLEJO, SR., J.: Before us is the petition for certiorari and prohibition under Rule 65 of the Rules of Court filed by Atty. Sixto S. Brillantes, Jr., a voter and taxpayer, seeking to nullify, for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction, Resolution No. 6712 dated April 28, 2004 approved by the Commission on Elections (COMELEC) En Banc captioned GENERAL INSTRUCTIONS FOR THE ELECTRONIC TRANSMISSION AND CONSOLIDATION OF ADVANCED RESULTS IN THE MAY 10, 2004 ELECTIONS.1 The petitioner, likewise, prays for the issuance of a temporary restraining order and, after due proceedings, a writ of prohibition to permanently enjoin the respondent COMELEC from enforcing and implementing the questioned resolution. After due deliberation, the Court resolved to require the respondent to comment on the petition and to require the parties to observe the status quo prevailing before the issuance by the COMELEC of the assailed resolution. The parties were heard on oral arguments on May 8, 2004. The respondent COMELEC was allowed during the hearing to make a presentation of the Electronic Transmission, Consolidation and Dissemination (PHASE III) program of the COMELEC, through Mr. Renato V. Lim of the Philippine Multi-Media System, Inc. (PMSI). The Court, thereafter, resolved to maintain the status quo order issued on May 6, 2004 and expanded it to cover any and all other issuances related to the implementation of the so-called election quick count project. In compliance with the resolution of the Court, the respondent, the petitioner and the petitioners-in-intervention submitted the documents required of them. The Antecedents On December 22, 1997, Congress enacted Republic Act No. 84362 authorizing the COMELEC to use an automated election system (AES) for the process of voting, counting of votes and canvassing/consolidating the results of the national and local elections. It also mandated the COMELEC to acquire automated counting machines (ACMs), computer equipment, devices and materials; and to adopt new electoral forms and printing materials. The COMELEC initially intended to implement the automation during the May 11, 1998 presidential elections, particularly in the Autonomous Region in Muslim Mindanao (ARMM). The failure of the machines to read correctly some automated ballots, however, deferred its implementation.3 In the May 2001 elections, the counting and canvassing of votes for both national and local positions were also done manually, as no additional ACMs had been acquired for that electoral exercise because of time constraints. On October 29, 2002, the COMELEC adopted, in its Resolution No. 02-0170, a modernization program for the 2004 elections consisting of three (3) phases, to wit:

(1) PHASE I Computerized system of registration and voters validation or the so-called "biometrics" system of registration; (2) PHASE II Computerized voting and counting of votes; and (3) PHASE III Electronic transmission of results. It resolved to conduct biddings for the three phases. On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172,4 which allocated the sum of P2,500,000,000 to exclusively fund the AES in time for the May 10, 2004 elections. On January 28, 2003, the COMELEC issued an Invitation to Bid5 for the procurement of supplies, equipment, materials and services needed for the complete implementation of all three phases of the AES with an approved budget of P2,500,000,000. On February 10, 2003, upon the request of the COMELEC, President Gloria Macapagal-Arroyo issued Executive Order No. 175,6 authorizing the release of a supplemental P500 million budget for the AES project of the COMELEC. The said issuance, likewise, instructed the Department of Budget and Management (DBM) to ensure that the aforementioned additional amount be used exclusively for the AES prescribed under Rep. Act No. 8436, particularly "the process of voting, counting of votes and canvassing/consolidation of results of the national and local elections."7 On April 15, 2003, the COMELEC promulgated Resolution No. 6074 awarding the contract for Phase II of the AES to Mega Pacific Consortium and correspondingly entered into a contract with the latter to implement the project. On the same day, the COMELEC entered into a separate contract with Philippine Multi-Media System, Inc. (PMSI) denominated "ELECTRONIC TRANSMISSION, CONSOLIDATION & DISSEMINATION OF ELECTION RESULTS PROJECT CONTRACT.8 The contract, by its very terms, pertains to Phase III of the respondent COMELECs AES modernization program. It was predicated on a previous bid award of the contract, for the lease of 1,900 units of satellite-based Very Small Aperture Terminals (VSAT) each unit consisting of an indoor and outdoor equipment, to PMSI for possessing the legal, financial and technical expertise necessary to meet the projects objectives. The COMELEC bound and obliged itself to pay PMSI the sum of P298,375,808.90 as rentals for the leased equipment and for its services. In the meantime, the Information Technology Foundation of the Philippines (ITFP), filed a petition for certiorari and prohibition in this Court for the nullification of Resolution No. 6074 approving the contract for Phase II of AES to Mega Pacific Consortium, entitled and docketed as Information Technology Foundation of the Philippines, et al. vs. COMELEC, et al., G.R. No. 159139. While the case was pending in this Court, the COMELEC paid the contract fee to the PMSI in trenches. On January 13, 2004, this Court promulgated its Decision nullifying COMELEC Resolution No. 6074 awarding the contract for Phase II of the AES to Mega Pacific Consortium. Also voided was the subsequent contract entered into by the respondent COMELEC with Mega Pacific Consortium for the purchase of computerized voting/counting machines for the purpose of implementing the second phase of the modernization program. Phase II of the AES was, therefore, scrapped based on the said Decision of the Court and the COMELEC had to maintain the old manual voting and counting system for the May 10, 2004 elections. On the other hand, the validation scheme under Phase I of the AES apparently encountered problems in its implementation, as evinced by the COMELECs pronouncements prior to the elections that it was reverting to the old listing of voters. Despite the scrapping of Phase II of the AES, the COMELEC nevertheless ventured to implement Phase III of the AES through an

electronic transmission of advanced "unofficial" results of the 2004 elections for national, provincial and municipal positions, also dubbed as an "unofficial quick count." Senate President Franklin Drilon had misgivings and misapprehensions about the constitutionality of the proposed electronic transmission of results for the positions of President and Vice-President, and apprised COMELEC Chairman Benjamin Abalos of his position during their meeting on January 28, 2004. He also wrote Chairman Abalos on February 2, 2004. The letter reads: Dear Chairman Abalos, This is to confirm my opinion which I relayed to you during our meeting on January 28th that the Commission on Elections cannot and should not conduct a "quick count" on the results of the elections for the positions of President and Vice-President. Under Section 4 of Article VII of the Constitution, it is the Congress that has the sole and exclusive authority to canvass the votes for President and Vice-President. Thus, any quick count to be conducted by the Commission on said positions would in effect constitute a canvass of the votes of the President and Vice-President, which not only would be pre-emptive of the authority of the Congress, but also would be lacking of any Constitutional authority. You conceded the validity of the position we have taken on this point. In view of the foregoing, we asked the COMELEC during that meeting to reconsider its plan to include the votes for President and Vice-President in the "quick count", to which you graciously consented. Thank you very much.9 The COMELEC approved a Resolution on February 10, 2004 referring the letter of the Senate President to the members of the COMELEC and its Law Department for study and recommendation. Aside from the concerns of the Senate President, the COMELEC had to contend with the primal problem of sourcing the money for the implementation of the project since the money allocated by the Office of the President for the AES had already been spent for the acquisition of the equipment. All these developments notwithstanding, and despite the explicit specification in the project contract for Phase III that the same was functionally intended to be an interface of Phases I and II of the AES modernization program, the COMELEC was determined to carry out Phase III of the AES. On April 6, 2004, the COMELEC, in coordination with the project contractor PMSI, conducted a field test of the electronic transmission of election results. On April 27, 2004, the COMELEC met en banc to update itself on and resolve whether to proceed with its implementation of Phase III of the AES.10 During the said meeting, COMELEC Commissioner Florentino Tuason, Jr. requested his fellow Commissioners that "whatever is said here should be confined within the four walls of this room and the minutes so that walang masyadong problema.11 Commissioner Tuason, Jr. stated that he had no objection as to the Phase III of the modernization project itself, but had concerns about the budget. He opined that other funds of the COMELEC may not be proper for realignment. Commissioners Resurreccion Z. Borra and Virgilio Garcillano also expressed their concerns on the budget for the project. Commissioner Manuel Barcelona, Jr. shared the sentiments of Commissioners Garcillano and Tuason, Jr. regarding personnel and budgetary problems. Commissioner Sadain then manifested that the consideration for the contract for Phase III had already been almost fully paid even before the Courts nullification of the contract for Phase II of the AES, but he was open to the possibility of the realignment of funds of the COMELEC for the funding of the project. He added that if the implementation of Phase III would not be allowed to continue just because Phase II was nullified, then it would be P300,000,000 down the drain, in addition to the already allocated disbursement on Phase II of the AES.12 Other concerns of the Commissioners were on the legality of the project considering the scrapping of Phase II of the AES, as well as the operational constraints related to its implementation.

Despite the dire and serious reservations of most of its members, the COMELEC, the next day, April 28, 2004, barely two weeks before the national and local elections, approved the assailed resolution declaring that it "adopts the policy that the precinct election results of each city and municipality shall be immediately transmitted electronically in advance to the COMELEC, Manila."13 For the purpose, respondent COMELEC established a National Consolidation Center (NCC), Electronic Transmission Centers (ETCs) for every city and municipality, and a special ETC at the COMELEC, Manila, for the Overseas Absentee Voting.14 Briefly, the procedure for this electronic transmission of precinct results is outlined as follows: I. The NCC shall receive and consolidate all precinct results based on the data transmitted to it by each ETC;15 II. Each city and municipality shall have an ETC "where votes obtained by each candidate for all positions shall be encoded, and shall consequently be transmitted electronically to the NCC, through Very Small Aperture Terminal (VSAT) facilities."16 For this purpose, personal computers shall be allocated for all cities and municipalities at the rate of one set for every one hundred seventy-five (175) precincts;17 III. A Department of Education (DepEd) Supervisor shall be designated in the area who will be assigned in each polling center for the purpose of gathering from all Board of Election Inspectors (BEI) therein the envelopes containing the Copy 3 of the Election Returns (ER) for national positions and Copy 2 of the ER for local positions, both intended for the COMELEC, which shall be used as basis for the encoding and transmission of advanced precinct results.18 The assailed resolution further provides that written notices of the date, time and place of the electronic transmission of advanced precinct results shall be given not later than May 5, 2004 to candidates running for local positions, and not later than May 7, 2004 to candidates running for national positions, as well as to political parties fielding candidates, and parties, organizations/coalitions participating under the party-list system.19 In relation to this, Section 13 of the assailed resolution provides that the encoding proceedings were ministerial and the tabulations were "advanced unofficial results." The entirety of Section 13, reads: Sec. 13. Right to observe the ETC proceedings. Every registered political party or coalition of parties, accredited political party, sectoral party/organization or coalition thereof under the party-list, through its representative, and every candidate for national positions has the right to observe/witness the encoding and electronic transmission of the ERs within the authorized perimeter. Provided, That candidates for the sangguniang panlalawigan, sangguniang panglungsod or sangguniang bayanbelonging to the same slate or ticket shall collectively be entitled to only one common observer at the ETC. The citizens arm of the Commission, and civic, religious, professional, business, service, youth and other similar organizations collectively, with prior authority of the Commission, shall each be entitled to one (1) observer. Such fact shall be recorded in the Minutes. The observer shall have the right to observe, take note of and make observations on the proceedings of the team. Observations shall be in writing and, when submitted, shall be attached to the Minutes. The encoding proceedings being ministerial in nature, and the tabulations being advanced unofficial results, no objections or protests shall be allowed or entertained by the ETC.

In keeping with the "unofficial" character of the electronically transmitted precinct results, the assailed resolution expressly provides that "no print-outs shall be released at the ETC and at the NCC."20 Instead, consolidated and per-precinct results shall be made available via the Internet, text messaging, and electronic billboards in designated locations. Interested parties may print the result published in the COMELEC web site.21 When apprised of the said resolution, the National Citizens Movement for Free Elections (NAMFREL), and the heads of the major political parties, namely, Senator Edgardo J. Angara of the Laban ng Demokratikong Pilipino(LDP) and Chairman of the Koalisyon ng mga Nagkakaisang Pilipino (KNP) Executive Committee, Dr. Jaime Z. Galvez Tan of the Aksyon Demokratiko, Frisco San Juan of the Nationalist Peoples Coalition (NPC), Gen. Honesto M. Isleta of Bangon Pilipinas, Senate President Franklin Drilon of the Liberal Party, and Speaker Jose de Venecia of the Lakas-Christian Muslim Democrats (CMD) and Norberto M. Gonzales of the Partido Demokratiko Sosyalista ng Pilipinas, wrote the COMELEC, on May 3, 2004 detailing their concerns about the assailed resolution: This refers to COMELEC Resolution 6712 promulgated on 28 April 2004. NAMFREL and political parties have the following concerns about Resolution 6712 which arose during consultation over the past week[:] a) The Resolution disregards RA 8173, 8436, and 7166 which authorize only the citizens arm to use an election return for an unofficial count; other unofficial counts may not be based on an election return; Indeed, it may be fairly inferred from the law that except for the copy of the citizens arm, election returns may only be used for canvassing or for receiving dispute resolutions. b) The Commissions copy, the second or third copy of the election return, as the case may be, has always been intended to be an archived copy and its integrity preserved until required by the Commission to resolve election disputes. Only the Board of Election Inspectors is authorized to have been in contact with the return before the Commission unseals it. c) The instruction contained in Resolution 6712, to break the seal of the envelope containing copies Nos. 2 and 3 will introduce a break in the chain of custody prior to its opening by the Commission on Election[s]. In the process of prematurely breaking the seal of the Board of Election Inspectors, the integrity of the Commissions copy is breached, thereby rendering it void of any probative value. To us, it does appear that the use of election returns as prescribed in Resolution 6712 departs from the letters and spirit of the law, as well as previous practice. More importantly, questions of legalities aside, the conduct of an advanced count by the COMELEC may affect the credibility of the elections because it will differ from the results obtained from canvassing. Needless to say, it does not help either that Resolution 6712 was promulgated only recently, and perceivably, on the eve of the elections. In view of the foregoing, we respectfully request the Commission to reconsider Resolution 6712 which authorizes the use of election returns for the consolidation of the election results for the May 10, 2004 elections.22 The Present Petition On May 4, 2004, the petition at bar was filed in this Court. Jose Concepcion, Jr., Jose De Venecia, Edgardo J. Angara, Dr. Jaime Z. Galvez-Tan, Franklin M. Drilon, Frisco San Juan, Norberto M. Gonzales, Honesto M. Isleta and Jose A. Bernas, filed

with this Court their Motion to Admit Attached Petition-in-Intervention. In their petition-inintervention, movants-petitioners urge the Court to declare as null and void the assailed resolution and permanently enjoin the respondent COMELEC from implementing the same. The Court granted the motion of the petitioners-in-intervention and admitted their petition. In assailing the validity of the questioned resolution, the petitioner avers in his petition that there is no provision under Rep. Act No. 8436 which authorizes the COMELEC to engage in the biometrics/computerized system of validation of voters (Phase I) and a system of electronic transmission of election results (Phase III). Even assuming for the nonce that all the three (3) phases are duly authorized, they must complement each other as they are not distinct and separate programs but mere stages of one whole scheme. Consequently, considering the failed implementation of Phases I and II, there is no basis at all for the respondent COMELEC to still push through and pursue with Phase III. The petitioner essentially posits that the counting and consolidation of votes contemplated under Section 6 of Rep. Act No. 8436 refers to the official COMELEC count under the fully automated system and not any kind of "unofficial" count via electronic transmission of advanced results as now provided under the assailed resolution. The petitioners-in-intervention point to several constitutional infractions occasioned by the assailed resolution. They advance the view that the assailed resolution effectively preempts the sole and exclusive authority of Congress under Article VII, Section 4 of the Constitution to canvass the votes for President and Vice-President. Further, as there has been no appropriation by Congress for the respondent COMELEC to conduct an "unofficial" electronic transmission of results of the May 10, 2004 elections, any expenditure for the said purpose contravenes Article VI, Section 29 (par. 1) of the Constitution. On statutory grounds, the petitioner and petitioners-in-intervention contend that the assailed resolution encroaches upon the authority of NAMFREL, as the citizens accredited arm, to conduct the "unofficial" quick count as provided under pertinent election laws. It is, likewise, impugned for violating Section 52(i) of the Omnibus Election Code, relating to the requirement of notice to the political parties and candidates of the adoption of technological and electronic devices during the elections. For its part, the COMELEC preliminarily assails the jurisdiction of this Court to pass upon the assailed resolutions validity claiming that it was promulgated in the exercise of the respondent COMELECs executive or administrative power. It asserts that the present controversy involves a "political question;" hence, beyond the ambit of judicial review. It, likewise, impugns the standing of the petitioner to file the present petition, as he has not alleged any injury which he would or may suffer as a result of the implementation of the assailed resolution. On the merits, the respondent COMELEC denies that the assailed resolution was promulgated pursuant to Rep. Act No. 8436, and that it is the implementation of Phase III of its modernization program. Rather, as its bases, the respondent COMELEC invokes the general grant to it of the power to enforce and administer all laws relative to the conduct of elections and to promulgate rules and regulations to ensure free, orderly and honest elections by the Constitution, the Omnibus Election Code, and Rep. Acts Nos. 6646 and 7166. The COMELEC avers that granting arguendo that the assailed resolution is related to or connected with Phase III of the modernization program, no specific law is violated by its implementation. It posits that Phases I, II and III are mutually exclusive schemes such that, even if the first two phases have been scrapped, the latter phase may still proceed independently of and separately from the others. It further argues that there is statutory basis for it to conduct an "unofficial" quick count. Among others, it invokes the general grant to it of the power "to ensure free, orderly, honest, peaceful and credible elections." Finally, it claims that it had complied with Section 52(i) of the Omnibus Election Code, as the political parties and all the candidates of the 2004 elections were sufficiently notified of the electronic transmission of advanced election results.

The COMELEC trivializes as "purely speculative" these constitutional concerns raised by the petitioners-in-intervention and the Senate President. It maintains that what is contemplated in the assailed resolution is not a canvass of the votes but merely consolidation and transmittal thereof. As such, it cannot be made the basis for the proclamation of any winning candidate. Emphasizing that the project is "unofficial" in nature, the COMELEC opines that it cannot, therefore, be considered as preempting or usurping the exclusive power of Congress to canvass the votes for President and Vice-President. The Issues At the said hearing on May 8, 2004, the Court set forth the issues for resolution as follows: 1. Whether the petitioner and the petitioners-intervenors have standing to sue; 2. Assuming that they have standing, whether the issues they raise are political in nature over which the Court has no jurisdiction; 3. Assuming the issues are not political, whether Resolution No. 6712 is void: (a) for preempting the sole and exclusive authority of Congress under Art. VII, Sec. 4 of the 1987 Constitution to canvass the votes for the election of President and Vice-President; (b) for violating Art. VI, Sec. 29 (par. 1) of the 1987 Constitution that "no money shall be paid out of the treasury except in pursuance of an appropriation made by law;" (c) for disregarding Rep. Acts Nos. 8173, 8436 and 7166 which authorize only the citizens arm to use an election return for an "unofficial" count; (d) for violation of Sec. 52(i) of the Omnibus Election Code, requiring not less than thirty (30) days notice of the use of new technological and electronic devices; and, (e) for lack of constitutional or statutory basis; and, 4. Whether the implementation of Resolution No. 6712 would cause trending, confusion and chaos. The Ruling of the Court The issues, as earlier defined, shall now be resolved in seriatim: The Petitioners And Petitioners-In-Intervention Possess The Locus Standi To Maintain The Present Action The gist of the question of standing is whether a party has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.23 Since the implementation of the assailed resolution obviously involves the expenditure of funds, the petitioner and the petitioners-in-intervention, as taxpayers, possess the requisite standing to question its validity as they have sufficient interest in preventing the illegal expenditure of money raised by taxation.24 In essence, taxpayers are allowed to sue where there is a claim of illegal disbursement of public funds, or that public money is being deflected to any improper purpose, or where the petitioners seek to restrain the

respondent from wasting public funds through the enforcement of an invalid or unconstitutional law.25 Most of the petitioners-in-intervention are also representatives of major political parties that have participated in the May 10, 2004 elections. On the other hand, petitioners-in-intervention Concepcion and Bernas represent the National Citizens Movement for Free Elections (NAMFREL), which is the citizens arm authorized to conduct an "unofficial" quick count during the said elections. They have sufficient, direct and personal interest in the manner by which the respondent COMELEC would conduct the elections, including the counting and canvassing of the votes cast therein. Moreover, the petitioners-in-intervention Drilon and De Venecia are, respectively, President of the Senate and Speaker of the House of Representatives, the heads of Congress which is exclusively authorized by the Constitution to canvass the votes for President and Vice-President. They have the requisite standing to prevent the usurpation of the constitutional prerogative of Congress. The Issue Raised By The Petition Is Justiciable Article VIII, Section 1 of the 1987 Constitution expands the concept of judicial review by providing that: SEC. 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The Court does not agree with the posture of the respondent COMELEC that the issue involved in the present petition is a political question beyond the jurisdiction of this Court to review. As the leading case ofTaada vs. Cuenco26 put it, political questions are concerned with "issues dependent upon the wisdom, notlegality of a particular measure." The issue raised in the present petition does not merely concern the wisdom of the assailed resolution but focuses on its alleged disregard for applicable statutory and constitutional provisions. In other words, that the petitioner and the petitioners-in-intervention are questioning the legality of the respondent COMELECs administrative issuance will not preclude this Court from exercising its power of judicial review to determine whether or not there was grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the respondent COMELEC in issuing Resolution No. 6712. Indeed, administrative issuances must not override, supplant or modify the law, but must remain consistent with the law they intend to carry out.27 When the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the limitations respected, is justiciable the problem being one of legality or validity, not its wisdom.28 In the present petition, the Court must pass upon the petitioners contention that Resolution No. 6712 does not have adequate statutory or constitutional basis. Although not raised during the oral arguments, another procedural issue that has to be addressed is whether the substantive issues had been rendered moot and academic. Indeed, the May 10, 2004 elections have come and gone. Except for the President and Vice-President, the newly- elected national and local officials have been proclaimed. Nonetheless, the Court finds it necessary to resolve the merits of the substantive issues for future guidance of both the bench and bar.29 Further, it is settled rule that courts will decide a question otherwise moot and academic if it is "capable of repetition, yet evading review."30

The Respondent COMELEC Committed Grave Abuse Of Discretion Amounting To Lack Or Excess Of Jurisdiction In Issuing Resolution No. 6712 The preliminary issues having been thus resolved, the Court shall proceed to determine whether the respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in promulgating the assailed resolution. The Court rules in the affirmative. An administrative body or tribunal acts without jurisdiction if it does not have the legal power to determine the matter before it; there is excess of jurisdiction where the respondent, being clothed with the power to determine the matter, oversteps its authority as determined by law.31 There is grave abuse of discretion justifying the issuance of the writ of certiorari when there is a capricious and whimsical exercise of his judgment as is equivalent to lack of jurisdiction.32 First. The assailed resolution usurps, under the guise of an "unofficial" tabulation of election results based on a copy of the election returns, the sole and exclusive authority of Congress to canvass the votes for the election of President and Vice-President. Article VII, Section 4 of the Constitution provides in part: The returns of every election for President and Vice-President duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes. As early as January 28, 2004, Senate President Franklin M. Drilon already conveyed to Chairman Benjamin S. Abalos, Sr. his deep-seated concern that the respondent COMELEC could not and should not conduct any "quick count" of the votes cast for the positions of President and Vice-President. In his Letter dated February 2, 200433addressed to Chairman Abalos, Senate President Drilon reiterated his position emphasizing that "any quick count to be conducted by the Commission on said positions would in effect constitute a canvass of the votes of the President and Vice-President, which not only would be pre-emptive of the authority of Congress, but would also be lacking of any constitutional authority."34 Nonetheless, in disregard of the valid objection of the Senate President, the COMELEC proceeded to promulgate the assailed resolution. Such resolution directly infringes the authority of Congress, considering that Section 4 thereof allows the use of the third copy of the Election Returns (ERs) for the positions of President, Vice-President, Senators and Members of the House of Representatives, intended for the COMELEC, as basis for the encoding and transmission of advanced precinct results, and in the process, canvass the votes for the President and Vice-President, ahead of the canvassing of the same votes by Congress. Parenthetically, even the provision of Rep. Act No. 8436 confirms the constitutional undertaking of Congress as the sole body tasked to canvass the votes for the President and Vice-President. Section 24 thereof provides: SEC. 24. Congress as the National Board of Canvassers for President and VicePresident. -- The Senate and the House of Representatives, in joint public session, shall compose the national board of canvassers for president and vice-president. The returns of every election for president and vice-president duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the president of the Senate. Upon receipt of the certificates of canvass, the president of the Senate shall, not later than thirty (30) days after the day of the election, open all the

certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress upon determination of the authenticity and the due execution thereof in the manner provided by law, canvass all the results for president and vice-president by consolidating the results contained in the data storage devices submitted by the district, provincial and city boards of canvassers and thereafter, proclaim the winning candidates for president and vice-president. The contention of the COMELEC that its tabulation of votes is not prohibited by the Constitution and Rep. Act No. 8436 as such tabulation is "unofficial," is puerile and totally unacceptable. If the COMELEC is proscribed from conducting an official canvass of the votes cast for the President and Vice-President, the COMELEC is, with more reason, prohibited from making an "unofficial" canvass of said votes. The COMELEC realized its folly and the merits of the objection of the Senate President on the constitutionality of the resolution that it decided not to conduct an "unofficial" quick count of the results of the elections for President and Vice-President. Commissioner Sadain so declared during the hearing: JUSTICE PUNO: The word you are saying that within 36 hours after election, more or less, you will be able to tell the people on the basis of your quick count, who won the election, is that it? COMM. SADAIN: Well, its not exactly like that, Your Honor. Because the fact of winning the election would really depend on the canvassed results, but probably, it would already give a certain degree of comfort to certain politicians to people rather, as to who are leading in the elections, as far as Senator down are concerned, but not to President and VicePresident. JUSTICE PUNO: So as far as the Senatorial candidates involved are concerned, but you dont give this assurance with respect to the Presidential and Vice-Presidential elections which are more important? COMM. SADAIN: In deference to the request of the Senate President and the House Speaker, Your Honor. According to them, they will be the ones canvassing and proclaiming the winner, so it is their view that we will be pre-empting their canvassing work and the proclamation of the winners and we gave in to their request.35 JUSTICE CALLEJO, [SR.]: Perhaps what you are saying is that the system will minimize "dagdag-bawas" but not totally eradicate "dagdag-bawas"? COMM. SADAIN: Yes, Your Honor.

JUSTICE CALLEJO, [SR.]: Now, I heard either Atty. Bernas or Atty. Brillantes say (sic) that there was a conference between the Speaker and the Senate President and the Chairman during which the Senate President and the Speaker voice[d] their objections to the electronic transmission results system, can you share with us the objections of the two gentlemen? COMM. SADAIN: These was relayed to us Your Honor and their objection or request rather was for us to refrain from consolidating and publishing the results for presidential and vice-presidential candidates which we have already granted Your Honors. So, there is going to be no consolidation and no publication of the COMM. SADAIN: Reason behind being that it is actually Congress that canvass that the official canvass for this and proclaims the winner.36 Second. The assailed COMELEC resolution contravenes the constitutional provision that "no money shall be paid out of the treasury except in pursuance of an appropriation made by law."37 By its very terms, the electronic transmission and tabulation of the election results projected under Resolution No. 6712 is "unofficial" in character, meaning "not emanating from or sanctioned or acknowledged by the government or government body.38 Any disbursement of public funds to implement this project is contrary to the provisions of the Constitution and Rep. Act No. 9206, which is the 2003 General Appropriations Act. The use of the COMELEC of its funds appropriated for the AES for the "unofficial" quick count project may even be considered as a felony under Article 217 of the Revised Penal Code, as amended.39 Irrefragably, the implementation of the assailed resolution would entail, in due course, the hiring of additional manpower, technical services and acquisition of equipment, including computers and software, among others. According to the COMELEC, it needed P55,000,000 to operationalize the project, including the encoding process.40 Hence, it would necessarily involve the disbursement of public funds for which there must be the corresponding appropriation. The COMELEC posited during the hearing that the 2003 General Appropriations Act has appropriated the amount needed for its "unofficial" tabulation. We quote the transcript of stenographic notes taken during the hearing: JUSTICE VITUG: And you mentioned earlier something about 55 million not being paid as yet? COMM. SADAIN: This is an extra amount that we will be needing to operationalize. JUSTICE VITUG: And this has not yet been done? COMM. SADAIN: It has not yet been done, Your Honor.

JUSTICE VITUG: Would you consider the funds that were authorized by you under the General Appropriations Act as capable of being used for this purpose? COMM. SADAIN: Yes, thats our position, Your Honor.41 But then the COMELEC, through Commissioner Sadain, admitted during the said hearing that although it had already approved the assailed resolution, it was still looking for the P55,000,000 needed to operationalize the project: JUSTICE CARPIO: Just a clarification. You stated that you signed already the main contract for 300 million but you have not signed the 55 million supplemental contract for the encoding? COMM. SADAIN: Yes, Your Honor. JUSTICE CARPIO: Because you still dont have the money for that? COMM. SADAIN: Well, yes, we are trying to determine where we can secure the money. JUSTICE CARPIO: Now, the encoding is crucial; without the encoding, the entire project collapses? COMM. SADAIN: Yes.42 Inexplicably, Commissioner Sadain contradicted himself when he said that its Financial Department had already found the money, but that proper documentation was forthcoming: JUSTICE CARPIO: Just a clarification. You stated that you signed already the main contract for 300 million but you have not signed the 55 million supplemental contract for the encoding? COMM. SADAIN: Yes, Your Honor. JUSTICE CARPIO: Because you still dont have the money for that?

