ATTY.

ROMULO B. MACALINTAL, petitioner, vs. COMMISSION ON

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

DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari and prohibition filed by Romulo
B. Macalintal, a member of the Philippine Bar, seeking a declaration that certain
provisions of Republic Act No. 9189 (The Overseas Absentee Voting Act of
2003)[1] suffer from constitutional infirmity. Claiming that he has actual and
material legal interest in the subject matter of this case in seeing to it that
public funds are properly and lawfully used and appropriated, petitioner filed
the instant petition as a taxpayer and as a lawyer.
The Court upholds the right of petitioner to file the present petition.
R.A. No. 9189, entitled, An Act Providing for A System of Overseas
Absentee Voting by Qualified Citizens of the Philippines Abroad, Appropriating
Funds Therefor, and for Other Purposes, appropriates funds under Section 29
thereof which provides that a supplemental budget on the General
Appropriations Act of the year of its enactment into law shall provide for the
necessary amount to carry out its provisions. Taxpayers, such as herein
petitioner, have the right to restrain officials from wasting public funds through
the enforcement of an unconstitutional statute. [2] The Court has held that they
may assail the validity of a law appropriating public funds [3] because
expenditure of public funds by an officer of the State for the purpose of
executing an unconstitutional act constitutes a misapplication of such funds. [4]
The challenged provision of law involves a public right that affects a great
number of citizens. The Court has adopted the policy of taking jurisdiction over
cases whenever the petitioner has seriously and convincingly presented an
issue of transcendental significance to the Filipino people. This has been
explicitly pronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan ng
Pilipinas, Inc. vs. Tan,[5] where the Court held:
Objections to taxpayers suit for lack of sufficient personality standing, or
interest are, however, in the main procedural matters. Considering the
importance to the public of the cases at bar, and in keeping with the Courts
duty, under the 1987 Constitution, to determine whether or not the other
branches of government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the discretion given to
them, the Court has brushed aside technicalities of procedure and has taken
cognizance of these petitions.[6]
Indeed, in this case, the Court may set aside procedural rules as the
constitutional right of suffrage of a considerable number of Filipinos is involved.
The question of propriety of the instant petition which may appear to be
visited by the vice of prematurity as there are no ongoing proceedings in any
tribunal, board or before a government official exercising judicial, quasi-judicial

or ministerial functions as required by Rule 65 of the Rules of Court, dims in

light of the importance of the constitutional issues raised by the
petitioner. In Taada vs. Angara,[7] the Court held:
In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute. The question thus posed is judicial
rather than political. The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld. Once a controversy as to the
application or interpretation of constitutional provision is raised before this
Court (as in the instant case), it becomes a legal issue which the Court is bound
by constitutional mandate to decide.
In another case of paramount impact to the Filipino people, it has been
expressed that it is illogical to await the adverse consequences of the law in
order to consider the controversy actual and ripe for judicial resolution. [8] In yet
another case, the Court said that:
. . . despite the inhibitions pressing upon the Court when confronted with
constitutional issues, it will not hesitate to declare a law or act invalid when it is
convinced that this must be done. In arriving at this conclusion, its only
criterion will be the Constitution and God as its conscience gives it in the light
to probe its meaning and discover its purpose. Personal motives and political
considerations are irrelevancies that cannot influence its decisions.
Blandishment is as ineffectual as intimidation, for all the awesome power of the
Congress and Executive, the Court will not hesitate to make the hammer fall
heavily, where the acts of these departments, or of any official, betray the
peoples will as expressed in the Constitution . . . [9]
The need to consider the constitutional issues raised before the Court is
further buttressed by the fact that it is now more than fifteen years since the
ratification of the 1987 Constitution requiring Congress to provide a system for
absentee voting by qualified Filipinos abroad. Thus, strong reasons of public
policy demand that the Court resolves the instant petition [10] and determine
whether Congress has acted within the limits of the Constitution or if it had
gravely abused the discretion entrusted to it.[11]
The petitioner raises three principal questions:
A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of
voters who are immigrants or permanent residents in other countries
by their mere act of executing an affidavit expressing their intention
to return to the Philippines, violate the residency requirement in
Section 1 of Article V of the Constitution?
B. Does Section 18.5 of the same law empowering the COMELEC to
proclaim the winning candidates for national offices and party list
representatives including the President and the Vice-President violate
the constitutional mandate under Section 4, Article VII of the

Constitution that the winning candidates for President and the VicePresident shall be proclaimed as winners by Congress?
C. May Congress, through the Joint Congressional Oversight
Committee created in Section 25 of Rep. Act No. 9189, exercise the
power to review, revise, amend, and approve the Implementing
Rules and Regulations that the Commission on Elections shall
promulgate without violating the independence of the COMELEC
under Section 1, Article IX-A of the Constitution?
The Court will resolve the questions in seriatim.
A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V
of the 1987 Constitution of the Republic of the Philippines?
Section 5(d) provides:
Sec. 5. Disqualifications. The following shall be disqualified from voting under
this Act:
.........
d) An immigrant or a permanent resident who is recognized as such in the host
country, unless he/she executes, upon registration, an affidavit prepared for the
purpose by the Commission declaring that he/she shall resume actual physical
permanent residence in the Philippines not later than three (3) years from
approval of his/her registration under this Act. Such affidavit shall also state
that he/she has not applied for citizenship in another country. Failure to return
shall be cause for the removal of the name of the immigrant or permanent
resident from the National Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia.
Petitioner posits that Section 5(d) is unconstitutional because it violates Section
1, Article V of the 1987 Constitution which requires that the voter must be a
resident in the Philippines for at least one year and in the place where he
proposes to vote for at least six months immediately preceding an election.
Petitioner cites the ruling of the Court in Caasi vs. Court of Appeals[12]to support
his claim. In that case, the Court held that a green card holder immigrant to the
United States is deemed to have abandoned his domicile and residence in the
Philippines.
Petitioner further argues that Section 1, Article V of the Constitution does
not allow provisional registration or a promise by a voter to perform a condition
to be qualified to vote in a political exercise; [13] that the legislature should not
be allowed to circumvent the requirement of the Constitution on the right of
suffrage by providing a condition thereon which in effect amends or alters the
aforesaid residence requirement to qualify a Filipino abroad to vote. [14] He
claims that the right of suffrage should not be granted to anyone who, on the
date of the election, does not possess the qualifications provided for by Section
1, Article V of the Constitution.
Respondent COMELEC refrained from commenting on this issue. [15]

In compliance with the Resolution of the Court, the Solicitor General filed
his comment for all public respondents. He contraposes that the constitutional
challenge to Section 5(d) must fail because of the absence of clear and
unmistakable showing that said provision of law is repugnant to the
Constitution. He stresses: All laws are presumed to be constitutional; by the
doctrine of separation of powers, a department of government owes a
becoming respect for the acts of the other two departments; all laws are
presumed to have adhered to constitutional limitations; the legislature intended
to enact a valid, sensible, and just law.
In addition, the Solicitor General points out that Section 1, Article V of the
Constitution is a verbatim reproduction of those provided for in the 1935 and
the 1973 Constitutions. Thus, he cites Co vs. Electoral Tribunal of the House of
Representatives[16] wherein the Court held that the term residence has been
understood to be synonymous with domicile under both Constitutions. He
further argues that a person can have only one domicile but he can have two
residences, one permanent (the domicile) and the other temporary; [17] and that
the definition and meaning given to the term residence likewise applies to
absentee voters. Invoking Romualdez-Marcos vs. COMELEC[18] which reiterates
the Courts ruling in Faypon vs. Quirino,[19] the Solicitor General maintains that
Filipinos who are immigrants or permanent residents abroad may have in fact
never abandoned their Philippine domicile.[20]
Taking issue with the petitioners contention that green card holders are
considered to have abandoned their Philippine domicile, the Solicitor General
suggests that the Court may have to discard its ruling in Caasi vs. Court of
Appeals[21] in so far as it relates to immigrants and permanent residents in
foreign countries who have executed and submitted their affidavits
conformably with Section 5(d) of R.A. No. 9189. He maintains that through the
execution of the requisite affidavits, the Congress of the Philippines with the
concurrence of the President of the Republic had in fact given these immigrants
and permanent residents the opportunity, pursuant to Section 2, Article V of the
Constitution, to manifest that they had in fact never abandoned their Philippine
domicile; that indubitably, they would have formally and categorically
expressed the requisite intentions, i.e., animus manendi and animus
revertendi; that Filipino immigrants and permanent residents abroad possess
the unquestionable right to exercise the right of suffrage under Section 1,
Article V of the Constitution upon approval of their registration, conformably
with R.A. No. 9189.[22]
The seed of the present controversy is the interpretation that is given to
the phrase, qualified citizens of the Philippines abroad as it appears in R.A. No.
9189, to wit:
SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a
system of honest and orderly overseas absentee voting that upholds the
secrecy and sanctity of the ballot. Towards this end, the State ensures equal
opportunity to all qualified citizens of the Philippines abroad in the
exercise of this fundamental right.
SEC. 3. Definition of Terms. For purposes of this Act:

a) Absentee Voting refers to the process by which qualified citizens of the

Philippines abroad, exercise their right to vote;
. . . (Emphasis supplied)
f) Overseas Absentee Voter refers to a citizen of the Philippines who is
qualified to register and vote under this Act, not otherwise disqualified by
law, who is abroad on the day of elections. (Emphasis supplied)
SEC. 4. Coverage. All citizens of the Philippines abroad, who are not
otherwise disqualified by law, at least eighteen (18) years of age on the day
of elections, may vote for president, vice-president, senators and party-list
representatives. (Emphasis supplied)
in relation to Sections 1 and 2, Article V of the Constitution which read:
SEC. 1. Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age, and who
shall have resided in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months immediately preceding the
election. No literacy, property, or other substantive requirement shall be
imposed on the exercise of suffrage.
SEC. 2. The Congress shall provide a system for securing the secrecy and
sanctity of the ballot as well as a system for absentee voting by qualified
Filipinos abroad.
. . . . . . . . . (Emphasis supplied)
Section 1, Article V of the Constitution specifically provides that suffrage
may be exercised by (1) all citizens of the Philippines, (2) not otherwise
disqualified by law, (3) at least eighteen years of age, (4) who are residents in
the Philippines for at least one year and in the place where they propose to
vote for at least six months immediately preceding the election. Under Section
5(d) of R.A. No. 9189, one of those disqualified from voting is an immigrant or
permanent resident who is recognized as such in the host country unless
he/she executes an affidavit declaring that he/she shall resume actual physical
permanent residence in the Philippines not later than three years from approval
of his/her registration under said Act.
Petitioner questions the rightness of the mere act of execution of an
affidavit to qualify the Filipinos abroad who are immigrants or permanent
residents, to vote. He focuses solely on Section 1, Article V of the Constitution
in ascribing constitutional infirmity to Section 5(d) of R.A. No. 9189, totally
ignoring the provisions of Section 2 empowering Congress to provide a system
for absentee voting by qualified Filipinos abroad.
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give
the impression that it contravenes Section 1, Article V of the Constitution.
Filipino immigrants and permanent residents overseas are perceived as having
left and abandoned the Philippines to live permanently in their host countries

and therefore, a provision in the law enfranchising those who do not possess
the residency requirement of the Constitution by the mere act of executing an
affidavit expressing their intent to return to the Philippines within a given
period, risks a declaration of unconstitutionality. However, the risk is more
apparent than real.
The Constitution is the fundamental and paramount law of the nation to
which all other laws must conform and in accordance with which all private
rights must be determined and all public authority administered. [23] Laws that
do not conform to the Constitution shall be stricken down for being
unconstitutional.
Generally, however, all laws are presumed to be constitutional. In Peralta
vs. COMELEC, the Court said:
. . . An act of the legislature, approved by the executive, is presumed to be
within constitutional limitations. The responsibility of upholding the Constitution
rests not on the courts alone but on the legislature as well. The question of the
validity of every statute is first determined by the legislative department of the
government itself.[24]
Thus, presumption of constitutionality of a law must be overcome convincingly:
. . . To declare a law unconstitutional, the repugnancy of that law to the
Constitution must be clear and unequivocal, for even if a law is aimed at the
attainment of some public good, no infringement of constitutional rights is
allowed. To strike down a law there must be a clear showing that what the
fundamental law condemns or prohibits, the statute allows it to be done. [25]
As the essence of R.A. No. 9189 is to enfranchise overseas qualified
Filipinos, it behooves the Court to take a holistic view of the pertinent
provisions of both the Constitution and R.A. No. 9189. It is a basic rule in
constitutional construction that the Constitution should be construed as a
whole. In Chiongbian vs. De Leon, [26] the Court held that a constitutional
provision should function to the full extent of its substance and its terms, not by
itself alone, but in conjunction with all other provisions of that great
document. Constitutional provisions are mandatory in character unless, either
by express statement or by necessary implication, a different intention is
manifest.[27] The intent of the Constitution may be drawn primarily from the
language of the document itself. Should it be ambiguous, the Court may
consider the intent of its framers through their debates in the constitutional
convention.[28]
R.A. No. 9189 was enacted in obeisance to the mandate of the first
paragraph of Section 2, Article V of the Constitution that Congress shall provide
a system for voting by qualified Filipinos abroad. It must be stressed that
Section 2 does not provide for the parameters of the exercise of legislative
authority in enacting said law. Hence, in the absence of restrictions, Congress is
presumed to have duly exercised its function as defined in Article VI (The
Legislative Department) of the Constitution.