COMM. SADAIN: Well, yes, we are trying to determine where we can secure the money. JUSTICE CARPIO: Now, the encoding is crucial; without the encoding, the entire project collapses? COMM. SADAIN: Yes. JUSTICE CARPIO: So, you have two (2) days to look for the 55 million, you have signed the contract on the main contract and if you dont get that 55 million, that 300 million main contract goes to waste, because you cannot encode? COMM. SADAIN: Its just a matter of proper documentation, Your Honor, because I was informed by our Finance Department that the money is there. JUSTICE CARPIO: So, you have found the money already? COMM. SADAIN: Yes, Your Honor.43 Earlier, during the April 27, 2004 meeting of the COMELEC En Banc, the Commissioners expressed their serious concerns about the lack of funds for the project, the propriety of using the funds for Phase III of its modernization, and the possibility of realigning funds to finance the project: Comm. Tuason: May I just request all the parties who are in here na whatever is said here should be confined within the four walls of this room and the minutes so that walang masyadong problema. Comm. Borra: Sa akin lang, we respect each others opinion. I will not make any observations. I will just submit my own memo to be incorporated in the minutes. Comm. Tuason: Commissioner Borra will submit a comment to be attached to the minutes but not on the resolution. Ako naman, I will just make it on record my previous reservation. I do not have any objection as to the Phase III modernization project itself. My main concern is the budget. I would like to make it on record that the budget for Phase III should be taken from the modernization program fund because Phase III is definitely part of the

modernization project. Other funds, for instance other funds to be used for national elections may not be proper for realignment. That is why I am saying that the funds to be used for Phase III should properly come from the modernization. The other reservation is that the Election Officers are now plagued with so much work such as the preparation of the list of voters and their concern in their respective areas. They were saying to me, specially so in my own region, that to burden them with another training at this point in time will make them loose (sic) focus on what they are really doing for the national elections and what they are saying is that they should not be subjected to any training anymore. And they also said that come canvassing time, their priority would be to canvass first before they prepare the certificate of votes to be fed to the encoders [to be fed to the encoders] for electronic transmission. I share the sentiments of our people in the field. That is also one of my reservations. Thank you. Comm. Garcillano: I also have my observations regarding the financial restraint that we are facing if the money that is going to be used for this is taken from the Phase II, I dont think there is money left. Comm. Borra: There is no more money in Phase II because the budget for Phase II is 1.3 Billion. The award on the contract for Phase II project is 1.248 billion. So the remaining has been allocated for additional expenses for the technical working group and staff for Phase II. Comm. Garcillano: I also have one problem. We have to have additional people to man this which I think is already being taken cared of. Third is, I know that this will disrupt the canvassing that is going to be handled by our EO and Election Assistant. I do not know if it is given to somebody (inaudible) Comm. Tuason: Those are your reservations. Comm. Barcelona: As far as I am concerned, I also have my reservations because I have the same experience as Commissioner Tuason when I went to Region IX and Caraga. Our EOs and PES expressed apprehension over the additional training period that they may have to undergo although, they say, that if that is an order they will comply but it will be additional burden on them. I also share the concern of Commissioner Tuason with regard to the budget that should be taken from the modernization budget. Comm. Borra: For the minutes, my memo is already prepared. I will submit it in detail. On three counts naman yan eh legal, second is technical/operational and third is financial. Comm. Sadain: Ako naman, for my part as the CIC for Phase III, we were left with no choice but to implement Phase III inasmuch as expenses has already been incurred in Phase III to the tune of almost 100% at the time when the Phase II contract was nullified. So if we stop

the implementation of Phase III just because Phase II was nullified, which means that there would be no consolidation and accounting consolidation for the machines, then it would be again 300 million pesos down the drain. Necessarily there would be additional expense but we see this as a consequence of the loss of Phase II. I share the view of Comm. Tuason that as much as possible this should be taken from the modernization fund as much as this is properly modernization concern. However, I would like to open myself to the possibility na in case wala talaga, we might explore the possibility of realigning funds although that might not (inaudible). Now with regards the legality, I think what Commissioner Borra has derived his opinion but I would like to think the legality issue must have been settled already as early as when we approved the modernization program involving all three phases although we also grant the benefit of the argument for Commissioner Borra if he thinks that there is going to be a legal gap for the loss of Phase II. With regards the concern with the Election Officers, I also share the same concern. In fact, on this matter alone, we try to make the GI as simple as possible so that whatever burden we will be giving to the EOs and EAs will be minimized. As in fact, we will be recommending that the EOs will no longer be bothered to attend the training. They can probably just sit in for the first hour and then they can go on with their normal routine and then leave the encoders as well as the reception officers to attend the training because there (sic) are the people who will really be doing the ministerial, almost mechanical, work of encoding and transmitting the election results. Yun lang.44 We have reviewed Rep. Act No. 9206, the General Appropriations Act, which took effect on April 23, 2003 and find no appropriation for the project of the COMELEC for electronic transmission of "unofficial" election results. What is appropriated therein is the amount of P225,000,000 of the capital outlay for the modernization of the electoral system.

B. PROJECTS I. Locally-Funded Projects a. For the Modernization of Electoral System b. FY 2003 Preparatory Activities for National Elections c. Upgrading of Voters Database d. Conduct of Special Election to fill the vacancy in the Third District of Cavite e. Implementation of Absentee Voting Act of 2003 (RA 9189) Sub-Total, Locally-Funded Projects

Maintenance & Other Operating Expenses

Capital Outlays

Total

225,000,000 250,000,000 125,000,000 6,500,000

225,000,000 250,000,000 125,000,000 6,500,000

300,000,000 ========== 681,500,000 ========= 225,000,000

300,000,000 ========== 300,000,000

45

Under paragraph 3 of the special provisions of Rep. Act No. 9206, the amount of P225,000,000 shall be used primarily for the establishment of the AES prescribed under Rep. Act No. 8436, viz: 3. Modernization of Electoral System. The appropriations herein authorized for the Modernization of the Electoral System in the amount of Two Hundred Twenty-Five Million Pesos (P225,000,000.00) shall be used primarily for the establishment of the automated election system, prescribed under Republic Act No. 8436, particularly for the process of voting, counting of votes and canvassing/consolidation of results of the national and local elections.46

Section 52 of Rep. Act No. 9206 proscribes any change or modification in the expenditure items authorized thereunder. Thus: Sec. 52. Modification of Expenditure Components. Unless specifically authorized in this Act, no change or modification shall be made in the expenditure items in this Act and other appropriations laws unless in cases of augmentation from savings in appropriations as authorized under Section 25(5), Article VI of the 1987 Philippine Constitution. Neither can the money needed for the project be taken from the COMELECs savings, if any, because it would be violative of Article VI, Section 25 (5)47 of the 1987 Constitution. The power to augment from savings lies dormant until authorized by law.48 In this case, no law has, thus, far been enacted authorizing the respondent COMELEC to transfer savings from another item in its appropriation, if there are any, to fund the assailed resolution. No less than the Secretary of the Senate certified that there is no law appropriating any amount for an "unofficial" count and tabulation of the votes cast during the May 10, 2004 elections: CERTIFICATION I hereby certify that per records of the Senate, Congress has not legislated any appropriation intended to defray the cost of an unofficial count, tabulation or consolidation of the votes cast during the May 10, 2004 elections. May 11, 2004. Pasay City, Philippines. What is worrisome is that despite the concerns of the Commissioners during its En Banc meeting on April 27, 2004, the COMELEC nevertheless approved the assailed resolution the very next day. The COMELEC had not executed any supplemental contract for the implementation of the project with PMSI. Worse, even in the absence of a certification of availability of funds for the project, it approved the assailed resolution. Third. The assailed resolution disregards existing laws which authorize solely the dulyaccredited citizens arm to conduct the "unofficial" counting of votes. Under Section 27 of Rep. Act No. 7166, as amended by Rep. Act No. 8173,49 and reiterated in Section 18 of Rep. Act No. 8436,50 the accredited citizens arm - in this case, NAMFREL - is exclusively authorized to use a copy of the election returns in the conduct of an "unofficial" counting of the votes, whether for the national or the local elections. No other entity, including the respondent COMELEC itself, is authorized to use a copy of the election returns for purposes of conducting an "unofficial" count. In addition, the second or third copy of the election returns, while required to be delivered to the COMELEC under the aforementioned laws, are not intended for undertaking an "unofficial" count. The aforesaid COMELEC copies are archived and unsealed only when needed by the respondent COMELEC to verify election results in connection with resolving election disputes that may be imminent. However, in contravention of the law, the assailed Resolution authorizes the so-called Reception Officers (RO), to open the second or third copy intended for the respondent COMELEC as basis for the encoding and transmission of advanced "unofficial" precinct results. This not only violates the exclusive prerogative of NAMFREL to conduct an "unofficial" count, but also taints the integrity of the envelopes containing the election returns, as well as the returns themselves, by creating a gap in its chain of custody from the Board of Election Inspectors to the COMELEC. Fourth. Section 52(i) of the Omnibus Election Code, which is cited by the COMELEC as the statutory basis for the assailed resolution, does not cover the use of the latest technological and election devices for "unofficial" tabulations of votes. Moreover, the COMELEC failed to notify the authorized representatives of accredited political parties and all candidates in areas affected by the use or adoption of technological and electronic devices not less than thirty days prior to the effectivity of the use of such devices. Section 52(i) reads:

SEC. 52. Powers and functions of the Commission on Elections. In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections, and shall : (i) Prescribe the use or adoption of the latest technological and electronic devices, taking into account the situation prevailing in the area and the funds available for the purpose: Provided, That the Commission shall notify the authorized representatives of accredited political parties and candidates in areas affected by the use or adoption of technological and electronic devices not less than thirty days prior to the effectivity of the use of such devices. From the clear terms of the above provision, before the COMELEC may resort to and adopt the latest technological and electronic devices for electoral purposes, it must act in accordance with the following conditions: (a) Take into account the situation prevailing in the area and the funds available for the purpose; and, (b) Notify the authorized representatives of accredited political parties and candidates in areas affected by the use or adoption of technological and electronic devices not less than thirty days prior to the effectivity of the use of such devices. It is quite obvious that the purpose of this provision is to accord to all political parties and all candidates the opportunity to object to the effectiveness of the proposed technology and devices, and, if they are so minded not to object, to allow them ample time to field their own trusted personnel especially in far flung areas and to take other necessary measures to ensure the reliability of the proposed electoral technology or device. As earlier pointed out, the assailed resolution was issued by the COMELEC despite most of the Commissioners apprehensions regarding the legal, operational and financial impediments thereto. More significantly, since Resolution No. 6712 was made effective immediately a day after its issuance on April 28, 2004, the respondent COMELEC could not have possibly complied with the thirty-day notice requirement provided under Section 52(i) of the Omnibus Election Code. This indubitably violates the constitutional right to due process of the political parties and candidates. The Office of the Solicitor General (OSG) concedes this point, as it opines that "the authorized representatives of accredited political parties and candidates should have been notified of the adoption of the electronic transmission of election returns nationwide at the latest on April 7, 2004, April 8 and 9 being Holy Thursday and Good Friday, pursuant to Section 52(i) of the Omnibus Election Code."51 Furthermore, during the hearing on May 18, 2004, Commissioner Sadain, who appeared for the COMELEC, unabashedly admitted that it failed to notify all the candidates for the 2004 elections, as mandated by law: JUSTICE CARPIO: You stated that you have notified in writing all the political parties and candidates as required in Section 52 (i)? COMM. SADAIN: Yes, Your Honor. JUSTICE CARPIO:

Now, how many candidates are there nationwide now? COMM. SADAIN: I must admit you Honor we were not able to notify the candidates but we notified the politicians. JUSTICE CARPIO: Yes, but what does the law state? Read the law please. COMM. SADAIN: Yes, Your Honor. I understand that it includes candidates. JUSTICE CARPIO: And there are how many candidates nationwide running in this election? COMM. SADAIN: Hundreds of thousands, Your Honor. JUSTICE CARPIO: Hundreds of thousands, so you mean you just notified the political parties not the candidates? COMM. SADAIN: Yes, Your Honor. JUSTICE CARPIO: And you think that is substantial compliance, you would notify how many political parties as against hundreds of thousands of candidates? COMM. SADAIN: Yes, Your Honor, we notified the major political parties, Your Honor. JUSTICE CARPIO: Only the major political parties? COMM. SADAIN: Including party list? JUSTICE CARPIO: But not the candidates, individual candidates?

COMM. SADAIN: We were not able to do that, Your Honor, I must admit. JUSTICE CARPIO: So, you did not notify hundreds of thousands of candidates? COMM. SADAIN: No, Your Honors.52 The respondent COMELEC has, likewise, failed to submit any resolution or document to prove that it had notified all political parties of the intended adoption of Resolution No. 6712, in compliance with Section 52(i) of the Omnibus Election Code. This notwithstanding the fact that even long before the issuance of the assailed resolution, it had admittedly entered into a contract on April 15, 200353 and acquired facilities pertaining to the implementation of the electronic transmission and official tabulation of election results. As correctly pointed out by the petitionersin-intervention, the invitations dated January 15, 2004 regarding the January 20, 2004 COMELEC Conference with the political parties on election security measures did not mention electronic transmission of advanced results, much less the formal adoption of the purpose of the conference. Such "notices" merely invited the addressee thereof or its/his authorized representative to a conference where the COMELEC would show a sample of the official ballot to be used in the elections, discuss various security measures that COMELEC had put in place, and solicit suggestions to improve the administration of the polls.54 Further, the invitations purportedly sent out to the political parties regarding the April 6, 2004 Field Test of the Electronic Transmission, Consolidation and Dissemination System to be conducted by the COMELEC appear to have been sent out in the late afternoon of April 5, 2004, after office hours. There is no showing that all the political parties attended the Field Test, or received the invitations. More importantly, the said invitations did not contain a formal notice of the adoption of a technology, as required by Section 52(i) of the Omnibus Election Code.55 Fifth. The assailed resolution has no constitutional and statutory basis. That respondent COMELEC is the sole body tasked to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall"56 and to ensure "free, orderly, honest, peaceful and credible elections"57 is beyond cavil. That it possesses the power to promulgate rules and regulations in the performance of its constitutional duties is, likewise, undisputed. However, the duties of the COMELEC under the Constitution, Rep. Act No. 7166, and other election laws are carried out, at all times, in its official capacity. There is no constitutional and statutory basis for the respondent COMELEC to undertake a separate and an "unofficial" tabulation of results, whether manually or electronically. Indeed, by conducting such "unofficial" tabulation of the results of the election, the COMELEC descends to the level of a private organization, spending public funds for the purpose. Besides, it is absurd for the COMELEC to conduct two kinds of electoral counts a slow but "official" count, and an alleged quicker but "unofficial" count, the results of each may substantially differ. Clearly, the assailed resolution is an implementation of Phase III of the modernization program of the COMELEC under Rep. Act No. 8436. Section 2 of the assailed resolution expressly refers to the Phase III-Modernization Project of the COMELEC. Since this Court has already scrapped the contract for Phase II of the AES, the COMELEC cannot as yet implement the Phase III of the program. This is so provided in Section 6 of Rep. Act No. 8436. SEC. 6. Authority to Use an Automated Election System. -- To carry out the above-stated policy, the Commission on Elections, herein referred to as the Commission, is hereby authorized to use an automated election system, herein referred to as the System, for the process of voting, counting of votes and canvassing/consolidation of results of the national and local

elections: Provided, however, That for the May 11, 1998 elections, the System shall be applicable in all areas within the country only for the positions of president, vice-president, senators and parties, organizations or coalitions participating under the party-list system. To achieve the purpose of this Act, the Commission is authorized to procure by purchase, lease or otherwise, any supplies, equipment, materials and services needed for the holding of the elections by an expedited process of public bidding of vendors, suppliers or lessors: Provided, That the accredited political parties are duly notified of and allowed to observe but not to participate in the bidding. If in spite of its diligent efforts to implement this mandate in the exercise of this authority, it becomes evident by February 9, 1998 that the Commission cannot fully implement the automated election system for national positions in the May 11, 1998 elections, the elections for both national and local positions shall be done manually except in the Autonomous Region in Muslim Mindanao (ARMM) where the automated election system shall be used for all positions. The AES provided in Rep. Act No. 8436 constitutes the entire "process of voting, counting of votes and canvassing/consolidation of results of the national and local elections" corresponding to the Phase I, Phase II and Phase III of the AES of the COMELEC. The three phases cannot be effected independently of each other. The implementation of Phase II of the AES is a condition sine qua non to the implementation of Phase III. The nullification by this Court of the contract for Phase II of the System effectively put on hold, at least for the May 10, 2004 elections, the implementation of Phase III of the AES. Sixth. As correctly observed by the petitioner, there is a great possibility that the "unofficial" results reflected in the electronic transmission under the supervision and control of the COMELEC would significantly vary from the results reflected in the COMELEC official count. The latter follows the procedure prescribed by the Omnibus Election Code, which is markedly different from the procedure envisioned in the assailed resolution. Under the Omnibus Election Code, after the votes are cast and the polls closed, the Board of Election Inspectors (BEI) for each precinct is enjoined to publicly count the votes and record the same simultaneously on the tally boards and on two sets of ERs. Each set of the ER is prepared in eight (8) copies. After the ERs are accomplished, they are forwarded to the Municipal Board of Canvassers (MBC), which would canvass all the ERs and proclaim the elected municipal officials. All the results in the ERs are transposed to the statements of votes (SOVs) by precinct. These SOVs are then transferred to the certificates of canvass (COCs) which are, in turn, brought to the Provincial Board of Canvassers (PBC). Subsequently, the PBC would canvass all the COCs from various municipalities and proclaim the elected provincial officials, including those to the House of Representatives. The PBC would then prepare two sets of Provincial Certificates of Canvass (PCOCs). One set is forwarded to Congress for its canvassing of the results for the President and Vice-President. The other set is forwarded to the COMELEC for its canvassing of the results for Senators. As the results are transposed from one document to another, and as each document undergoes the procedure of canvassing by various Boards of Canvassers, election returns and certificates of canvass are objected to and at times excluded and/or deferred and not tallied, long after the pre-proclamation controversies are resolved by the canvass boards and the COMELEC. On the other hand, under the assailed resolution, the precinct results of each city and municipality received by the ETCs would be immediately electronically transmitted to the NCC. Such data, which have not undergone the process of canvassing, would expectedly be dissimilar to the data on which the official count would be based. Resultantly, the official and unofficial canvass, both to be administered by the respondent COMELEC, would most likely not tally. In the past elections, the "unofficial" quick count conducted by the NAMFREL had never tallied with that of the official count of the COMELEC,

giving rise to allegations of "trending" and confusion. With a second "unofficial" count to be conducted by the official election body, the respondent COMELEC, in addition to its official count, allegations of "trending," would most certainly be aggravated. As a consequence, the electoral process would be undermined. The only intimated utility claimed by the COMELEC for the "unofficial" electronic transmission count is to avert the so-called "dagdag-bawas." The purpose, however, as the petitioner properly characterizes it, is a total sham. The Court cannot accept as tenable the COMELECs profession that from the results of the "unofficial" count, it would be able to validate the credibility of the official tabulation. To sanction this process would in effect allow the COMELEC to preempt or prejudge an election question or dispute which has not been formally brought before it for quasijudicial cognizance and resolutions. Moreover, the Court doubts that the problem of "dagdag-bawas" could be addressed by the implementation of the assailed resolution. It is observed that such problem arises because of the element of human intervention. In the prevailing set up, there is human intervention because the results are manually tallied, appreciated, and canvassed. On the other hand, the electronic transmission of results is not entirely devoid of human intervention. The crucial stage of encoding the precinct results in the computers prior to the transmission requires human intervention. Under the assailed resolution, encoding is accomplished by employees of the PMSI. Thus, the problem of "dagdag-bawas" could still occur at this particular stage of the process. As it stands, the COMELEC "unofficial" quick count would be but a needless duplication of the NAMFREL "quick" count, an illegal and unnecessary waste of government funds and effort. Conclusion The Court is mindful of the salutary goals that the respondent COMELEC had envisioned in promulgating the assailed resolution, to wit: [t]o renew the publics confidence in the Philippine Electoral System by: 1. Facilitating transparency in the process; 2. Ensuring the integrity of the results; 3. Reducing election results manipulation; 4. Providing timely, fast and accurate information to provide the public re election results; 5. Enabling the validation of its own official count and other counts; 6. Having an audit trail in its own account.58 Doubtless, these are laudable intentions. But the rule of law requires that even the best intentions must be carried out within the parameters of the Constitution and the law. Verily, laudable purposes must be carried out by legal methods.59 WHEREFORE, the petition is GRANTED. The assailed Resolution No. 6712 dated April 28, 2004 issued by the Commission on Elections (COMELEC) En Banc is hereby declared NULL AND VOID. SO ORDERED.

EN BANC

[G.R. No. 165691. June 22, 2005]

ROBERT Z. BARBERS, petitioner, vs. COMMISSION ON ELECTIONS, NATIONAL BOARD OF CANVASSERS FOR SENATORS AND PARTY-LIST REPRESENTATIVES, and RODOLFO G. BIAZON, respondents. DECISION
CARPIO, J.:

The Case This is a petition for certiorari1 and prohibition with prayer for temporary restraining order and preliminary injunction to nullify the Resolution dated 6 July 2004 of the Special Division of the Commission on Elections (COMELEC),2 as well as the Resolution dated 25 October 2004 of the COMELEC en banc.3 The Resolutions affirmed the proclamation of the COMELEC sitting en banc as the National Board of Canvassers (NBC) declaring Rodolfo G. Biazon (Biazon) as the duly elected 12th Senator in the 10 May 2004 National and Local Elections. The Facts Robert Z. Barbers (Barbers) and Biazon were candidates for reelection to the Senate of the Philippines in the 10 May 2004 Synchronized National and Local Elections (elections). On 24 May 2004, the COMELEC sitting en banc as the NBC for the election of Senators promulgated Resolution No. NBC 04-002 proclaiming the first 11 duly elected Senators in the elections. The COMELEC as the NBC promulgated the Resolution based on the Certificates of Canvass (COCs) submitted by the following: (a) 78 Provincial Boards of Canvassers; (b) 7 City Boards of Canvassers of cities comprising one or more legislative districts; (c) 13 City Board of Canvassers from the National Capital Region; (d) 2 District Boards of Canvassers from Metro Manila; (e) 74 Special Boards of Canvassers for Overseas Absentee Voting; and (f) 1 Board of Canvassers for Local Absentee Voting. The COMELEC declared that it would proclaim the remaining 12th winning candidate for Senator after canvassing the remaining unsubmitted COCs.4

On 2 June 2004, the COMELEC promulgated Resolution No. NBC 04005 proclaiming Biazon as the 12th ranking duly elected 12th Senator of the Republic of the Philippines in the May 10, 2004 national and local elections, to serve for a term of 6 years, beginning on June 30, 2004 in accordance with Article VI, Section IV of the Constitution of the Philippines. The COMELEC stated that after the canvass of the supplemental Provincial COCs from Maguindanao (Cotabato City), Lanao del Sur and one barangay in Nueva Vizcaya, Biazon obtained 10,635,270 votes nationwide. On the other hand, Barbers obtained 10,624,585 votes. Thus, Biazon obtained 10,685 more votes than Barbers. The COMELEC stated that this difference will not materially be affected by the votes in certain precincts where there was failure of elections.5 Claiming that Biazons proclamation was void, Barbers filed a petition to annul the proclamation of Biazon as Senator of the Republic of the Philippines with the COMELEC on 7 June 2004. The petition, docketed as SPC Case No. 04-258, was assigned to a Special Division of the COMELEC.6 In his petition, Barbers asserted that the proclamation of Biazon was illegal and premature being based on an incomplete canvass. Barbers asserted that the remaining uncanvassed COCs and votes and the results of the special elections, which were still to be conducted, would undoubtedly affect the results of the elections.7 In his Comment/Answer, Biazon asserted that: (1) the First Division of the COMELEC has no jurisdiction to review, modify, or set aside what the COMELEC sitting en banc as the NBC for Senators has officially performed, which is the promulgation of Resolution No. NBC 04-005; (2) since the COMELEC has proclaimed Biazon on 2 June 2004 in Resolution No. NBC 04-005 as the duly elected 12th Senator and Biazon has taken his oath of office on 30 June 2004, the Senate Electoral Tribunal, not the COMELEC, has jurisdiction to entertain the present petition; (3) with Biazons admitted and established margin of 10,685 votes, the votes from the alleged uncanvassed COCs and the votes still to be cast in the special elections which were still to be conducted would not substantially affect the results of the election for the 12th and last slot for Senator; and (4) the NBC committed a manifest error in crediting to Barbers a total of 34,711 votes from the province of Lanao del Sur while crediting to Biazon only 1,428 votes from the supplemental Provincial COCs for Lanao del Sur despite the existence and availability of the Municipal COCs for Balabagan and Tagoloan, Lanao del Sur.8 On 9 June 2004, Barbers filed an Omnibus Motion for Immediate Service of Summons, for Suspension of the Effects of Proclamation, and to Set Case for Hearing. Barbers asserted that an immediate resolution of the present case was necessary because the term of office of Senators would

commence on 30 June 2004. Barbers further claimed that there were Municipal COCs still to be included in the senatorial canvass and special elections still to be held in certain municipalities involving a total of 29,219 votes. Thus, Barbers insisted that suspension of the effects of the proclamation of Biazon was necessary. Barbers stressed that there could be no valid proclamation based on an incomplete canvass.9 On 6 July 2004, the COMELEC issued the first assailed Resolution, disposing as follows: WHEREFORE, premises considered, the Commission (Special Division) hereby DENIES the petition to annul the proclamation of respondent RODOLFO G. BIAZON for LACK OF MERIT. ACCORDINGLY, the Special Division RESTATES the proclamation of the Commission on Elections sitting en banc as the National Board of Canvassers declaring RODOLFO G. BIAZON as the duly elected 12th Senator of the Republic of Philippines in the May 10, 2004 National and Local Elections. SO ORDERED.10 Barbers filed a motion for reconsideration11 which the COMELEC en banc denied in the second assailed 25 October 2004 Resolution. The COMELECs Ruling In its 6 July 2004 Resolution, the COMELEC (Special Division) denied Barbers petition, thus: The instant petition is not a pre-proclamation case as the issues raised herein clearly are not among those enumerated under Section 34 of COMELEC Resolution No. 6669. Neither is it a protest case because the ground cited in the petition is not proper for protest although a proclamation has already been made. It is a petition, as entitled, to annul proclamation based on alleged incomplete canvass. The power to annul proclamation is an exclusive power of the Commission vested upon it by the Constitution, which states that the Commission shall exercise the power to Decide except those involving the right to vote, all questions affecting elections xxx (Article IX-C, Section 2 (3). As held in the Case of Aguam vs. COMELEC, the COMELEC shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred

upon it by law. The Constitution enjoins the COMELEC to decide, saving those involving the right to vote, all administrative questions, affecting elections. Corollary thereto, the court has given its imprimatur on the principle that COMELEC is with authority to annul any canvass and proclamation illegally made. Records reveal that on June 2, 2004, the National Board of Canvassers (NBC), on the basis of the Certificates of Canvass submitted by seventy-eight (78) Provincial Board of Canvassers; seven (7) City Boards of Canvassers of cities comprising one or more legislative districts; thirteen (13) from the National Capital Region (NCR); two (2) from the District Boards of Canvassers of Metro Manila; seventy-four (74) from the Special Board of Canvassers for Overseas Absentee Voting; and one (1) from the Board of Canvassers for Local Absentee Voting, including the supplemental Provincial Certificates of Canvass from Maguindanao (Cotabato City), Lanao del Sur and Nueva Vizcaya (one barangay), declared that private respondent obtained ten million six hundred thirty-five thousand two hundred seventy (10,635,270) votes as against the ten million six hundred twenty-four thousand five hundred eighty-five (10,624,585) votes garnered by petitioner. On the basis of the number of votes garnered by private respondent, he was proclaimed on June 2, 2004 as the duly elected Senator in the recently concluded May 10, 2004 National and Local Elections. However, after his proclamation, the Commission received Certificates of Canvass from the aforementioned provinces. The results of the votes for petitioner and private respondent, showed the following figures, to wit: PROVINCE NO. OF PRECINCTS BARBERS 1. Maguindanao a. South Upi b. Talitay 2. Sultan Kudarat a. Columbio 3. Northern Samar a. Silvino Lobos 31 62 372 21 831 656 35 32 4,068 116 997 138 VOTES OBTAINED BIAZON

4. Albay a. Ligao City Total 12 1,259 6,736 100 2,263

Although special elections in Tinglayan, Kalinga were conducted on June 7, 2004, no voters voted, thus, there was no COC to canvass. On the other hand, special elections for the remaining places are yet to be conducted, namely: 1. Lanao del Sur a. Bayang b. Balabagan c. Madalum d. Kapai 2. Maguindanao a. Kabuntalan 3. Northern Samar a. Silvino Lobos 1,300 votes Total _________ 2,931 votes (8 precincts) 263 votes (1 precinct) 259 votes 375 votes 537 votes 197 votes (3 precincts) (2 precincts) (4 precincts) (1 precinct)

From the foregoing data, petitioner and private respondent should be credited with the following number of votes, to wit: As canvassed by the NBC Not included in the PCOC where special elections were conducted 2,263 6,736

Total 10,637,533 10,631,321

BIAZON BARBERS

10,635,270 10,624,585

From the above summation, the lead of private respondent over petitioner undoubtedly was reduced to six thousand two hundred twelve (6,212). Assuming that the remaining uncanvassed votes of two thousand nine hundred thirty-one (2,931) in places where special elections are yet to be held were all votes in favor of petitioner Barbers, nevertheless, this will not materially affect the results of the election. To say the least, even if private respondents lead was decreased to three thousand two hundred ninety-nine (3,299) votes, he remains to be the winner and therefore the lawful occupant of the 12th slot for the senatorial position.12 In its 25 October 2004 Resolution, the COMELEC en banc denied Barbers motion for reconsideration, thus: We maintain Our declaration and findings as established by the Special Division. After a judicious and thorough scrutiny of the records, We are more than convinced that respondents proclamation was indeed, valid and operative. In the questioned resolution issued by the Special Division, We based our ruling on the official Comelec records, revealing that respondents lead over petitioner was insurmountable regardless of the results from the delayed certificates of canvass and from the uncanvassed votes for the special elections. This ratiocination was very well explained in the assailed resolution and need not be reiterated herein. Unfortunately for petitioner, he failed in this motion to adduce evidence sufficient to overturn Our ruling and justify the prayer for reliefs. It must be noted that, in a pleading, petitioner has raised the Report/Recommendation of the Supervisory Committee to buttress his claim that, indeed, there was incomplete canvass. Petitioner is invited to examine the said report closer, for the same shows the extent of irregularities that transpired in the subject towns and provinces such as Columbio, Sultan Kudarat, and Talitay, Maguindanao, rendering thesupplemental provincial certificates of canvass dubious at the very least. For the town of Columbio, the Committee reported that: Records with the ERSD show that the MCOC and corresponding SOV dated June 18 and 17, 2004, respectively, for the twenty-one (21) precincts used as basis for the supplemental PCOC are unsigned by the chairman of the municipal board of canvassers, but signed by the two other members. Please note that the two other members of the MBC who signed the SOV and MCOC used as basis of the supplemental PCOC are the members of the Pangamadun board all of whom were replaced by the Radam board as early as May 20, 2004. (emphasis supplied) On the other hand, the Committee noted that for the town of Talitay, thus:

Atty. Wyne Asdala, Chairman of the Provincial Board of Canvassers for the Province of Maguindanao then submitted a supplemental provincial certificate of canvass dated June 16, 2004 containing the results from the municipalities of South Upi and Talitay. Per SOV attached to the supplemental PCOC, Barbers obtained 4,472 votes and Biazon, 455 votes for the municipality of Talitay. Records do not show which MCOC was used as basis by the Asdala board for the preparation of the supplemental PCOC. (emphasis supplied) And by exercising its prerogative and discretion, the Commission duly noted the said Committees recommendation to use only the MCOCs prepared by the duly constituted municipal boards of canvassers as basis for the provincial canvass in Sultan Kudarat and Maguindanao. At any rate, We likewise confirm the opinion of Commissioner Florentino A. Tuason, Jr., on the nature and ramifications of herein SPC Case for Annulment of Proclamation. Citing the case of Rasul vs. Comelec, the Honorable Supreme Court declared that In Pangilinan vs. Commission on Elections, this Court has ruled that where the candidate has already been proclaimed winner in the congressional elections, the remedy of petitioner is to file an electoral protest with the Electoral Tribunal of the House of Representatives. In like manner, where as in this case, petitioner assails the Commissions resolution proclaiming the twelfth (12th) winning senatorial candidate, petitioners proper recourse was to file a regular election protest which under the Constitution and the Omnibus Election Code exclusively pertains to the Senate Electoral Tribunal. Under the Omnibus Election Code (OEC), following the clear enunciation of Section 242 and the immediately succeeding sections, it is clear that annulment of proclamation, be it partial or total, arises from the Commissions jurisdiction over pre-proclamation controversies. Republic Act (RA) No. 7166, qualifies such power of the Commission by so stating that a pre-proclamation contest may only apply in cases where there are manifest errors in the election returns or certificates of canvass, with respect to national elective positions such as herein case. To prove that the same is manifest, the errors must appear on the certificates of canvass or election returns sought to be corrected and/or objections thereto must have been made before the board of canvassers and specifically noted in the minutes of their administrative proceedings. (Chavez vs. Comelec, GR No. 150799, 03 February 2004) Parties, therefore, ought to be careful in availing themselves of remedies lest they fall into a trap of their own making one that they cannot escape from.