To put matters in their right perspective, it is necessary to dwell first on

the significance of absentee voting. The concept of absentee voting is relatively
new. It is viewed thus:
The method of absentee voting has been said to be completely separable and
distinct from the regular system of voting, and to be a new and different
manner of voting from that previously known, and an exception to the
customary and usual manner of voting. The right of absentee and disabled
voters to cast their ballots at an election is purely statutory; absentee voting
was unknown to, and not recognized at, the common law.
Absentee voting is an outgrowth of modern social and economic conditions
devised to accommodate those engaged in military or civil life whose duties
make it impracticable for them to attend their polling places on the day of
election, and the privilege of absentee voting may flow from
constitutional provisions or be conferred by statutes, existing in some
jurisdictions, which provide in varying terms for the casting and reception of
ballots by soldiers and sailors or other qualified voters absent on election day
from the district or precinct of their residence.
Such statutes are regarded as conferring a privilege and not a right, or an
absolute right. When the legislature chooses to grant the right by
statute, it must operate with equality among all the class to which it is
granted; but statutes of this nature may be limited in their application
to particular types of elections. The statutes should be construed
in the light of any constitutional provisions affecting registration and
elections, and with due regard to their texts prior to amendment and to
predecessor statutes and the decisions thereunder; they should also be
construed in the light of the circumstances under which they were
enacted; and so as to carry out the objects thereof, if this can be done without
doing violence to their provisions and mandates. Further, in passing on
statutes regulating absentee voting, the court should look to the
whole and every part of the election laws, the intent of the entire
plan, and reasons and spirit of their adoption, and try to give effect to
every portion thereof.[29] (Emphasis supplied)
Ordinarily, an absentee is not a resident and vice versa; a person cannot
be at the same time, both a resident and an absentee. [30] However, under our
election laws and the countless pronouncements of the Court pertaining to
elections, an absentee remains attached to his residence in the Philippines as
residence is considered synonymous with domicile.
In Romualdez-Marcos,[31] the Court enunciated:
Article 50 of the Civil Code decrees that [f]or the exercise of civil rights and the
fulfillment of civil obligations, the domicile of natural persons is their place of
habitual residence. In Ong vs. Republic, this court took the concept of domicile
to mean an individuals permanent home, a place to which, whenever absent for
business or for pleasure, one intends to return, and depends on facts and
circumstances in the sense that they disclose intent. Based on the foregoing,
domicile includes the twin elements of the fact of residing or physical presence

in a fixed place and animus manendi, or the intention of returning there

permanently.
Residence, in its ordinary conception, implies the factual relationship of an
individual to a certain place. It is the physical presence of a person in a given
area, community or country. The essential distinction between residence and
domicile in law is that residence involves the intent to leave when the purpose
for which the resident has taken up his abode ends. One may seek a place for
purposes such as pleasure, business, or health. If a persons intent be to remain,
it becomes his domicile; if his intent is to leave as soon as his purpose is
established it is residence. It is thus, quite perfectly normal for an individual to
have different residences in various places. However, a person can only have a
single domicile, unless, for various reasons, he successfully abandons his
domicile in favor of another domicile of choice. InUytengsu vs. Republic, we laid
this distinction quite clearly:
There is a difference between domicile and residence. Residence is used to
indicate a place of abode, whether permanent or temporary; domicile denotes
a fixed permanent residence to which, when absent, one has the intention of
returning. A man may have a residence in one place and a domicile in
another. Residence is not domicile, but domicile is residence coupled with the
intention to remain for an unlimited time. A man can have but one domicile for
the same purpose at any time, but he may have numerous places of residence.
His place of residence is generally his place of domicile, but it is not by any
means necessarily so since no length of residence without intention of
remaining will constitute domicile.
For political purposes the concepts of residence and domicile are dictated by
the peculiar criteria of political laws. As these concepts have evolved in our
election law, what has clearly and unequivocally emerged is the fact
that residence for election purposes is used synonymously with
domicile.[32] (Emphasis supplied)
Aware of the domiciliary legal tie that links an overseas Filipino to his
residence in this country, the framers of the Constitution considered the
circumstances that impelled them to require Congress to establish a system for
overseas absentee voting, thus:
MR. OPLE. With respect to Section 1, it is not clear whether the right of
suffrage, which here has a residential restriction, is not denied to citizens
temporarily residing or working abroad. Based on the statistics of several
government agencies, there ought to be about two million such Filipinos at this
time. Commissioner Bernas had earlier pointed out that these provisions are
really lifted from the two previous Constitutions of 1935 and 1973, with the
exception of the last paragraph. They could not therefore have foreseen at that
time the phenomenon now described as the Filipino labor force explosion
overseas.
According to government data, there are now about 600,000 contract workers
and employees, and although the major portions of these expatriate
communities of workers are to be found in the Middle East, they are scattered
in 177 countries in the world.

In a previous hearing of the Committee on Constitutional Commissions and

Agencies, the Chairman of the Commission on Elections, Ramon Felipe, said
that there was no insuperable obstacle to making effective the right of suffrage
for Filipinos overseas. Those who have adhered to their Filipino citizenship
notwithstanding strong temptations are exposed to embrace a more convenient
foreign citizenship. And those who on their own or under pressure of economic
necessity here, find that they have to detach themselves from their families to
work in other countries with definite tenures of employment. Many of them are
on contract employment for one, two, or three years. They have no intention of
changing their residence on a permanent basis, but are technically disqualified
from exercising the right of suffrage in their countries of destination by the
residential requirement in Section 1 which says:
Suffrage shall be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are eighteen years of age or over, and who shall have
resided in the Philippines for at least one year and in the place wherein they
propose to vote for at least six months preceding the election.
I, therefore, ask the Committee whether at the proper time they might
entertain an amendment that will make this exercise of the right to vote abroad
for Filipino citizens an effective, rather than merely a nominal right under this
proposed Constitution.
FR. BERNAS. Certainly, the Committee will consider that. But more than just
saying that, I would like to make a comment on the meaning of residence in the
Constitution because I think it is a concept that has been discussed in various
decisions of the Supreme Court, particularly in the case of Faypon vs. Quirino, a
1954 case which dealt precisely with the meaning of residence in the Election
Law. Allow me to quote:
A citizen may leave the place of his birth to look for greener pastures, as the
saying goes, to improve his lot and that, of course, includes study in other
places, practice of his avocation, reengaging in business.When an election is to
be held, the citizen who left his birthplace to improve his lot may decide to
return to his native town, to cast his ballot, but for professional or business
reasons, or for any other reason, he may not absent himself from the place of
his professional or business activities.
So, they are here registered as voters as he has the qualifications to be one,
and is not willing to give up or lose the opportunity to choose the officials who
are to run the government especially in national elections. Despite such
registration, the animus revertendi to his home, to his domicile or residence of
origin has not forsaken him.
This may be the explanation why the registration of a voter in a place other
than his residence of origin has not been deemed sufficient to consider
abandonment or loss of such residence of origin.
In other words, residence in this provision refers to two residence qualifications:
residence in the Philippines and residence in the place where he will vote. As
far as residence in the Philippines is concerned, the word residence means

domicile, but as far as residence in the place where he will actually cast his
ballot is concerned, the meaning seems to be different. He could have a
domicile somewhere else and yet he is a resident of a place for six months and
he is allowed to vote there. So that there may be serious constitutional
obstacles to absentee voting, unless the vote of the person who is absent
is a vote which will be considered as cast in the place of his domicile.
MR. OPLE. Thank you for citing the jurisprudence.
It gives me scant comfort thinking of about two million Filipinos who should
enjoy the right of suffrage, at least a substantial segment of these overseas
Filipino communities. The Committee, of course, is aware that when this Article
of the Constitution explicitly and unequivocally extends the right of effective
suffrage to Filipinos abroad, this will call for a logistical exercise of global
proportions. In effect, this will require budgetary and administrative
commitments on the part of the Philippine government, mainly through the
COMELEC and the Ministry of Foreign Affairs, and perhaps, a more extensive
elaboration of this mechanism that will be put in place to make effective the
right to vote. Therefore, seeking shelter in some wise jurisprudence of
the past may not be sufficient to meet the demands of the right of
suffrage for Filipinos abroad that I have mentioned. But I want to thank the
Committee for saying that an amendment to this effect may be entertained at
the proper time. . . . . . . . . .
[33]

(Emphasis supplied)

Thus, the Constitutional Commission recognized the fact that while

millions of Filipinos reside abroad principally for economic reasons and hence
they contribute in no small measure to the economic uplift of this country, their
voices are marginal insofar as the choice of this countrys leaders is concerned.
The Constitutional Commission realized that under the laws then existing
and considering the novelty of the system of absentee voting in this
jurisdiction, vesting overseas Filipinos with the right to vote would spawn
constitutional problems especially because the Constitution itself provides for
the residency requirement of voters:
MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod
if the term absentee voting also includes transient voting; meaning, those who
are, let us say, studying in Manila need not go back to their places of
registration, for instance, in Mindanao, to cast their votes.
MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad.
MR. REGALADO. How about those people who cannot go back to the places
where they are registered?
MR. MONSOD. Under the present Election Code, there are provisions for
allowing students and military people who are temporarily in another place to
register and vote. I believe that those situations can be covered by the
Omnibus Election Code. The reason we want absentee voting to be in the
Constitution as a mandate to the legislature is that there could be

inconsistency on the residence rule if it is just a question of

legislation by Congress. So, by allowing it and saying that this is
possible, then legislation can take care of the rest.[34] (Emphasis
supplied)
Thus, Section 2, Article V of the Constitution came into being to remove any
doubt as to the inapplicability of the residency requirement in Section 1. It is
precisely to avoid any problems that could impede the implementation of its
pursuit to enfranchise the largest number of qualified Filipinos who are not in
the Philippines that the Constitutional Commission explicitly mandated
Congress to provide a system for overseas absentee voting.
The discussion of the Constitutional Commission on the effect of the
residency requirement prescribed by Section 1, Article V of the Constitution on
the proposed system of absentee voting for qualified Filipinos abroad is
enlightening:

THE PRESIDENT. What does Commissioner Monsod say?

MR. MONSOD. Madam President, I think I would accept the phrase QUALIFIED
FILIPINOS ABROAD because QUALIFIED would assume that he has the
qualifications and none of the disqualifications to vote.
MR. TINGSON. That is right. So does the Committee accept?
FR. BERNAS. QUALIFIED FILIPINOS ABROAD?
THE PRESIDENT. Does the Committee accept the amendment?
MR. REGALADO. Madam President.
THE PRESIDENT. Commissioner Regalado is recognized.

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

MR. REGALADO. When Commissioner Bengzon asked me to read my proposed

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

THE PRESIDENT. Would Commissioner Monsod care to answer?

MR. MONSOD. I believe the answer was already given by Commissioner Bernas,
that the domicile requirements as well as the qualifications and
disqualifications would be the same.
THE PRESIDENT. Are we leaving it to the legislature to devise the system?
FR. BERNAS. I think there is a very legitimate problem raised there.
THE PRESIDENT. Yes.
MR. BENGZON. I believe Commissioner Suarez is clarified.
FR. BERNAS. But I think it should be further clarified with regard to the
residence requirement or the place where they vote in practice; the
understanding is that it is flexible. For instance, one might be a resident of
Naga or domiciled therein, but he satisfies the requirement of residence in
Manila, so he is able to vote in Manila.
MR. TINGSON. Madam President, may I then suggest to the Committee to
change the word Filipinos to QUALIFIED FILIPINO VOTERS. Instead of VOTING BY
FILIPINOS ABROAD, it should be QUALIFIED FILIPINO VOTERS. If the Committee
wants QUALIFIED VOTERS LIVING ABROAD, would that not satisfy the
requirement?

MR. MONSOD. Yes, we accepted that. I would like to say that with respect to
registration we will leave it up to the legislative assembly, for example, to
require where the registration is. If it is, say, members of the diplomatic corps
who may be continuously abroad for a long time, perhaps, there can be a
system of registration in the embassies. However, we do not like to preempt
the legislative assembly.
THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is only to
provide a system.
MR. MONSOD. Yes.
THE PRESIDENT. The Commissioner is not stating here that he wants new
qualifications for these absentee voters.
MR. MONSOD. That is right. They must have the qualifications and none of the
disqualifications.
THE PRESIDENT. It is just to devise a system by which they can vote.
MR. MONSOD. That is right, Madam President.[35] (Emphasis supplied)
Clearly therefrom, the intent of the Constitutional Commission is to entrust
to Congress the responsibility of devising a system of absentee voting. The
qualifications of voters as stated in Section 1 shall remain except for the

residency requirement. This is in fact the reason why the Constitutional

Commission opted for the term qualified Filipinos abroad with respect to the
system of absentee voting that Congress should draw up. As stressed by
Commissioner Monsod, by the use of the adjective qualified with respect to
Filipinos abroad, the assumption is that they have the qualifications and none
of the disqualifications to vote. In fine-tuning the provision on absentee voting,
the Constitutional Commission discussed how the system should work:

registered here. Where will he register? Will he be a registered

voter of a certain locality in the Philippines?
MR. MONSOD. Yes, it is possible that the system will enable that child
to comply with the registration requirements in an embassy in
the United States and his name is then entered in the official
registration book in Angeles City, for instance.
FR. BERNAS. In other words, he is not a registered voter of Los
Angeles, but a registered voter of a locality here.