Nevertheless, granting arguendo that the present case is not a pre-proclamation case, as so painstakingly pointed out by petitioner, but one that is due to an incomplete canvass, and the relief sought emanates from the plenary power of the Commission, herein petitioner, sadly, failed to present convincing and legitimate evidence in support of his petition (including this motion for reconsideration).13 Hence, this petition. The Issues Barbers raises the following issues for resolution: Whether or not public respondent COMELEC gravely abused its discretion, amounting to lack or excess of jurisdiction when it deliberately insisted in resorting to and in using and considering, for purposes of tallying/tabulation of the still uncanvassed election results, MERE improvised Municipal COCs, which are NON-CANVASSED election documents, unauthentic, unreliable and dubious on their faces which documents were submitted, not to the NBC, but to a mere Comelec Department [ERSD]; instead of availing and relying on official CANVASS documents PROVINCIAL COCs submitted to COMELEC, as the National Board of Canvassers for Senators. Whether or not the public respondent COMELEC gravely abused its discretion amounting to lack or excess of jurisdiction when it first correctly recognized the undisputed fact that there was an INCOMPLETE CANVASS at the time that respondent Biazon was initially "proclaimed PREMATURELY on June 2, 2004, but adamantly refused to rectify its VOID premature proclamation when it opted to reinstate the said sham proclamation of respondent Biazon, by anomalously resorting to and relying on, unauthentic, dubious and non-canvassed documents [Municipal COCs], rather than on the legal and lawful canvassed documents [PROVINCIAL COCs].14 The Courts Ruling The petition must fail. To our mind, the basic issue for resolution is whether this Court can take cognizance of this petition. Certiorari as a special civil action is available only if there is concurrence of the essential requisites, to wit: (a) the tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of

jurisdiction, and (b) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law to annul or modify the proceeding. There must be capricious, arbitrary and whimsical exercise of power for certiorari to prosper.15 On the other hand, prohibition as a special civil action is available only if the following essential requisites concur: (a) the proceedings of the tribunal, corporation, board, officer or person exercising judicial, quasijudicial or ministerial functions are without or in excess of its or his jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, and (b) there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law to compel the respondent to desist from further proceedings in the action.16 Article VI, Section 17 of the 1987 Constitution provides: Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organization registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. (Emphasis and underscoring supplied) Rule 12 of the Revised Rules of the Senate Electoral Tribunal provides: RULE 12. Jurisdiction. The Senate Electoral Tribunal is the sole judge of all contests relating to the election, returns, and qualifications of the Members of the Senate. (Emphasis and underscoring supplied) In Pangilinan v. Commission on Elections,17 we ruled that: The Senate and the House of Representatives now have their respective Electoral Tribunals which are the sole judge of all contests relating to the election, returns, and qualifications of their respective Members, thereby divesting the Commission on Elections of its jurisdiction under the 1973 Constitution over election cases pertaining to the election of the Members of the Batasang Pambansa (Congress). In Javier v. COMELEC,18 we interpreted the phrase election, returns and qualifications as follows: The phrase election, returns and qualifications should be interpreted in its totality as referring to all matters affecting the validity of the contestees title. But if it is

necessary to specify, we can say that election referred to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes; returns to the canvass of the returns and the proclamation of the winners, including questions concerning the composition of the board of canvassers and the authenticity of the election returns; and qualifications to matters that could be raised in a quo warranto proceeding against the proclaimed winner, such as his disloyalty or ineligibility or the inadequacy of his certificate of candidacy. (Emphasis supplied) The word sole in Section 17, Article VI of the 1987 Constitution and Rule 12 of the Revised Rules of the Senate Electoral Tribunal (SET) underscores the exclusivity of the SETs jurisdiction over election contests relating to members of the Senate. The authority conferred upon the SET is categorical and complete. It is therefore clear that this Court has no jurisdiction to entertain the instant petition.19 Since Barbers contests Biazons proclamation as the 12th winning senatorial candidate, it is the SET which has exclusive jurisdiction to act on Barbers complaint.20 In Pangilinan,21 we ruled that where the candidate has already been proclaimed winner in the congressional elections, the remedy of petitioner is to file an electoral protest with the Electoral Tribunal of the House of Representatives.22 In like manner, where as in the present case, Barbers assails Biazons proclamation as the 12th duly elected Senator, Barbers proper recourse is to file a regular election protest with the SET.23 Certiorari and prohibition will not lie in this case considering that there is an available and adequate remedy in the ordinary course of law to annul the COMELECs assailed proceedings. We take pains to emphasize that after the proclamation, Barbers should have filed an electoral protest before the SET. While the resolution of the issues presented in this petition falls within the sole jurisdiction of the SET, still we opt to discuss them to show the absence of grave abuse of discretion on the part of COMELEC. Barbers claims that Biazons 2 June 2004 proclamation as the 12 winning senatorial candidate is a nullity because it was based on an incomplete canvass. Barbers asserts that the COMELECs act of making such premature proclamation constituted grave abuse of discretion amounting to lack or excess of jurisdiction. Barbers also claims that the COMELEC gravely abused its discretion when, after having used Provincial Certificates of Canvass (PCOCs) in the canvass of election results for Senators up to 2 June 2004, the COMELEC used the Municipal Certificates of Canvass (MCOCs) in the final tabulation of the uncanvassed results and that of the special elections yet to be held in certain parts of the country.24
th

Barbers arguments are specious. An incomplete canvass of votes is illegal and cannot be the basis of a subsequent proclamation. A canvass is not reflective of the true vote of the electorate unless the board of canvassers considers all returns and omits none. However, this is true only where the election returns missing or not counted will affect the results of the election.25 The COMELEC, in promulgating its 2 June 2004 Resolution No. NBC 04-005 proclaiming Biazon as the 12th duly elected Senator, observed the following provisions of the Omnibus Election Code: SEC. 233. When the election returns are delayed, lost or destroyed. In case its copy of the election returns is missing, the board of canvassers shall, by messenger or otherwise, obtain such missing election returns from the board of election inspectors concerned, or if said returns have been lost or destroyed, the board of canvassers, upon prior authority of the Commission, may use any of the authentic copies of said election returns or certified copy of said election returns issued by the Commission, and forthwith direct its representative to investigate the case and immediately report the matter to the Commission. The board of canvassers, notwithstanding the fact that not all the election returns have been received by it, may terminate the canvass and proclaim the candidates elected on the basis of the available election returns if the missing election returns will not affect the results of the election. (Emphasis and underscoring supplied) On 5 May 2004, the COMELEC promulgated Resolution No. 6749, i.e., General Instructions for the Canvass of Votes and Proclamation of the Results for Senators and Party List in the May 10, 2004 National and Local Elections. Section 9 of the Resolution provides: SEC. 9. Proclamation of results. Upon completion of the canvass, the Supervisory Committee and the watchers if available shall certify the final printout of results as canvassed. On the basis of the certified final printout, the NBC shall cause the preparation of, sign and approve the Certificate of Canvass and Proclamation, and proclaim the winning candidates for senators, certify the results of the election of the party-list system and proclaim the nominees of the parties which obtained the required percentage of votes. Notwithstanding the fact that not all of the COCs have been received or canvassed, the NBC may terminate the canvass if the missing COCs would no longer affect the results of the elections. (Emphasis and underscoring supplied) In the present case, the report which the COMELEC Supervisory Committee submitted on 29 June 2004 shows that Barbers obtained 6,736

votes in areas where results were not included in the national canvass. As for Biazon, he garnered 2,263 votes.26 Also, the Supervisory Committees report shows that the total number of registered voters in areas where special elections were still to be conducted was only 2,931, covering only 19 precincts in three municipalities.27 As correctly stated by the COMELEC: From the above summation, the lead of private respondent over petitioner undoubtedly was reduced to six thousand two hundred twelve (6,212). Assuming that the remaining uncanvassed votes of two thousand nine hundred thirty-one (2,931) in places where special elections are yet to be held were all votes in favor of petitioner Barbers, nevertheless, this will not materially affect the results of the election. To say the least, even if private respondents lead was decreased to three thousand two hundred ninety-nine (3,299) votes, he remains to be the winner and therefore the lawful occupant of the 12th slot for the senatorial position.28 It suffices to say that the COMELEC based its ruling in the assailed Resolutions on official COMELEC records. The COMELEC enjoys the presumption of good faith and regularity in the performance of official duty.29 Since the election returns not included in the national canvass as well as the results of the special elections to be held would not materially affect the results of the elections,it is immaterial whether the COMELEC used PCOCs or MCOCs in the subsequent canvass. The alleged invalidity of Biazons proclamation involves a dispute or contest relating to the election returns of members of the Senate. Indisputably, the resolution of such dispute falls within the sole jurisdiction of the SET. For this Court to take cognizance of the electoral protest against Biazon would usurp the constitutional functions of the SET. In addition, the COMELEC did not commit any grave abuse of discretion in issuing the assailed Resolutions affirming Biazons proclamation since the uncanvassed returns and the results of the special elections to be held would not materially affect the results of the elections. WHEREFORE, we DISMISS the instant petition. No pronouncement as to costs. SO ORDERED.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 202202 March 19, 2013

SILVERIO R. TAGOLINO, Petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND LUCY MARIE TORRESGOMEZ, Respondents. DECISION PERLAS-BERNABE, J.: Assailed in this Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court is the March 22, 2012 Decision1 of the House of Representatives Electoral Tribunal (HRET) in HRET Case No. 10-031 (QW) which declared the validity of private respondent Lucy Marie TorresGomezs substitution as the Liberal Partys replacement candidate for the position of Leyte Representative (Fourth Legislative District) in lieu of Richard Gomez. The Facts On November 30, 2009, Richard Gomez (Richard) filed his certificate of candidacy2 (CoC) with the Commission on Elections (COMELEC), seeking congressional office as Representative for the Fourth Legislative District of Leyte under the ticket of the Liberal Party. Subsequently, on December 6, 2009, one of the opposing candidates, Buenaventura Juntilla (Juntilla), filed a Verified Petition,3 alleging that Richard, who was actually a resident of College Street, East Greenhills, San Juan City, Metro Manila, misrepresented in his CoC that he resided in 910 Carlota Hills, Can-adieng, Ormoc City. In this regard, Juntilla asserted that Richard failed to meet the one (1) year residency requirement under Section 6, Article VI4 of the 1987 Philippine Constitution (Constitution) and thus should be declared disqualified/ineligible to run for the said office. In addition, Juntilla prayed that Richards CoC be denied due course and/or cancelled.5 On February 17, 2010, the COMELEC First Division rendered a Resolution6 granting Juntillas petition without any qualification. The dispositive portion of which reads: WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVE, to GRANT the Petition to Disqualify Candidate for Lack of Qualification filed by BUENAVENTURA O. JUNTILLA against RICHARD I. GOMEZ. Accordingly, RICHARD I. GOMEZ is DISQUALIFIED as a candidate for the Office of Congressman, Fourth District of Leyte, for lack of residency requirement. SO ORDERED. Aggrieved, Richard moved for reconsideration but the same was denied by the COMELEC En Banc through a Resolution dated May 4, 2010.7 Thereafter, in a Manifestation of even date, Richard accepted the said resolution with finality "in order to enable his substitute to facilitate the filing of the necessary documents for substitution."8 On May 5, 2010, Lucy Marie Torres-Gomez (private respondent) filed her CoC9 together with a Certificate of Nomination and Acceptance10 from the Liberal Party endorsing her as the partys official substitute candidate vice her husband, Richard, for the same congressional post. In response to various letter-requests submitted to the COMELECs Law Department (Law Department), the COMELEC En Banc, in the exercise of its administrative functions, issued Resolution No. 889011 on May 8, 2010, approving, among others, the recommendation of the said department to allow the substitution of private respondent. The recommendation reads: STUDY AND OBSERVATION

On the same date, this Department received an Opposition from Mr. Buenaventura O. Juntilla, thru his counsel, opposing the candidacy of Ms. Lucy Marie Torres Gomez, as a substitute candidate for Mr. Richard I. Gomez. The crux of the opposition stemmed from the issue that there should be no substitution because there is no candidate to substitute for. It must be stressed that the resolution of the First Division, this Commission, in SPA No. 09-059 speaks for disqualification of candidate Richard I. Gomez and not of cancellation of his Certificate of Candidacy: Wherefore, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the Petition to Disqualify Candidate for Lack of Qualification filed x x x against RICHARD I. GOMEZ. Accordingly, RICHARD I. GOMEZ is DISQUALIFIED as a candidate for the Office of Congressman, Fourth District of Leyte, for lack of residency requirement. The said resolution was affirmed by the Commission En Banc on May 04, 2010. The disqualification of a candidate does not automatically cancel ones certificate of candidacy, especially when it is nominated by a political party. In effect, the political party is still allowed to substitute the candidate whose candidacy was declared disqualified. After all, the right to substitute is a privilege given to a political party to exercise and not dependent totally to a candidate. Nonetheless, in case of doubt, the same must always be resolved to the qualification of a candidate to run in the public office. The substitution complied with the requirements provided under Section 12 in relation to Section 13 of Comelec Resolution No. 8678 dated October 6, 2009. xxxx In view of the foregoing, the Law Department RECOMMENDS the following: xxxx 2. TO ALLOW CANDIDATE LUCY MARIE TORRES GOMEZ AS A SUBSTITUTE CANDIDATE FOR RICHARD GOMEZ: (Emphasis and underscoring supplied) xxxx The following day, or on May 9, 2010, Juntilla filed an Extremely Urgent Motion for Reconsideration12 (May 9, 2010 Motion) of the above-mentioned COMELEC En Banc resolution Pending resolution of Juntillas May 9, 2010 Motion, the national and local elections were conducted as scheduled on May 10, 2010. During the elections, Richards, whose name remained on the ballots, garnered 101, 250 votes while his opponents, namely, Eufrocino Codilla, Jr. and herein petitioner Silverio Tagolino, obtained 76,549 and 493 votes, respectively.13 In view of the aforementioned substitution, Richards votes were credited in favor of private respondent and as a result, she was proclaimed the duly-elected Representative of the Fourth District of Leyte. On May 11, 2010, Juntilla filed an Extremely Urgent Motion to resolve the pending May 9, 2010 Motion relative to Resolution No. 8890.14 The said motion, however, remained unacted.

On May 24, 2010, petitioner filed a Petition15 for quo warranto before the HRET in order to oust private respondent from her congressional seat, claiming that: (1) she failed to comply with the one (1) year residency requirement under Section 6, Article VI of the Constitution considering that the transfer of her voter registration from San Rafael Bulacan16 to the Fourth District of Leyte was only applied for on July 23, 2009; (2) she did not validly substitute Richard as his CoC was void ab initio; and (3) private respondents CoC was void due to her non-compliance with the prescribed notarial requirements i.e., she failed to present valid and competent proof of her identity before the notarizing officer.17 In her Verified Answer,18 private respondent denied petitioners allegations and claimed that she validly substituted her husband in the electoral process. She also averred that she personally known to the notary public who notarized her CoC, one Atty. Edgardo Cordeno, and thus, she was not required to have presented any competent proof of identity during the notarization of the said document. Lastly, she asserted that despite her marriage to Richard and exercise of profession in Metro Manila, she continued to maintain her residency in Ormoc City which was the place where she was born and raised. During the preliminary conference, and as shown in the Preliminary Conference Order dated September 2, 2010, the parties agreed on the following issues for resolution: 1. Whether or not the instant petition for quo warranto is meritorious; 2. Whether or not the substitution of respondent is valid; 3. Whether or not a petition for quo warranto can be used as a substitute for failure to file the necessary petition for disqualification with the COMELEC; 4. Whether or not respondents COC was duly subscribed; and 5. Whether or not respondent is ineligible for the position of Representative of the Fourth District of Leyte for lack of residency requirement.19 Ruling of the HRET After due proceedings, the HRET issued the assailed March 22, 2012 Decision20 which dismissed the quo warranto petition and declared that private respondent was a qualified candidate for the position of Leyte Representative (Fourth Legislative District). It observed that the resolution denying Richards candidacy i.e., the COMELEC First Divisions February 17, 2010 Resolution, spoke of disqualification and not of CoC cancellation. Hence, it held that the substitution of private respondent in lieu of Richard was legal and valid.21 Also, it upheld the validity of private respondents CoC due to petitioners failure to controvert her claim that she was personally known to the notary public who notarized her CoC.22 Finally, the HRET ruled that while it had been admitted that private respondent resides in Colgate Street, San Juan City and lived in San Rafael, Bulacan, the fact was she continued to retain her domicile in Ormoc City given that her absence therefrom was only temporary. Hence, the instant petition. Issues Before the Court The crux of the present controversy is whatever or not the HRET gravely abused its discretion in finding that Richard was validly substituted by private respondent as candidate for Leyte Representative (Fourth Legislative District) in view of the formers failure to meet the one (1) year residency requirement provided under Section 6, Article VI of the Constitution. It is petitioners submission that the HRET gravely abused its discretion when it upheld the validity of private respondents substitution despite contrary jurisprudence holding that substitution is impermissible where the substituted candidates CoC was denied due course to and/or cancelled, as in the case of Richard. On the other hand, respondents maintain that

Richards CoC was not denied due course to and/or cancelled by the COMELEC as he was only "disqualified" and therefore, was properly substituted by private respondent. Ruling of the Court The petition is meritorious. A. Distinction between a petition for disqualification and a petition to deny due course to/cancel a certificate of candidacy The Omnibus Election Code23 (OEC) provides for certain remedies to assail a candidates bid for public office. Among these which obtain particular significance to this case are: (1) a petition for disqualification under Section 68; and (2) a petition to deny due course to and/or cancel a certificate of candidacy under Section 78. The distinctions between the two are well-perceived. Primarily, a disqualification case under Section 68 of the OEC is hinged on either: (a) a candidates possession of a permanent resident status in a foreign country;24 or (b) his or her commission of certain acts of disqualification. Anent the latter, the prohibited acts under Section 68 refer to election offenses under the OEC, and not to violations of other penal laws.25 In particular, these are: (1) giving money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (2) committing acts of terrorism to enhance ones candidacy; (3) spending in ones election campaign an amount in excess of that allowed by the OEC; (4) soliciting, receiving or making any contribution prohibited under Sections 89, 95, 96, 97 and 104 of the OEC; and (5) violating Sections 80,26 83,27 85,28 8629 and 261, paragraphs d,30 e,31 k,32 v,33and cc, sub-paragraph 634 of the OEC. Accordingly, the same provision (Section 68) states that any candidate who, in an action or protest in which he or she is a party, is declared by final decision of a competent court guilty of, or found by the COMELEC to have committed any of the foregoing acts shall be disqualified from continuing as a candidate for public office, or disallowed from holding the same, if he or she had already been elected.35 It must be stressed that one who is disqualified under Section 68 is still technically considered to have been a candidate, albeit proscribed to continue as such only because of supervening infractions which do not, however, deny his or her statutory eligibility. In other words, while the candidates compliance with the eligibility requirements as prescribed by law, such as age, residency, and citizenship, is not in question, he or she is, however, ordered to discontinue such candidacy as a form of penal sanction brought by the commission of the above-mentioned election offenses. On the other hand, a denial of due course to and/or cancellation of a CoC proceeding under Section 78 of the OEC36 is premised on a persons misrepresentation of any of the material qualifications required for the elective office aspired for. It is not enough that a person lacks the relevant qualification; he or she must have also made a false representation of the same in the CoC.37 The nature of a Section 78 petition was discussed in the case of Fermin v. COMELEC,38 where the Court illumined: Let it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding that the candidate made a material representation that is false, which may relate to the qualifications required of the public office he/she is running for. It is noted that the candidates states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory provisions on qualifications or eligibility for public office. If the candidate subsequently states a material representation in the CoC that is false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with the distinction

mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of the winning candidate. (Emphasis supplied) Corollary thereto, it must be noted that the deliberateness of the misrepresentation, much less ones intent to defraud, is of bare significance in a Section 78 petition as it is enough that the persons declaration of a material qualification in the CoC be false. In this relation, jurisprudence holds that an express finding that the person committed any deliberate misrepresentation is of little consequence in the determination of whether ones CoC should be deemed cancelled or not.39 What remains material is that the petition essentially seeks to deny due course to and/or cancel the CoC on the basis of ones ineligibility and that the same be granted without any qualification.40 Pertinently, while a disqualified candidate under Section 68 is still considered to have been a candidate for all intents and purposes, on the other hand, a person whose CoC had been denied due course to and/or cancelled under Section 78 is deemed to have not been a candidate at all. The reason being is that a cancelled CoC is considered void ab initio and thus, cannot give rise to a valid candidacy and necessarily, to valid votes.41 In Talaga v. COMELEC42 (Talaga), the Court ruled that: x x x x While a person who is disqualified under Section 68 is merely prohibited to continue as a candidate, a person who certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC. The foregoing variance gains utmost importance to the present case considering its implications on candidate substitution. B. Valid CoC as a condition sine qua non for candidate substitution Section 77 of the OEC provides that if an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, a person belonging to and certified by the same political party may file a CoC to replace the candidate who died, withdrew or was disqualified. It states that: Sec. 77. Candidates in case of death, disqualification or withdrawal of another. - If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. (Emphasis supplied) Evidently, Section 77 requires that there be an "official candidate" before candidate substitution proceeds. Thus, whether the ground for substitution is death, withdrawal or disqualification of a candidate, the said section unequivocally states that only an official candidate of a registered or accredited party may be substituted.43 As defined under Section 79(a) of the OEC, the term "candidate" refers to any person aspiring for or seeking an elective public office who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties. Clearly, the law requires that one must have validly filed a CoC in order to be considered a candidate. The requirement of having a CoC obtains even greater importance if one considers its nature. In particular, a CoC formalizes not only a persons public declaration to run for office but evidences as well his or her statutory eligibility to be elected for the said post. In Sinaca v. Mula,44 the Court has illumined: A certificate of candidacy is in the nature of a formal manifestation to the whole world of the candidates political creed or lack of political creed. 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 the be 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. (Emphasis and underscoring supplied). In this regard, the CoC is the document which formally accords upon a person the status of a candidate. In other words, absent a valid CoC one is not considered a candidate under legal contemplation. As held in Talaga:45 x x x a persons declaration of his intention to run for public office and his affirmation that he possesses the eligibility for the position he seeks to assume, followed by the timely filing of such declaration, constitute a valid CoC that render the person making the declaration a valid or official candidate. (Emphasis supplied) Considering that Section 77 requires that there be a candidate in order for substitution to take place, as well as the precept that a person without a valid CoC is not considered as a candidate at all, it necessarily follows that if a persons CoC had been denied due course to and/or cancelled, he or she cannot be validly substituted in the electoral process. The existence of a valid CoC is therefore a condition sine qua non for a disqualified candidate to be validly substituted.46 C. Divergent effects of disqualification and denial of due course to and/or cancellation of CoC cases vis--vis candidate substitution Proceeding, from the foregoing discourse, it is evident that there lies a clear-cut distinction between a disqualification case under Section 68 and denial of due course to and/or cancellation of COC case under Section 78 vis--vis their respective effects on candidate substitution under Section 77.
1wphi 1

As explained in the case of Miranda v. Abaya47 (Miranda), a candidate who is disqualified under Section 68 can be validly substituted pursuant to Section 77 because he remains a candidate until disqualified; but a person whose CoC has been denied due course to and/or cancelled under Section 78 cannot be substituted because he is not considered a candidate.48 Stated differently, since there would be no candidate to speak of under a denial of due course to and/or cancellation of a CoC case, then there would be no candidate to be substituted; the same does not obtain, however, in a disqualification case since there remains to be a candidate to be substituted, although his or her candidacy is discontinued. On this note, it is equally revelatory that Section 77 expressly enumerates the instances where substitution is permissible, that is when an official candidate of a registered or accredited political party "dies, withdraws or is disqualified for any cause." Noticeably, material misrepresentation cases are not included in the said section and therefore, cannot be a valid basis to proceed with candidate substitution. D. Application to the case at bar In this case, it is undisputed that Richard was disqualified to run in the May 10, 2010 elections due to his failure to comply with the one year residency requirement.49 The confusion, however, stemmed from the use of the word "disqualified" in the February 17, 2010 Resolution of the COMELEC First Division, which was adopted by the COMELEC En Banc in granting the substitution of private respondent, and even further perpetuated by the HRET in denying the quo warranto petition. In short, a finding that Richard was merely disqualified and not that his CoC was denied due course to and/or cancelled would mean that he could have been validly substitute by private respondent, thereby legitimizing her candidacy. Yet the fact that the COMELEC First Divisions February 17, 2010 Resolution did not explicitly decree the denial of due course to and/or cancellation of Richards CoC should not have obviated the COMELEC En Banc from declaring the invalidity of private respondents

substitution. It should be stressed that the clear and unequivocal basis for Richards "disqualification" is his failure to comply with the residency requirement under Section 6, Article VI of the Constitution which is a ground for the denial of due course to and/or cancellation a CoC under Section 78 of the OEC, misrepresentation contemplated under a Section 78 petition refers to statements affecting ones qualifications for elective office such as age, residence and citizenship or non-possession of natural-born Filipino status.51 There is therefore no legal basis to support a finding of disqualification within the ambit of election laws. Accordingly, given Richards non-compliance with the one year residency requirement, it cannot be mistaken that the COMELEC First Divisions unqualified grant of Juntillas "Verified Petition to Disqualify Candidate for Lack of Qualification"52 which prayed that the COMELEC declare Richard "DISQUALIFIED and INELIGIBLE from seeking the office of Member of the House of Representatives" and "x x x that his Certificate of Candidacy x x x be DENIED DUE COURSE and/or CANCELLED"53 carried with it the denial of due course to and/or cancellation of Richards CoC pursuant to Section 78. Case law dictates that if a petition prays for the denial of due course to and/or cancellation of CoC and the same is granted by the COMELEC without any qualification, the cancellation of the candidates CoC in in order. This is precisely the crux of the Miranda ruling wherein the Court, in upholding the COMELEC En Bancs nullification of the substitution in that case, decreed that the COMELEC Divisions unqualified grant of the petition necessarily included the denial of due course to and/or cancellation of the candidates CoC, notwithstanding the use of the term "disqualified" in the COMELEC Divisions resolution, as the foregoing was prayed for in the said petition: The question to settle next is whether or not aside from Joiel "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 respondents 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 Snatiago be not given due course and/or cancelled. Other reliefs just and equitable in the premises are likewise prayed for. In resolving the petition filed by private respondent specifying a very particular relief, the COMELEC ruled favorably in the following manner: WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the Petition. Respondent JOSE "Pempe" MIRANDA is hereby DISQUALIFIED from running for the position of mayor of Santiago City, Isabela, in the May 11, 1998 national and local elections. SO ORDERED. From a plain reading of the dispositive portion of the COMELEC resolution of May 5, 1998 in SPA No. 98-019, it is sufficiently clear that the prayer specifically and particularly sought in the petition was GRANTED, there being no qualification on the matter whatsoever. The disqualification was simply ruled over and above the granting of the specific prayer for denial of due course and cancellation of the certificate of candidacy. xxxx

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. 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 course and cancelled. (Emphasis and underscoring supplied) The same rule was later discussed in the case of Talaga, viz: 3. Granting without any qualification or petition in SPA No. 09-029(DC) manifested COMELECs intention to declare Ramon disqualified and to cancel his CoC xxxx In Miranda v. Abaya, the specific relief that the petition prayed for was that the CoC "be not given due course and/or cancelled". The COMELEC categorically granted "the petition" and then pronounced in apparent contradiction that Joel Pempe Miranda was "disqualified." The Court held that the COMELEC, by granting the petition without any qualification, disqualified Joel Pempe Miranda and at the same time cancelled Jose Pempe Mirandas CoC. xxxx The crucial point of Miranda v. Abaya was that the COMELEC actually granted the particular relief of cancelling or denying due course to the CoC prayed for in the petition by not subjecting that relief to any qualification. (Emphasis and underscoring supplied) In view of the foregoing rulings, the COMELEC En Banc direly misconstrued the COMELEC First Divisions February 17, 2010 Resolution when it adopted the Law Departments finding that Richard was only "disqualified" and that his CoC was not denied due course to and/or cancelled, paving the way for the approval of private respondents substitution. It overlooked the fact that the COMELEC First Divisions ruling encompassed the cancellation of Richards CoC and in consequence, disallowed the substitution of private respondent. It was therefore grave and serious error on the part of the COMELEC En Banc to have approved private respondents substitution. Consequently, in perpetuating the COMELEC En Bancs error as above-discussed, the HRET committed a grave abuse of discretion, warranting the grant of the instant petition. Fundamental is the rule that grave abuse of discretion arises when a lower court or tribunal patently violates the Constitution, the law or existing jurisprudence.54 While it is well-recognized that the HRET has been empowered by the Constitution to be the "sole judge" of all contests relating to the election, returns, and qualifications of the members of the House, the Court maintains jurisdiction over it to check "whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction" on the part of the latter.55 In other words, when the HRET utterly disregards the law and settled precedents on the matter before it, it commits a grave abuse of discretion. Records clearly show that: (1) Richard was held ineligible as a congressional candidate for the Fourth District of Leyte due to his failure to comply with the one year residency requirement; (2) Juntillas petition prayed for the denial of due course to and/or cancellation of his CoC; and (3) the COMELEC First Division granted the foregoing petition without any qualification. By these undisputed and essential facts alone, the HRET should not have adopted the COMELEC En Bancs erroneous finding that the COMELEC First Divisions February 17, 2010 Resolution "speaks only of "disqualification and not of cancellation of Richards CoC"36 and thereby, sanctioned the substitution of private respondent.