MR. SUAREZ. For clarification purposes, we just want to state for the record that
in the case of qualified Filipino citizens residing abroad and exercising their
right of suffrage, they can cast their votes for the candidates in the place
where they were registered to vote in the Philippines. So as to avoid any
complications, for example, if they are registered in Angeles City, they could
not vote for a mayor in Naga City.
In other words, if that qualified voter is registered in Angeles City, then he can
vote only for the local and national candidates in Angeles City. I just want to
make that clear for the record.
MR. REGALADO. Madam President.
THE PRESIDENT. What does Commissioner Regalado say?
MR. REGALADO. I just want to make a note on the statement of
Commissioner Suarez that this envisions Filipinos residing
abroad. The understanding in the amendment is that the Filipino
is temporarily abroad. He may not be actually residing abroad;
he may just be there on a business trip. It just so happens that
the day before the elections he has to fly to the United States,
so he could not cast his vote. He is temporarily abroad, but not
residing there. He stays in a hotel for two days and comes
back. This is not limited only to Filipinos temporarily
residing abroad. Butas long as he is temporarily abroad
on the date of the elections, then he can fall within the
prescription of Congress in that situation.
MR. SUAREZ. I thank the Commissioner for his further clarification.
Precisely, we need this clarification on record.
MR. MONSOD. Madam President, to clarify what we mean by
temporarily abroad, it need not be on very short trips.
One can be abroad on a treaty traders visa. Therefore, when we
talk about registration, it is possible that his residence is in
Angeles and he would be able to vote for the candidates in
Angeles, but Congress or the Assembly may provide the
procedure for registration, like listing ones name, in a
registry list in the embassy abroad. That is still possible
under the system.
FR. BERNAS. Madam President, just one clarification if Commissioner
Monsod agrees with this.
Suppose we have a situation of a child of a diplomatic officer who
reaches the voting age while living abroad and he has never

MR. MONSOD. That is right. He does not have to come home to the
Philippines to comply with the registration procedure here.
FR. BERNAS. So, he does not have to come home.
MR. BENGZON. Madam President, the Floor Leader wishes to inquire if
there are more clarifications needed from the body.
Also, the Floor Leader is happy to announce that there are no more
registered Commissioners to propose amendments. So I move that we close the
period of amendments.
[36]

(Emphasis supplied)

It is clear from these discussions of the members of the Constitutional

Commission that they intended to enfranchise as much as possible all Filipino
citizens abroad who have not abandoned their domicile of origin. The
Commission even intended to extend to young Filipinos who reach voting age
abroad whose parents domicile of origin is in the Philippines, and consider them
qualified as voters for the first time.
It is in pursuance of that intention that the Commission provided for
Section 2 immediately after the residency requirement of Section 1. By the
doctrine of necessary implication in statutory construction, which may be
applied in construing constitutional provisions, [37] the strategic location of
Section 2 indicates that the Constitutional Commission provided for an
exception to the actual residency requirement of Section 1 with respect to
qualified Filipinos abroad. The same Commission has in effect declared that
qualified Filipinos who are not in the Philippines may be allowed to vote even
though they do not satisfy the residency requirement in Section 1, Article V of
the Constitution.
That Section 2 of Article V of the Constitution is an exception to the
residency requirement found in Section 1 of the same Article was in fact the
subject of debate when Senate Bill No. 2104, which became R.A. No. 9189, was
deliberated upon on the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked into in
relation to the constitutional provisions. I think the sponsor and I
would agree that the Constitution is supreme in any statute that
we may enact.
Let me read Section 1, Article V, of the Constitution entitled, Suffrage. It says:

Section 1. Suffrage may be exercised by all citizens of the Philippines not

otherwise disqualified by law, who are at least eighteen years of age, and who
shall have resided in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months immediately preceding the
election.

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

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

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

As I have said, if a voter in Makati would want to vote in Pateros, yes,

he may do so. But he must do so, make the transfer six months
before the election, otherwise, he is not qualified to vote.
That is why I am raising this point because I think we have a
fundamental difference here.

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

Senator Angara. It is a good point to raise, Mr. President. But it is a

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

As the gentleman and I know, Mr. President, domicile is the intent to

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

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

This is consistent, Mr. President, with the constitutional mandate that

we that Congress must provide a franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle literally
as demanding physical presence, then there is no way
we
can
provide
for
offshore
voting
to
our
offshore kababayan, Mr. President.
Senator Arroyo. Mr. President, when the Constitution says, in
Section 2 of Article V, it reads: The Congress shall provide a
system for securing the secrecy and sanctity of the ballot as
well as a system for absentee voting by qualified Filipinos
abroad.
The key to this whole exercise, Mr. President, is qualified. In
other words, anything that we may do or say in granting
our compatriots abroad must be anchored on the
proposition that they are qualified. Absent the
qualification, they cannot vote. And residents (sic) is a
qualification.
I will lose votes here from permanent residents so-called green-card
holders, but the Constitution is the Constitution. We cannot
compromise on this. The Senate cannot be a party to something
that would affect or impair the Constitution.
Look at what the Constitution says In the place wherein they propose
to vote for at least six months immediately preceding the
election.

But the third more practical reason, Mr. President, is, if we

follow the interpretation of the gentleman, then it is
legally and constitutionally impossible to give a
franchise to vote to overseas Filipinos who do not
physically live in the country, which is quite ridiculous
because that is exactly the whole point of this exercise
to enfranchise them and empower them to vote.
[38]

(Emphasis supplied)

Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the
absentee voting process, to wit:
SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise
disqualified by law, at least eighteen (18) years of age on the day of elections,
may vote for president, vice-president, senators and party-list representatives.
which does not require physical residency in the Philippines; and Section 5 of
the assailed law which enumerates those who are disqualified, to wit:
SEC. 5. Disqualifications. The following shall be disqualified from voting under
this Act:
a) Those who have lost their Filipino citizenship in accordance with Philippine
laws;

b) Those who have expressly renounced their Philippine citizenship and who
have pledged allegiance to a foreign country;
c) Those who have committed and are convicted in a final judgment by a court
or tribunal of an offense punishable by imprisonment of not less than one (1)
year, including those who have committed and been found guilty of Disloyalty
as defined under Article 137 of the Revised Penal Code, such disability not
having been removed by plenary pardon or amnesty: Provided, however, That
any person disqualified to vote under this subsection shall automatically
acquire the right to vote upon expiration of five (5) years after service of
sentence; Provided, further, That the Commission may take cognizance of final
judgments issued by foreign courts or tribunals only on the basis of reciprocity
and subject to the formalities and processes prescribed by the Rules of
Court on execution of judgments;
d) An immigrant or a permanent resident who is recognized as such in the host
country, unless he/she executes, upon registration, an affidavit prepared for the
purpose by the Commission declaring that he/she shall resume actual physical
permanent residence in the Philippines not later than three (3) years from
approval of his/her registration under this Act. Such affidavit shall also state
that he/she has not applied for citizenship in another country. Failure to return
shall be cause for the removal of the name of the immigrant or permanent
resident from the National Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia.
e) Any citizen of the Philippines abroad previously declared insane or
incompetent by competent authority in the Philippines or abroad, as verified by
the Philippine embassies, consulates or foreign service establishments
concerned, unless such competent authority subsequently certifies that such
person is no longer insane or incompetent.
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically
disqualifies an immigrant or permanent resident who is recognized as such in
the host country because immigration or permanent residence in another
country implies renunciation of ones residence in his country of origin.
However, same Section allows an immigrant and permanent resident abroad to
register as voter for as long as he/she executes an affidavit to show that he/she
has not abandoned his domicile in pursuance of the constitutional intent
expressed in Sections 1 and 2 of Article V that all citizens of the Philippines not
otherwise disqualified by law must be entitled to exercise the right of suffrage
and, that Congress must establish a system for absentee voting; for otherwise,
if actual, physical residence in the Philippines is required, there is no sense for
the framers of the Constitution to mandate Congress to establish a system for
absentee voting.
Contrary to the claim of petitioner, the execution of the affidavit itself is
not the enabling or enfranchising act. The affidavit required in Section 5(d) is
not only proof of the intention of the immigrant or permanent resident to go
back and resume residency in the Philippines, but more significantly, it serves
as an explicit expression that he had not in fact abandoned his domicile of
origin. Thus, it is not correct to say that the execution of the affidavit under
Section 5(d) violates the Constitution that proscribes provisional registration or

a promise by a voter to perform a condition to be qualified to vote in a political

exercise.
To repeat, the affidavit is required of immigrants and permanent residents
abroad because by their status in their host countries, they are presumed to
have relinquished their intent to return to this country; thus, without the
affidavit, the presumption of abandonment of Philippine domicile shall remain.
Further perusal of the transcripts of the Senate proceedings discloses
another reason why the Senate required the execution of said affidavit. It
wanted the affiant to exercise the option to return or to express his intention to
return to his domicile of origin and not to preempt that choice by
legislation. Thus:
Senator Villar. Yes, we are going back.
It states that: For Filipino immigrants and those who have acquired
permanent resident status abroad, a requirement for the
registration is the submission of a Sworn Declaration of Intent to
Return duly sworn before any Philippine embassy or consulate
official authorized to administer oath
Mr. President, may we know the rationale of this provision? Is the
purpose of this Sworn Declaration to include only those who
have the intention of returning to be qualified to exercise the
right of suffrage? What if the Filipino immigrant has no purpose
of returning? Is he automatically disbarred from exercising this
right to suffrage?
Senator Angara. The rationale for this, Mr. President, is that
we want to be expansive and all-inclusive in this law.
That as long as he is a Filipino, no matter whether he is
a green-card holder in the U.S. or not, he will be
authorized to vote. But if he is already a green-card
holder, that means he has acquired permanent residency
in the United States, then he must indicate an intention
to return. This is what makes for the definition of
domicile. And to acquire the vote, we thought that we would
require the immigrants and the green-card holders . . . Mr.
President, the three administration senators are leaving, maybe
we may ask for a vote [Laughter].
Senator Villar. For a merienda, Mr. President.
Senator Angara. Mr. President, going back to the business at
hand. The rationale for the requirement that an immigrant or a
green-card holder should file an affidavit that he will go back to
the Philippines is that, if he is already an immigrant or a greencard holder, that means he may not return to the country any
more and that contradicts the definition of domicile under the
law.
But what we are trying to do here, Mr. President, is really
provide the choice to the voter. The voter, after consulting
his lawyer or after deliberation within the family, may decide No,
I think we are risking our permanent status in the United States
if we file an affidavit that we want to go back. But we want to

give him the opportunity to make that decision. We do

not want to make that decision for him. [39] (Emphasis
supplied)
The jurisprudential declaration in Caasi vs. Court of Appeals that green
card holders are disqualified to run for any elective office finds no application to
the present case because theCaasi case did not, for obvious reasons, consider
the absentee voting rights of Filipinos who are immigrants and permanent
residents in their host countries.
In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189,
they may still be considered as a qualified citizen of the Philippines abroad
upon fulfillment of the requirements of registration under the new law for the
purpose of exercising their right of suffrage.
It must be emphasized that Section 5(d) does not only require an affidavit
or a promise to resume actual physical permanent residence in the Philippines
not later than three years from approval of his/her registration, the Filipinos
abroad must also declare that they have not applied for citizenship in another
country. Thus, they must return to the Philippines; otherwise, their failure to
return shall be cause for the removal of their names from the National Registry
of Absentee Voters and his/her permanent disqualification to vote in absentia.
Thus, Congress crafted a process of registration by which a Filipino voter
permanently residing abroad who is at least eighteen years old, not otherwise
disqualified by law, who has not relinquished Philippine citizenship and who has
not actually abandoned his/her intentions to return to his/her domicile of origin,
the Philippines, is allowed to register and vote in the Philippine embassy,
consulate or other foreign service establishments of the place which has
jurisdiction over the country where he/she has indicated his/her address for
purposes of the elections, while providing for safeguards to a clean election.
Thus, Section 11 of R.A. No. 9189 provides:
SEC. 11. Procedure for Application to Vote in Absentia.
11.1. Every qualified citizen of the Philippines abroad whose application for
registration has been approved, including those previously registered under
Republic Act No. 8189, shall, in every national election, file with the officer of
the embassy, consulate or other foreign service establishment authorized by
the Commission, a sworn written application to vote in a form prescribed by the
Commission. The authorized officer of such embassy, consulate or other foreign
service establishment shall transmit to the Commission the said application to
vote within five (5) days from receipt thereof. The application form shall be
accomplished in triplicate and submitted together with the photocopy of his/her
overseas absentee voter certificate of registration.
11.2. Every application to vote in absentia may be done personally at, or by
mail to, the embassy, consulate or foreign service establishment, which has
jurisdiction over the country where he/she has indicated his/her address for
purposes of the elections.