Lest it be misunderstood, the HRET is not bound by previous COMELEC pronouncements relative to the qualifications of the Members of the House. Being the sole judge57 of all contests relating to the election, returns, and qualifications of its respective members, the HRET cannot be tied down by COMELEC resolutions, else its constitutional mandate58 be circumvented and rendered nugatory. Instructive on this point is the Courts disquisition in Fernandez v. HRET,59 to wit: Private respondent concludes from the above that petitioner had no legal basis to claim that the HRET, when reference to the qualification/s of Members of the House of Representatives is concerned, is "co-equal", to the COMELEC respecting the matter of eligibility and qualification of a member of the House of Representatives. The truth is the other way around, because the COMELEC is subservient to the HRET when the dispute or contest at issue refers to the eligibility and/or qualification of a Member of the House of Representatives. A petition for quo warranto is within the exclusive jurisdiction of the HRET as sole judge, and cannot be considered forum shopping even if another body may have passed upon in administrative or quasi-judicial proceedings the issue of the Members qualification while the Member was still a candidate. There is forum-shopping only where two cases involve the same parties and the same cause of action. The two cases here are distinct and dissimilar in their nature and character. (Emphasis and underscoring supplied) Notably, the phrase "election, returns, and qualifications" should be interpreted in its totality as referring to all matters affecting the validity of the contestees title. More particularly, the term "qualifications" refers to matters that could be raised in a quo warranto proceeding against the pro-claimed winner, such as his disloyalty or ineligibility, or the inadequacy of his certificate of candidacy.60 As used in Section 74 of the OEC, the word "eligible" means having the right to run for elective public office, that is, having all the qualifications and none of the ineligibilities to run for the public office.61 In this relation, private respondents own qualification to run for public office which was inextricably linked to her husbands own qualifications due to her substitution was the proper subject of quo warranto proceedings falling within the exclusive jurisdiction of the HRET and independent from any previous proceedings before the COMELEC, lest the jurisdiction divide between the two be blurred. Nonetheless, it must be pointed out that the HRETs independence is not without limitation. As earlier mentioned, the Court retains certiorari jurisdiction over the HRET if only to check whether or not it has gravely abused its discretion. In this regard, the Court does not endeavor to denigrate nor undermine the HRETs independence; rather, it merely fulfills its duty to ensure that the Constitution and the laws are upheld through the exercise of its power of judicial review. In fine, the Court observes that the HRET wantonly disregarded the law by deliberately adopting the COMELEC En Bancs flawed findings regarding private respondents eligibility to run for public office which essentially stemmed from her substitution. In this light, it cannot be gainsaid that the HRET gravely abused its discretion. Owing to the lack of proper substitution in its case, private respondent was therefore not a bona fide candidate for the position of Representative for the Fourth District of Leyte when she ran for office, which means that she could not have been elected. Considering this pronouncement, there exists no cogent reason to further dwell on the other issues respecting private respondents own qualification to office. WHEREFORE, the petition is GRANTED. Accordingly, the March 22, 2012 Decision rendered by the House of Representatives Electoral Tribunal in HRET Case No. 10-031 (QW) is hereby REVERSED and SET ASIDE. SO ORDERED.

ESTELA M. PERLAS-BERNABE Associate Justice WE CONCUR: MARIA LOURDES P. A. SERENO Chief Justice (No part due to participation in HRET) PRESBITERO J. VELASCO, JR.* Associate Justice (No part due to participation in HRET) ARTURO D. BRION* Associate Justice (No part due to participation in HRET) LUCAS P. BERSAMIN* Associate Justice ROBERTO A. ABAD Associate Justice JOSE PORTUGAL PEREZ Associate Justice BIENVENIDO L. REYES Associate Justice ANTONIO T. CARPIO Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice (No part due to participation in HRET) DIOSDADO M. PERALTA* Associate Justice MARIANO C. DEL CASTILLO Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice JOSE CATRAL MENDOZA Associate Justice MARVIC MARIO VICTOR F. LEONEN Associate Justice

CERTIFICATION I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. MARIA LOURDES P. A. SERENO Chief Justice

Footnotes
*

No part.

Rollo, pp. 48-65. Signed by Supreme Court Associate Justices Presbitero J. Velasco, Jr., Diosdado M. Peralta, and Luas P. Bersamin, Representatives Franklin P. Bautista, Joselito Andrew R. Mendoza; Justin Marc SB. Chipeco, Rufus B. Rodriguez (dissented), and Ma. Theresa B. Bonoan-David (abstained).
2

Id. at 257. Id. at 246-253.

Sec. 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twentyfive years of age, able to read and write, and except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election. (Emphasis supplied)
5

Rollo, pp.252-253.

Id. at 259-265. Signed by Presiding Commissioner Rene V. Sarmiento, Commissioners Armando C. Velasco and Gregorio Y. Larrazabal (no part).
7

Id. at 266-277. Penned by Commissioner Elias R. Yusoph, with Commissioners Rene V. Sarmiento, Lucenito N. Tagle, Nicodemo T. Ferrer, and Armando C. Velasco, concurring, Commissioners Jose A. R. Melo and Gregorio Y. Larrazabal, no part.
8

Id. at 278-280. Id. at 297. Id. at 298. Id. at 132-139. Id. at 311-326. Id. at 98. See Torres-Gomez v. Codilla, G.R. No. 195191, March 20, 2012, 668 SCRA 600. Rollo, pp. 85-93. Registered in Precinct No. 0004A of San Rafael, Bulacan. Rollo, pp. 87-92. Id. at 102-119. Id. at 54-55. Id. at 48-65. Id. at 56. Id. at 58-59. BATAS PAMBANSA BILANG NO. 881, AS AMENDED.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

The exception to this is when the said status is waived. Sec. 68 of the OEC partly provides: Se. 68. Disqualifications. x x x x 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.
25

Araneta v. COMELEC, G.R. No. 195229, October 9, 2012. Refers to election campaign or political activity outside the campaign period. Refers to the removal, destruction or defacement of lawful election propaganda. Refers to certain forms of election propaganda.

26

27

28

29

Refers to violation of rules and regulations on election propaganda through mass media.
30

Refers to coercion of subordinates.

31

Refers to threats, intimidation, terrorism, use of fraudulent device or other forms of coercion.
32

Refers to unlawful electioneering. Refers to the release, disbursement or expenditure of public funds.

33

34

Refers to the solicitation of votes or undertaking any propaganda on the day of the election.
35

See BATAS PAMBANSA BILANG NO. 881, AS AMENDED, Section 68.

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 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 notice and hearing, not later than fifteen days before the election.
36 37

Talaga v. COMELEC, G.R. Nos. 196804 and 197015, October 9, 2012, citing Fermin v. COMELEC, G.R. No. 179695, December 18, 2008, 574 SCRA 782.
38

Fermin v. COMELEC, id. See Miranda v. Abaya, 370 Phil. 642. Id. Supra note 25, citing Bautista v. COMELEC, 359 Phil. 1, 16 (1998). Supra note 37. Id.

39

40

41

42

43

44

373Phil. 896, 908, citing Ruperto G. Marting, The Revised Election Code with Annotations 41 (First Edition).

45

Supra note 37. Supra notes 25 and 37. Supra note 39. Id. Rollo, p. 264. Fermin v. COMELEC, supra note 37. Gonzalez v. COMELEC, G.R. No. 192856, March 8, 2011, 644 SCRA 761, 775-776. Rollo, p. 246. Id. at 252-253; emphasis and underscoring supplied. See Fernandez v. COMELEC, G.R. No. 171821, October 9, 2006, 504 SCRA 116. See Bengson III v. HRET, 409 Phil. 633 (2001); citations omitted. Rollo, p. 133.

46

47

48

49

50

51

52

53

54

55

56

57

In the case of Lazatin v. HRET, 250 Phil. 390, 399-400 (1988), the Court stated that under the 1987 Philippine Constitution, the jurisdiction of the Electoral Tribunal is original and exclusive, viz: The use of the word "sole" emphasizes the exclusive character of the jurisdiction conferred. The exercise of power by the Electoral Commission under the 1935 Constitution has been described as "intended to be as complete and unimpaired as if it had originally remained in the legislature." Earlier this grant of power to the legislature was characterized by Justice Malcolm as "full, clear and complete; Under the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and it remained as full, clear and complete as that previously granted the Legislature and the Electoral Commission. The same may be said with regard to the jurisdiction of the Electoral Tribunal under the 1987 Constitution. (Emphasis supplied; citations omitted)
58

Art. 6, Sec. 17 of the Constitution states: Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. (Emphasis supplied)

59

G.R. No. 187478, December 21, 2009, 608 SCRA 733, 747-748.

60

See Liwayway Vinzons-Chato v. COMELEC, G.R. No. 172131, April 2, 2007, 520 SCRA 166.
61

Supra note 25, citing the Oxford Dictionary of English (Oxford University Press 2010).

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION ABAD, J.: On November 30, 2009 Richard Gomez (Richard) filed his certificate of candidacy (CoC) for Congressman of Leytes 4th District under the Liberal Party (LP) in the May 10, 2010 elections. He gave his residence as 910 Carlota Hills, Barangay Can-Adieng, Ormoc City. After a week, Buenaventura O. Juntilla, a registered voter of the district, filed a Verified Petition to Disqualify Candidate for Lack of Qualification1 before the Commission on Elections (COMELEC) in SPA 09059 (DC) on the ground that Richard was not an Ormoc City resident. Juntilla asked the COMELEC two things: a) disqualify Richard and b) deny due course to or cancel his CoC for material misrepresentation regarding his residence since he in fact resided in Greenhills, Mandaluyong City. On February 17, 2010 the COMELEC First Division issued a resolution disqualifying Richard for failing to present "sufficient proof that would establish his ties to Ormoc." The resolution failed, however, to order the denial of due course or cancellation of his CoC. The dispositive portion of the resolution reads: WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the Petition to Disqualify Candidate for Lack of Qualification filed by BUENAVENTURA O. JUNTILLA against RICHARD I. GOMEZ. Accordingly, RICHARD I. GOMEZ is DISQUALIFIED as a candidate for the Office of Congressman, Fourth District of Leyte, for lack of residency requirement.2 (Emphasis supplied.) On February 20, 2010 Richard moved for reconsideration of the above resolution Juntilla, on the other hand, did not file a similar motion even when the COMELEC failed to grant his other prayer for denial of due course or cancellation of Richards CoC. On May 4, 2010 the COMELEC En Banc issued a Resolution3 dismissing Richards motion for reconsideration. On the same day, Richard filed with the COMELEC a Manifestation4 informing it of his acceptance of its decision in his case to enable a substitute to take his place. Acting on the Manifestation, the COMELEC En Banc issued an Order on May 5 declaring its May 4 Resolution final and executory. On May 5, 2010 the LP Secretary-General wrote the Provincial Election Supervisor of Leyte, nominating respondent Lucy Gomez as a substitute candidate for her husband, Richard. Lucy Gomez promptly filed her CoC with COMELEC as substitute candidate. On the same date, Juntilla filed with the COMELEC a Counter-Manifestation,5 followed by a letter to the COMELEC Law Department, opposing Lucy Gomezs substitution of her husband, claiming that the substitution was invalid since she had no one to substitute in view of the COMELECs disqualification of Richard by final order. On May 8, 2010, the COMELEC En Banc issued Resolution 88906 approving and adopting, among other things, its Law Departments study and recommendation that Lucy Gomez be allowed to substitute for Richard, given that the 1st Divisions ruling which did not cancel Richards CoC but merely "disqualified" him, had already become final and executory. The pertinent portion of the study and recommendation that the En Banc adopted states:

The crux of the opposition stemmed from the issue that there should be no substitution because there is no candidate to substitute for. It must be stressed that the resolution of the First Division, this Commission, in SPA No. 09-059 speaks of disqualification of candidate Richard I. Gomez and not of cancellation of his Certificate of Candidacy: "Wherefore, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the Petition to Disqualify Candidate for Lack of Qualification filed against RICHARD I. GOMEZ. Accordingly, RICHARD I. GOMEZ is DISQUALIFIED as a candidate for the Office of Congressman, Fourth District of Leyte, for lack of residency requirement." The said resolution was affirmed by the Commission En Banc on May 4, 2010. xxxx In view of the foregoing, the Law Department RECOMMENDS the following: xxxx 2. TO ALLOW CANDIDATE LUCY MARIE TORRES GOMEZ AS A SUBSTITUTE CANDIDATE FOR RICHARD GOMEZ; (Emphasis supplied) On the same day the COMELEC En Banc issued its May 8, 2010 resolution allowing the substitution, Juntilla filed an Extremely Urgent Motion for Reconsideration7 of the same but the motion remained unacted upon, obviously owing to the supervening May 10 elections. Juntilla never elevated or questioned the matter before the Supreme Court. On May 12, 2010 the Leyte Provincial Board of Canvassers proclaimed Lucy Gomez as Congresswoman-elect to represent the 4th District of Leyte, having obtained 101,250 votes. Petitioner Silvestre R. Tagolino and another candidate, Eufrocino C. Codilla, Jr., granted 493 votes and 76,549 votes, respectively. In due time, Tagolino brought a quo warranto action8 against Lucy Gomez with the House of Representatives Electoral Tribunal (HRET) pursuant to its Rule 17 which allows the filing of a petition for quo warranto contesting the election of a member of the House of Representatives "on the ground of ineligibility or disloyalty to the Republic." Juntilla did not join Tagolino in this action. Tagolino alleged in his petition (1) that Lucy Gomez was not a resident of Ormoc City at least one year immediately preceding the election; (2) that she was not a registered voter in the 4th District of Leyte; and (3) that her CoC was void for failing to comply with the requirements of Section 2 of the 2004 Notarial Law.9 Tagolino did not raise in his petition the question of the validity of Lucy Gomezs substitution of her husband Richard. In her Answer,10 Lucy Gomez averred: (a) that the petition was filed beyond 10 days from proclamation; (b) that the petition assails the validity of her CoC, which is outside the jurisdiction of the HRET and should have been assailed before the COMELEC through a petition to deny due course to or cancel her CoC; (c) that the COMELEC had already resolved her substitution of Richard with finality in its Resolution 8890; (d) that she did not have to present proof of her identity when her CoC was notarized the notary public personally knew her; and (e) she never abandoned her domicile in Ormoc City despite her change of residence and transfer of voting registration to San Rafael, Bulacan, arising from her marriage to Richard.

On March 22, 2010 the HRET rendered a Decision11 dismissing the quo warranto petition and declaring Lucy Gomez a qualified candidate during the May 2010 election for the subject position, her substitution of her disqualified husband being valid and legal. HRET ruled that Lucy Gomezs domicile continued to be Ormoc City despite her marriage to Richard. Tagolino moved for reconsideration but HRET denied the same on May 28, 2012, hence, this petition. Question Presented As the ponencia would have it, the issue boils down to the question of whether or not Lucy Gomez validly substituted Richard whom the COMELEC declared disqualified for lack of residency. But the above is not an accurate statement of the real issue in this case. The real issue in this case is whether or not the HRET can review and reverse a COMELEC Decision involving a member of the House of Representatives that had become final and executory. Discussion The election of Lucy Gomez as Congressman of the 4th District of Leyte was preceded by two separate incidents before the COMELEC: The first incident involved Ricahrd. It consists in Juntillas self-titled Verified Petition to Disqualify Candidate for Lack of Qualification. Juntilla asked for Richards disqualification, consistent with the substance of his petition, but added in his prayer that the candidates CoC be also cancelled or denied due course. The COMELEC First Division granted the petition and disqualified Richard but did not cancel or deny due course to his CoC. The second incident involved Lucy Gomez. Juntilla opposed her substitution of Richard on the ground that the substitution was invalid since she had no one to substitute in view of the COMELEC First Divisions disqualified of Richard by final order. But the COMELEC En Banc denied the opposition and allowed the substitution, given that the First Division' resolution, which merely disqualified Richard, had already become final and executory. The key issue in this case is actually whether or not the HRET was correct in ruling that the COMELEC First Divisions February 17, 2010 Resolution that disqualified Richard but did not cancel his CoC or deny it due course had already become final and executory. For, if it had indeed become final and executory, that resolution would, as the COMELEC En Banc held in its May 8, 2010 Resolution, provide legal basis for Lucy Gomezs substitution of Richard. It is clear from the facts that the COMELEC First Divisions February 17, 2010 Resolution, which merely disqualified Richard but did not cancel or deny due course to his CoC, became final and executory. That resolution may be in error, as the ponencia would have it, but it certainly became final and executory for the following reasons: First. Juntilla never filed a motion for reconsideration of that resolution. Consequently, he could not help its becoming final and executory as to him. Second. Only Richard filed a motion for reconsideration of the COMELEC First Divisions February 17, 2010 Resolution, which merely disqualified him. When the COMELEC En Banc dismissed that motion for reconsideration on May 4, 2010, Richard filed a manifestation on the same day, accepting its validity. On May 5 the COMELEC En Banc declared its May 4, 2010 Resolution final and executory. Consequently, what remained the last window of opportunity to review and possibly reverse the COMELEC First Divisions February 17, 2010 Resolution closed down.

Third, Juntilla attempted to revive the issue concerning the COMELEC First Divisions February 17, 2010 Resolution when he opposed Lucy Gomezs substitution of Richard. He claimed that the First Divisions resolution resulted in the COMELEC denying due course to Richards CoC with the effect that, without a valid one, he could not be substituted. But Juntilla is clearly in error since the COMELEC En Banc already declared on May 5 that the First Divisions February 17 Resolution merely ordered Richards disqualification and such resolution had irreversibly become final and executory. Juntilla of course filed on May 8, 2010 a motion for reconsideration of the COMELEC En Bancs Resolution of the same date that allowed Lucy Gomezs substitution of Richard, but the motion remained unacted upon, obviously owing to the supervising May 10, 2010 elections. At any rate, Juntilla may be deemed to have abandoned that motion for reconsideration for he never insisted that it be resolved. And he never raised before this Court the issue of the validity of that COMELEC En Bancs May 8 Resolution that allowed the substitution. Unchallenged, that resolution became final and executory as well. The Court has of course ruled In Guerrero v. Commission on Elections12 that, since the Constitution makes the HRET "the sole judge of all contests relating to the election, returns and qualifications" of its members, it has the jurisdiction to pass upon the validity of substitution involving such members. Said the Court: Whether respondent Rodolfo Farias validly substituted Chevylle V. Farias and whether respondent became a legitimate candidate, in our view, must likewise be addressed to the sound judgment of the Electoral Tribunal. Only thus can we demonstrate fealty to the Constitutional provision that the Electoral Tribunal of each House of Congress shall be the "sole judge of all contests relating to the election, returns and qualifications of their respective members."13 (Emphasis supplied) But the above ruling should be understood in the context of the facts of the Farias case. Guillermo Ruiz, a registered voter, filed a petition with the COMELECs Second Division seeking the perpetual disqualification of Rodolfo Farias as candidate for Congressman for the May 11, 1998 elections on the ground that he had been campaigning for that position despite his failure to file a CoC. Eventually, Farias filed his CoC on May 8, 1998 in substitution of Chevylle Farias who withdrew earlier on April 3. Because of this supervening event, on May 10 the Second Division dismissed Ruiz' petition for lack of merit. Farias won the elections and was promptly proclaimed. On May 16, 1998, however, Ruiz filed a motion for reconsideration of the Second Divisions May 10 Resolution, contending that Farias could not validly substitutes for Chevylle, since the latter was not the official candidate of the Lakas ng Makabayan Masang Pilipino but was an independent candidate. Meantime, on June 3, 1998 Farias took his oath as member of the House of Representatives. On June 10, 1998 petitioner Arnold Guerrero, a rival candidate, filed a petition-in-interview with the COMELEC, assailing Farias substitution of Chevylle. On January 6, 1999, the COMELEC En Banc dismissed Ruizs motion for reconsideration and Guerreros petition-in-interview for lack of jurisdiction since Farias had in the meantime assumed office. Upon Guerreros petition, this Court held that while the COMELEC has the power to declare a CoC valid or invalid, its refusal to exercise that power, following Farias proclamation and assumption of office, simply recognized the jurisdictional boundaries between the COMELEC and the HRET. The Court said that whether Farias validly substituted Chevylle must now be addressed to the sound judgment of the HRET. The COMELECs jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRETs own jurisdiction begins. Tagolino cannot invoke the Farias ruling for three reasons:

First, the Courts thesis in Farias is that the HRET can take over a pending matter before the COMELEC since the latter may be considered ousted of its jurisdiction over the same upon the winners assumption of office. The HRET takes over the authority to resolve such pending matter. Here, however, the key issue of whether or not the COMELEC First Divisions February 17, 2010 Resolution, which merely disqualified Richard but did not cancel his CoC, is no longer a pending matter. It became final and executory since, as pointed out above, Juntilla did not file a motion for its reconsideration and the COMELEC En Banc had found it to be the case. Second, Guerrero had the right to raise the issue of Farias disqualification before the HRET since he intervened and joined cause with Guillermo in his action before the COMELEC. This gave Guerrero a stake in the resolution of Guillermos motion for reconsideration after the COMELEC declined to further act on the same. Here, Tagolino never interviewed in Juntillas actions before the COMELEC. He stayed out of it. Consequently, he has no right to ask the HRET to resolve Juntillas May 8, 2010 motion for reconsideration of the COMELEC En Bancs order of the same date. The right to press for the resolution of that May 8 motion for reconsideration belonged to Juntilla who alone filed it. But, as it happened, he abandoned his motion when he did not come up either to the Supreme Court or to the HRET to cause it to be resolved. And third, Tagolino is barred from claiming that, in disqualifying Richard, the COMELECs First Division in effect caused the cancellation of his CoC. Tagolino made a binding admission during the Preliminary Conference before the HRET that the COMELEC did not in fact order such cancellation of Richards CoC.14 Thus, Tagalino admitted that: xxxx 3. By Resolution of February 17, 2010, the Comelec disqualified Richard I. Gomez as candidate for Representative of the Fourth District of Leyte for lack of residency; 4. Gomez filed a motion for reconsideration, which the Comelec En Banc dismissed for lack of merit by Resolution of May 4, 2010; 5. Said May 4, 2010 Resolution of the Comelec did not order the cancellation of Gomez certificate of candidacy; (Emphasis supplied) xxxx Tagolinos admission in paragraph 5 abovethat the COMELEC did not order the cancellation of Richard Gomezs certificate of candidacyis binding on him, especially since he makes no allegation that he made such admission through palpable mistake.15 True, the parties raised before the HRET the issue of "whether the substitution of respondent is valid." But this merely accords with Lucy Gomezs defense in her answer that the COMELEC had already resolved her substitution of Richard with finality in its Resolution 8890. It did not mean that the parties were submitting to the HRET for resolution the issue of the final and executory nature of the COMELEC First Divisions resolution that enabled her to substitute for Richard. So the Court comes to the real issue in this case: whether or not the HRET can review and reverse a COMELEC decision, involving a member of the House of Representatives, that had already become final and executory.

The HRET has no authority to review final and executory resolutions or decisions of the COMELEC that it rendered pursuant to its powers under the Constitution, no matter if such resolutions or decisions are erroneous. The parties cannot by agreement confer such authority on HRET. Neither the HRET nor the Court can set aside the COMELECs final and executory resolutions that paved the way for Lucy Gomez to substitute her husband. As for Lucy Gomezs residency qualification, the evidence presented in the case amply supports HRETs conclusion that she met such qualification. For all of the above reasons, I vote to deny the petition. ROBERTO A. ABAD Associate Justice

Footnotes
1

Rollo, pp. 246-253. Id. at 259-265. Id. at 266-277. Id. at 278-279. Id. at 281-86. Id. at 303-310. Id. at 311-324. Id. at 85-92.

SEC. 2. Affirmation or Oath. The term "Affirmation" or "Oath" refers to an act in which an individual on a single occasion:
9

a. appears in person before the notary public; b. is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; x x x
10

Rollo, pp. 23-39. Annex "A," Petition, id. at 48-64. 39 Phil. 344 (2000). Id. at 354. HRET Records, Vol. I, p. 504.

11

12

13

14

Section 4, Rule 139, Rules of Evidence. Judicial admissions. An admission, verbal or written made by a party in the course of the proceedings in the same case, does not
15

require proof. The admission may be contracted only by showing that it was made through palpable mistake or that no such admission was made. (2a)

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION LEONARDO-DE CASTRO, J.: I vote to deny the petition of Silverio R. Tagolino on the ground that after the lapse of the reglementary period of ten (10) days from the date of proclamation of respondent Lucy Marie Torres-Gomez as the duly elected Representative of the Fourth Legislative District of Leyte, the said proclamation can no longer be assailed by an election protest or a petition for quo warranto. Moreover, the substitution by said respondent of her husband Richard Gomez cannot be questioned, there being no factual basis to assail the decision of the Commission on Elections (COMELEC) not to cancel the certificate of candidacy of respondents husband. The Petition for Quo Warranto was filed out of time. Respondent Gomez was proclaimed as the winning candidate for the position of Member of the House of Representatives on May 12, 2010 whereas the Petition for Quo Warranto was filed by petitioner Tagolino on May 24, 2010, or twelve days after the proclamation of respondent Gomez. The pertinent provisions of the Rules of the House of Representatives Electoral Tribunal (HRET) provide as follows: RULE 16. Election Protest. A verified petition contesting the election or returns of any Member of the House of Representatives shall be filed by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten (10) days after the proclamation of the winner. The party filing the protest shall be designated as the protestant while the adverse party shall known as the protestee. No joint election protest shall be admitted, but the Tribunal, for good and sufficient reasons, may consolidate individual protests and hear and decide them jointly. The protest is verified by an affidavit that the affiant has read it and that the allegations therein are true and correct of his knowledge and belief. A verification based on "information and belief," or upon "knowledge, information and belief," is not a sufficient verification. An unverified election protest shall not suspend the running of the reglementary period to file the protest. RULE 17. Quo Warranto. A verified petition for quo warranto contesting the election of a Member of the House of Representatives on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall be filed by any voter within ten (10) days after the proclamation of the winner. The party filing the petition shall be designated as the petitioner while the adverse party shall be known as the respondent. The rule on verification provided in Section 16 hereof shall apply to petitions for quo warranto.

As correctly asserted by respondent Gomez in her Verified Answer filed before the HRET, the Petition for Quo Warranto should have been dismissed outright pursuant to Rule 21 of the Rules of the HRET, quoted below: RULE 21. Summary Dismissal of Election Contest. An election protest or petition for quo warranto may be summarily dismissed by the Tribunal without the necessity of requiring the protestee or respondent to answer if, inter alia: x x x (2) The petition is filed beyond the period provided in Rules 16 and 17 of these Rules. This Court has emphasized the importance of compliance with the HRET Rules prescribing reglementary periods to be observed by the parties in an election contest to expedite the disposition of election controversies so as not to frustrate the will of the electorate. In Hofer v. House of Representatives Electoral Tribunal,1 the Court sustained the dismissal by the HRET of the election protest for failure to comply strictly with the period prescribed by the HRET Rules. Similarly, Perez v. Commission on Elections2 held that remedies are unavailing once the prescriptive period to bring the appropriate petition has set in. The pertinent ruling of the Court in Perez is quoted as follows: Petitioners remedies should have been (1) to reiterate her prayer in the petition for disqualification, and move for the issuance of an order by the COMELEC suspending the proclamation of private respondent pending the hearing of the said petition and, in the event the motion was denied before the proclamation of private respondent, file a petition for certiorari in this Court with a prayer for a restraining order to enjoin the proclamation of private respondent; or (2) to file a petition for quo warranto in the House of Representatives Electoral Tribunal within ten (10) days after the proclamation of private respondent as Representative-elect on May 16, 1998. Obviously, neither of these remedies can be availed of now.3 The HRET and this Court cannot set aside at will the HRET Rules mandating the timely filing of election contests. Otherwise, a dangerous precedent will be set that will cause uncertainty in the application of the HRET Rules and instability in the holding of an elective post by a proclaimed winning candidate that may aversely affect public service. In view of the foregoing, I submit that the HRET is bereft of jurisdiction to entertain the Petition for Quo Warranto filed by Tagolino, after the lapse of the reglementary period prescribed by its own Rules. The proclamation of respondent Gomez has become incontrovertible or unassailable after the expiration of ten (10) days from its date. No factual basis to cancel the certificate of candidacy. The lack of jurisdiction on the part of the HRET to entertain the untimely Petition for Quo Warranto assailing the proclamation of private respondent Gomez would suffice to dismiss outright the instant petition. Moreover, the substantive issue extensively discussed in the ponencia of the Honorable Associate Justice Estela Perlas Bernabe, particularly as to the "divergent effects of disqualification and denial of due course to and/or cancellation of COC (Certificate of Candidacy) cases vis--vis candidate substitution" is inappropriate. Firstly, the certificate of candidacy of Richard Gomez, the husband of respondent Gomez, was not cancelled by the COMELEC. Secondly, the decision by the COMELEC not to cancel said certificate of candidacy was proper as the COMELEC did not reach any finding that Richard Gomez deliberately committed a misrepresentation, which is a requisite for the cancellation of a certificate of candidacy under Section 78 of the Omnibus Election Code. In Mitra v. Commission on Elections,4 the Court ruled:

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 representation of a material fact is made. xxx 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. 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 wouldbe candidates qualifications for public office. Thus, the misrepresentation that Section78 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. (Emphasis supplied and citations omitted.) The ponencia of Justice Bernabe indulged in the legal fiction that the certificate of candidacy of Richard Gomez was cancelled when it in fact was not. Neither can the Court now on its own decree such cancellation in the absence of any factual basis or evidentiary support for a finding that Richard Gomez committed a "deliberate attempt to mislead, misinform, or hide a fact that would otherwise render him ineligible." Substitution was valid. Since the COMELEC did not cancel the certificate of candidacy of Richard Gomez but only disqualified him from running in the elections, the substitution by respondent Gomez of Richard Gomez squarely falls within the ambit of Section 77 of the Omnibus Election Code (OEC), which uses the broad language "disqualification for any cause," as follows: Section 77. Candidates in case of death, disqualification or withdrawal of another. If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political

subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission. Petition for Quo Warranto lacked factual basis. Regarding the issue of whether a Petition for Quo Warranto is a proper legal remedy to assail the validity of the substitution of a candidate under Section 77 of the OEC, it suffices here to state that, under Rule 17 of the HRET Rules, the grounds for a Petition for Quo Warranto are ineligibility to run for a public office or disloyalty to the Republic of the Philippines. Pertinently, Section 6, Article VI of the Constitution, which provides for the qualifications of a Member of the House of Representatives, states as follows: Section 6. No person shall be a Member of the House of Representatives unless he is a naturalborn citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereat for a period of not less than one year immediately preceding the day of the election. The above-quoted provision refers to the personal attributes of a candidate. The ponencia did not find any of the above qualifications absent in the case of respondent Gomez. However, the ponencia attributed the ineligibility of respondent Gomez to its erroneous assumption that the certificate of candidacy of Richard Gomez, whom she substituted, should have been cancelled. As explained above, the COMELEC correctly did not so cancel said certificate, it having found no factual basis to do so. This being the case and the fact that the Petition for Quo Warranto was filed out of time, there is no need to dwell on the issue of whether the Petition for Quo Warranto may validly question the validity of the substitution of a candidate and to discuss the constitutional boundaries of the respective jurisdictions of the COMELEC and the HRET. In view of the foregoing, I reiterate my vote to dismiss the Petition for Certiorari filed by Tagolino. TERESITA J. LEONARDO-DE CASTRO Associate Justice Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-54718 December 4, 1985 CRISOLOGO VILLANUEVA Y PARDES, petitioner, vs. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF DOLORES, QUEZON, VIVENCIO G. LIRIO respondents. RESOLUTION

TEEHANKEE, J.: Upon consideration of petitioner's motion for reconsideration of the decision of May 3, 1983 1 (which dismissed his petition to set aside respondent Comelec's resolutions of February 21,

1980 and July 31, 1980 denying his petition for annulment of the proclamation of respondent Vivencio Lirio as the elected vice-mayor of Dolores, Quezon and for his proclamation instead as such elected vice-mayor for having received the clear majority of the votes cast), the comments of public and private respondents and petitioner's consolidated reply and manifestation and motion of June 25, 1985 (stating that respondent abandoned his claim to the office and accepted and assumed on June 10, 1985, the position of municipal trial judge of Lucban and Sampaloc, Quezon, as verified from the records of the Office of the Court Administrator), the Court Resolved to RECONSIDER and SET ASIDE its aforesaid decision and to GRANT the petition at bar.

The undisputed facts show that one Narciso Mendoza, Jr. had filed on January 4, 1980, the last day for filing of certificates of candidacy in the January 30, 1980 local elections, his sworn certificate of candidacy as independent for the office of vice-mayor of the municipality of Dolores, Quezon. But later on the very same day, Mendoza filed an unsworn letter in his own handwriting withdrawing his said certificate of candidacy "for personal reasons." Later on January 25, 1980, petitioner Crisologo Villanueva, upon learning of his companion Mendoza's withdrawal, filed his own sworn "Certificate of Candidacy in substitution" of Mendoza's for the said office of vice mayor as a one-man independent ticket. ... The results showed petitioner to be the clear winner over respondent with a margin of 452 votes (3,112 votes as against his opponent respondent Lirio's 2,660 votes). But the Municipal Board of Canvassers disregarded all votes cast in favor of petitioner as stray votes on the basis of the Provincial Election Officer's erroneous opinion that since petitioner's name does not appear in the Comelec's certified list of candidates for that municipality, it could be presumed that his candidacy was not duly approved by the Comelec so that his votes could not be "legally counted. " ... The canvassers accordingly proclaimed respondent Vivencio G. Lirio as the only unopposed candidate and as the duly elected vice mayor of the municipality of Dolores. Respondent Comelec issued its questioned resolution on February 21, 1980 denying the petition on two grounds after citing the pertinent legal provisions, as follows: The 1978 Election Code provides: SEC. 27. ... No certificate of candidacy duly filed shall be considered withdraw ... unless the candidate files with the office which received the certificate ... or with the Commission a sworn statement of withdrawal ... SEC. 28. ... If, after last day for filing certificates of candidacy, a candidate with a certificate of candidacy duly filed should ... withdraw ... any voter qualified for the office may file his certificate of candidacy for the office for which ... the candidate who has withdrawn ... was a candidate on or before midday of election ... Clearly, Petitioner Villanueva could not have substituted for Candidate Mendoza on the strength of Section 28 of the 1978 Election Code which he invokes, For one thing, Mendoza's withdrawal of his certificate is not under oath, as required under Section 27 of the Code; hence it produces no legal effect. For another, said withdrawal was made not after the last day (January 4, 1980) for filing certificates of candidacy, as contemplated under Sec. 28 of the Code, but on that very same day.(Emphasis copies) Upon a restudy of the case, the Court finds merit in the reconsideration prayed for, which would respect the will of the electorate instead of defeating the same through the invocation of formal or technical defects. (De Guzman vs. Board of Canvassers, 48 Phil. 211 [1925], citing Lino Luna vs. Rodriguez, 39 Phil. 208 (1918) Badelles vs. Cabili 27 SCRA 121 [1969]; Yra vs. Abano 52 Phil. 380 [1928]; Canceran vs. Comelec, 107 Phil. 607 (1960) Corocoro vs. Bascara, 9 SCRA 522 [1963], Pungutan vs. Abubakar, 43 SCRA 11 [19721; and Lacson, Jr. vs. Posadas 72 SCRA 170 [19761).

The Court holds that the Comelec's first ground for denying due course to petitioner's substitute certificate of candidacy, i.e. that Mendoza's withdrawal of his certificate of candidacy was not "under oath," should be rejected. It is not seriously contended by respondent nor by the Comelec that Mendoza's withdrawal was not an actual fact and a reality, so much so that no votes were cast for him at all, In fact, Mendoza's name, even though his candidacy was filed on the last day within the deadline, was not in the Comelec's certified list of candidates. Hisunsworn withdrawal filed later on the same day had been accepted by the election registrar without protest nor objection, On the other hand, since there was no time to include petitioner's name in the Comelec list of registered candidates, because the election was only four days away, petitioner as substitute candidate circularized formal notices of his candidacy to all chairmen and members of the citizens election committees in compliance with the suggestion of the Comelec Law Manager, Atty. Zoilo Gomez. The fact that Mendoza's withdrawal was not sworn is but a technicality which should not be used to frustrate the people's will in favor of petitioner as the substitute candidate. In Guzman us, Board of Canvassers, 48 Phil. 211, clearly applicable, mutatis mutandis this Court held that "(T)he will of the people cannot be frustrated by a technicality that the certificate of candidacy had not been properly sworn to, This legal provision is mandatory and non-compliance therewith before the election would be fatal to the status of the candidate before the electorate, but after the people have expressed their will, the result of the election cannot be defeated by the fact that the candidate has not sworn to his certificate or candidacy." (See also Gundan vs. Court of First Instance, 66 Phil. 125). As likewise ruled by this Court in Canceran vs. Comelec, 107 Phil. 607, the legal requirement that a withdrawal be under oath will be held to be merely directory and Mendoza's failure to observe the requirement should be "considered a harmless irregularity." As to the second ground, Mendoza's withdrawal of his certificate of candidacy right on the very same day that he filed his certificate of candidacy on January 4, 1980 which was the very last day for filing of certificates of candidacy shows that he was not serious about his certificate of candidacy. But this could not be done to would bebonafide candidates, like petitioner who had not filed his candidacy in deference to Mendoza's candidacy who was one of his " co-planners " with "some concerned citizens ... (who) held causes to put up a slate that will run against the erstwhile unopposed KBL slate." The Comelec's post-election act of denying petitioner's substitute candidacy certainly does not seem to be in consonance with the substance and spirit of the law. Section 28 of the 1978 Election Code provides for such substitute candidates in case of death. withdrawal or disqualification up to mid-day of the very day of the elections. Mendoza's withdrawal was filed on the last hour of the last day for regular filing of candidacies on January 4, 1980, which he had filed earlier that same day. For all intents and purposes, such withdrawal should therefore be considered as having been made substantially and in truth after the last day, even going by the literal reading of the provision by the Comelec. Indeed, the statement of former Chief Justice Enrique M. Fernando in his dissent that "the bona fides of petitioner Crisologo Villanueva y Paredes as a substitute candidate cannot, (in his opinion), be successfully assailed. It follows that the votes cast in his favor must be counted. Such being the case, there is more than sufficient justification for his proclamation as Vice Mayor... ACCORDINGLY, the Court SETS ASIDE the questioned Resolutions of respondent Comelec and annuls the proclamation of respondent Lirio as elected vice-mayor of Dolores, Quezon and instead declares petitioner as the duly elected vice-mayor of said municipality and entitled forthwith to assume said office, take the oath of office and discharge its functions. This resolution is IMMEDIATELY EXECUTORY. SO ORDERED. Concepcion, Jr, Abad Santos, Plana, Escolin, Gutierrez, Jr., De la Fuente, Cuevas, Alampay and Patajo, JJ., concur. Melencio-Herrera and Relova, JJ., on leave.

Separate Opinions

AQUINO, C.J., dissenting: Vivencio G. Lirio of the Kilusang Bagong Lipunan was the candidate for vice mayor of Dolores, Quezon Province in the election held on January 30, 1980. The other candidate for vice mayor was Narciso L. Mendoza, Jr., who filed as certificate of candidacy on January 4, 1980, the last day for filing certificates of candidacy. But at 7:27 in the evening of that day, Mendoza withdrew his candidacy by means of a handwritten letter of withdrawal which was not under oath. He handed that letter to the election registrar of Dolores. Five days before the election or on January 25, 1980, Crisologo Villanueva filed his certificate of candidacy for vice mayor in substitution for Mendoza. On January 26 the election registrar transmitted Villanueva's certificate of candidacy and Mendoza's withdrawal letter to the provincial election registrar who, in turn, indorsed the same to the Commission on Elections. These papers were received by the Comelec Law Department only on February 11, 1980 or after the election and after the proclamation of Lirio as the duly elected vice mayor. Villanueva's name was not included in the official list of candidates. However, on the eve of the election or on January 29, he addressed a letter to all chairmen and members of the board of election inspectors of Dolores wherein he informed them of his candidacy in substitution for Mendoza. He requested them to count the votes cast in his favor. The municipal election registrar asked the provincial election registrar to clarify the status of Villanueva's candidacy. On election day, the provincial election registrar replied that since Villanueva's name was not included in the official list of candidates it could be legally presumed that the Comelec did not approve his certificate of candidacy. On January 31, 1980 the municipal board of canvassers proclaimed Lirio as the duly elected vice mayor. The votes cast for Villanueva were not counted because he was not an official candidate. They were regarded as stray votes. It cannot be assumed that he received 3,112 votes as against 2,600 votes for Lirio. Villanueva filed a petition to annul Lirio's proclamation. The Comelec dismissed it on the grounds (1) that Mendoza's withdrawal had no legal effect because it was not under oath as required in section 27 of the Election Code and (2) that even assuming that it was effective, Villanueva's substitute candidacy was not valid under section 28 of the Election Code since Mendoza did not withdraw after January 4 but on that very day. Any votes cast for Villanueva were stray votes under section 155 (15) of the Election Code. It cannot be said that Villanueva obtained more votes than Lirio, a reelectionist. It is dangerous to rely on the so-called spirit of the law which we cannot see nor handle and which we do not know very much. The Comelec resolution was affirmed by this Court. Villanueva filed a motion for reconsideration. I vote to deny said motion.

Separate Opinions AQUINO, C.J., dissenting: Vivencio G. Lirio of the Kilusang Bagong Lipunan was the candidate for vice mayor of Dolores, Quezon Province in the election held on January 30, 1980. The other candidate for vice mayor was Narciso L. Mendoza, Jr., who filed as certificate of candidacy on January 4, 1980, the last day for filing certificates of candidacy. But at 7:27 in the evening of that day, Mendoza withdrew his candidacy by means of a handwritten letter of withdrawal which was not under oath. He handed that letter to the election registrar of Dolores. Five days before the election or on January 25, 1980, Crisologo Villanueva filed his certificate of candidacy for vice mayor in substitution for Mendoza. On January 26 the election registrar transmitted Villanueva's certificate of candidacy and Mendoza's withdrawal letter to the provincial election registrar who, in turn, indorsed the same to the Commission on Elections. These papers were received by the Comelec Law Department only on February 11, 1980 or after the election and after the proclamation of Lirio as the duly elected vice mayor. Villanueva's name was not included in the official list of candidates. However, on the eve of the election or on January 29, he addressed a letter to all chairmen and members of the board of election inspectors of Dolores wherein he informed them of his candidacy in substitution for Mendoza. He requested them to count the votes cast in his favor. The municipal election registrar asked the provincial election registrar to clarify the status of Villanueva's candidacy. On election day, the provincial election registrar replied that since Villanueva's name was not included in the official list of candidates it could be legally presumed that the Comelec did not approve his certificate of candidacy. On January 31, 1980 the municipal board of canvassers proclaimed Lirio as the duly elected vice mayor. The votes cast for Villanueva were not counted because he was not an official candidate. They were regarded as stray votes. It cannot be assumed that he received 3,112 votes as against 2,600 votes for Lirio. Villanueva filed a petition to annul Lirio's proclamation. The Comelec dismissed it on the grounds (1) that Mendoza's withdrawal had no legal effect because it was not under oath as required in section 27 of the Election Code and (2) that even assuming that it was effective, Villanueva's substitute candidacy was not valid under section 28 of the Election Code since Mendoza did not withdraw after January 4 but on that very day. Any votes cast for Villanueva were stray votes under section 155 (15) of the Election Code. It cannot be said that Villanueva obtained more votes than Lirio, a reelectionist. It is dangerous to rely on the so-called spirit of the law which we cannot see nor handle and which we do not know very much. The Comelec resolution was affirmed by this Court. Villanueva filed a motion for reconsideration. I vote to deny said motion.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-30271 January 30, 1929

NICASIO M. VIVERO, plaintiff-appellant, vs. MATEO G. MURILLO, defendant-appellee. Kapunan and Kapunan for appellant. Roque Marcos and Francisco Enaje for appellee. VILLA-REAL, J.: This quo warranto proceedings is before us upon an appeal taken by the protestant Nicasio Vivero from the judgment of the Court of First Instance of Leyte denying the remedy sought, dismissing the proceeding and sentencing the plaintiff to pay the costs. To support his appeal the appellant assigns eight alleged error which we shall consider in the course of this decision. The following were facts established at the trial by a preponderance of the evidence: Mateo G. Murillo, the defendant-appellee, was born in the barrio of Paliway, municipality of La Paz, of the Province of Leyte, where he lived with his parents and received his primary education. In order to continue his studies he removed first to Tacloban, Leyte, and later to Calbayog, Samar, and finally to Manila until the year 1927, at the same time acting as private secretary to Senator Veloso. Every year he return to his native town to spend his vacations which usually lasted from two weeks to one month, remaining alternately in his parents' house and in that of his brothers. While he studied he was supported by his parents. With the approach of the general elections of 1925 Senator Veloso assigned him to Burauen, Leyte, for the purpose of compaigning for him. While in that municipality he he registered there as voter. But before the elections at that year Murillo returned to Manila in order to continue his law studies. In December 1926, he went back to La Paz and formally, though verbally, announced his candidacy for the office of municipal president of said municipality at the general elections of 1928. In the same year 1926 he ordered some wood to be prepared or sawed to be used in the construction of a house for his residence. Later on Murillo returned to Manila and thence wrote to his friends, relatives, and acquaintances, telling them of his candidacy for the office of municipal president of La Paz. For the purposes of said candidacy, Murillo frequently went to his native town. In the month of February, 1927, he brought his family there, leaving them in his parents' house when he went back to Manila. In the month of July of the same year he returned to La Paz and lived there with his aforesaid family and later came to manila. Lastly, in the month of November, 1927, he returned to his said municipality, and did not leave it until the general elections in, June, 1928. On April 4, 1928, Mateo G. Murillo went to Pascual Esplanada, a notary public in the town of the municipality of Burauen, Leyte, to subscribe to a petition under oath which was presented to the municipal treasurer of that municipality to have his name as a voter in Burauen cancelled. On April 14 of the same year, in registering as a voter in the second precinct of La Paz, said defendant Mateo G. Murillo presented a copy of his petition for cancellation to the chairman of the board of inspectors of said municipality, Pedro Tubio. The municipality of La Paz was formely a barrio of the municipality of Burauen, having been organized as an independent municipality in 1918.

The only question to decide in this appeal is whether or not the defendant-appellee, Mateo G. Murillo, had a legal residence in the municipality of La Paz before the general elections of 1928 in order to be eligible to the office of the president of said municipality. It will be seen that Mateo G. Murillo has always, since his childhood, been a resident of La Paz, not only while it was still a barrio of the Municipality of Burauen, but also after it became an independent municipality, and he did not absent himself therefrom except when studying, first in Tacloban, Leyte, later in Calbayog, Samar, and finally in Manila. By the mere fact of having lived in Tacloban, Leyte, In Calbayog, Samar, and in Manila, as a student, the defendant-appellee did not acquire legal residence in said towns, nor lose his residence in La Paz, because, being single, and supported by his parents while studying, he was dependent on them and their residence was his and it does not appear that he acquired an independent legal residence anywhere else. While it is true that the defendant-appellee registered as a voter in Burauen in the general elections of 1925, yet he did so without any thereto, for it does not appear that he resided in Burauen at any time after the separation of the barrio of La Paz from said municipality and its organization as an independent municipality, nor that he transferred his residence to the former abandoning that of his parents. On the contrary, having continued his studies in Manila, supported by his parents, returning to the latter's home during his vacations, it is presumed that he continued to reside with them until the month of November, 1927, when he established his residence in the town of La Paz. Moreover it is sufficiently proven that Mateo G. Murillo had applied in due time and form, for the cancellation of his name as a voter in the municipality of Burauen, and for his registration as a voter in the municipality of La Paz. Although it does not appear that said cancellation was registered he is not thereby rendered ineligible to the office of municipal president according to the doctrine recently laid down by this court in the quo warranto proceeding of Yra vs. Abano (p. 380, ante), wherein this court said the following: 1. ELECTIONS; QUO WARRANTO; MUNICIPAL CORPORATIONS; QUALIFICATIONS OF ELECTIVE MUNICIPAL OFFICERS; ELECTION LAW, SECTIONS 404, 431, AND 432, AND THE ADMINISTRATIVE CODE, SECTION 2174, CONSTRUED. A candidate who was elected to the office of municipal president and who at the time of the election was registered as a voter of Manila and not of the municipality in which he was a candidate, is nevertheless eligible to the office, and proceedings in the nature of quo warrantoinstituted by virtue of the provisions of section 408 of the Election Law, as amended, by the vice-president elect of the municipality, who challenged the right of the municipal president elect, to the position to which elected on the ground that the municipal president was ineligible, cannot be successfully maintained. 2. ID.; ID.; ID.; ID.; ID. The Election Law makes use of the terms "qualified voter in this municipality" and "qualified elector therein." To be a qualified voter does not necessarily mean that a person must be a registered voter. It is sufficient to the candidate to posses all the qualifications prescribed in section 431 and none of the disqualifications prescribed in section 432. The fact that a candidate failed to register as an elector in the municipality does not deprive him of the right to become a candidate and to be voted for. 3. ID.; ID.; ID.; ID.; ID. One may be a qualified voter without exercising the right to vote. Registering does not confer the right; it is but a condition precedent to the exercise of the right. registration regulates the exercise of the right of suffrage. It is not a qualification for such right. In view of the foregoing considerations, we are of opinion and so hold, that a student living with his parents in a certain barrio of a municipality, which barrio is later separated to be organized as an independent municipality, who for several years pursues his studies in several provinces of

the archipelago, supported by his parents, returning to the latters' home during his vacations in the newly organized municipality, does not loose his residence in said municipality, either on account of having resided in different provinces as a student, or of having registered as a voter in the former municipality and is eligible as municipal president of the new municipality even if his registration as a voter in the municipality to which the new one originally belong has not been cancelled. By virtue wherof, and finding no error in the judgment appealed from, the same is hereby affirmed in its entirely, with costs against the appellant. So ordered. Johnson, Street, Malcolm, Villamor, Ostrand, Johns and Romualdez, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 195649 April 16, 2013

CASAN MACODE MAQUILING, Petitioner, vs. COMMISSION ON ELECTIONS, ROMMEL ARNADO y CAGOCO, LINOG G. BALUA, Respondents. DECISION SERENO, CJ.: THE CASE This is a Petition for Certiorari ender Rule 64 in conjunction with Rule 65 of the Rules of Court to review the Resolutions of the Commission on Elections (COMELEC). The Resolution1 in SPA No. 10-1 09(DC) of the COMELEC First Division dated 5 October 201 0 is being assailed for applying Section 44 of the Local Government Code while the Resolution2 of the COMELEC En Banc dated 2 February 2011 is being questioned for finding that respondent Rommel Arnado y Cagoco (respondent Arnado/Arnado) is solely a Filipino citizen qualified to run for public office despite his continued use of a U.S. passport. FACTS Respondent Arnado is a natural born Filipino citizen.3 However, as a consequence of his subsequent naturalization as a citizen of the United States of America, he lost his Filipino citizenship. Arnado applied for repatriation under Republic Act (R.A.) No. 9225 before the Consulate General of the Philippines in San Franciso, USA and took the Oath of Allegiance to the Republic of the Philippines on 10 July 2008.4 On the same day an Order of Approval of his Citizenship Retention and Re-acquisition was issued in his favor.5 The aforementioned Oath of Allegiance states: I, Rommel Cagoco Arnado, solemnly swear that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion.6

On 3 April 2009 Arnado again took his Oath of Allegiance to the Republic and executed an Affidavit of Renunciation of his foreign citizenship, which states: I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and perpetually renounce all allegiance and fidelity to the UNITED STATES OF AMERICA of which I am a citizen, and I divest myself of full employment of all civil and political rights and privileges of the United States of America. I solemnly swear that all the foregoing statement is true and correct to the best of my knowledge and belief.7 On 30 November 2009, Arnado filed his Certificate of Candidacy for Mayor of Kauswagan, Lanao del Norte, which contains, among others, the following statements: I am a natural born Filipino citizen / naturalized Filipino citizen. I am not a permanent resident of, or immigrant to, a foreign country. I am eligible for the office I seek to be elected to. I will support and defend the Constitution of the Republic of the Philippines and will maintain true faith and allegiance thereto. I will obey the laws, legal orders and decrees promulgated by the duly constituted authorities. I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion.8 On 28 April 2010, respondent Linog C. Balua (Balua), another mayoralty candidate, filed a petition to disqualify Arnado and/or to cancel his certificate of candidacy for municipal mayor of Kauswagan, Lanao del Norte in connection with the 10 May 2010 local and national elections.9 Respondent Balua contended that Arnado is not a resident of Kauswagan, Lanao del Norte and that he is a foreigner, attaching thereto a certification issued by the Bureau of Immigration dated 23 April 2010 indicating the nationality of Arnado as "USA-American."10To further bolster his claim of Arnados US citizenship, Balua presented in his Memorandum a computer-generated travel record11 dated 03 December 2009 indicating that Arnado has been using his US Passport No. 057782700 in entering and departing the Philippines. The said record shows that Arnado left the country on 14 April 2009 and returned on 25 June 2009, and again departed on 29 July 2009, arriving back in the Philippines on 24 November 2009. Balua likewise presented a certification from the Bureau of Immigration dated 23 April 2010, certifying that the name "Arnado, Rommel Cagoco" appears in the available Computer Database/Passenger manifest/IBM listing on file as of 21 April 2010, with the following pertinent travel records: DATE OF Arrival : 01/12/2010 NATIONALITY : USA-AMERICAN PASSPORT : 057782700 DATE OF Arrival : 03/23/2010 NATIONALITY : USA-AMERICAN

PASSPORT : 05778270012 On 30 April 2010, the COMELEC (First Division) issued an Order13 requiring the respondent to personally file his answer and memorandum within three (3) days from receipt thereof. After Arnado failed to answer the petition, Balua moved to declare him in default and to present evidence ex-parte. Neither motion was acted upon, having been overtaken by the 2010 elections where Arnado garnered the highest number of votes and was subsequently proclaimed as the winning candidate for Mayor of Kauswagan, Lanao del Norte. It was only after his proclamation that Arnado filed his verified answer, submitting the following documents as evidence:14 1. Affidavit of Renunciation and Oath of Allegiance to the Republic of the Philippines dated 03 April 2009; 2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno, Virginia Branzuela, Leoncio Daligdig, and Jessy Corpin, all neighbors of Arnado, attesting that Arnado is a long-time resident of Kauswagan and that he has been conspicuously and continuously residing in his familys ancestral house in Kauswagan; 3. Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao del Norte dated 03 June 2010 stating that Arnado is a bona fide resident of his barangay and that Arnado went to the United States in 1985 to work and returned to the Philippines in 2009; 4. Certification dated 31 May 2010 from the Municipal Local Government Operations Office of Kauswagan stating that Dr. Maximo P. Arnado, Sr. served as Mayor of Kauswagan, from January 1964 to June 1974 and from 15 February 1979 to 15 April 1986; and 5. Voter Certification issued by the Election Officer of Kauswagan certifying that Arnado has been a registered voter of Kauswagan since 03 April 2009. THE RULING OF THE COMELEC FIRST DIVISION Instead of treating the Petition as an action for the cancellation of a certificate of candidacy based on misrepresentation,15 the COMELEC First Division considered it as one for disqualification. Baluas contention that Arnado is a resident of the United States was dismissed upon the finding that "Balua failed to present any evidence to support his contention,"16 whereas the First Division still could "not conclude that Arnado failed to meet the one-year residency requirement under the Local Government Code."17 In the matter of the issue of citizenship, however, the First Division disagreed with Arnados claim that he is a Filipino citizen.18 We find that although Arnado appears to have substantially complied with the requirements of R.A. No. 9225, Arnados act of consistently using his US passport after renouncing his US citizenship on 03 April 2009 effectively negated his Affidavit of Renunciation. xxxx Arnados continued use of his US passport is a strong indication that Arnado had no real intention to renounce his US citizenship and that he only executed an Affidavit of Renunciation to

enable him to run for office. We cannot turn a blind eye to the glaring inconsistency between Arnados unexplained use of a US passport six times and his claim that he re-acquired his Philippine citizenship and renounced his US citizenship. As noted by the Supreme Court in the Yu case, "a passport is defined as an official document of identity and nationality issued to a person intending to travel or sojourn in foreign countries." Surely, one who truly divested himself of US citizenship would not continue to avail of privileges reserved solely for US nationals.19 The dispositive portion of the Resolution rendered by the COMELEC First Division reads: WHEREFORE, in view of the foregoing, the petition for disqualification and/or to cancel the certificate of candidacy of Rommel C. Arnado is hereby GRANTED. Rommel C. Arnados proclamation as the winning candidate for Municipal Mayor of Kauswagan, Lanao del Nore is hereby ANNULLED. Let the order of succession under Section 44 of the Local Government Code of 1991 take effect.20 The Motion for Reconsideration and the Motion for Intervention Arnado sought reconsideration of the resolution before the COMELEC En Banc on the ground that "the evidence is insufficient to justify the Resolution and that the said Resolution is contrary to law."21 He raised the following contentions:22 1. The finding that he is not a Filipino citizen is not supported by the evidence consisting of his Oath of Allegiance and the Affidavit of Renunciation, which show that he has substantially complied with the requirements of R.A. No. 9225; 2. The use of his US passport subsequent to his renunciation of his American citizenship is not tantamount to a repudiation of his Filipino citizenship, as he did not perform any act to swear allegiance to a country other than the Philippines; 3. He used his US passport only because he was not informed of the issuance of his Philippine passport, and that he used his Philippine passport after he obtained it; 4. Baluas petition to cancel the certificate of candidacy of Arnado was filed out of time, and the First Divisions treatment of the petition as one for disqualification constitutes grave abuse of discretion amounting to excess of jurisdiction;23 5. He is undoubtedly the peoples choice as indicated by his winning the elections; 6. His proclamation as the winning candidate ousted the COMELEC from jurisdiction over the case; and 7. The proper remedy to question his citizenship is through a petition for quo warranto, which should have been filed within ten days from his proclamation. Petitioner Casan Macode Maquiling (Maquiling), another candidate for mayor of Kauswagan, and who garnered the second highest number of votes in the 2010 elections, intervened in the case and filed before the COMELEC En Banc a Motion for Reconsideration together with an Opposition to Arnados Amended Motion for Reconsideration. Maquiling argued that while the First Division correctly disqualified Arnado, the order of succession under Section 44 of the Local Government Code is not applicable in this case. Consequently, he claimed that the cancellation of Arnados candidacy and the nullification of his proclamation, Maquiling, as the legitimate candidate who obtained the highest number of lawful votes, should be proclaimed as the winner.