11.3. Consular and diplomatic services rendered in connection with the

overseas absentee voting processes shall be made available at no cost to the
overseas absentee voter.
Contrary to petitioners claim that Section 5(d) circumvents the
Constitution, Congress enacted the law prescribing a system of overseas
absentee voting in compliance with the constitutional mandate. Such mandate
expressly requires that Congress provide a system of absentee voting that
necessarily presupposes that the qualified citizen of the Philippines abroad is
not physically present in the country. The provisions of Sections 5(d) and 11 are
components of the system of overseas absentee voting established by R.A. No.
9189. The qualified Filipino abroad who executed the affidavit is deemed to
have retained his domicile in the Philippines. He is presumed not to have lost
his domicile by his physical absence from this country. His having become an
immigrant or permanent resident of his host country does not necessarily imply
an abandonment of his intention to return to his domicile of origin, the
Philippines. Therefore, under the law, he must be given the opportunity to
express that he has not actually abandoned his domicile in the Philippines by
executing the affidavit required by Sections 5(d) and 8(c) of the law.
Petitioners speculative apprehension that the implementation of Section
5(d) would affect the credibility of the elections is insignificant as what is
important is to ensure that all those who possess the qualifications to vote on
the date of the election are given the opportunity and permitted to freely do
so. The COMELEC and the Department of Foreign Affairs have enough resources
and talents to ensure the integrity and credibility of any election conducted
pursuant to R.A. No. 9189.
As to the eventuality that the Filipino abroad would renege on his
undertaking to return to the Philippines, the penalty of perpetual
disenfranchisement provided for by Section 5(d) would suffice to serve as
deterrence to non-compliance with his/her undertaking under the affidavit.
Petitioner argues that should a sizable number of immigrants renege on
their promise to return, the result of the elections would be affected and could
even be a ground to contest the proclamation of the winning candidates and
cause further confusion and doubt on the integrity of the results of the
election. Indeed, the probability that after an immigrant has exercised the right
to vote, he shall opt to remain in his host country beyond the third year from
the execution of the affidavit, is not farfetched. However, it is not for this Court
to determine the wisdom of a legislative exercise. As expressed in Taada vs.
Tuvera,[40] the Court is not called upon to rule on the wisdom of the law or to
repeal it or modify it if we find it impractical.
Congress itself was conscious of said probability and in fact, it has
addressed the expected problem. Section 5(d) itself provides for a deterrence
which is that the Filipino who fails to return as promised stands to lose his right
of suffrage. Under Section 9, should a registered overseas absentee voter fail to
vote for two consecutive national elections, his name may be ordered removed
from the National Registry of Overseas Absentee Voters.
Other serious legal questions that may be raised would be: what happens
to the votes cast by the qualified voters abroad who were not able to return
within three years as promised?What is the effect on the votes cast by the nonreturnees in favor of the winning candidates? The votes cast by qualified

Filipinos abroad who failed to return within three years shall not be invalidated
because they were qualified to vote on the date of the elections, but their
failure to return shall be cause for the removal of the names of the immigrants
or permanent residents from the National Registry of Absentee Voters and their
permanent disqualification to vote in absentia.

of them shall forthwith be chosen by the vote of a majority of all the Members
of both Houses of the Congress, voting separately.

In fine, considering the underlying intent of the Constitution, the Court

does not find Section 5(d) of R.A. No. 9189 as constitutionally defective.

...

B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same

Act in contravention of Section 4, Article VII of the Constitution?

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

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

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

Section 18.5 of the same Act provides:

SEC. 18. On-Site Counting and Canvassing.
.........
18. 5 The canvass of votes shall not cause the delay of the proclamation of a
winning candidate if the outcome of the election will not be affected by the
results
thereof. Notwithstanding
the
foregoing, the
Commission
is
empowered to order the proclamation of winning candidates despite
the fact that the scheduled election has not taken place in a particular country
or countries, if the holding of elections therein has been rendered impossible by
events, factors and circumstances peculiar to such country or countries, in
which events, factors and circumstances are beyond the control or influence of
the Commission. (Emphasis supplied)
Petitioner claims that the provision of Section 18.5 of R.A. No. 9189
empowering the COMELEC to order the proclamation of winning candidates
insofar as it affects the canvass of votes and proclamation of winning
candidates for president and vice-president, is unconstitutional because it
violates the following provisions of paragraph 4, Section 4 of Article VII of the
Constitution:
SEC. 4 . . .
The returns of every election for President and Vice-President, duly certified by
the board of canvassers of each province or city, shall be transmitted to the
Congress, directed to the President of the Senate.Upon receipt of the
certificates of canvass, the President of the Senate shall, not later than thirty
days after the day of the election, open all the certificates in the presence of
the Senate and the House of Representatives in joint public session, and the
Congress, upon determination of the authenticity and due execution thereof in
the manner provided by law, canvass the votes.
The person having the highest number of votes shall be proclaimed elected,
but in case two or more shall have an equal and highest number of votes, one

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

Respondent COMELEC has no comment on the matter.

Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of
R.A. No. 9189 is far too sweeping that it necessarily includes the proclamation
of the winning candidates for the presidency and the vice-presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article
VII of the Constitution only insofar as said Section totally disregarded the
authority given to Congress by the Constitution to proclaim the winning
candidates for the positions of president and vice-president.
In addition, the Court notes that Section 18.4 of the law, to wit:
18.4. . . . Immediately upon the completion of the canvass, the chairman of the
Special Board of Canvassers shall transmit via facsimile, electronic mail, or any
other means of transmission equally safe and reliable the Certificates of
Canvass and the Statements of Votes to the Commission, . . . [Emphasis
supplied]
clashes with paragraph 4, Section 4, Article VII of the Constitution which
provides that the returns of every election for President and Vice-President shall
be certified by the board of canvassers to Congress.
Congress could not have allowed the COMELEC to usurp a power that
constitutionally belongs to it or, as aptly stated by petitioner, to encroach on
the power of Congress to canvass the votes for president and vice-president
and the power to proclaim the winners for the said positions. The provisions of
the Constitution as the fundamental law of the land should be read as part
of The Overseas Absentee Voting Act of 2003 and hence, the canvassing of the
votes and the proclamation of the winning candidates for president and vicepresident for the entire nation must remain in the hands of Congress.
C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1,
Article IX-A of the Constitution?
Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IXA (Common Provisions) of the Constitution, to wit:

Section 1. The Constitutional Commissions, which shall be independent, are

the Civil Service Commission, the Commission on Elections, and the
Commission on Audit. (Emphasis supplied)
He submits that the creation of the Joint Congressional Oversight Committee
with the power to review, revise, amend and approve the Implementing Rules
and Regulations promulgated by the COMELEC, R.A. No. 9189 intrudes into the
independence of the COMELEC which, as a constitutional body, is not under the
control of either the executive or legislative departments of government; that
only the COMELEC itself can promulgate rules and regulations which may be
changed or revised only by the majority of its members; and that should the
rules promulgated by the COMELEC violate any law, it is the Court that has the
power to review the same via the petition of any interested party, including the
legislators.
It is only on this question that respondent COMELEC submitted its
Comment. It agrees with the petitioner that Sections 19 and 25 of R.A. No. 9189
are unconstitutional. Like the petitioner, respondent COMELEC anchors its claim
of unconstitutionality of said Sections upon Section 1, Article IX-A of the
Constitution providing for the independence of the constitutional commissions
such as the COMELEC. It asserts that its power to formulate rules and
regulations has been upheld in Gallardo vs. Tabamo, Jr.[42] where this Court held
that the power of the COMELEC to formulate rules and regulations is implicit in
its power to implement regulations under Section 2(1) of Article IX-C [43] of the
Constitution. COMELEC joins the petitioner in asserting that as an independent
constitutional body, it may not be subject to interference by any government
instrumentality and that only this Court may review COMELEC rules and only in
cases of grave abuse of discretion.
The COMELEC adds, however, that another provision, vis--vis its rulemaking power, to wit:
SEC. 17. Voting by Mail.
17.1. For the May, 2004 elections, the Commission shall authorize voting by
mail in not more than three (3) countries, subject to the approval of the
Congressional Oversight Committee. Voting by mail may be allowed in
countries that satisfy the following conditions:
a) Where the mailing system is fairly well-developed and secure to prevent
occasion for fraud;
b) Where there exists a technically established identification system that would
preclude multiple or proxy voting; and
c) Where the system of reception and custody of mailed ballots in the
embassies, consulates and other foreign service establishments concerned are
adequate and well-secured.
Thereafter, voting by mail in any country shall be allowed only upon review and
approval of the Joint Congressional Oversight Committee.

. . . . . . . . . (Emphasis supplied)
is likewise unconstitutional as it violates Section 1, Article IX-A mandating the
independence of constitutional commissions.
The Solicitor General takes exception to his prefatory statement that the
constitutional challenge must fail and agrees with the petitioner that Sections
19 and 25 are invalid and unconstitutional on the ground that there is nothing
in Article VI of the Constitution on Legislative Department that would as much
as imply that Congress has concurrent power to enforce and administer
election laws with the COMELEC; and by the principles of exclusio unius est
exclusio alterius and expressum facit cessare tacitum, the constitutionally
enumerated powers of Congress circumscribe its authority to the exclusion of
all others.
The parties are unanimous in claiming that Sections 19, 25 and portions of
Section 17.1 are unconstitutional. Thus, there is no actual issue forged on this
question raised by petitioner.
However, the Court finds it expedient to expound on the role of Congress
through the Joint Congressional Oversight Committee (JCOC) vis--vis the
independence of the COMELEC, as a constitutional body.
R.A. No. 9189 created the JCOC, as follows:
SEC. 25. Joint Congressional Oversight Committee. A Joint Congressional
Oversight Committee is hereby created, composed of the Chairman of the
Senate Committee on Constitutional Amendments, Revision of Codes and Laws,
and seven (7) other Senators designated by the Senate President, and the
Chairman of the House Committee on Suffrage and Electoral Reforms, and
seven (7) other Members of the House of Representatives designated by the
Speaker of the House of Representatives: Provided, That, of the seven (7)
members to be designated by each House of Congress, four (4) should come
from the majority and the remaining three (3) from the minority.
The Joint Congressional Oversight Committee shall have the power to
monitor and evaluate the implementation of this Act. It shall review,
revise, amend and approve the Implementing Rules and Regulations
promulgated by the Commission. (Emphasis supplied)
SEC. 19. Authority of the Commission to Promulgate Rules. The Commission
shall issue the necessary rules and regulations to effectively implement the
provisions of this Act within sixty (60) days from the effectivity of this Act. The
Implementing Rules and Regulations shall be submitted to the Joint
Congressional Oversight Committee created by virtue of this Act for
prior approval.
. . . . . . . . . (Emphasis supplied)
Composed of Senators and Members of the House of Representatives, the Joint
Congressional Oversight Committee (JCOC) is a purely legislative body. There is
no question that the authority of Congress to monitor and evaluate the

implementation of R.A. No. 9189 is geared towards possible amendments or

revision of the law itself and thus, may be performed in aid of its legislation.

review, amend and revise the law, but certainly not to approve, review, revise
and amend the IRR of the COMELEC.

However, aside from its monitoring and evaluation functions, R.A. No.
9189 gives to the JCOC the following functions: (a) to review, revise, amend and
approve the Implementing Rules and Regulations (IRR) promulgated by the
COMELEC [Sections 25 and 19]; and (b) subject to the approval of the JCOC
[Section 17.1], the voting by mail in not more than three countries for the May
2004 elections and in any country determined by COMELEC.

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

The ambit of legislative power under Article VI of the Constitution is

circumscribed by other constitutional provisions. One such provision is Section
1 of Article IX-A of the 1987 Constitution ordaining that constitutional
commissions such as the COMELEC shall be independent.

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

Interpreting Section 1, Article X of the 1935 Constitution providing that

there shall be an independent COMELEC, the Court has held that [w]hatever
may be the nature of the functions of the Commission on Elections, the fact is
that the framers of the Constitution wanted it to be independent from the other
departments of the Government.[44] In an earlier case, the Court elucidated:
The Commission on Elections is a constitutional body. It is intended to play a
distinct and important part in our scheme of government. In the discharge of its
functions, it should not be hampered with restrictions that would be fully
warranted in the case of a less responsible organization. The Commission may
err, so may this court also. It should be allowed considerable latitude in
devising means and methods that will insure the accomplishment of the great
objective for which it was created free, orderly and honest elections. We may
not agree fully with its choice of means, but unless these are clearly illegal or
constitute gross abuse of discretion, this court should not interfere. Politics is a
practical matter, and political questions must be dealt with realistically not from
the standpoint of pure theory. The Commission on Elections, because of its factfinding facilities, its contacts with political strategists, and its knowledge
derived from actual experience in dealing with political controversies, is in a
peculiarly advantageous position to decide complex political questions.
[45]

(Emphasis supplied)

The Court has no general powers of supervision over COMELEC which is an

independent body except those specifically granted by the Constitution, that is,
to review its decisions, orders and rulings. [46] In the same vein, it is not correct
to hold that because of its recognized extensive legislative power to enact
election laws, Congress may intrude into the independence of the COMELEC by
exercising supervisory powers over its rule-making authority.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered the
COMELEC to issue the necessary rules and regulations to effectively implement
the provisions of this Act within sixty days from the effectivity of this Act. This
provision of law follows the usual procedure in drafting rules and regulations to
implement a law the legislature grants an administrative agency the authority
to craft the rules and regulations implementing the law it has enacted, in
recognition of the administrative expertise of that agency in its particular field
of operation.[47] Once a law is enacted and approved, the legislative function is
deemed accomplished and complete. The legislative function may spring back
to Congress relative to the same law only if that body deems it proper to

Similarly, the phrase, subject to the approval of the Congressional

Oversight Committee in the first sentence of Section 17.1 which empowers the
Commission to authorize voting by mail in not more than three countries for the
May, 2004 elections; and the phrase, only upon review and approval of the Joint
Congressional Oversight Committee found in the second paragraph of the same
section are unconstitutional as they require review and approval of voting by
mail in any country after the 2004 elections. Congress may not confer upon
itself the authority to approve or disapprove the countries wherein voting by
mail shall be allowed, as determined by the COMELEC pursuant to the
conditions provided for in Section 17.1 of R.A. No. 9189. [48] Otherwise, Congress
would overstep the bounds of its constitutional mandate and intrude into the
independence of the COMELEC.
During the deliberations, all the members of the Court agreed to adopt the
separate opinion of Justice Reynato S. Puno as part of the ponencia on the
unconstitutionality of Sections 17.1, 19 and 25 of R.A. No. 9189 insofar as they
relate to the creation of and the powers given to the Joint Congressional
Oversight Committee.
WHEREFORE, the petition is partly GRANTED. The following portions of
R.A. No. 9189 are declared VOID for being UNCONSTITUTIONAL:
a) The phrase in the first sentence of the first paragraph of Section
17.1, to wit: subject to the approval of the Joint Congressional
Oversight Committee;
b) The portion of the last paragraph of Section 17.1, to wit: only
upon review and approval of the Joint Congressional
Oversight Committee;
c) The second sentence of the first paragraph of Section 19, to
wit: The Implementing Rules and Regulations shall be

submitted to the Joint Congressional Oversight Committee

created by virtue of this Act for prior approval; and
d) The second sentence in the second paragraph of Section 25, to wit: It shall
review, revise, amend and approve the Implementing Rules and
Regulations promulgated by the Commission of the same law;
for being repugnant to Section 1, Article IX-A of the Constitution
mandating the independence of constitutional commission, such as COMELEC.
The
constitutionality
of
Section
18.5
of
R.A.
No.
9189
is UPHELD with respect only to the authority given to the COMELEC to
proclaim the winning candidates for the Senators and party-list representatives
but not as to the power to canvass the votes and proclaim the winning
candidates for President and Vice-President which is lodged with Congress
under Section 4, Article VII of the Constitution.
The constitutionality of Section 5(d) is UPHELD.
Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said
law continues to be in full force and effect.
SO ORDERED.

RICARDO "BOY" CANICOSA, petitioner, vs. COMMISSION ON ELECTIONS,

MUNICIPAL BOARD OF CANVASSERS OF CALAMBA LAGUNA and
SEVERINO LAJARA, respondents.

majeure, violence, terrorism, fraud, or other analogous causes; or (c) after the
voting and during the preparation and transmission of the election returns or in
the custody or canvass thereof, such election results in a failure to elect on
account of force majeure, violence, terrorism, fraud, or other analogous causes.

DECISION

None of the grounds invoked by Canicosa falls under any of those

enumerated.

BELLOSILLO, J.:
RICARDO "BOY" CANICOSA and SEVERINO LAJARA were candidates for
mayor in Calamba, Laguna, during the 8 May 1995 elections. After obtaining a
majority of some 24,000 votes[1] Lajara was proclaimed winner by the Municipal
Board
of
Canvassers. On
15
May
1995
Canicosa
filed
with the Commission on Elections (COMELEC) a Petition to Declare Failure of
Election and to Declare Null and Void the Canvass and Proclamation because of
alleged widespread frauds and anomalies in casting and counting of votes,
preparation of election returns, violence, threats, intimidation, vote buying,
unregistered voters voting, and delay in the delivery of election documents and
paraphernalia from the precincts to the Office of the Municipal
Treasurer. Canicosa particularly averred that: (a) the names of the registered
voters did not appear in the list of voters in their precincts; (b) more than onehalf of the legitimate registered voters were not able to vote with strangers
voting in their stead; (c) he was credited with less votes than he actually
received; (d) control data of the election returns was not filled up in some
precincts; (e) ballot boxes brought to the Office of the Municipal Treasurer were
unsecured, i.e., without padlocks nor self-locking metal seals; and, (f) there was
delay in the delivery of election returns. But the COMELEC en banc dismissed
the petition on the ground that the allegations therein did not justify a
declaration of failure of election.
Indeed, the grounds cited by Canicosa do not warrant a declaration of
failure of election. Section 6 of BP Blg. 881, otherwise known as the Omnibus
Election Code, reads:
Sec. 6. Failure of election. - If, on account of force majeure, violence, terrorism,
fraud, or other analogous causes the election in any polling place has not been
held on the date fixed, or had been suspended before the hour fixed by law for
the closing of the voting, or after the voting and during the preparation and the
transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of such cases the failure or
suspension of election would affect the result of the election, the Commission
shall, on the basis of a verified petition by any interested party and after due
notice and hearing, call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date reasonably close to
the date of the election not held, suspended or which resulted in a failure to
elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect.
Clearly, there are only three (3) instances where a failure of election may
be declared, namely: (a) the election in any polling place has not been held on
the date fixed on account offorce 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

Canicosa bewails that the names of the registered voters in the various
precincts did not appear in their respective lists of voters. But this is not a
ground to declare a failure of election.The filing of a petition for declaration of
failure of election therefore is not the proper remedy. The day following the last
day for registration of voters, the poll clerk delivers a certified list of voters to
the election registrar, election supervisor and the COMELEC, copies of which
are open to public inspection. On the same day, the poll clerk posts a copy of
the list of registered voters in each polling place. Each member of the board of
election inspectors retains a copy of the list which may be inspected by the
public in their residence or in their office during office hours. [2]
Fifteen (15) days before the regular elections on 8 May 1995 the final list
of voters was posted in each precinct pursuant to Sec. 148 of RA No.
7166. Based on the lists thus posted Canicosa could have filed a petition for
inclusion of registered voters with the regular courts. The question of inclusion
or exclusion from the list of voters involves the right to vote [3] which is not
within the power and authority of COMELEC to rule upon. The determination of
whether one has the right to vote is a justiciable issue properly cognizable by
our regular courts. Section 138, Art. XII, of the Omnibus Election Code states:
Sec. 138. Jurisdiction in inclusion and exclusion cases. - The municipal and
metropolitan trial courts shall have original and exclusive jurisdiction over all
matters of inclusion and exclusion of voters from the list in their respective
municipalities or cities. Decisions of the municipal or metropolitan trial courts
may be appealed directly by the aggrieved party to the proper regional trial
court within five days from receipts of notice thereof, otherwise said decision of
the municipal or metropolitan trial court shall decide the appeal within ten days
from the time the appeal was received and its decision shall be immediately
final and executory. No motion for reconsideration shall be entertained by the
courts (Sec. 37, PD 1896, as amended).
On the other hand, Canicosa could have also filed with the COMELEC a
verified complaint seeking the annulment of the book of voters pursuant to Sec.
10, of RA No. 7166:
Sec. 10. Annulment of the List of Voters. - Any book of voters the preparation of
which has been affected with fraud, bribery, forgery, impersonation,
intimidation, force or any other similar irregularity or which is statistically
improbable may be annulled after due notice and hearing by the
Commission motu
propio or
after
the
filing
of
a
verified
complaint: Provided, that no order, ruling or decision annulling a book of voters
shall be executed within sixty (60) days before an election.

If indeed the situation herein described was common in almost all of the 557
precincts as alleged by Canicosa, [4] then it was more expedient on his part to
avail of the remedies provided by law in order to maintain the integrity of the
election. Since Canicosa failed to resort to any of the above options, the
permanent list of voters as finally corrected before the election remains
conclusive on the question as to who had the right to vote in that election,
although not in subsequent elections.[5]
Canicosa also avers that more than one-half (1/2) of the legitimate
registered voters were not able to vote, instead, strangers voted in their
behalf. Again, this is not a ground which warrants a declaration of failure of
election. Canicosa was allowed to appoint a watcher in every precinct. The
watcher is empowered by law to challenge any illegal voter. Thus, Secs. 199
and 202, Art. XVII, of the Omnibus Election Code, provide:
Sec. 199. Challenge of illegal voters. - (a) Any voter, or watcher may challenge
any person offering to vote for not being registered, for using the name of
another or suffering from existing disqualification. In such case, the board of
election inspectors shall satisfy itself as to whether or not the ground for the
challenge is true by requiring proof of registration or identity of the voter x x x
x
Sec. 202. Record of challenges and oaths. - The poll clerk shall keep a
prescribed record of challenges and oaths taken in connection therewith and
the resolution of the board of election inspectors in each case and, upon the
termination of the voting, shall certify that it contains all the challenges made x
xxx
The claim of Canicosa that he was credited with less votes than he
actually received and that the control data of the election returns was not filled
up should have been raised in the first instance before the board of election
inspectors or board of canvassers. Section 179, Art. XV, of the Omnibus
Election Code clearly provides for the rights and duties of watchers Sec. 179. Rights and duties of watchers. - x x x x The watchers x x x shall have
the right to witness and inform themselves of the proceedings of the board of
election inspectors x x x to file a protest against any irregularity or violation of
law which they believe may have been committed by the board of election
inspectors or by any of its members or by any persons, to obtain from the
board of election inspectors a certificate as to the filing of such protest and/or
of the resolution thereon x x x and to be furnished with a certificate of the
number of votes in words and figures cast for each candidate, duly signed and
thumbmarked by the chairman and all the members of the board of election
inspectors x x x x
To safeguard and maintain the sanctity of election returns, Sec. 212, Art.
XVIII, of the Omnibus Election Code states Sec. 212. Election returns. - x x x x Immediately upon the accomplishment of
the election returns, each copy thereof shall be sealed in the presence of the
watchers and the public, and placed in the proper envelope, which shall
likewise be sealed and distributed as herein provided.

Furthermore, it is provided in Sec. 215 of the Omnibus Election Code that Sec. 215. Board of election inspectors to issue a certificate of the number of
votes polled by the candidates for an office to the watchers. - After the
announcement of the results of the election and before leaving the polling
place, it shall be the duty of the board of election inspectors to issue a
certificate of the number of votes received by a candidate upon request of the
watchers. All members of the board of election inspectors shall sign the
certificate.
Supplementing the preceding provisions, Secs. 16 and 17 of RA No. 6646
also require Sec. 16. Certification of votes. - After the counting of the votes cast in the
precinct and announcement of the results of the election, and before leaving
the polling place, the board of election inspectors shall issue a certificate of
votes upon request of the duly accredited watchers x x x x
Sec. 17. Certificate of Votes as Evidence. - The provisions of Secs. 235 and 236
of Batas Pambansa Blg. 881 notwithstanding, the certificate of votes shall be
admissible in evidence to prove tampering, alteration, falsification or anomaly
committed in the election returns concerned x x x x
From the foregoing provisions, it is clear that in case of inconsistency as to
the number of votes written in the election returns and the certificate of votes,
a petition for correction of election returns must immediately be filed with
COMELEC by all or a majority of the members of the board of election
inspectors or any candidate affected by the error or mistake. In order to make
out a case for correction of election returns, there must be an error and at least
a majority of the members of the board of election inspectors agrees that such
error existed.Canicosa never mentioned that he petitioned for the correction of
the election returns before the COMELEC
Canicosa complains that the election returns were delivered late and the
ballot boxes brought to the Office of the Municipal Treasurer unsecured, i.e.,
without padlocks nor self-locking metal seals. These bare allegations cannot
impel us to declare failure of election. Assuming that the election returns were
delivered late, we still cannot see why we should declare a failure to elect. The
late deliveries did not convert the election held in Calamba into a mockery or
farce to make us conclude that there was indeed a failure of election.
In fine, the grounds cited by Canicosa in his petition do not fall under any
of the instances enumerated in Sec. 6 of the Omnibus Election Code. In Mitmug
v. Commission on Elections [6]we ruled that before COMELEC can act on a
verified petition seeking to declare a failure of election, at least two (2)
conditions must concur: (a) no voting has taken place in the precincts on the
date fixed by law, or even if there was voting, the election nevertheless
resulted in failure to elect; and, (b) the votes that were not cast would affect
the result of the election. From the face of the instant petition, it is readily
apparent than an election took place and that it did not result in a failure to
elect.[7]