Maquiling simultaneously filed his Memorandum with his Motion for Intervention and his Motion for Reconsideration. Arnado opposed all motions filed by Maquiling, claiming that intervention is prohibited after a decision has already been rendered, and that as a second-placer, Maquiling undoubtedly lost the elections and thus does not stand to be prejudiced or benefitted by the final adjudication of the case. RULING OF THE COMELEC EN BANC In its Resolution of 02 February 2011, the COMELEC En Banc held that under Section 6 of Republic Act No. 6646, the Commission "shall continue with the trial and hearing of the action, inquiry or protest even after the proclamation of the candidate whose qualifications for office is questioned." As to Maquilings intervention, the COMELEC En Banc also cited Section 6 of R.A. No. 6646 which allows intervention in proceedings for disqualification even after elections if no final judgment has been rendered, but went on further to say that Maquiling, as the second placer, would not be prejudiced by the outcome of the case as it agrees with the dispositive portion of the Resolution of the First Division allowing the order of succession under Section 44 of the Local Government Code to take effect. The COMELEC En Banc agreed with the treatment by the First Division of the petition as one for disqualification, and ruled that the petition was filed well within the period prescribed by law,24 having been filed on 28 April 2010, which is not later than 11 May 2010, the date of proclamation. However, the COMELEC En Banc reversed and set aside the ruling of the First Division and granted Arnados Motion for Reconsideration, on the following premises: First: By renouncing his US citizenship as imposed by R.A. No. 9225, the respondent embraced his Philippine citizenship as though he never became a citizen of another country. It was at that time, April 3, 2009, that the respondent became a pure Philippine Citizen again. xxxx The use of a US passport does not operate to revert back his status as a dual citizen prior to his renunciation as there is no law saying such. More succinctly, the use of a US passport does not operate to "un-renounce" what he has earlier on renounced. The First Divisions reliance in the case of In Re: Petition for Habeas Corpus of Willy Yu v. Defensor-Santiago, et al. is misplaced. The petitioner in the said case is a naturalized citizen who, after taking his oath as a naturalized Filipino, applied for the renewal of his Portuguese passport. Strict policy is maintained in the conduct of citizens who are not natural born, who acquire their citizenship by choice, thus discarding their original citizenship. The Philippine State expects strict conduct of allegiance to those who choose to be its citizens. In the present case, respondent is not a naturalized citizen but a natural born citizen who chose greener pastures by working abroad and then decided to repatriate to supposedly help in the progress of Kauswagan. He did not apply for a US passport after his renunciation. Thus the mentioned case is not on all fours with the case at bar. xxxx The respondent presented a plausible explanation as to the use of his US passport. Although he applied for a Philippine passport, the passport was only issued on June 18, 2009. However, he was not notified of the issuance of his Philippine passport so that he was actually able to get it about three (3) months later. Yet as soon as he was in possession of his Philippine passport, the

respondent already used the same in his subsequent travels abroad. This fact is proven by the respondents submission of a certified true copy of his passport showing that he used the same for his travels on the following dates: January 31, 2010, April 16, 2010, May 20, 2010, January 12, 2010, March 31, 2010 and June 4, 2010. This then shows that the use of the US passport was because to his knowledge, his Philippine passport was not yet issued to him for his use. As probably pressing needs might be undertaken, the respondent used whatever is within his control during that time.25 In his Separate Concurring Opinion, COMELEC Chairman Sixto Brillantes cited that the use of foreign passport is not one of the grounds provided for under Section 1 of Commonwealth Act No. 63 through which Philippine citizenship may be lost. "The application of the more assimilative principle of continuity of citizenship is more appropriate in this case. Under said principle, once a person becomes a citizen, either by birth or naturalization, it is assumed that he desires to continue to be a citizen, and this assumption stands until he voluntarily denationalizes or expatriates himself. Thus, in the instant case respondent after reacquiring his Philippine citizenship should be presumed to have remained a Filipino despite his use of his American passport in the absence of clear, unequivocal and competent proof of expatriation. Accordingly, all doubts should be resolved in favor of retention of citizenship."26 On the other hand, Commissioner Rene V. Sarmiento dissented, thus: Respondent evidently failed to prove that he truly and wholeheartedly abandoned his allegiance to the United States. The latters continued use of his US passport and enjoyment of all the privileges of a US citizen despite his previous renunciation of the afore-mentioned citizenship runs contrary to his declaration that he chose to retain only his Philippine citizenship. Respondents submission with the twin requirements was obviously only for the purpose of complying with the requirements for running for the mayoralty post in connection with the May 10, 2010 Automated National and Local Elections. Qualifications for elective office, such as citizenship, are continuing requirements; once any of them is lost during his incumbency, title to the office itself is deemed forfeited. If a candidate is not a citizen at the time he ran for office or if he lost his citizenship after his election to office, he is disqualified to serve as such. Neither does the fact that respondent obtained the plurality of votes for the mayoralty post cure the latters failure to comply with the qualification requirements regarding his citizenship. Since a disqualified candidate is no candidate at all in the eyes of the law, his having received the highest number of votes does not validate his election. It has been held that where a petition for disqualification was filed before election against a candidate but was adversely resolved against him after election, his having obtained the highest number of votes did not make his election valid. His ouster from office does not violate the principle of vox populi suprema est lex because the application of the constitutional and statutory provisions on disqualification is not a matter of popularity. To apply it is to breath[e] life to the sovereign will of the people who expressed it when they ratified the Constitution and when they elected their representatives who enacted the law.27 THE PETITION BEFORE THE COURT Maquiling filed the instant petition questioning the propriety of declaring Arnado qualified to run for public office despite his continued use of a US passport, and praying that Maquiling be proclaimed as the winner in the 2010 mayoralty race in Kauswagan, Lanao del Norte. Ascribing both grave abuse of discretion and reversible error on the part of the COMELEC En Banc for ruling that Arnado is a Filipino citizen despite his continued use of a US passport,

Maquiling now seeks to reverse the finding of the COMELEC En Banc that Arnado is qualified to run for public office. Corollary to his plea to reverse the ruling of the COMELEC En Banc or to affirm the First Divisions disqualification of Arnado, Maquiling also seeks the review of the applicability of Section 44 of the Local Government Code, claiming that the COMELEC committed reversible error in ruling that "the succession of the vice mayor in case the respondent is disqualified is in order." There are three questions posed by the parties before this Court which will be addressed seriatim as the subsequent questions hinge on the result of the first. The first question is whether or not intervention is allowed in a disqualification case. The second question is whether or not the use of a foreign passport after renouncing foreign citizenship amounts to undoing a renunciation earlier made. A better framing of the question though should be whether or not the use of a foreign passport after renouncing foreign citizenship affects ones qualifications to run for public office. The third question is whether or not the rule on succession in the Local Government Code is applicable to this case. OUR RULING Intervention of a rival candidate in a disqualification case is proper when there has not yet been any proclamation of the winner. Petitioner Casan Macode Maquiling intervened at the stage when respondent Arnado filed a Motion for Reconsideration of the First Division Resolution before the COMELEC En Banc. As the candidate who garnered the second highest number of votes, Maquiling contends that he has an interest in the disqualification case filed against Arnado, considering that in the event the latter is disqualified, the votes cast for him should be considered stray and the second-placer should be proclaimed as the winner in the elections. It must be emphasized that while the original petition before the COMELEC is one for cancellation of the certificate of candidacy and / or disqualification, the COMELEC First Division and the COMELEC En Banc correctly treated the petition as one for disqualification. The effect of a disqualification case is enunciated in Section 6 of R.A. No. 6646: 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. Mercado v. Manzano28 clarified the right of intervention in a disqualification case. In that case, the Court said:

That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private respondent is clear from Section 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which provides: 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 guilt is strong. Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final judgment rendered.29 Clearly then, Maquiling has the right to intervene in the case. The fact that the COMELEC En Banc has already ruled that Maquiling has not shown that the requisites for the exemption to the second-placer rule set forth in Sinsuat v. COMELEC30 are present and therefore would not be prejudiced by the outcome of the case, does not deprive Maquiling of the right to elevate the matter before this Court. Arnados claim that the main case has attained finality as the original petitioner and respondents therein have not appealed the decision of the COMELEC En Banc, cannot be sustained. The elevation of the case by the intervenor prevents it from attaining finality. It is only after this Court has ruled upon the issues raised in this instant petition that the disqualification case originally filed by Balua against Arnado will attain finality. The use of foreign passport after renouncing ones foreign citizenship is a positive and voluntary act of representation as to ones nationality and citizenship; it does not divest Filipino citizenship regained by repatriation but it recants the Oath of Renunciation required to qualify one to run for an elective position. Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides: 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 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 before any public officer authorized to administer an oath. x x x31 Rommel Arnado took all the necessary steps to qualify to run for a public office. He took the Oath of Allegiance and renounced his foreign citizenship. There is no question that after performing these twin requirements required under Section 5(2) of R.A. No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003, he became eligible to run for public office. Indeed, Arnado took the Oath of Allegiance not just only once but twice: first, on 10 July 2008 when he applied for repatriation before the Consulate General of the Philippines in San Francisco, USA, and again on 03 April 2009 simultaneous with the execution of his Affidavit of Renunciation. By taking the Oath of Allegiance to the Republic, Arnado re-acquired his Philippine citizenship. At the time, however, he likewise possessed American citizenship. Arnado had therefore become a dual citizen.

After reacquiring his Philippine citizenship, Arnado renounced his American citizenship by executing an Affidavit of Renunciation, thus completing the requirements for eligibility to run for public office. By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen, regardless of the effect of such renunciation under the laws of the foreign country.32 However, this legal presumption does not operate permanently and is open to attack when, after renouncing the foreign citizenship, the citizen performs positive acts showing his continued possession of a foreign citizenship.33 Arnado himself subjected the issue of his citizenship to attack when, after renouncing his foreign citizenship, he continued to use his US passport to travel in and out of the country before filing his certificate of candidacy on 30 November 2009. The pivotal question to determine is whether he was solely and exclusively a Filipino citizen at the time he filed his certificate of candidacy, thereby rendering him eligible to run for public office. Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November 2009, the date he filed his COC, he used his US passport four times, actions that run counter to the affidavit of renunciation he had earlier executed. By using his foreign passport, Arnado positively and voluntarily represented himself as an American, in effect declaring before immigration authorities of both countries that he is an American citizen, with all attendant rights and privileges granted by the United States of America. The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time, only to be violated the next day. It requires an absolute and perpetual renunciation of the foreign citizenship and a full divestment of all civil and political rights granted by the foreign country which granted the citizenship. Mercado v. Manzano34 already hinted at this situation when the Court declared: His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago, we sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in commercial documents executed abroad that he was a Portuguese national. A similar sanction can be taken against anyone who, in electing Philippine citizenship, renounces his foreign nationality, but subsequently does some act constituting renunciation of his Philippine citizenship. While the act of using a foreign passport is not one of the acts enumerated in Commonwealth Act No. 63 constituting renunciation and loss of Philippine citizenship,35 it is nevertheless an act which repudiates the very oath of renunciation required for a former Filipino citizen who is also a citizen of another country to be qualified to run for a local elective position. When Arnado used his US passport on 14 April 2009, or just eleven days after he renounced his American citizenship, he recanted his Oath of Renunciation36 that he "absolutely and perpetually renounce(s) all allegiance and fidelity to the UNITED STATES OF AMERICA"37 and that he "divest(s) himself of full employment of all civil and political rights and privileges of the United States of America."38 We agree with the COMELEC En Banc that such act of using a foreign passport does not divest Arnado of his Filipino citizenship, which he acquired by repatriation. However, by representing himself as an American citizen, Arnado voluntarily and effectively reverted to his earlier status as a dual citizen. Such reversion was not retroactive; it took place the instant Arnado represented himself as an American citizen by using his US passport.

This act of using a foreign passport after renouncing ones foreign citizenship is fatal to Arnados bid for public office, as it effectively imposed on him a disqualification to run for an elective local position. Arnados category of dual citizenship is that by which foreign citizenship is acquired through a positive act of applying for naturalization. This is distinct from those considered dual citizens by virtue of birth, who are not required by law to take the oath of renunciation as the mere filing of the certificate of candidacy already carries with it an implied renunciation of foreign citizenship.39 Dual citizens by naturalization, on the other hand, are required to take not only the Oath of Allegiance to the Republic of the Philippines but also to personally renounce foreign citizenship in order to qualify as a candidate for public office. By the time he filed his certificate of candidacy on 30 November 2009, Arnado was a dual citizen enjoying the rights and privileges of Filipino and American citizenship. He was qualified to vote, but by the express disqualification under Section 40(d) of the Local Government Code,40 he was not qualified to run for a local elective position. In effect, Arnado was solely and exclusively a Filipino citizen only for a period of eleven days, or from 3 April 2009 until 14 April 2009, on which date he first used his American passport after renouncing his American citizenship. This Court has previously ruled that: Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. x x x.41 The citizenship requirement for elective public office is a continuing one. It must be possessed not just at the time of the renunciation of the foreign citizenship but continuously. Any act which violates the oath of renunciation opens the citizenship issue to attack. We agree with the pronouncement of the COMELEC First Division that "Arnados act of consistently using his US passport effectively negated his "Affidavit of Renunciation."42 This does not mean, that he failed to comply with the twin requirements under R.A. No. 9225, for he in fact did. It was after complying with the requirements that he performed positive acts which effectively disqualified him from running for an elective public office pursuant to Section 40(d) of the Local Government Code of 1991. The purpose of the Local Government Code in disqualifying dual citizens from running for any elective public office would be thwarted if we were to allow a person who has earlier renounced his foreign citizenship, but who subsequently represents himself as a foreign citizen, to hold any public office. Arnado justifies the continued use of his US passport with the explanation that he was not notified of the issuance of his Philippine passport on 18 June 2009, as a result of which he was only able to obtain his Philippine passport three (3) months later.43 The COMELEC En Banc differentiated Arnado from Willy Yu, the Portuguese national who sought naturalization as a Filipino citizen and later applied for the renewal of his Portuguese passport. That Arnado did not apply for a US passport after his renunciation does not make his use of a US passport less of an act that violated the Oath of Renunciation he took. It was still a positive act of representation as a US citizen before the immigration officials of this country.

The COMELEC, in ruling favorably for Arnado, stated "Yet, as soon as he was in possession of his Philippine passport, the respondent already used the same in his subsequent travels abroad."44 We cannot agree with the COMELEC. Three months from June is September. If indeed, Arnado used his Philippine passport as soon as he was in possession of it, he would not have used his US passport on 24 November 2009. Besides, Arnados subsequent use of his Philippine passport does not correct the fact that after he renounced his foreign citizenship and prior to filing his certificate of candidacy, he used his US passport. In the same way that the use of his foreign passport does not undo his Oath of Renunciation, his subsequent use of his Philippine passport does not undo his earlier use of his US passport. Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil and political rights accorded by the state to its citizens. It likewise demands the concomitant duty to maintain allegiance to ones flag and country. While those who acquire dual citizenship by choice are afforded the right of suffrage, those who seek election or appointment to public office are required to renounce their foreign citizenship to be deserving of the public trust. Holding public office demands full and undivided allegiance to the Republic and to no other. We therefore hold that Arnado, by using his US passport after renouncing his American citizenship, has recanted the same Oath of Renunciation he took. Section 40(d) of the Local Government Code applies to his situation. He is disqualified not only from holding the public office but even from becoming a candidate in the May 2010 elections. We now resolve the next issue. Resolving the third issue necessitates revisiting Topacio v. Paredes45 which is the jurisprudential spring of the principle that a second-placer cannot be proclaimed as the winner in an election contest. This doctrine must be re-examined and its soundness once again put to the test to address the ever-recurring issue that a second-placer who loses to an ineligible candidate cannot be proclaimed as the winner in the elections. The Facts of the case are as follows: On June 4, 1912, a general election was held in the town of Imus, Province of Cavite, to fill the office of municipal president. The petitioner, Felipe Topacio, and the respondent, Maximo Abad, were opposing candidates for that office. Topacio received 430 votes, and Abad 281. Abad contested the election upon the sole ground that Topacio was ineligible in that he was reelected the second time to the office of the municipal president on June 4, 1912, without the four years required by Act No. 2045 having intervened.46 Abad thus questioned the eligibility of To p a c i o on the basis of a statutory prohibition for seeking a second re-election absent the four year interruption. The often-quoted phrase in Topacio v. Paredes is that "the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots."47 This phrase is not even the ratio decidendi; it is a mere obiter dictum. The Court was comparing "the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the elections x x x with that produced by declaring a person ineligible to hold such an office." The complete sentence where the phrase is found is part of a comparison and contrast between the two situations, thus:

Again, the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the elections is quite different from that produced by declaring a person ineligible to hold such an office. In the former case the court, after an examination of the ballots may find that some other person than the candidate declared to have received a plurality by the board of canvassers actually received the greater number of votes, in which case the court issues its mandamus to the board of canvassers to correct the returns accordingly; or it may find that the manner of holding the election and the returns are so tainted with fraud or illegality that it cannot be determined who received a plurality of the legally cast ballots. In the latter case, no question as to the correctness of the returns or the manner of casting and counting the ballots is before the deciding power, and generally the only result can be that the election fails entirely. In the former, we have a contest in the strict sense of the word, because of the opposing parties are striving for supremacy. If it be found that the successful candidate (according to the board of canvassers) obtained a plurality in an illegal manner, and that another candidate was the real victor, the former must retire in favor of the latter. In the other case, there is not, strictly speaking, a contest, as the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots. In the one case the question is as to who received a plurality of the legally cast ballots; in the other, the question is confined to the personal character and circumstances of a single individual.48 (Emphasis supplied) Note that the sentence where the phrase is found starts with "In the other case, there is not, strictly speaking, a contest" in contrast to the earlier statement, "In the former, we have a contest in the strict sense of the word, because of the opposing parties are striving for supremacy." The Court in Topacio v. Paredes cannot be said to have held that "the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots." A proper reading of the case reveals that the ruling therein is that since the Court of First Instance is without jurisdiction to try a disqualification case based on the eligibility of the person who obtained the highest number of votes in the election, its jurisdiction being confined "to determine which of the contestants has been duly elected" the judge exceeded his jurisdiction when he "declared that no one had been legally elected president of the municipality of Imus at the general election held in that town on 4 June 1912" where "the only question raised was whether or not Topacio was eligible to be elected and to hold the office of municipal president." The Court did not rule that Topacio was disqualified and that Abad as the second placer cannot be proclaimed in his stead. The Court therein ruled: For the foregoing reasons, we are of the opinion and so hold that the respondent judge exceeded his jurisdiction in declaring in those proceedings that no one was elected municipal president of the municipality of Imus at the last general election; and that said order and all subsequent proceedings based thereon are null and void and of no effect; and, although this decision is rendered on respondents' answer to the order to show cause, unless respondents raised some new and additional issues, let judgment be entered accordingly in 5 days, without costs. So ordered.49 On closer scrutiny, the phrase relied upon by a host of decisions does not even have a legal basis to stand on. It was a mere pronouncement of the Court comparing one process with another and explaining the effects thereof. As an independent statement, it is even illogical. Let us examine the statement: "x x x the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots."

What prevents the transfer of the wreath of victory from the ineligible candidate to another candidate? When the issue being decided upon by the Court is the eligibility of the one receiving a plurality of the legally cast ballots and ineligibility is thereafter established, what stops the Court from adjudging another eligible candidate who received the next highest number of votes as the winner and bestowing upon him that "wreath?" An ineligible candidate who receives the highest number of votes is a wrongful winner. By express legal mandate, he could not even have been a candidate in the first place, but by virtue of the lack of material time or any other intervening circumstances, his ineligibility might not have been passed upon prior to election date. Consequently, he may have had the opportunity to hold himself out to the electorate as a legitimate and duly qualified candidate. However, notwithstanding the outcome of the elections, his ineligibility as a candidate remains unchanged. Ineligibility does not only pertain to his qualifications as a candidate but necessarily affects his right to hold public office. The number of ballots cast in his favor cannot cure the defect of failure to qualify with the substantive legal requirements of eligibility to run for public office. The popular vote does not cure the ineligibility of a candidate. The ballot cannot override the constitutional and statutory requirements for qualifications and disqualifications of candidates. When the law requires certain qualifications to be possessed or that certain disqualifications be not possessed by persons desiring to serve as elective public officials, those qualifications must be met before one even becomes a candidate. When a person who is not qualified is voted for and eventually garners the highest number of votes, even the will of the electorate expressed through the ballot cannot cure the defect in the qualifications of the candidate. To rule otherwise is to trample upon and rent asunder the very law that sets forth the qualifications and disqualifications of candidates. We might as well write off our election laws if the voice of the electorate is the sole determinant of who should be proclaimed worthy to occupy elective positions in our republic. This has been, in fact, already laid down by the Court in Frivaldo v. COMELEC50 when we pronounced: x x x. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state.51 (Emphasis supplied) This issue has also been jurisprudentially clarified in Velasco v. COMELEC52 where the Court ruled that the ruling in Quizon and Saya-ang cannot be interpreted without qualifications lest "Election victory x x x becomes a magic formula to bypass election eligibility requirements."53 We have ruled in the past that a candidates victory in the election may be considered a sufficient basis to rule in favor of the candidate sought to be disqualified if the main issue involves defects in the candidates certificate of candidacy. We said that while provisions relating to certificates of candidacy are mandatory in 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. We so ruled in Quizon v. COMELEC and Saya-ang v. COMELEC: The present case perhaps presents the proper time and opportunity to fine-tune our above ruling. We say this with the realization that a blanket and unqualified reading and application of this ruling can be fraught with dangerous significance for 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 to make an informed choice about a candidates eligibility and fitness for office. The first requirement that may fall when an unqualified reading is made is Section 39 of the LGC which specifies the basic qualifications of local government officials. Equally susceptive of being rendered toothless is Section 74 of the OEC that sets out what should be stated in a COC. Section 78 may likewise be emasculated as mere delay in the resolution of the petition to cancel or deny due course to a COC can render a Section 78 petition useless if a candidate with false COC data wins. To state the obvious, candidates may risk falsifying their COC qualifications if they know that an election victory will cure any defect that their COCs may have. Election victory then becomes a magic formula to bypass election eligibility requirements. (Citations omitted) What will stop an otherwise disqualified individual from filing a seemingly valid COC, concealing any disqualification, and employing every strategy to delay any disqualification case filed against him so he can submit himself to the electorate and win, if winning the election will guarantee a disregard of constitutional and statutory provisions on qualifications and disqualifications of candidates? It is imperative to safeguard the expression of the sovereign voice through the ballot by ensuring that its exercise respects the rule of law. To allow the sovereign voice spoken through the ballot to trump constitutional and statutory provisions on qualifications and disqualifications of candidates is not democracy or republicanism. It is electoral anarchy. When set rules are disregarded and only the electorates voice spoken through the ballot is made to matter in the end, it precisely serves as an open invitation for electoral anarchy to set in.
1w phi 1

Maquiling is not a second-placer as he obtained the highest number of votes from among the qualified candidates. With Arnados disqualification, Maquiling then becomes the winner in the election as he obtained the highest number of votes from among the qualified candidates. We have ruled in the recent cases of Aratea v. COMELEC54 and Jalosjos v. COMELEC55 that a void COC cannot produce any legal effect. Thus, the votes cast in favor of the ineligible candidate are not considered at all in determining the winner of an election. Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still respected, and even more so. The votes cast in favor of an ineligible candidate do not constitute the sole and total expression of the sovereign voice. The votes cast in favor of eligible and legitimate candidates form part of that voice and must also be respected. As in any contest, elections are governed by rules that determine the qualifications and disqualifications of those who are allowed to participate as players. When there are participants who turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank who does not possess any of the disqualifications nor lacks any of the qualifications set in the rules to be eligible as candidates.

There is no need to apply the rule cited in Labo v. COMELEC56 that when the voters are well aware within the realm of notoriety of a candidates disqualification and still cast their votes in favor said candidate, then the eligible candidate obtaining the next higher number of votes may be deemed elected. That rule is also a mere obiter that further complicated the rules affecting qualified candidates who placed second to ineligible ones. The electorates awareness of the candidates disqualification is not a prerequisite for the disqualification to attach to the candidate. The very existence of a disqualifying circumstance makes the candidate ineligible. Knowledge by the electorate of a candidates disqualification is not necessary before a qualified candidate who placed second to a disqualified one can be proclaimed as the winner. The second-placer in the vote count is actually the first-placer among the qualified candidates. That the disqualified candidate has already been proclaimed and has assumed office is of no moment. The subsequent disqualification based on a substantive ground that existed prior to the filing of the certificate of candidacy voids not only the COC but also the proclamation. Section 6 of R.A. No. 6646 provides: Section 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. There was no chance for Arnados proclamation to be suspended under this rule because Arnado failed to file his answer to the petition seeking his disqualification. Arnado only filed his Answer on 15 June 2010, long after the elections and after he was already proclaimed as the winner. The disqualifying circumstance surrounding Arnados candidacy involves his citizenship. It does not involve the commission of election offenses as provided for in the first sentence of Section 68 of the Omnibus Election Code, the effect of which is to disqualify the individual from continuing as a candidate, or if he has already been elected, from holding the office. The disqualifying circumstance affecting Arnado is his citizenship. As earlier discussed, Arnado was both a Filipino and an American citizen when he filed his certificate of candidacy. He was a dual citizen disqualified to run for public office based on Section 40(d) of the Local Government Code. Section 40 starts with the statement "The following persons are disqualified from running for any elective local position." The prohibition serves as a bar against the individuals who fall under any of the enumeration from participating as candidates in the election. With Arnado being barred from even becoming a candidate, his certificate of candidacy is thus rendered void from the beginning. It could not have produced any other legal effect except that Arnado rendered it impossible to effect his disqualification prior to the elections because he filed his answer to the petition when the elections were conducted already and he was already proclaimed the winner. To hold that such proclamation is valid is to negate the prohibitory character of the disqualification which Arnado possessed even prior to the filing of the certificate of candidacy. The affirmation of Arnado's disqualification, although made long after the elections, reaches back

to the filing of the certificate of candidacy. Arnado is declared to be not a candidate at all in the May 201 0 elections. Arnado being a non-candidate, the votes cast in his favor should not have been counted. This leaves Maquiling as the qualified candidate who obtained the highest number of votes. Therefore, the rule on succession under the Local Government Code will not apply. WHEREFORE, premises considered, the Petition is GRANTED. The Resolution of the COMELEC En Bane dated 2 February 2011 is hereby ANNULLED and SET ASIDE. Respondent ROMMEL ARNADO y CAGOCO is disqualified from running for any local elective position. CASAN MACODE MAQUILING is hereby DECLARED the duly elected Mayor of Kauswagan, Lanao del Norte in the 10 May 2010 elections. This Decision is immediately executory. Let a copy of this Decision be served personally upon the parties and the Commission on Elections. No pronouncement as to costs. SO ORDERED. MARIA LOURDES P. A. SERENO Chief Justice WE CONCUR: ANTONIO T. CARPIO tr align="center"> PRESBITERO J. VELASCO, JR. Associate Justice ARTURO D. BRION Associate Justice LUCAS P. BERSAMIN Associate Justice ROBERTO A. ABAD Associate Justice ROBERTO A. ABAD Associate Justice JOSE PORTUGAL PEREZ Associate Justice BIENVENIDO L. REYES Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice DIOSDADO M. PERALTA Associate Justice MARIANO C. DEL CASTILLO Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice JOSE CATRAL MENDOZA Associate Justice ESTELA M. PERLAS-BERNABE Associate Justice

MARVIC MARIO VICTOR F. LEONEN Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. MARIA LOURDES P. A. SERENO Chief Justice

Footnotes
1

Rollo, pp. 38-49. Id. at 50-67. Id. at 229, Exhibit "1-MR," Certificate of Live Birth. Id. at 241, Exhibit "12-MR," Oath of Allegiance. Id. at 239, Exhibit "10-MR," Order of Approval.

Ibid, Note 2 and Annex "1" of Duly Verified Answer, Rollo, p. 160 and Annex "2" of Memorandum for Respondent, Rollo, p. 178.
7

Ibid, p. 160 and 178.

Id. at 139, Annex "B" of Petition for Disqualification; Id. at 177, Annex "1" Memorandum for Respondent.
9

Id. at 134, Petition to Disqualify Rommel Cagoco Arnado and/or to Cancel his Certificate of Candidacy for Municipal Mayor of Kauswagan, Lanao del Norte in Connection with May 10, 2010 Local and National Elections.
10

Id. at 140, Certification.

11

Id. at 191, Exhibit "A" of Memorandum for Petitioner filed before the Commission on Elections.
12

Id. at 192, Exhibit "C" of Memorandum for Petitioner filed before the Commission on Elections.
13

Records, pp. 76-77.

14

Rollo, p. 42, Resolution dated 5 October 2010, penned by Commissioner Rene V. Sarmiento, and concurred in by Commissioner Armando C. Velasco and Gregorio Y. Larrazabal.
15

Id.

16

Id. at 43. Id. at 44. Id. Id. at 46-47, Resolution dated 5 October 2010. Id at 48. Id. at 214, Amended Motion for Reconsideration.

17

18

19

20

21

22

Id. at 193-211, Verified Motion for Reconsideration; id. at 212-246, Amended Motion for Reconsideration; id. at 247-254, Rejoinder to Petitioners Comment/Opposition to Respondents Amended Motion for Reconsideration.
23

Id. at 224, Amended Motion for Reconsideration.

24

A verified petition to disqualify a candidate pursuant to Sec. 68 of the OEC and the verified petition to disqualify a candidate for lack of qualifications or possessing some grounds for disqualification may be filed on any day after the last day for filing of certificates of candidacy but not later than the date of proclamation. (Sec. 4.B.1. COMELEC Resolution No. 8696).
25

Rollo, pp. 64-66, COMELEC En Banc Resolution dated 2 February 2011. Id. at 69, Separate Concurring Opinion.

26

27

Id. at 72-73, Dissenting Opinion of Commissioner Rene V. Sarmiento, citing the cases of Torayno, Sr. v. COMELEC, 337 SCRA 574 [2000]; Santos v. COMELEC, 103 SCRA 628 [1981]; Sanchez v. Del Rosario, 1 SCRA 1102 [1961]; and Reyes v. COMELEC, 97 SCRA 500 [1980].
28

367 Phil. 132 (1999). Id. at 142-143. G.R. No. 105919, 6 August 1992, 212 SCRA 309. Section 5(2) of R.A. No. 9225.

29

30

31

32

See excerpts of deliberations of Congress reproduced in AASJS v. Datumanong, G.R. No. 160869, 11 May 2007, 523 SCRA 108. In resolving the aforecited issues in this case, resort to the deliberations of Congress is necessary to determine the intent of the legislative branch in drafting the assailed law. During the deliberations, the issue of whether Rep. Act No. 9225 would allow dual allegiance had in fact been the subject of debate. The record of the legislative deliberations reveals the following: xxxx Pursuing his point, Rep. Dilangalen noted that under the measure, two situations exist the retention of foreign citizenship, and the reacquisition of Philippine

citizenship. In this case, he observed that there are two citizenships and therefore, two allegiances. He pointed out that under the Constitution, dual allegiance is inimical to public interest. He thereafter asked whether with the creation of dual allegiance by reason of retention of foreign citizenship and the reacquisition of Philippine citizenship, there will now be a violation of the Constitution. Rep. Locsin underscored that the measure does not seek to address the constitutional injunction on dual allegiance as inimical to public interest. He said that the proposed law aims to facilitate the reacquisition of Philippine citizenship by speedy means. However, he said that in one sense, it addresses the problem of dual citizenship by requiring the taking of an oath. He explained that the problem of dual citizenship is transferred from the Philippines to the foreign country because the latest oath that will be taken by the former Filipino is one of allegiance to the Philippines and not to the United States, as the case may be. He added that this is a matter which the Philippine government will have no concern and competence over. Rep. Dilangalen asked why this will no longer be the country's concern, when dual allegiance is involved. Rep. Locsin clarified that this was precisely his objection to the original version of the bill, which did not require an oath of allegiance. Since the measure now requires this oath, the problem of dual allegiance is transferred from the Philippines to the foreign country concerned, he explained. xxxx Rep. Dilangalen asked whether in the particular case, the person did not denounce his foreign citizenship and therefore still owes allegiance to the foreign government, and at the same time, owes his allegiance to the Philippine government, such that there is now a case of dual citizenship and dual allegiance. Rep. Locsin clarified that by swearing to the supreme authority of the Republic, the person implicitly renounces his foreign citizenship. However, he said that this is not a matter that he wishes to address in Congress because he is not a member of a foreign parliament but a Member of the House. xxxx Rep. Locsin replied that it is imperative that those who have dual allegiance contrary to national interest should be dealt with by law. However, he said that the dual allegiance problem is not addressed in the bill. He then cited the Declaration of Policy in the bill which states that "It is hereby declared the policy of the State that all citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act." He stressed that what the bill does is recognize Philippine citizenship but says nothing about the other citizenship. Rep. Locsin further pointed out that the problem of dual allegiance is created wherein a natural-born citizen of the Philippines takes an oath of allegiance to another country and in that oath says that he abjures and absolutely renounces all allegiance to his country of origin and swears allegiance to that foreign country. The original Bill had left it at this stage, he explained. In the present measure, he clarified, a person is required to take an oath and the last he utters is one of allegiance to the country. He then said that the problem of dual allegiance is no longer the problem of the Philippines but of the other foreign country. (Emphasis supplied)

33

See Discussion of Senators Enrile and Pimentel on Sec. 40(d) of the Local Government Code, reproduced in Cordora v. COMELEC, G.R. No. 176947, 19 February 2009, 580 SCRA 12. By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no moment as the following discussion on 40(d) between Senators Enrile and Pimentel clearly shows: SENATOR ENRILE: Mr. President, I would like to ask clarification of line 41, page 17: "Any person with dual citizenship " is disqualified to run for any elective local position. Under the present Constitution, Mr. President, someone whose mother is a citizen of the Philippines but his father is a foreigner is a natural-born citizen of the Republic. There is no requirement that such a natural-born citizen, upon reaching the age of majority, must elect or give up Philippine citizenship. On the assumption that this person would carry two passports, one belonging to the country of his or her father and one belonging to the Republic of the Philippines, may such a situation disqualify the person to run for a local government position? SENATOR PIMENTEL: To my mind, Mr. President, it only means that at the moment when he would want to run for public office, he has to repudiate one of his citizenships. SENATOR ENRILE: Suppose he carries only a Philippine passport but the country of origin or the country of the father claims that person, nevertheless, as a citizen? No one can renounce. There are such countries in the world. SENATOR PIMENTEL: Well, the very fact that he is running for public office would, in effect, be an election for him of his desire to be considered a Filipino citizen. SENATOR ENRILE: But, precisely, Mr. President, the Constitution does not require an election. Under the Constitution, a person whose mother is a citizen of the Philippines is, at birth, a citizen without any overt act to claim the citizenship. SENATOR PIMENTEL: Yes. What we are saying, Mr. President, is: Under the Gentleman's example, if he does not renounce his other citizenship, then he is opening himself to question. So, if he is really interested to run, the first thing he should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I have only one citizenship."

SENATOR ENRILE: But we are talking from the viewpoint of Philippine law, Mr. President. He will always have one citizenship, and that is the citizenship invested upon him or her in the Constitution of the Republic. SENATOR PIMENTEL: That is true, Mr. President. But if he exercises acts that will prove that he also acknowledges other citizenships, then he will probably fall under this disqualification.
34

Supra note 28 at 153. 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.

35

36

See Note 7. Id. Id. See Cordora v. COMELEC, G.R. No. 176947, 19 February 2009, 580 SCRA 12.

37

38

39

40

Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local position: xxxx (d) Those with dual citizenship; x x x.
41

Fivaldo v. COMELEC, 255 Phil. 934, 944 (1989). Rollo, p. 46, Resolution dated 5 October 2010.

42

43

Id. at 219, Amended Motion for Reconsideration. Id. at 66, Resolution dated 02 February 2011. 23 Phil. 238 (1912). Id. at 240. Id. at 255. Id at 254-255. Id. at 258 Supra note 41. Id. at 944-945. G.R. No. 180051, 24 December 2008, 575 SCRA 590, 614-615.

44

45

46

47

48

49

50

51

52

53

Id. at 615, citing Quizon v. COMELEC, G.R. No. 177927, 15 February 2008, 545 SCRA 635, Saya-ang v. COMELEC, 462 Phil. 373 (2003).
54

G. R. No. 195229, 9 October 2012. G.R. Nos. 193237/193536, 9 October 2012. G.R. No. 105111, 3 July 3 1992, 211 SCRA 297, 312.

55

56

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION CARPIO, J.: I concur in the ponencia. Respondent Rommel Amado (Arnado) is disqualified from running for any local elective position. The Commission on Elections (COMELEC) should be directed to proclaim Petitioner Casan Macode Maquiling (Maquiling) as the duly elected Mayor of Kauswagan, Lanao del Norte in the May 2010 elections. Arnado received the highest number of votes in the May 2010 elections and was proclaimed Mayor of Kauswagan, Lanao del Nm1e. Respondent Linog G. Balua (Balua), one of Arnados opponents, filed a petition before the COMELEC against Arnado. Balua's petition to disqualify Amado and/or to cancel his certificate of candidacy rests on the allegation that Arnado lacks the residency and citizenship requirements. Balua presented evidence to show that Arnado used his American passport to enter and depart the Philippines. Maquiling, on the other hand, was also one of Arnados opponents. Maquiling received the second highest number of votes next to Arnado. Maquiling filed motions for intervention and for reconsideration before the COMELEC En Bane. Maquiling asserted that he should have been proclaimed as Mayor for being the legitimate candidate with the highest number of votes.

Arnado is a natural-born Filipino Citizen who lost his Filipino citizenship upon his naturalization as an American citizen. Arnado applied for repatriation, and subsequently took two Oaths of Allegiance to the Republic of the Philippines, then renounced his American citizenship. The relevant timeline is as follows: 10 July 2008 - Arnado pledged his Oath of Allegiance to the Republic of the Philippines. 3 April 2009 - Arnado again pledged his Oath of Allegiance to the Republic of the Philippines and executed an Affidavit of Renunciation of his American citizenship. 14 April to 25 June 2009 - Arnado used his United States of America (USA) Passport No. 057782700 to depart and enter the Philippines. 29 July to 24 November 2009 - Arnado again used his USA Passport No. 057782700 to depart and enter the Philippines. 30 November 2009 - Arnado filed his Certificate of Candidacy for Mayor of Kauswagan, Lanao del Norte. A certification from the Bureau of Immigration showed that Arnado arrived in the Philippines on 12 January 2010, as well as on 23 March 2010. Both arrival dates show that Arnado used the same USA passport he used in 2009. Despite Baluas petition before the COMELEC, the elections proceeded without any ruling on Arnados qualification. Arnado received the highest number of votes in the May 2010 elections and was proclaimed Mayor of Kauswagan, Lanao del Norte. The COMELEC First Division issued its ruling on Arnados qualification after his proclamation. The COMELEC First Division treated Baluas petition to disqualify Arnado and/or to cancel his certificate of candidacy as a petition for disqualification. The COMELEC First Division granted Baluas petition and annulled Arnados proclamation. The COMELEC First Division stated that "Arnados continued use of his US passport is a strong indication that Arnado had no real intention to renounce his US citizenship and that he only executed an Affidavit of Renunciation to enable him to run for office." The COMELEC First Division decreed that the order of succession under Section 44 of the Local Government Code of 19911 should take effect. Arnado filed a motion for reconsideration before the COMELEC En Banc. Maquiling intervened, and asserted that although the COMELEC First Division correctly disqualified Arnado, the law on succession should not apply. Instead, Maquiling should have been proclaimed as Mayor for being the legitimate candidate with the highest number of votes. The COMELEC En Banc reversed and set aside the ruling of the COMELEC First Division. In granting Arnados motion for reconsideration, the COMELEC En Banc stated that Arnados use of his USA passport "does not operate to revert back [sic] his status as a dual citizen prior to his renunciation as there is no law saying such." COMELEC Chair Sixto Brillantes concurred, and stated that Arnado "after reacquiring his Philippine citizenship should be presumed to have remained a Filipino despite his use of his American passport in the absence of clear, unequivocal and competent proof of expatriation." Commissioner Rene Sarmiento dissented, and declared that Arnado failed to prove that he abandoned his allegiance to the USA and that his loss of the continuing requirement of citizenship disqualifies him to serve as an elected official. Moreover, having received the highest number of votes does not validate Arnados election. The ponencia granted Maquilings petition before this Court, and annulled and set aside the ruling of the COMELEC En Banc. The ponencia declared that Arnados use of his USA passport did not divest him of his Filipino citizenship but vested back in him the American citizenship he earlier renounced. The ponencia also directed the COMELEC to proclaim Maquiling as the duly

elected Mayor of Kauswagan, Lanao del Norte in the May 2010 elections for being the qualified candidate who received the highest number of votes. On Arnados Use of a Non-Philippine Passport Philippine courts have no power to declare whether a person possesses citizenship other than that of the Philippines. In Mercado v. Manzano,2 Constitutional Commissioner Joaquin G. Bernas was quoted as saying, "Dual citizenship is just a reality imposed on us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she is considered a citizen of another country is something completely beyond our control."3 In the present case, we have no authority to declare that Arnado is an American citizen. Only the courts of the USA, using American law, have the conclusive authority to make an assertion regarding Arnados American citizenship. Arnado, as a naturalized American citizen and a repatriated Filipino, is required by law to swear to an Oath of Allegiance to the Republic of the Philippines and execute a Renunciation of Foreign Citizenship before he may seek elective Philippine public office. The pertinent sections of R.A. No. 9225 read: Section 3. Retention of Philippine Citizenship. Any provision of law to the contrary notwithstanding, natural-born citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic: "I _____________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion." Natural born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath. 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; x x x x. Arnados use of his American passport after his execution of an Affidavit of Renunciation of his American Citizenship is a retraction of his renunciation. When Arnado filed his Certificate of Candidacy on 30 November 2009, there was no longer an effective renunciation of his American citizenship. It is as if he never renounced his American citizenship at all. Arnado, therefore, failed to comply with the twin requirements of swearing to an Oath of Allegiance and executing a Renunciation of Foreign Citizenship as found in Republic Act No. 9225. We previously discussed the distinction between dual citizenship and dual allegiance, as well as the different acts required of dual citizens, who may either have involuntary dual citizenship or voluntary dual allegiance, who desire to be elected to Philippine public office in Cordora v. COMELEC:4

We have to consider the present case in consonance with our rulings in Mercado v. Manzano, Valles v. COMELEC, and AASJS v. Datumanong. Mercado and Valles involve similar operative facts as the present case. Manzano and Valles, like Tambunting, possessed dual citizenship by the circumstances of their birth. Manzano was born to Filipino parents in the United States which follows the doctrine of jus soli. Valles was born to an Australian mother and a Filipino father in Australia. Our rulings in Manzano and Valles stated that dual citizenship is different from dual allegiance both by cause and, for those desiring to run for public office, by effect. Dual citizenship is involuntary and arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. Thus, like any other natural-born Filipino, it is enough for a person with dual citizenship who seeks public office to file his certificate of candidacy and swear to the oath of allegiance contained therein. Dual allegiance, on the other hand, is brought about by the individuals active participation in the naturalization process. AASJS states that, under R.A. No. 9225, a Filipino who becomes a naturalized citizen of another country is allowed to retain his Filipino citizenship by swearing to the supreme authority of the Republic of the Philippines. The act of taking an oath of allegiance is an implicit renunciation of a naturalized citizens foreign citizenship. R.A. No. 9225, or the Citizenship Retention and Reacquisition Act of 2003, was enacted years after the promulgation of Manzano and Valles. The oath found in Section 3 of R.A. No. 9225 reads as follows: I __________ , solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion. In Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with dual citizenship per se, but with the status of naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Section 5(2) of R.A. No. 9225 states that naturalized citizens who reacquire Filipino citizenship and desire to run for elective public office in the Philippines shall "meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of filing 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" aside from the oath of allegiance prescribed in Section 3 of R.A. No. 9225. The twin requirements of swearing to an Oath of Allegiance and executing a Renunciation of Foreign Citizenship served as the bases for our recent rulings in Jacot v. Dal and COMELEC, Velasco v. COMELEC, and Japzon v. COMELEC, all of which involve natural-born Filipinos who later became naturalized citizens of another country and thereafter ran for elective office in the Philippines. In the present case, Tambunting, a natural-born Filipino, did not subsequently become a naturalized citizen of another country. Hence, the twin requirements in R.A. No. 9225 do not apply to him.5 Hence, Arnados failure to comply with the twin requirements of R.A. No. 9225 is clearly a failure to qualify as a candidate for Philippine elective public office. He is still deemed, under Philippine law, holding allegiance to a foreign country, which disqualifies him from running for an elective public office. Such failure to comply with the twin requirements of R.A. No. 9225 is included among the grounds for disqualification in Section 68 of the Omnibus Election Code: "Disqualifications. x x x. 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 a permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in election laws." On the Selection of the Lawful Mayor of Kauswagan, Lanao del Sur

Arnado used his USA passport after his Renunciation of American Citizenship and before he filed his Certificate of Candidacy. This positive act of retraction of his renunciation before the filing of the Certificate of Candidacy renders Arnados Certificate of Candidacy void ab initio. Therefore, Arnado was never a candidate at any time, and all the votes for him are stray votes. We reiterate our ruling in Jalosjos v. COMELEC6 on this matter: Decisions of this Court holding that the second-placer cannot be proclaimed winner if the firstplacer is disqualified or declared ineligible should be limited to situations where the certificate of candidacy of the first-placer was valid at the time of filing but subsequently had to be cancelled because of a violation of law that took place, or a legal impediment that took effect, after the filing of the certificate of candidacy. If the certificate of candidacy is void ab initio, then legally the person who filed such void certificate of candidacy was never a candidate in the elections at any time. All votes for such non-candidate are stray votes and should not be counted. Thus, such non-candidate can never be a first-placer in the elections. If a certificate of candidacy void ab initio is cancelled on the day, or before the day, of the election, prevailing jurisprudence holds that all votes for that candidate are stray votes. If a certificate of candidacy void ab initio is cancelled one day or more after the elections, all votes for such candidate should also be stray votes because the certificate of candidacy is void from the very beginning. This is the more equitable and logical approach on the effect of the cancellation of a certificate of candidacy that is void ab initio. Otherwise, a certificate of candidacy void ab initio can operate to defeat one or more valid certificates of candidacy for the same position.7 It is undisputed that Amado had to comply with the twin requirements of allegiance and renunciation. However, Arnados use of his USA passport after the execution of his At1idavit of Renunciation constituted a retraction of his renunciation, and led to his failure to comply with the requirement of renunciation at the time he tiled his certificate of candidacy. His certificate of candidacy was thus void ah initio. Garnering the highest number of votes for an elective position does not cure this defect. Maquiling, the alleged "second placer," should be proclaimed Mayor because Arnados ce11iticate of candidacy was void ah initio. Maquiling is the qualified candidate who actually garnered the highest number of votes for the position of Mayor. ANTONIO T. CARPIO Associate Justice

Footnotes
1

Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-Mayor. - 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. x x x.
2

367 Phil. 132 (1999) citing 1 RECORD OF THE CONSTITUTIONAL COMMISSION 203 (23 June 1986).
3

Id. at 147. G.R. No. 176947, 19 February 2009, 580 SCRA 12. Citations omitted. Id. at 23-25.

G.R. Nos. 193237 and 193536, 9 October 2012. Citations omitted. See also Cayat v. COMELEC, G.R. Nos. 163776 and 165736, 24 April 2007, 522 SCRA 23; and Aratea v. COMELEC, G.R. No. 195229, 9 October 2012.
7

Id.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION BRION, J.: I dissent from the ponencias conclusions that: (1) respondent Rommel C. Arnados (Arnado) use of his US passport in traveling twice to the US violated his Oath of Renunciation so that he reverted back to the status of a dual citizen a distinct ground for disqualification under Section 40(d) of the Local Government Code (LGC) that barred him from assuming the office of Mayor of Kuswagan, Lanao del Norte; and (2) the petitioner, Casan Macode Mquiling (Maquiling), the "second placer" in the 2010 elections, should be rightfully seated as Mayor of Kauswagan, Lanao del Norte. I base this Dissent on the following grounds: 1) Arnado has performed all acts required by Section 5(2) of Republic Act No. 92251 (RA 9225) to re-acquire Philippine citizenship and to qualify and run for public office; 2) The evidence on record shows that Arnados use of his US passport in two trips to the US after re-acquiring his Philippine citizenship under RA 9225 and renouncing his US citizenship, were mere isolated acts that were sufficiently justified under the given circumstances that Arnado fully explained; 3) Arnados use of his US passport did not amount to an express renunciation of his Philippine citizenship under Section 1 of Commonwealth Act No. 63 (CA 63); 4) Under the circumstances of this case, Arnado did not do anything to negate the oath of renunciation he took; 5) At any rate, all doubts should be resolved in favor of Arnados eligibility after this was confirmed by the mandate of the people of Kauswagan, Lanao del Norte by his election as Mayor; and 6) The assailed findings of facts and consequent conclusions of law are based on evidence on record and are correct applications of law; hence, no basis exists for this Court to rule that the Comelec en banc committed grave abuse of discretion in ruling on the case. The Antecedent Facts

Respondent Rommel Cagoco Arnado is a natural born Filipino citizen, born to Filipino parents on July 22, 1957 at Iligan City, Lanao del Norte.2 In 1985, he immigrated to the United States for job purposes.3 He was deemed to have lost his Filipino citizenship by operation of law4 when he became a naturalized citizen of the United States of America while in America. In 2003, Congress declared it the policy of the State that all Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship upon compliance with the statute Congress passed RA 9225.5 Arnado, like many other Filipinos before him, at age 51 and after a stay of 23 years in the U.S., opted to re-affirm his Filipino citizenship by filing the required application and taking his oath before the Philippine Consulate General in San Francisco, USA. His application was approved by Consul Wilfredo C. Santos, evidenced by an Order of Approval dated July 10, 2008.6 He took his Oath of Allegiance to the Republic of the Philippines (Republic) on the same day and was accordingly issued Identification Certificate Number SF-1524-08/2008 declaring him once more purely a citizen of the Republic.7 On April 3, 2009, Arnado took another Oath of Allegiance to the Republic and executed an Affidavit of Renunciation of his foreign citizenship.8 Eleven days later or on April 14, 2009, Arnado left the country for the United States. According to Bureau of Immigration records, Arnado then used a passport US Passport (No. 057782700) that identified his nationality as "USA-AMERICAN." The same record also indicated that Arnado used the same U.S. Passport when he returned to the country on June 25, 2009. This happened again when he left for the United States on July 29, 2009 and returned to the country on November 24, 2009.9 The record does not show the exact date when Arnado applied for a Philippine passport; it shows however that Consulate General of the Philippines in San Francisco, USA, approved and issued a Philippine Passport (No. XX 3979162) for Arnado on June 18, 2009.10 He received this passport three (3) months later.11 Thereafter, he used his Philippine passport in his travels on the following dates: December 11, 2009 (Departure), January 12, 2010 (Arrival), January 31, 2010 (Departure), March 31, 2010 (Arrival), April 11, 2010 (Departure) April 16, 2010 (Arrival), May 20, 2010 (Departure) and June 4, 2010 (Arrival).12 On November 30, 2009 or six months after he fully complied with the requirements of R.A. No. 9225, Arnado filed his Certificate of Candidacy (CoC) for the position of Mayor of Kauswagan, Lanao del Norte.13 Five months after or on April 28, 2010, respondent mayoralty candidate Linog C. Balua (Balua) filed a petition to disqualify Arnado and/or to cancel his CoC. Balua contended that Arnado is a foreigner and is not a resident of Kauswagan, Lanao del Norte. Balua attached to his petition a Bureau of Immigration (BI) certification dated April 23, 2010 indicating Arnados nationality as "USA-American" and certifying that the name Arnado Rommel Cagoco appears in the Computer Database/Passenger Manifest with the following pertinent travel records:14 DATE OF Arrival : 01/12/2010 NATIONALITY : USA-AMERICAN PASSPORT : 057782700 DATE OF Arrival : 03/23/2010 NATIONALITY : USA-AMERICAN

PASSPORT : 057782700 (Significantly, Arnado also submitted the photocopy of his Philippine passport showing that he used his Philippine passport on travels on these dates.)15 Balua also presented a computer generated travel record dated December 3, 2009 indicating that Arnado has been using his US Passport No. 057782700 in entering and departing the Philippines. The record showed that Arnado left the country on April 14, 2009 and returned on June 25, 2009; he departed again on July 29, 2009 and arrived back in the country on November 24, 2009.16 In these lights, Arnados disqualification was a live election issue, well-known to the Kauswagan electorate, who nevertheless voted Arnado into office as Mayor.17 The Comelec First Division ordered Arnado to file his Answer (to Baluas petition) and a Memorandum. With the petition filed a mere two weeks from election day, Arnado failed to comply, thus giving Balua the opportunity to move that Arnado be declared in default. The Comelec, however, failed to act on the motion as the case was overtaken by the May 10, 2010 elections. Arnado won the election, garnering 5,952 votes over the second placer, Maquiling, who garnered 5,357 votes. The Municipal Board of Canvassers subsequently proclaimed him as the duly elected mayor of Kauswagan, Lanao del Norte.18 In the Answer which he filed after his proclamation, Arnado averred that he did not commit any material misrepresentation in his CoC, and that he was eligible to run for the office of mayor of Kauswagan, Lanao del Norte; he had fully complied with the requirements of RA 9225 by taking the required Oath of Allegiance and executing an Affidavit of Renunciation of his U.S. citizenship.19 To support his allegations, Arnado also submitted the following documentary evidence: (1)Affidavit of Renunciation and Oath of Allegiance to the Republic of the Philippines dated April 3, 2009; (2) Joint-Affidavit dated May 31, 2010 of Engr. Virgil Seno, Virginia Branzuela, Leoncio Daligdig, and Jessy Corpin, all neighbors of Arnado, attesting that Arnado is a long-time resident of Kauswagan and that he has been conspicuously and continuously residing in his familys ancestral house in Kauswagan; (3) Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao del Norte dated June 3, 2010 stating that Arnado is a bona fide resident of his barangay and that Arnado went to the United States in 1985 to work and returned to the Philippines in 2009; (4) Certification dated May 31, 2010 from the Municipal Local Government Operations Office of Kauswagan stating that Dr. Maximo P. Arnado, Sr. served as Mayor of Kauswagan from January 1964 to June 1974 and from February 15 1979 to April 15, 1986; (5) Voter Certification issued by the Election Officer of Kauswagan certifying that Arnado has been a registered voter of Kauswagan since April 3, 2009.20 The Comelec First Division Ruling The Comelec First Division treated Baluas petition as a petition for disqualification instead of a petition for cancellation of CoC based on misrepresentation. Because Balua failed to present evidence to support his contention that Arnado is a resident of the United States, the First

Division found no basis to conclude that Arnaldo did not meet the one-year residency requirement under the LGC. On the issue of citizenship, the First Division held Arnados act of using his US passport after renouncing his US citizenship on April 3, 2009, effectively negated his Oath of Renunciation. As basis, the First Division cited the Courts ruling in In Re Petition for Habeas Corpus of Willie Yu v. Defensor-Santiago, et al. It concluded that Arnados continued use of his US passport was a strong indication that he had no real intention to renounce his US citizenship and that he only executed an Oath of Renunciation to enable him to run for office. The Division noted in this regard the glaring inconsistency between Arnados unexplained use of his US passport and his claim that he had re-acquired Philippine citizenship and had renounced his US citizenship. Based on these premises, the Comelec First Division disqualified Arnado, annulled his proclamation, and ordered that the order of succession to the mayoralty under Section 44 of the LGC be given effect.21 Maquilings Intervention While Arnados motion for reconsideration was pending, Maquiling intervened and filed a Motion for Reconsideration and an opposition to Arnados motion for reconsideration. Maquiling argued that while the First Division correctly disqualified Arnado, the order of succession under Section 44 is not applicable; he claimed that with the cancellation of Arnados CoC and the nullification of his proclamation, he should be proclaimed the winner since he was the legitimate candidate who obtained the highest number of votes.22 The Comelec en banc Ruling The Comelec en banc affirmed the First Divisions treatment of the petition as a petition for disqualification. It also agreed with the disposition of the First Division to follow the order of succession under Section 44, thus ruling out second placer Maquilings entitlement to the post of Mayor. The Comelec en banc however, reversed the First Division ruling and granted Arnados Motion for Reconsideration. It held that by renouncing his US citizenship, Arnado became a "pure" Philippine citizen again. It ruled that the use of a US passport does not operate to revert Arnados status as a dual citizen prior to his renunciation; it does not operate to "un-renounce" what had earlier been renounced. The Comelec en banc further ruled that the First Divisions reliance on In Re Petition for Habeas Corpus of Willie Yu v. Defensor-Santiago, et al.,23 was misplaced as the facts of this cited case are not the same or comparable with those of the present case. Unlike the present case, the petitioner in Yu was a naturalized citizen who, after taking his oath as a naturalized Filipino citizen, applied for a renewal of his Portuguese passport. Finally, the Comelec en banc found that Arnado presented a plausible and believable explanation justifying the use of his US passport. While his Philippine passport was issued on June 18, 2009, he was not immediately notified of the issuance so that he failed to actually get it until after three months later. He thereafter used his Philippine passport in his subsequent travels abroad.24 The Separate and Dissenting Opinions Significantly, Comelec Chairman Sixto S. Brillantes issued a Separate Opinion concurring with the Comelec majority. He opined that the use of a foreign passport is not one of the grounds

provided for under Section 1 of CA 63 through which Philippine citizenship may be lost. He cites the assimilative principle of continuity of Philippine citizenship: Arnado is presumed to have remained a Filipino despite his use of his American passport in the absence of clear and unequivocal proof of expatriation. In addition, all doubts should be resolved in favor of Arnados retention of citizenship.25 In his Dissenting Opinion, Commissioner Rene V. Sarmiento emphasized that Arnado failed to prove that he truly abandoned his allegiance to the United States; his continued use of his US passport and enjoyment of all the privileges of a US citizen ran counter to his declaration that he chose to retain only his Philippine citizenship. He noted that qualifications for elective office, such as citizenship, are continuing requirements; once citizenship is lost, title to the office is deemed forfeited.26 The Issues The complete issues posed for the Courts consideration are: (1) Whether intervention is allowed in a disqualification case; (2) Whether the use of a foreign passport after renouncing foreign citizenship amounts to undoing a renunciation made, and whether the use of a foreign passport after renouncing foreign citizenship affects ones qualifications to run for public office; (3) Assuming Arnado is disqualified, whether the rule on succession in the LGC is applicable in the present case;27 (4) How should doubt in the present case be resolved in light of Arnados election; and (5) Whether, based on the facts presented and the applicable law, the Comelec en banc committed grave abuse of discretion. The Ponencia The ponencia grants Maquilings petition for certiorari, thus holding that the Comelec en banc committed grave abuse of discretion in considering the facts and the law presented. It thus holds that Arnado is a dual citizen disqualified to run for public office under Section 40(d) of the LGC. On this basis, the ponencia rules that with Arnados disqualification, second placer Maquiling should be proclaimed as the duly elected Mayor of Kauswagan, Lanao del Norte. Based on this conclusion, the ponencia resolves all doubts against Arnado and disregards the democratic decision of the Kauswagan electorate. As the ponencia reasons it out, the act of using a foreign passport does not divest Arnado of his Filipino citizenship. By representing himself as an American citizen, however, Arnado voluntarily and effectively reverted to his earlier status as dual citizen. It emphasizes that such reversion is not retroactive; it took place the instant Arnado represented himself as an American citizen by using his US passport. Thus, by the time Arnado filed his CoC on November 30, 2009, the ponencia concludes that Arnado was a dual citizen enjoying the rights and privileges of Filipino and American citizenship; he was qualified to vote, but by the express disqualification under Section 40 (d) of the LGC, he was not qualified as a candidate to run for a local elective position.28 With Arnado barred from candidacy, the ponencia further concludes that his CoC was void from the beginning. The affirmation of Arnados disqualification, although made long after the

elections, reaches back to the filing of the CoC so that he was not a candidate at all in the May 10, 2010 elections. Hence, the votes cast in his favor should not be counted and Maquiling, as the qualified candidate who obtained the highest number of vote, should be declared the duly elected mayor of Kauswagan, Lanao del Norte.29 In this manner, the ponencia effectively disenfranchised 5,952 or 52.63% of those who voted for the top two contending candidates for the position of Mayor; it rules for a minority Mayor. Refutation of the Ponencia Arnado performed all acts required by Section 5(2) of RA 9225 to reacquire Philippine citizenship and run for public office; in fact, he actively followed up his re-affirmed citizenship by running for public office. RA 9225 was enacted to allow the re-acquisition and retention of Philippine citizenship by: 1) natural-born citizens who were deemed to have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country; and 2) natural-born citizens of the Philippines who, after the effectivity of the law, became citizens of a foreign country. The law provides that they are deemed to have re-acquired or retained their Philippine citizenship upon taking the oath of allegiance.30 Section 3 of RA 9225 on these points reads: Section 3. Retention of Philippine Citizenship - Any provision of law to the contrary notwithstanding, natural-born citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic: "I _____________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion." Natural born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath. Arnado falls under the first category as a natural-born Filipino citizen who was deemed to have lost his Philippine citizenship upon his naturalization as an American citizen. Under the given facts, Arnado indisputably re-acquired Philippine citizenship after taking the Oath of Allegiance not only once but twice on July 10, 2008 and April 3, 2009. Separately from this oath of allegiance, Arnado took an oath renouncing his American citizenship as additionally required by RA 9225 for those seeking public office. Section 5 of RA 9225 on this point provides: 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: (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.