Canicosa finally insists that it was error on the part of COMELEC sitting en
banc to rule on his petition. He maintains that his petition should have first
been heard by a division of COMELEC and later by the COMELEC en banc upon
motion for reconsideration, pursuant to Sec. 3, Art. IX-C, of the Constitution. [8]
But this provision applies only when the COMELEC acts in the exercise of
its adjudicatory or quasi-judicial functions and not when it merely exercises
purely administrative functions. To reiterate, the grounds cited by Canicosa in
his petition are that: (a) the names of the registered voters did not appear in
the list of voters in their respective precincts; (b) more than one-half of the
legitimate registered voters were not able to vote with strangers voting in their
stead; (c) he was credited with less votes than he actually received; (d) the
control data of the election returns was not filled up in some precincts; (e)
ballot boxes brought to the Office of the Municipal Treasurer were unsecured, i.
e., without padlocks nor self-locking metal seals; and, (f) there was delay in the
delivery of election returns.
Clearly, all these matters require the exercise by the COMELEC of its
administrative functions. Section 2, Art. IX-C, of the 1987 Constitution grants
extensive administrative powers tothe COMELEC with regard to the
enforcement and administration of all laws and regulations relative to the
conduct of elections. Likewise, Sec. 52 of BP Blg. 881, otherwise known as
theOmnibus Election Code, states:
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 x x x x
Quite obviously, it is only in the exercise of its adjudicatory or quasijudicial powers that the COMELEC is mandated to hear and decide cases first by
Division and then, upon motion for reconsideration, by the COMELEC en
banc. This is when it is jurisdictional. In the instant case, as aforestated, the
issues presented demand only the exercise by the COMELEC of its
administrative functions.
The COMELEC exercises direct and immediate supervision and control over
national and local officials or employees, including members of any national or
local law enforcement agency and instrumentality of the government required
by law to perform duties relative to the conduct of elections. Its power of direct
supervision and control includes the power to review, modify or set aside any
act of such national and local officials. [9] It exercises immediate supervision and
control over the members of the boards of election inspectors and
canvassers. Its statutory power of supervision and control includes the power to
revise, reverse or set aside the action of the boards, as well as to do what
the boards should have done, even if questionsrelative
thereto
have
not
been elevated to it by an aggrieved party, for such
power
includes
the
authority to initiate motu proprio or by itself such steps or actions as may be
required pursuant to law.[10]
Specifically, Canicosa alleged that he was credited with less votes than he
actually received. But he did not raise any objection before the Municipal Board
of Canvassers; instead, he went directly to the COMELEC. He now claims, after

the COMELEC en banc dismissed his petition, that it was error on the part of
COMELEC to rule on his petition while sitting en banc.
We have already disposed of this issue in Castromayor v. Commission on
Elections [11] thus should be pinpointed out, in this connection, that what is
involved here is a simple problem of arithmetic. The Statement of Votes is
merely a tabulation per precinct of the votes obtained by the candidates as
reflected in the election returns. In making the correction in computation, the
MBC will be acting in an administrative capacity, under the control and
supervision of the COMELEC. Hence, any question pertaining to the proceedings
of the MBC may be raised directly to the COMELEC en banc in the exercise of its
constitutional function to decide questions affecting elections.
Moreover, it is expressly provided in Rule 27, Sec. 7, of the Comelec Rules
of Procedure that any party dissatisfied with the ruling of the board of
canvassers shall have a right to appeal to the COMELEC en banc:
Sec. 7. Correction of Errors in Tabulation or Tallying of Results by the Board of
Canvassers. - (a) Where it is clearly shown before proclamation that manifest
errors were committed in the tabulation or tallying or election returns, or
certificates of canvass, during the canvassing as where (1) a copy of the
election returns of one precinct or two or more copies of a certificate of canvass
were tabulated more than once, (2) two copies of the election returns or
certificate of canvass were tabulated separately, (3) there was a mistake in the
adding
or
copying
of
the
figures into the certificate of canvass or into thestatement of votes by precinct,
or (4) so-called election returns from non-existent precincts were included in
the canvass, the board may motu proprio, or upon verified petition by any
candidate,
political
party,
organization
or coalition of political parties, after due notice and hearing, correct the errors
committed x x x x (h) The appeal shall be heard and decided by the
Commission en banc.
In Tatlonghari v. Commission on Elections [12] it was made to appear in
the Certificate of Canvass of Votes and Proclamation of the Winning
Candidates that respondent therein received 4,951 votes or more than what he
actually obtained. In resolving the case we ruled that the correction of the
manifest mistake in mathematical addition calls for a mere clerical task of the
board
of
canvassers. The
remedy
invoked
was
purely
administrative. In Feliciano v. Lugay [13] we categorized the issue concerning
registration of voters, which Canicosa cited as a ground in his petition for
declaration of failure of election, as an administrative question. Likewise,
questions as to whether elections have been held or whether certain returns
were falsified or manufactured and therefore should be excluded from the
canvass do not involve the right to vote. Such questions are properly within
the administrative jurisdiction of COMELEC, [14]hence, may be acted upon
directly by the COMELEC en banc without having to pass through any of its
divisions.
WHEREFORE, finding no grave abuse of discretion committed by public
respondent Commission on Elections, the petition is DISMISSED and its
Resolution en banc of 23 May 1995 dismissing the petition before it on the
ground that the allegations therein did not justify a declaration of failure of
election is AFFIRMED.

SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Melo, Puno, Vitug, Kapunan,
Francisco, Panganiban, and Martinez, JJ., concur.
Mendoza, J., on leave.

NURHUSSEIN
A.
UTUTALUM, petitioner,
vs.
COMMISSION ON ELECTIONS and ARDEN S. ANNI, respondents.
Pedro Q. Quadra for petitioner.
Brillantes, Nachura, Navarro & Arcilla Law Offices for private respondent.

MELENCIO-HERRERA, J.:
Petitioner, Nurhussein A. Ututalum, prays for the reversal, on the ground of
grave abuse of discretion, of the 19 April and 31 August 1988 Resolutions of
public respondent Commission on Elections (COMELEC), in Case Nos. SP 87-469
and 87-497, which declined to reject the election returns from all the precincts
of the Municipality of Siasi, Sulu, in the last 30 May 1987 Congressional
elections and to annul respondent Arden S. Anni's proclamation.
The undisputed facts follow:
1. Petitioner Ututalum and private respondent, Arden S. Anni, were among the
candidates in the last 30 May 1987 Congressional elections for the Second
District of Sulu. 30 May was the date reset by the COMELEC from the 11 May
1987 elections.
2. The election returns from Siasi showed that Petitioner Ututalum obtained four
hundred and eighty-two (482) votes while respondent Anni received thirty-five
thousand five hundred and eighty-one (35,581) votes out of the thirty-nine
thousand eight hundred and one (39,801) registered voters (pp. 13, 187, Rollo).
If the returns of Siasi were excluded, Petitioner Ututalum would have a lead of
5,301 votes.
3. On 4 June 1987, during the canvass of votes, Petitioner Ututalum, without
availing of verbal objections, filed written objections to the returns from Siasi on
the ground that they "appear to be tampered with or falsified" owing to the
"great excess of votes" appearing in said returns. He then claimed that
multiplying the 42 precincts of Siasi by 300 voters per precinct, there should
have been only 12,600 registered voters and not 36,663 voters who cast their
votes, thereby exceeding the actual authorized voters by 23,947 "ghost
voters." (In his Petition, however, he admits that an error was committed since
"in the May 30,1987 elections, Siasi had 148 precincts" (p. 6, Rollo). He then
prayed for the exclusion from the canvass of any election returns from Siasi.

4. On the same day, 4 June, the Provincial Board of Canvassers of Sulu

dismissed petitioner's objections because they had been "filed out of time or
only after the Certificate of Canvass had already been canvassed by the Board
and because the grounds for the objection were not one of those enumerated in
Section 243 of the Election Code" (See Order, p. 155, Rollo). Also on the same
day, 4 June 1987, petitioner filed with the Board of Canvassers his Notice of
Appeal from said Resolution to the COMELEC.
5. On 5 June 1987, petitioner filed his first Petition with the COMELEC seeking a
declaration of failure of elections in the Municipality of Siasi and other
mentioned municipalities; that the COMELEC annul the elections in Siasi and
conduct another election thereat; and order the Provincial Board of Canvassers
to desist from proclaiming any candidate pending a final determination of the
Petition.
6. On 8 June 1987, the Provincial Board of Canvassers forwarded Petitioner's
appeal as well as its Order dismissing the written objections to the COMELEC,
with the request for authority to proclaim Respondent Anni as the winning
candidate.
7. On 11 June l987, in Case No. SPC 87-180, the COMELEC resolved that there
was no failure of elections in the 1st and 2nd Districts of Sulu except in
specified precincts in the 1st District.
8. On 14 June 1987, the Sulu Provincial Board of Canvassers proclaimed
respondent Anni as the winner. He subsequently took his oath of office and
entered upon the discharge of its functions in July 1987.
9. On 16 June 1987, petitioner filed a second Petition with the COMELEC praying
for the annulment of Respondent Anni's proclamation and for his own
proclamation as Congressman for the Second District of Sulu.
10. While those two petitions were pending, one Lupay Loong, a candidate for
Governor of Sulu, filed a verified Petition with the COMELEC to annul the List of
Voters of Siasi, for purposes of the election of local government officials
(docketed as SPC Case No. 87-624, p. 9, Rollo). This Petition was opposed by
Respondent Anni. Petitioner Ututalum was not a party to this proceeding.
On 16 January 1988, the COMELEC issued, in said SPC 87-624, a Resolution
annulling the Siasi List of Voters "on the ground of massive irregularities
committed in the preparation thereof and being statistically improbable", and
ordering a new registration of voters for the local elections of 15 February 1988
(p. 41 Rollo).

Said Resolution was affirmed by this Court in Anni vs. COMELEC, G.R. No.
81398, 26 January 1988 (p. 43,Rollo). A new Registry List was subsequently
prepared yielding only 12,555 names (p. 228, Rollo).
11. Immediately after having been notified of the annulment of the previous
Siasi List of Voters, Petitioner Ututalum filed a supplemental pleading with the
COMELEC entreating that such annulment be considered and applied by the
Commission in resolving his two Petitions against Respondent Anni (p.
319, Rollo).
12. On 19 April 1988, in a consolidated Per Curiam Resolution, the COMELEC
(First Division) denied Petitioner Ututalum's two Petitions "for lack of merit, with
the advise (sic) that he may file an election contest before the proper forum, if
so desired." Declared the COMELEC inter alia:
While we believe that there was padding of the registry list of
voters in Siasi, yet to annul all the votes in this municipality for
purposes of the May 30, 1987 elections would disenfranchise
the good or valid votes. As held in Espaldon vs. Comelec (G.R.
No. L-78987, August 25, 1987), this Commission is not the
proper forum nor is it a proper ground in a pre-proclamation
controversy, to wit:
Padded voter's list, massive fraud and terrorism is clearly not
among the issues that may be raised in a pre-proclamation
controversy. They are proper grounds for an election protest.
Petitioner Ututalum is now before us assailing the foregoing Resolution.
Petitioner contends that the issue he raised before the COMELEC actually
referred to "obviously manufactured returns," a proper subject matter for a preproclamation controversy and, therefore, cognizable by the COMELEC, in
accordance with Section 243 of the Omnibus Election Code, which provides:
Sec 243. The following shall be the issues that may be raised
in a pre-proclamation controversy:
xxx xxx xxx
c) The election returns were prepared under duress, threats,
coercion or intimidation or they areobviously manufactured or
not authentic; (emphasis supplied)
xxx xxx xxx

Further, that the election returns from Siasi should be excluded from the
canvass of the results since its original List of Voters had already been finally
annulled; and, lastly, that there is no need to re-litigate in an election protest
the matter of annulment of the Registry List, this being already a "fait
accompli."
It is our considered view, however, that given the factual setting, it can not
justifiably be contended that the Siasi returns, per se, were "obviously
manufactured" and, thereby, a legitimate issue in a pre-proclamation
controversy. It is true that in Lagumbay vs. COMELEC (L-2544, 31 January 1966,
16 SCRA 175), relied upon heavily by Petitioner Ututalum, this Court ruled that
the returns are obviously manufactured where they show a great excess of
votes over what could have been legally cast. The Siasi returns however, do not
show prima facie that on the basis of the old List of Voters, there is actually a
great excess of votes over what could have been legally cast considering that
only 36,000 persons actually voted out of the 39,801 voters. Moreover,
the Lagumbay case dealt with the "manufacture" of returns by those charged
with their preparation as shown prima facie on the questioned returns
themselves. Not so in this case which deals with the preparation of the registry
list of voters, a matter that is not reflected on the face of said returns.
Basically, therefore, petitioner's cause of action is the padding of the Siasi List
of Voters, which, indeed, is not a listed ground for a pre- proclamation
controversy.
Sec. 243. Issues that may be raised in pre-proclamation
controversy.The following shall be proper issues that may be
raised in a pre-proclamation controversy:
(a) Illegal composition or proceedings of the board of
canvassers;
(b) The canvassed election returns are incomplete, contain
material defects, appear to be tampered with or falsified, or
contain discrepancies in the same returns or in other authentic
copies thereof as mentioned in Sections 233, 234, 235 and
236 of this Code;
(c) The election returns were prepared under duress, threats,
coercion, or intimidation, or they are obviously manufactured
or not authentic; and
(d) When substitute or fraudulent returns in controverted
polling places were canvassed, the results of which materially
affected the standing of the aggrieved candidate or
candidates.