In Japzon v. Commission on Elections,31 we ruled that Section 5(2) of RA 9225 requires the twin requirements of taking an Oath of Allegiance and the execution of a similarly sworn Renunciation of Foreign Citizenship. We said: Breaking down the afore-quoted provision, for a natural born Filipino, who reacquired or retained his Philippine citizenship under Republic Act No. 9225, to run for public office, he must: (1) meet the qualifications for holding such public office as required by the Constitution and existing laws; and (2) make a personal and sworn renunciation of any and all foreign citizenships before any public officer authorized to administer an oath.32 Thus, the respondent in that case, Jaime Ty - a natural born Filipino citizen who subsequently became a naturalized American citizen - became a "pure" Philippine citizen again after taking the Oath of Allegiance and executing an Oath of Renunciation of his American citizenship. To quote our Decision: He was born and raised in the Municipality of General Macarthur, Eastern Samar, Philippines. However, he left to work in the USA and eventually became an American citizen. On 2 October 2005, Ty reacquired his Philippine citizenship by taking his Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz, Vice Consul of the Philippine Consulate General in Los Angeles, California, USA, in accordance with the provisions of Republic Act No. 9225. At this point, Ty still held dual citizenship, i.e., American and Philippine. It was only on 19 March 2007 that Ty renounced his American citizenship before a notary public and, resultantly, became a pure Philippine citizen.33 In the present case, Arnado indisputably complied with the second requirement of Section 5(2) of RA 9225. On April 3, 2009, he personally executed an Affidavit of Renunciation an Oath of Allegiance before notary public Thomas Dean M. Quijano. Therefore, when he filed his CoC for the position of Mayor of the Municipality of Kauswagan, Lanao del Norte on November 30, 2009, he had already effectively renounced his American citizenship, solely retaining his Philippine citizenship as the law requires. In this way, Arnado qualified for the position of Mayor of Kauswagan, Lanao del Norte and filed a valid CoC. The evidence on record shows that Arnados use of his US passport after his compliance with the terms of RA 9225, was an isolated act that was sufficiently explained and justified. The records bear out that Arnado used his US passport in two trips to and from the US after he had executed his Affidavit of Renunciation on April 3, 2009. He travelled on the following dates: Date Destination to the U.S. to the Philippines to the U.S. to the Philippines

April 14, 2009 June 25, 2009 July 29, 2009

November 24, 2009

Arnados Philippine passport was issued on June 18, 2009, but he was not immediately notified of the issuance so that and he only received his passport three months after or sometime in September 2009.34 Clearly, when Arnado travelled on April 14, 2009, June 25, 2009 and July 29, 2009, he had no Philippine passport that he could have used to travel to the United States to

attend to the winding up of his business and other affairs in America. A travel document issued by the proper Philippine government agency (e.g., a Philippine consulate office in the US) would not suffice because travel documents could not be used; they are issued only in critical instances, as determined by the consular officer, and allow the bearer only a direct, one-way trip to the Philippines.35 Although Arnado received his Philippine passport by the time he returned to the Philippines on November 24, 2009, he could not use this without risk of complications with the US immigration authorities for using a travel document different from what he used in his entry into the US on July 29, 2009. Plain practicality then demanded that the travel document that he used to enter the US on July 29, 2009 be the same travel document he should use in leaving the country on November 24, 2009. Given these circumstances, Arnados use of his US passport in travelling back to the Philippines on November 24, 2009 was an isolated act that could not, by itself, be an express renunciation of the Philippine citizenship he adopted as his sole citizenship under RA 9225. Arnados use of his US passport was not an express renunciation of his Philippine citizenship under Section 1 of CA 63. I disagree with the ponencias view that by using his US passport and representing himself as an American citizen, Arnado effectively reverted to the status of a dual citizen. Interestingly, the ponencia failed to cite any law or controlling jurisprudence to support its conclusion, and thus merely makes a bare assertion. The ponencia fails to consider that under RA 9225, natural-born citizens who were deemed to have lost their Philippine citizenship because of their naturalization as citizens of a foreign country and who subsequently complied with the requirements of RA 9225, are deemed not to have lost their Philippine citizenship. RA 9225 cured and negated the presumption made under CA 63. Hence, as in Japzon, Arnado assumed "pure" Philippine citizenship again after taking the Oath of Allegiance and executing an Oath of Renunciation of his American citizenship under RA 9225. In this light, the proper framing of the main issue in this case should be whether Arnados use of his US passport affected his status as a "pure" Philippine citizen. In question form did Arnados use of a US passport amount to a ground under the law for the loss of his Filipino citizenship under CA 63? Or alternatively, the retention of his dual citizenship status? I loathe to rule that Arnados use of his US passport amounts to an express renunciation of his Filipino citizenship, when its use was an isolated act that he sufficiently explained and fully justified. I emphasize that the law requires express renunciation in order to lose Philippine citizenship. The term means a renunciation that is made distinctly and explicitly and is not left to inference or implication; it is a renunciation manifested by direct and appropriate language, as distinguished from that which is inferred from conduct.36 A clear and vivid example, taken from jurisprudence, of what "express renunction" is not transpired in Aznar v. Comelec37 where 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 did not amount to a renunciation of his Philippine citizenship. In the present case, other than the use of his US passport in two trips to and from the United States, the record does not bear out any indication, supported by evidence, of Arnados intention to re-acquire US citizenship. To my mind, in the absence of clear and affirmative acts of reacquiring US citizenship either by naturalization or by express acts (such as the re-establishment

of permanent residency in the United States), Arnados use of his US passport cannot but be considered an isolated act that did not undo his renunciation of his US citizenship. What he might in fact have done was to violate American law on the use of passports, but this is a matter irrelevant to the present case. Thus, Arnado remains to be a "pure" Filipino citizen and the loss of his Philippine citizenship cannot be presumed or inferred from his isolated act of using his US passport for travel purposes. Arnado did not violate his oath of renunciation; at any rate, all doubts should be resolved in favor of Arnados eligibility considering that he received the popular mandate of the people of Kauswagan, Lanao del Norte as their duly elected mayor. I completely agree with the ponencia that the Oath of Renunciation is not an empty or formal ceremony that can be perfunctorily professed at any given day, only to be disregarded on the next. As a mandatory requirement under Section 5 (2) of RA 9225, it allows former natural-born Filipino citizens who were deemed to have lost their Philippine citizenship by reason of naturalization as citizens of a foreign country to enjoy full civil and political rights, foremost among them, the privilege to run for public office. I disagree however, with the conclusion that Arnado effectively negated his Oath of Renunciation when he used his US passport for travel to the United States. To reiterate if only for emphasis, Arnado sufficiently justified the use of his US passport despite his renunciation of his US citizenship; when he travelled on April 14, 2009, June 25, 2009 and July 29, 2009, he had no Philippine passport that he could have used to travel to the United States to attend to the business and other affairs that he was leaving. If at all, he could be faulted for using his US passport by the time he returned to the Philippines on November 24, 2009 because at that time, he had presumably received his Philippine passport. However, given the circumstances explained above and that he consistently used his Philippine passport for travel after November 24, 2009, the true character of his use of his US passport stands out and cannot but be an isolated and convenient act that did not negate his Oath of Renunciation. The People of Kauswagan have spoken and any doubt should be resolved in favor of their verdict. Separately from the issue of Arnados isolated act of using his US passport, we cannot ignore the fact in a community as small as Kauswagan where the two mayoralty candidates garnered a total of 11,309 votes, Baluas claim of Arnados foreign citizenship and even the latters residency status could not be avoided but be live election issues. The people of Kauswagan, Lanao del Norte, therefore, made their own ruling when they elected Arnado as their mayor despite the "foreigner" label sought to be pinned on him. At this point, even this Court should heed this verdict by resolving all doubts regarding Arnados eligibility in his favor. This approach, incidentally, is not a novel one38 as in Sinaca v. Mula,39 the Court has already ruled: When 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. Above 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. No Basic to Rule that the Comelec Committed Grave Abuse of Discretion. As my last point, the Comelec en banc considered and accepted as its factual finding that Arnados explanation on the use of his US passport was sufficient justification to conclude that he did not abandon his Oath of Renunciation. This finding is undeniably based on evidence on

record as the above or incorrect is not material for as long as it is made on the basis of evidence on record, and was made within the contemplation of the applicable law.40 In other words, the Comelec en banc properly exercised its discretion in acting on the matter; thus, even if it hard erred in its conclusions, any error in reading the evidence and in applying the law was not sufficiently grave to affect the exercise of its jurisdiction.41 From these perspectives, this Court has no recourse but to dismiss the present petition for failure to show any grave abuse of discretion on the part of the Comelec. In these lights, I vote for the dismissal of the petition. ARTURO D. BRION Associate Justice

Republic of the Philippines Supreme Court Manila EN BANC

WALDEN F. BELLO and LORETTA ANN P. ROSALES, Petitioners,

G.R. No. 191998

versus -

COMMISSION ON ELECTIONS, Respondent. x------------------------------------------x LIZA L. MAZA and SATURNINO C. OCAMPO, Petitioners, G.R. No. 192769

versus -

COMMISSION ON ELECTIONS and JUAN MIGUEL MIKEY ARROYO, Respondents. x-----------------------------------------x BAYAN MUNA PARTY-LIST, represented by TEODORO CASIO, Petitioner, G.R. No. 192832 Present: CORONA, C.J., CARPIO, CARPIO MORALES,

versus -

COMMISSION ON ELECTIONS

VELASCO, JR.,

and JUAN MIGUEL MIKEY ARROYO of Ang Galing Pinoy Party-List, Respondents.

NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ. Promulgated:

December 7, 2010 x-----------------------------------------------------------------------------------------x RESOLUTION

BRION, J.: We resolve the three (3) consolidated[1] special civil actions for certiorari, mandamus and prohibition that commonly aim to disqualify respondent Juan Miguel Mikey Arroyo as the nominee of the Ang Galing Pinoy Party-List (AGPP) in the May 10, 2010 elections.

The Factual Antecedents The common factual antecedents, gathered from the pleadings, are briefly summarized below. On November 29, 2009, AGPP filed with the Commission on Elections (COMELEC) its Manifestation of Intent to Participate in the May 10, 2010 elections. Subsequently, on March 23, 2010, AGPP filed its Certificate of Nomination together with the Certificates of Acceptance of its nominees.[2] On March 25, 2010, the COMELEC issued Resolution No. 8807[3] which prescribed the rules of procedure applicable to petitions to disqualify a party-list nominee for purposes of the May 10, 2010 elections.[4] Section 6 of the Resolution provides that the party-list group and the nominees must submit documentary evidence[5] to duly prove that the nominees truly belong to the marginalized and underrepresented sector/s, and to the sectoral party, organization, political party or coalition they seek to represent. It likewise provides that the COMELEC Law Department shall require party-list groups and nominees to make the required documentary submissions, if not already complied with prior to the effectivity of the Resolution, not later than three (3) days from the last day of filing of the list of nominees.[6]

Under Section 10 of the same Resolution, the COMELEC may motu proprio effect the disqualification of party-list nominees who violate any of the limitations mentioned in Section 7 of the Resolution.[7] Section 8 of Rule 32 of the COMELEC Rules of Procedure also states that the COMELEC may cancel motu proprio the registration of any party registered under the party-list system for failure to comply with applicable laws, rules or regulations of the Commission. Pursuant to COMELEC Resolution No. 8646,[8] in relation to Section 6 of Resolution No. 8807, the deadline for submitting the requirements mentioned in Section 6 of the latter Resolution was on March 29, 2010.[9] On March 25, 2010, petitioners Liza L. Maza, Saturnino C. Ocampo, and Bayan Muna Party-List, represented by Teodoro Casio, (collectively referred to ascertiorari petitioners) filed with the COMELEC a petition for disqualification[10] against Arroyo, pursuant to Resolution No. 8696,[11] in

relation with Sections 2 and 9 of Republic Act (RA) No. 7941[12] (the Party- List System Act).[13] The certiorari petitioners argued that not only must the party-list organization factually and truly represent the marginalized and the underrepresented; the nominee must as well be a Filipino citizen belonging to the marginalized and underrepresented sectors, organizations and parties, citing in this regard the case of Ang Bagong Bayani-OFW Labor Party v. COMELEC.[14] On this basis, the certiorari petitioners concluded that Arroyo cannot be considered a member of the marginalized and underrepresented sector, particularly, the sector which the AGPP represents tricycle drivers and security guards because he is not only a member of the First Family, but is also (a) an incumbent member of the House of Representatives; (b) the Chairman of the Houses Energy Committee; and, (c) a member of key committees in the House, namely: Natural Resources, Aquaculture, Fisheries Resources, Ethics and Privileges, Justice, National Defense and Security, Public Works and Highways, Transportation and Ways and Means.[15] In his Answer, Arroyo counter-argued that the COMELEC had no jurisdiction over issues involving the qualifications of party-list nominees; Section 9 of RA 7941 merely requires that the party-list nominee must be a bona fide member of the party or organization which he seeks to represent at least ninety (90) days preceding the day of the election.[16] When the COMELEC published on March 26, 2010 its initial List of Political Parties/Sectoral Organizations/Coalitions Participating in the May 10, 2010 elections with their respective Nominees, Arroyo was listed as AGPPs first nominee. On March 30, 2010, the petitioner Bayan Muna Party-List, represented by Neri Colmenares, filed with the COMELEC another petition for disqualification against Arroyo.[17] It alleged that Arroyo is not qualified to be a party-list nominee because he (a) does not represent or belong to the marginalized and underrepresented sector; (b) has not been a bona fide member of AGPP ninety (90) days prior to the May 10, 2010 elections; (c) is a member of the House of Representatives; and that (d) AGPP is not a legitimate and qualified party-list group and has no authority to nominate him.[18]

In his Answer, Arroyo reiterated that the COMELEC does not have jurisdiction over cases involving the qualifications of party-list nominees. He stated as well that he is a bona fide member of AGPP at least ninety (90) days prior to the elections.[19] Meanwhile, on April 6, 2010, petitioners Walden F. Bello and Loretta Ann P. Rosales (mandamus petitioners) wrote the COMELEC Law Department a letter requesting for a copy of the documentary evidence submitted by AGPP, in compliance with Section 6 of Resolution No. 8807. On the same day, the COMELEC Law Department replied that as of that date, the AGPP had not yet submitted any documentary evidence required by Resolution No. 8807.[20] Through a letter dated April 7, 2010, the mandamus petitioners requested the COMELEC and its Law Department to act, consistently with Section 10 of Resolution No. 8807, and declare the disqualification of the nominees of AGPP for their failure to comply with the requirements of Section 6 of Resolution No. 8807.[21] They also wrote the COMELEC on April 20, 2010, reiterating their letter-request dated April 7, 2010. The COMELEC failed to respond to both letters.[22] The COMELEC Second Division Ruling In its May 7, 2010 Joint Resolution, the COMELEC Second Division dismissed the petitions for disqualification against Arroyo.[23] It noted that Section 9 of RA 7941 merely requires the nominee to be 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 elections.[24] It found that Arroyo (a) became a member of the party on November 20, 2009; (b) actively participated in the undertakings of AGPP and adhered to its advocacies; and, (c) actively supported and advanced the projects and programs of the AGPP by regularly attending its meetings, livelihood and skills program, and farmers day activities.[25]

The COMELEC en banc Ruling The COMELEC en banc refused to reconsider the Second Divisions ruling in its July 19, 2010 consolidated resolution.[26] It held, among others, that a Filipino citizen, in order to qualify as a party-list nominee, only needs to be

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 must likewise be at least twenty-five (25) years of age on the day of the election.[27] The COMELEC en banc also held that Section 6 of Resolution No. 8807 is ultra vires, since the requirement that a nominee belong to the marginalized and underrepresented sector he seeks to represent is not found in RA 7941.[28] Thus, it concluded that Arroyo possessed all the requirements mandated by Section 9 of RA 7941.[29] On May 7, 2010, the mandamus petitioners filed with this Court their Petition for Mandamus and Prohibition with Application for Temporary Restraining Order and/or Preliminary Injunction,[30] docketed as G.R. No. 191998.[31] They sought to compel the COMELEC to disqualify motu proprio the AGPP nominees for their failure to comply with Section 6 of Resolution No. 8807, and to enjoin the COMELEC from giving due course to the AGPPs participation in the May 10, 2010 elections. On July 23 and 29, 2010, the certiorari petitioners elevated their case to this Court via two (2) separate petitions for certiorari,[32] docketed as G.R. Nos. 192769[33] and 192832,[34] to annul the COMELEC Second Divisions May 7, 2010 joint resolution and the COMELEC en bancs July 19, 2010 consolidated resolution that dismissed their petitions for disqualification against Arroyo as AGPPs nominee. In the interim, AGPP obtained in the May 10, 2010 elections the required percentage of votes sufficient to secure a single seat. This entitled Arroyo, as AGPPs first nominee, to sit in the House of Representatives.[35] On July 21, 2010, the COMELEC, sitting as the National Board of Canvassers, proclaimed Arroyo as AGPPs duly-elected party-list representative in the House of Representatives.[36] On the same day, Arroyo took his oath of office, as AGPPs Representative,[37] before Court of Appeals Presiding Justice Andres B. Reyes. His name was, thereafter, entered in the Roll of Members of the House of Representatives.[38] On July 28 and 29, 2010, two (2) separate petitions for quo warranto[39] were filed with the House of Representatives Electoral Tribunal (HRET) questioning Arroyos eligibility as AGPPs representative in the House

of Representatives. On September 7, 2010, the HRET took cognizance of the petitions by issuing a Summons directing Arroyo to file his Answer to the two petitions.[40]

The Petitions The mandamus petitioners in G.R. No. 191998 argue that the COMELEC committed grave abuse of discretion (a) in failing to order the motu propriodisqualification of AGPP despite its failure to comply with the mandatory requirements under Section 6 of Resolution No. 8807; and, (b) in giving due course to the participation of AGPP and its nominees in the May 10, 2010 elections. On the other hand, the certiorari petitioners in G.R. Nos. 192769 and 192832 contend in common that the COMELEC en banc gravely abused its discretion in failing to disqualify Arroyo as AGPPs nominee since: (1) he does not belong to the marginalized and underrepresented sector he claims to represent; (2) he is not abona fide AGPP member for at least ninety (90) days preceding the May 10, 2010 elections; (3) in light of these preceding reasons, he would not be able to contribute to the formulation and enactment of appropriate legislations for the sector he seeks to represent; and (4) his nomination and acceptance of nomination as AGPPs nominee violate AGPPs continuing undertaking upon which its petition for registration and accreditation was based and granted. In G.R. No. 192832, the petitioner Bayan Muna Party-List also prays that the Court: (a) direct the COMELEC en banc to review all its decisions in cases for disqualification of nominees and cancellation of registration of party-list groups filed in the May 10, 2010 elections, as well as those which have not been resolved, in line with the eight-point guidelines set forth in Ang Bagong Bayani;[41] and (b) order Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, Armando C. Velasco and Elias R. Yusoph to explain why they should not be cited in contempt for their open defiance of the Courts Decisions in Ang Bagong Bayani[42] and Barangay Association for National Advancement and Transparency v. COMELEC.[43]

The Case for the Respondents In G.R. Nos. 192769 and 192832, Arroyo counter-argues that the petitions should be dismissed outright because upon his proclamation, oath and assumption to office as a duly elected member of the House of Representatives, the jurisdiction over issues relating to his qualifications now lies with the HRET as the sole judge of all contests relating to the election, returns, and qualifications of members of the House of Representatives. Similarly, the COMELEC, through the Office of the Solicitor General (OSG), prays for the dismissal of the petitions in G.R. Nos. 192769 and 192832 for lack of jurisdiction in view of Arroyos proclamation and assumption to office as a Member of the House of Representatives. Despite notice, the OSG failed to comment on the G.R. No. 191998 petition. We deemed the case ready for resolution on the basis of the parties submissions. Issues The core issues boil down to (1) whether mandamus lies to compel the COMELEC to disqualify AGPPs nominees motu proprio or to cancel AGPPs registration; (2) whether the COMELEC can be enjoined from giving due course to AGPPs participation in the May 10, 2010 elections, the canva ssing of AGPPs votes, and proclaiming it a winner; and (3) whether the HRET has jurisdiction over the question of Arroyos qualifications as AGPPs nominee after his proclamation and assumption to office as a member of the House of Representatives.

Our Ruling We dismiss the petitions.

For a writ of mandamus to issue (in G.R. No. 191998), the mandamus petitioners must comply with Section 3 of Rule 65 of the Rules of Court, which provides:
SEC. 3. 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, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.

In the present case, the mandamus petitioners failed to comply with the condition that there be no other plain, speedy and adequate remedy in the ordinary course of law. Under Section 2, in relation with Section 4, of COMELEC Resolution No. 8807 (quoted below), any interested party may file with the COMELEC a petition for disqualification against a party-list nominee:
Section 2. Grounds for Disqualification. Any nominee (a) who does not possess all the qualifications of a nominee as provided for by the Constitution, existing laws or (b) who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a nominee. Section 4. When to file Petition. The petition under item (a) of Section 2 shall be filed five (5) days after the last day for filing of the list of nominees, while under item (b) thereof shall be filed any day not later than the date of proclamation.

Furthermore, under Section 6 of RA 7941, any interested party may file a verified complaint for cancellation of registration of a party-list organization:

SEC. 6. Refusal and/or Cancellation of Registration. The COMELEC may motu proprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds: (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.

These provisions effectively provide the plain, speedy and adequate remedy that the mandamus petitioners should have taken. Specifically, they should have filed the proper petition for disqualification, pursuant to Section 2(b) of Resolution No. 8807, any day not later than the date of proclamation. As to the remedy of filing a complaint for cancellation of registration, we note that neither Section 6 of RA 7941 nor Section 8, Rule 32 of the COMELEC Rules of Procedure specifies the period within which a complaint for cancellation of registration should be filed. Whether or not the mandamus petitioners can still file a petition for cancellation of AGPPs registration at this point in time, however, is a question we are not prepared to rule upon; in fact, we need not resolve this question since it is not raised here and has not been argued by the parties. We note that in lieu of filing the above formal petition that Resolution No. 8807 and RA 7941 provide, the mandamus petitioners opted to confine themselves to writing letters to ask the COMELEC to act in accordance with Section 10 of Resolution No. 8807. While these moves are technically

objections to Arroyo and to the AGPPs registration, they cannot in any way be considered formal petitions for disqualification, unlike the present petition which is a formal petition (whose clear intent is similarly to disqualify Arroyo). Unfortunately for the mandamus petitioners, a petition for mandamus is not the correct remedy under the circumstances as the immediately applicable remedy is a petition for disqualification or for cancellation filed with the COMELEC, as pointed out above. In filing the present petition, the mandamus petitioners also violated the rule on the exhaustion of administrative remedies. The rule on exhaustion of administrative remedies provides that a party must exhaust all administrative remedies to give the administrative agency an opportunity to decide and thus prevent unnecessary and premature resort to the courts.[44] While this is not an ironclad rule as it admits of exceptions,[45] the mandamus petitioners failed to show that any of the exceptions apply. The filing of a petition for mandamus with this Court, therefore, was premature. It bears stressing that mandamus, as an extraordinary remedy, may be used only in cases of extreme necessity where the ordinary forms of procedure are powerless to afford relief.[46] Thus, we find the mandamus aspect of G.R. No. 191998 improperly filed under the standards of Section 3, Rule 65 of the Rules of Court. Even the substantive merits of the mandamus petition in G.R. No. 191998, i.e., its patent intent to disqualify Arroyo, fail to persuade for the reasons more fully discussed below, in relation with the certiorari petitions in G.R. Nos. 192769 and 192832. As to the prohibition aspect of G.R. No. 191998 i.e., to prevent the COMELEC from canvassing AGPPs votes, and from proclaiming it a winner we find that this has been mooted by the supervening participation, election and proclamation of AGPP after it secured the required percentage of votes in the May 10, 2010 elections. The prohibition issue has been rendered moot since there is nothing now to prohibit in light of the supervening events. A moot case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon (in this case, the prevention of the specified acts) can no longer be done. Under the circumstances, we have to recognize the

futility of the petition and to dismiss it on the ground of mootness since we cannot provide the mandamuspetitioners any substantial relief.[47] We move on to the principal issue raised by the certiorari petitions in G.R. Nos. 192769 and 192832 whether jurisdiction over Arroyos qualifications as AGPP nominee should now properly be with the HRET since Arroyo has been proclaimed and has assumed office as Member of the House of Representatives. This issue is far from novel and is an issue previously ruled upon by this Court. The consistent judicial holding is that the HRET has jurisdiction to pass upon the qualifications of party-list nominees after their proclamation and assumption of office; they are, for all intents and purposes, elected members of the House of Representatives although the entity directly voted upon was their party. In Abayon v. House of Representatives Electoral Tribunal,[48] the Court said:
But, although it is the party-list organization that is voted for in the elections, it is not the organization that sits as and becomes a member of the House of Representatives. Section 5, Article VI of the Constitution, identifies who the members of that House are: 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 through a party-list system of registered national, regional, and sectoral parties or organizations. (Underscoring supplied) Clearly, the members of the House of Representatives are of two kinds: members x x x who shall be elected from legislative districts and those who x x x shall be elected through a partylist system of registered national, regional, and sectoral parties or organizations. This means that, from the Constitutions point of view, it is the party-list representatives who are elected into office, not their parties or organizations. These representatives are elected, however, through that peculiar party-list system that the Constitution

authorized and that Congress by law established where the voters cast their votes for the organizations or parties to which such party-list representatives belong. Once elected, both the district representatives and the party-list representatives are treated in like manner. They have the same deliberative rights, salaries, and emoluments. They can participate in the making of laws that will directly benefit their legislative districts or sectors. They are also subject to the same term limitation of three years for a maximum of three consecutive terms. It may not be amiss to point out that the Party-List System Act itself recognizes party-list nominees as members of the House of Representatives, thus: 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 the marginalized and underrepresented sectors, organizations and parties, and who lack welldefined 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. (Underscoring supplied) As this Court also held in Bantay Republic Act or BA-RA 7941 v. Commission on Elections, a party-list representative is in every sense an elected member of the House of Representatives. Although the vote cast in a party-list election is a vote for a party, such vote, in the end, would be a vote for its nominees, who, in appropriate cases, would eventually sit in the House of Representatives.

The Court also held in the same case that:

In the cases before the Court, those who challenged the qualifications of petitioners Abayon and Palparan claim that the two do not belong to the marginalized and underrepresented sectors that they ought to represent. The Party-List System Act provides that a nominee must be a bona fide member of the party or organization which he seeks to represent. It is for the HRET to interpret the meaning of this particular qualification of a nominee the need for him or her to be a bona fide member or a representative of his party-list organizationin the context of the facts that characterize petitioners Abayon and Palparans relation to Aangat Tayo and Bantay, respectively, and the marginalized and underrepresented interests that they presumably embody. x x x x What is inevitable is that Section 17, Article VI of the Constitution provides that the HRET shall be the sole judge of all contests relating to, among other things, the qualifications of the members of the House of Representatives. Since, as pointed out above, party-list nominees are elected members of the House of Representatives no less than the district representatives are, the HRET has jurisdiction to hear and pass upon their qualifications. By analogy with the cases of district representatives, once the party or organization of the party-list nominee has been proclaimed and the nominee has taken his oath and assumed office as member of the House of Representatives, the COMELECs jurisdiction over election contests relating to his qualifications ends and the HRETs own jurisdiction begins.

Similarly applicable is our ruling in Perez v. Commission on Elections[49] where we acknowledged that the Court does not have jurisdiction to pass upon the eligibility of the private respondent who was already a member of the House of Representatives. We said:
As already stated, the petition for disqualification against private respondent was decided by the First Division of the COMELEC on May 10, 1998. The following day, May 11, 1998, the elections were held. Notwithstanding the fact that private respondent

had already been proclaimed on May 16, 1998 and had taken his oath of office on May 17, 1998, petitioner still filed a motion for reconsideration on May 22, 1998, which the COMELEC en banc denied on June 11, 1998. Clearly, this could not be done. Sec. 6 of R.A. No. 6646 authorizes the continuation of proceedings for disqualification even after the elections if the respondent has not been proclaimed. The COMELEC en banc had no jurisdiction to entertain the motion because the proclamation of private respondent barred further consideration of petitioners action. In the same vein, considering that at the time of the filing of this petition on June 16, 1998, private respondent was already a member of the House of Representatives, this Court has no jurisdiction over the same. Pursuant to Art. VI, 17 of the Constitution, the House of Representatives Electoral Tribunal has the exclusive original jurisdiction over the petition for the declaration of private respondents ineligibility. As this Court held in Lazatin v. House of Representatives Electoral Tribunal: The use of the word sole emphasizes the exclusive character of the jurisdiction conferred. The exercise of the power by the Electoral Commission under the 1935 Constitution has been described as intended to be as complete and unimpaired as if it had remained originally in the legislature. Earlier, this grant of power to the legislature was characterized by Justice Malcolm as full, clear and complete. Under the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and it remained as full, clear and complete as that previously granted the legislature and the Electoral Commission. The same may be said with regard to the jurisdiction of the Electoral Tribunals under the 1987 Constitution.[50]

In the present case, it is not disputed that Arroyo, AGPPs first nominee, has already been proclaimed and taken his oath of office as a Member of the House of Representatives. We take judicial notice, too, of the filing of two (2) petitions for quo warranto against Arroyo, now pending before the HRET. Thus, following the lead of Abayon and Perez, we hold that the Court has no jurisdiction over the present petitions and that the HRET now has the exclusive original jurisdiction to hear and rule upon Arroyos qualifications as a Member of the House of Representatives.

In light of these conclusions, we see no need to further discuss the other issues raised in the certiorari petitions. WHEREFORE, we RESOLVE to DISMISS the petition in G.R. No. 191998 for prematurity and mootness. The petitions in G.R. Nos. 192769 and192832 are likewise DISMISSED for lack of jurisdiction. No pronouncement as to costs.