As pointed out in Espaldon vs. COMELEC, L-78987, 25 August 1987:

Padded voters' list, massive fraud, and terrorism are clearly
not among the issues that may be raised in a pre-proclamation
controversy. They are proper grounds for an election protest.
And as held in the case of Bautista vs. COMELEC, G.R. No. 78994, March 10,
1988:
The scope of pre-proclamation controversy is limited to the
issues enumerated under Section 243 of the Omnibus Election
Code. The enumeration therein of the issues that may be
raised in a pre-proclamation controversy is restrictive and
exclusive (see also Sanchez vs. COMELEC, G.R. No. L-78461,
12 August 1987, 153 SCRA 67).
But petitioner insists that the new Registry List should be considered and
applied by the COMELEC as the legal basis in determining the number of votes
which could be legally cast in Siasi. To allow the COMELEC to do so
retroactively, however, would be to empower it to annul a previous election
because of the subsequent annulment of a questioned registry in a proceeding
where petitioner himself was not a party. This cannot be done. In the case
of Bashier vs. COMELEC (L-33692, 24 February 1972, 43 SCRA 238), this Court
categorically ruled:
The subsequent annulment of the voting list in a separate
proceeding initiated motu proprio by the Commission and in
which the protagonists here were not parties, cannot
retroactively and without due process result in nullifying
accepted election returns in a previous election simply
because such returns came from municipalities where the
precinct books of voters were ordered annulled due to
irregularities in their preparation.
Besides, the List of Voters used in the 1987 Congressional elections was then a
validly existing and still unquestioned permanent Registry List. Then, it was the
only legitimate roster which could be used as basis for voting. There was no
prior petition to set it aside for having been effected with fraud, intimidation,
force, or any other similar irregularity in consonance with Section 145 of the
Omnibus Election Code. 1 That list must then be considered conclusive
evidence of persons who could exercise the right of suffrage in a particular
election (Abendante vs. Relato 94 Phil. 8; Medenilla vs. Kayanan, L-28448-49,
30 July 1971, 40 SCRA 154).
Moreover, the preparation of a voter's list is not a proceeding before the Board
of Canvassers. A pre-proclamation controversy is limited to challenges directed

against the Board of Canvassers, not the Board of Election Inspectors (Sanchez
vs. COMELEC, ante), and such challenges should relate to specified election
returns against which petitioner should have made specific verbal objections
(Sec. 245, Omnibus Election Code;Pausing vs. Yorac, et al., G.R. No. 82700, 4
August 1988, Endique vs. COMELEC, G.R. Nos. 82020-21, 22 November 1988),
but did not.
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).
Petitioner Ututalum's other submission is that the Siasi returns should be
excluded since the List of Voters on which it was based has been conclusively
annulled. He thus asks for the application of the rule on res judicata. This is
neither possible. Aside from the fact that the indispensable requisites of res
judicata, namely, identity of parties, of subject matter, and of cause of action
are not all present, the ruling desired would, as the COMELEC had opined,
disenfranchise the good and valid votes in the Congressional elections of 30
May 1987.
Finally, this Petition has to fail if only on the basis of the equally important
doctrine enunciated in Padilla vs.COMELEC (L-68351-52, 9 July 1985, 137 SCRA
424), reiterated in Baldo vs. COMELEC (G.R. No. 83205,14 July 1988) that:
Where the respondent had already been proclaimed as the
elected representative of the contested congressional district,
and has long assumed office and has been exercising the
powers, functions, and duties appurtenant to said office, the
remedy of the petitioner lies with the House of
Representatives Electoral Tribunal. The pre-proclamation
controversy becomes moot and academic.
and in the more recent case of Antonio vs. COMELEC (G.R. No. 84678,
29 March 1989):

Where the winning candidates have been proclaimed, the preproclamation controversies cease. A pre-proclamation
controversy is no longer viable at this point in time and should
be dismissed. The proper remedy thereafter is an election
protest before the proper forum. Recourse to such remedy
would settle the matter in controversy conclusively and once
and for all.
Having arrived at the foregoing conclusions, a discussion of the other
peripheral issues raised has been rendered unnecessary.
WHEREFORE, this Petition for Certiorari is hereby DISMISSED and the assailed
Resolutions are AFFIRMED. No costs.
SO ORDERED.

EN BANC
DECISION
BARANGAY ASSOCIATION FOR G.R. No. 179271
NATIONAL ADVANCEMENT
AND TRANSPARENCY (BANAT),
Petitioner,
- versus COMMISSION ON ELECTIONS
(sitting as the National Board of
Canvassers),
Respondent.
ARTS BUSINESS AND SCIENCE
PROFESSIONALS,
Intervenor.
AANGAT TAYO,
Intervenor.
COALITION OF ASSOCIATIONS
OF SENIOR CITIZENS IN THE
PHILIPPINES, INC. (SENIOR
CITIZENS),
Intervenor.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - x
BAYAN MUNA, ADVOCACY FOR G.R. No. 179295
TEACHER EMPOWERMENT
THROUGH ACTION, COOPERATION Present:
AND HARMONY TOWARDS
EDUCATIONAL REFORMS, INC., PUNO, C.J.,
and ABONO, QUISUMBING,
Petitioners, YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
- versus - CARPIO MORALES,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA, and
BERSAMIN, JJ.
COMMISSION ON ELECTIONS, Promulgated:
Respondent.
_______________________
x---------------------------------------------------x

CARPIO, J.:
The Case
Petitioner in G.R. No. 179271 Barangay Association for National Advancement
and Transparency (BANAT) in a petition for certiorari and mandamus, [1] assails
the Resolution[2] promulgated on 3 August 2007 by the Commission on Elections
(COMELEC) in NBC No. 07-041 (PL). The COMELECs resolution in NBC No. 07041 (PL) approved the recommendation of Atty. Alioden D. Dalaig, Head of the
National Board of Canvassers (NBC) Legal Group, to deny the petition of BANAT
for being moot.BANAT filed before the COMELEC En Banc, acting as NBC,
a Petition to Proclaim the Full Number of Party-List Representatives Provided by
the Constitution.
The following are intervenors in G.R. No. 179271: Arts Business and Science
Professionals (ABS), Aangat Tayo (AT), and Coalition of Associations of Senior
Citizens in the Philippines, Inc. (Senior Citizens).
Petitioners in G.R. No. 179295 Bayan Muna, Abono, and Advocacy for Teacher
Empowerment Through Action, Cooperation and Harmony Towards Educational
Reforms (A Teacher) in a petition for certiorari with mandamus and prohibition,
[3]
assails NBC Resolution No. 07-60[4] promulgated on 9 July 2007. NBC No. 0760 made a partial proclamation of parties, organizations and coalitions that
obtained at least two percent of the total votes cast under the Party-List
System. The COMELEC announced that, upon completion of the canvass of the
party-list results, it would determine the total number of seats of each winning
party, organization, or coalition in accordance with Veterans Federation Party v.
COMELEC[5] (Veterans).
Estrella DL Santos, in her capacity as President and First Nominee of the
Veterans Freedom Party, filed a motion to intervene in both G.R. Nos. 179271
and 179295.
The Facts
The 14 May 2007 elections included the elections for the party-list
representatives. The COMELEC counted 15,950,900 votes cast for 93 parties
under the Party-List System.[6]
On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of PartyList Representatives Provided by the Constitution, docketed as NBC No. 07-041
(PL) before the NBC. BANAT filed its petition because [t]he Chairman and the
Members of the [COMELEC] have recently been quoted in the national papers
that the [COMELEC] is duty bound to and shall implement the Veterans ruling,
that is, would apply the Panganiban formula in allocating party-list seats.
[7]
There were no intervenors in BANATs petition before the NBC. BANAT filed a
memorandum on 19 July 2007.
On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution
No. 07-60. NBC Resolution No. 07-60 proclaimed thirteen (13) parties as
winners in the party-list elections, namely: Buhay Hayaan Yumabong (BUHAY),
Bayan Muna, Citizens Battle Against Corruption (CIBAC), Gabrielas Women Party
(Gabriela), Association of Philippine Electric Cooperatives (APEC), A Teacher,

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

in Veterans Federation Party versus COMELEC adopting a

formula for the additional seats of each party, organization or
coalition receving more than the required two percent (2%)
votes, stating that the same shall be determined only after all
party-list ballots have been completely canvassed;
WHEREAS, the parties, organizations, and coalitions that have
thus far garnered at least three hundred thirty four
thousand four hundred sixty-two (334,462) votes are as
follows:
RANK

PARTY/ORGANIZATION/
COALITION

VOTES
RECEIVED

BUHAY

1,163,218

BAYAN MUNA

972,730

CIBAC

760,260

GABRIELA

610,451

APEC

538,971

A TEACHER

476,036

AKBAYAN

470,872

ALAGAD

423,076

iii. Maximum party-list votes (based on 100% outcome)

from areas not yet submitted for canvass (Bogo, Cebu; Bais
City; Pantar, Lanao del Norte; and Pagalungan,
Maguindanao)
102,430

BUTIL

405,052

10

COOP-NATCO

390,029

11

BATAS

386,361

Maximum Total Party-List Votes

12

ANAK PAWIS

376,036

13

ARC

338,194

14

ABONO

337,046

Projected/Maximum
Elections

Party-List

Votes

for

May

2007

i. Total party-list votes already canvassed/tabulated

15,283,659

ii.
Total
party-list
votes
remaining
untabulated (i.e. canvass deferred)

1,337,032

uncanvassed/

16,723,121

WHEREAS, Section 11 of Republic Act No. 7941 (Party-List

System Act) provides in part:
The parties, organizations, and coalitions
receiving at least two percent (2%) of the total
votes cast for the party-list system shall be
entitled to one seat each: provided, that those
garnering more than two percent (2%) of the
votes shall be entitled to additional seats in
proportion to their total number of votes:
provided, finally, that each party, organization,
or coalition shall be entitled to not more than
three (3) seats.
WHEREAS, for the 2007 Elections, based on the above
projected total of party-list votes, the presumptive two percent
(2%) threshold can be pegged at three hundred thirty four
thousand four hundred sixty-two (334,462) votes;
WHEREAS, the Supreme Court, in Citizens Battle Against
Corruption (CIBAC) versus COMELEC, reiterated its ruling

WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng

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

following parties, organizations and coalitions participating

under the Party-List System:
1

Buhay Hayaan Yumabong

BUHAY

Bayan Muna

BAYAN MUNA

Citizens Battle Against Corruption

CIBAC

Gabriela Womens Party

GABRIELA

Association of Philippine Electric Cooperatives

APEC

Advocacy for Teacher Empowerment Through A TEACHER

Action, Cooperation and Harmony Towards
Educational Reforms, Inc.

Akbayan! Citizens Action Party

AKBAYAN

Alagad

ALAGAD

Luzon Farmers Party

BUTIL

10

Cooperative-Natco Network Party

COOP-NATCCO

11

Anak Pawis

ANAKPAWIS

12

Alliance of Rural Concerns

ARC

13

Abono

ABONO

Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC,

promulgated NBC Resolution No. 07-72, which declared the additional seats
allocated to the appropriate parties. We quote from the COMELECs
interpretation of the Veterans formula as found in NBC Resolution No. 07-72:
WHEREAS, on July 9, 2007, the Commission on Elections
sitting en banc as the National Board of Canvassers
proclaimed thirteen (13) qualified parties, organization[s] and
coalitions based on the presumptive two percent (2%)
threshold of 334,462 votes from the projected maximum total
number of party-list votes of 16,723,121, and were thus given
one (1) guaranteed party-list seat each;
WHEREAS, per Report of the Tabulation Group and Supervisory
Committee of the National Board of Canvassers, the projected
maximum total party-list votes, as of July 11, 2007, based on
the votes actually canvassed, votes canvassed but not
included in Report No. 29, votes received but uncanvassed,
and maximum votes expected for Pantar, Lanao del Norte, is
16,261,369; and that the projected maximum total votes for
the thirteen (13) qualified parties, organizations and
coalition[s] are as follows:
Party-List

Projected total number of votes

BUHAY

1,178,747

This is without prejudice to the proclamation of other parties,

organizations, or coalitions which may later on be established
to have obtained at least two percent (2%) of the total actual
votes cast under the Party-List System.

BAYAN MUNA

977,476

CIBAC

755,964

GABRIELA

621,718

The total number of seats of each winning party, organization

or coalition shall be determined pursuant to Veterans
Federation Party versus COMELEC formula upon completion of
the canvass of the party-list results.

APEC

622,489

A TEACHER

492,369

AKBAYAN

462,674

The proclamation of Bagong Alyansang Tagapagtaguyod ng

Adhikaing Sambayanan (BATAS) is hereby deferred until final
resolution of SPC No. 07-250, in order not to render the
proceedings therein moot and academic.

ALAGAD

423,190

BUTIL

409,298

10

COOP-NATCO

412,920

Finally, all proclamation of the nominees of concerned parties,

organizations and coalitions with pending disputes shall
likewise be held in abeyance until final resolution of their
respective cases.

11

ANAKPAWIS

370,165

12

ARC

375,846

13

ABONO

340,151

Let the Clerk of the Commission implement this Resolution,

furnishing a copy thereof to the Speaker of the House of
Representatives of the Philippines.
SO ORDERED.[8] (Emphasis in the original)

WHEREAS, based on the above Report, Buhay Hayaan

Yumabong (Buhay) obtained the highest number of votes
among the thirteen (13) qualified parties, organizations and
coalitions, making it the first party in accordance
with Veterans Federation Party versus COMELEC, reiterated
in Citizens Battle Against Corruption (CIBAC) versus COMELEC;

WHEREAS, qualified parties, organizations and coalitions

participating under the party-list system of representation that
have obtained one guaranteed (1) seat may be entitled to an
additional seat or seats based on the formula prescribed by
the Supreme Court in Veterans;
WHEREAS, in determining the additional seats for the first
party, the correct formula as expressed in Veterans, is:
Number of votes of first party Proportion of votes of first
- - - - - - - - - - - - - - - - - - - - - = party relative to total votes for
Total votes for party-list system party-list system
wherein the proportion of votes received by the first party
(without rounding off) shall entitle it to additional seats:
Proportion of votes received
by the first party

Additional seats

Equal to or at least 6%

Two (2) additional seats

Equal to or greater than 4% but less than 6%

One (1) additional seat

Less than 4%

No additional seat

WHEREAS, applying the above formula, Buhay obtained the

following percentage:

APEC

1.05

A TEACHER

0.83

AKBAYAN

0.78

ALAGAD

0.71

BUTIL

0.69

COOP-NATCO

0.69

ANAKPAWIS

0.62

ARC

0.63

ABONO

0.57

NOW THEREFORE, by virtue of the powers vested in it by the

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

Party List

Additional Seats

1,178,747
- - - - - - - - = 0.07248 or 7.2%
16,261,369

BUHAY

BAYAN MUNA

which entitles it to two (2) additional seats.

CIBAC

GABRIELA

APEC

WHEREAS, in determining the additional seats for the other

qualified parties, organizations and coalitions, the correct
formula as expressed in Veterans and reiterated in CIBAC is, as
follows:
No. of votes of
concerned party No. of additional
Additional seats for = ------------------- x seats allocated to
a concerned party No. of votes of first party
first party
WHEREAS, applying the above formula, the results are as
follows:
Party List

Percentage

Additional Seat

BAYAN MUNA

1.65

CIBAC

1.28

GABRIELA

1.05

This is without prejudice to the proclamation of other parties,

organizations or coalitions which may later on be established
to have obtained at least two per cent (2%) of the total votes
cast under the party-list system to entitle them to one (1)
guaranteed seat, or to the appropriate percentage of votes to
entitle them to one (1) additional seat.
Finally, all proclamation of the nominees of concerned parties,
organizations and coalitions with pending disputes shall
likewise be held in abeyance until final resolution of their
respective cases.
Let the National Board of Canvassers Secretariat implement
this Resolution, furnishing a copy hereof to the Speaker of the
House of Representatives of the Philippines.
SO ORDERED.[9]

Acting on BANATs petition, the NBC promulgated NBC Resolution No. 07-88 on 3
August 2007, which reads as follows:
This pertains to the Petition to Proclaim the Full Number of
Party-List Representatives Provided by the Constitution filed by
the Barangay Association for National Advancement and
Transparency (BANAT).
Acting on the foregoing Petition of the Barangay Association
for National Advancement and Transparency (BANAT) partylist, Atty. Alioden D. Dalaig, Head, National Board of
Canvassers Legal Group submitted his comments/observations
and recommendation thereon [NBC 07-041 (PL)], which reads:
COMMENTS / OBSERVATIONS:
Petitioner Barangay Association for National
Advancement and Transparency (BANAT), in
its Petition to Proclaim the Full Number of
Party-List Representatives Provided by the
Constitution prayed for the following reliefs, to
wit:
1. That the full number -- twenty percent
(20%) -- of Party-List representatives as
mandated by Section 5, Article VI of the
Constitution shall be proclaimed.
2. Paragraph (b), Section 11 of RA 7941 which
prescribes the 2% threshold votes, should be
harmonized with Section 5, Article VI of the
Constitution and with Section 12 of the same
RA 7941 in that it should be applicable only to
the first party-list representative seats to be
allotted on the basis of their initial/first
ranking.
3. The 3-seat limit prescribed by RA 7941 shall
be applied; and
4. Initially, all party-list groups shall be given
the number of seats corresponding to every
2% of the votes they received and the
additional seats shall be allocated in
accordance with Section 12 of RA 7941, that
is, in proportion to the percentage of votes
obtained by each party-list group in relation to
the total nationwide votes cast in the party-list
election, after deducting the corresponding
votes of those which were allotted seats under
the
2%
threshold
rule. In
fine,
the
formula/procedure
prescribed
in
the
ALLOCATION OF PARTY-LIST SEATS, ANNEX A

of COMELEC RESOLUTION 2847 dated 25 June

1996, shall be used for [the] purpose of
determining how many seats shall be
proclaimed, which party-list groups are
entitled to representative seats and how many
of their nominees shall seat [sic].
5. In
the
alternative,
to
declare
as
unconstitutional Section 11 of Republic Act
No. 7941 and that the procedure in allocating
seats for party-list representative prescribed
by Section 12 of RA 7941 shall be followed.
RECOMMENDATION:
The petition of BANAT is now moot and
academic.
The
Commission
En
Banc
in
NBC
Resolution No. 07-60 promulgated July 9,
2007 re In the Matter of the Canvass of Votes
and Partial Proclamation of the Parties,
Organizations and Coalitions Participating
Under the Party-List System During the May
14,
2007
National
and
Local
Elections resolved among others that the total
number of seats of each winning party,
organization or coalition shall be determined
pursuant
to
the Veterans
Federation
Party versus COMELEC formula
upon
completion of the canvass of the party-list
results.
WHEREFORE, premises considered, the National Board of
Canvassers RESOLVED, as it hereby RESOLVES, to approve and
adopt the recommendation of Atty. Alioden D. Dalaig, Head,
NBC Legal Group, to DENY the herein petition of BANAT for
being moot and academic.
Let the Supervisory Committee implement this resolution.
SO ORDERED.[10]
BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC
Resolution No. 07-88. BANAT did not file a motion for reconsideration of NBC
Resolution No. 07-88.
On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting
as NBC, to reconsider its decision to use the Veterans formula as stated in its
NBC Resolution No. 07-60 because the Veterans formula is violative of the
Constitution and of Republic Act No. 7941 (R.A. No. 7941). On the same day,
the COMELEC denied reconsideration during the proceedings of the NBC. [11]
Aside from the thirteen party-list organizations proclaimed on 9 July 2007, the
COMELEC proclaimed three other party-list organizations as qualified parties
entitled to one guaranteed seat under the Party-List System: Agricultural Sector

Alliance of the Philippines, Inc. (AGAP), [12] Anak Mindanao (AMIN),[13] and An
Waray.[14] Per the certification[15] by COMELEC, the following party-list
organizations have been proclaimed as of 19 May 2008:
Party-List

No. of Seat(s)

1.1

Buhay

1.2

Bayan Muna

1.3

CIBAC

1.4

Gabriela

1.5

APEC

1.6

A Teacher

1.7

Akbayan

1.8

Alagad

1.9

Butil

1.10

Coop-Natco [sic]

1.11

Anak Pawis

1.12

ARC

1.13

Abono

1.14

AGAP

1.15

AMIN

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing

Sambayanan
(BATAS),
against
which
an
Urgent
Petition
for
Cancellation/Removal of Registration and Disqualification of Party-list Nominee
(with Prayer for the Issuance of Restraining Order) has been filed before the
COMELEC, was deferred pending final resolution of SPC No. 07-250.
Issues
BANAT brought the following issues before this Court:
1. Is
the
twenty
percent
allocation
for
party-list
representatives provided in Section 5(2), Article VI of the
Constitution mandatory or is it merely a ceiling?

I. Respondent Commission on Elections, acting as National

Board of Canvassers, committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it
promulgated NBC Resolution No. 07-60 to implement the FirstParty Rule in the allocation of seats to qualified party-list
organizations as said rule:
A. Violates
the
constitutional
proportional representation.

principle

of

B. Violates the provisions of RA 7941 particularly:

1. The 2-4-6 Formula used by the First Party Rule in allocating
additional seats for the First Party violates the principle of
proportional representation under RA 7941.
2. The use of two formulas in the allocation of additional seats,
one for the First Party and another for the qualifying parties,
violates Section 11(b) of RA 7941.
3. The proportional relationships under the First Party Rule are
different from those required under RA 7941;
C. Violates
the
Four
Inviolable
Parameters
of
the
Philippine party-list system as provided for under the same
case of Veterans Federation Party, et al. v. COMELEC.
II. Presuming that the Commission on Elections did not commit
grave abuse of discretion amounting to lack or excess of
jurisdiction when it implemented the First-Party Rule in the
allocation of seats to qualified party-list organizations, the
same being merely in consonance with the ruling in Veterans
Federations Party, et al. v. COMELEC, the instant Petition is a
justiciable case as the issues involved herein are constitutional
in
nature,
involving
the
correct interpretation
and
implementation of RA 7941, and are of transcendental
importance to our nation.[17]
Considering the allegations in the petitions and the comments of the parties in
these cases, we defined the following issues in our advisory for the oral
arguments set on 22 April 2008:

2. Is the three-seat limit provided in Section 11(b) of RA

7941 constitutional?

1. Is the twenty percent allocation for party-list representatives

in Section 5(2), Article VI of the Constitution mandatory or
merely a ceiling?

3. Is the two percent threshold and qualifier votes prescribed

by the same Section 11(b) of RA 7941 constitutional?

2. Is the three-seat limit in Section 11(b) of RA 7941

constitutional?

4. How shall the party-list representatives be allocated? [16]

3. Is the two percent threshold prescribed in Section 11(b) of

RA 7941 to qualify for one seat constitutional?

Bayan Muna, A Teacher, and Abono, on the other hand, raised the following
issues in their petition:

4. How shall the party-list representative seats be allocated?

5. Does the Constitution prohibit the major political parties

from participating in the party-list elections? If not, can the
major political parties be barred from participating in the
party-listelections?[18]
The Ruling of the Court
The petitions have partial merit. We maintain that a Philippine-style party-list
election has at least four inviolable parameters as clearly stated
in Veterans. For easy reference, these are:
First, the twenty percent allocation the combined number
of all party-list congressmen shall not exceed twenty percent
of the total membership of the House of Representatives,
including those elected under the party list;
Second, the two percent threshold only those parties garnering
a minimum of two percent of the total valid votes cast for the
party-list system are qualified to have a seat in the House of
Representatives;
Third, the three-seat limit each qualified party, regardless of
the number of votes it actually obtained, is entitled to a
maximum of three seats; that is, one qualifying and two
additional seats;
Fourth, proportional representation the additional seats which
a qualified party is entitled to shall be computed in proportion
to their total number of votes.[19]
However, because the formula in Veterans has flaws in its mathematical
interpretation of the term proportional representation, this Court is compelled
to revisit the formula for the allocation of additional seats to party-list
organizations.
Number of Party-List Representatives:
The Formula Mandated by the Constitution
Section 5, Article VI of the Constitution provides:
Section 5. (1) The House of Representatives shall be composed
of not more than two hundred and fifty members, unless
otherwise fixed by law, who shall be elected from legislative
districts apportioned among the provinces, cities, and the
Metropolitan Manila area in accordance with the number of
their respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national,
regional, and sectoral parties or organizations.

(2) The party-list representatives shall constitute twenty per

centum of the total number of representatives including those
under the party-list. For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated
to party-list representatives shall be filled, as provided by law,
by selection or election from the labor, peasant, urban poor,
indigenous cultural communities, women, youth, and such
other sectors as may be provided by law, except the religious
sector.
The first paragraph of Section 11 of R.A. No. 7941 reads:
Section 11. Number of Party-List Representatives. The partylist representatives shall constitute twenty per centum (20%)
of the total number of the members of the House of
Representatives including those under the party-list.
xxx
Section 5(1), Article VI of the Constitution states that the House of
Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law. The House of Representatives shall be
composed of district representatives and party-list representatives. The
Constitution allows the legislature to modify the number of the members of the
House of Representatives.
Section 5(2), Article VI of the Constitution, on the other hand, states the ratio of
party-list representatives to the total number of representatives. We compute
the number of seats available to party-list representatives from the number of
legislative districts. On this point, we do not deviate from the first formula
in Veterans, thus:
Number of seats available to
legislative districts
x .20 =

Number of seats available to

party-list representatives

.80

This formula allows for the corresponding increase in the number of seats
available for party-list representatives whenever a legislative district is created
by law. Since the 14thCongress of the Philippines has 220 district
representatives, there are 55 seats available to party-list representatives.
220

x .20 =

55

.80
After prescribing the ratio of the number of party-list representatives to the
total number of representatives, the Constitution left the manner of
allocating the seats available to party-list representatives to the
wisdom of the legislature.
Allocation of Seats for Party-List Representatives:
The Statutory Limits Presented by the Two Percent Threshold

and the Three-Seat Cap

All parties agree on the formula to determine the maximum number of seats
reserved under the Party-List System, as well as on the formula to determine
the guaranteed seats to party-list candidates garnering at least two-percent of
the total party-list votes. However, there are numerous interpretations of the
provisions of R.A. No. 7941 on the allocation of additional seats under the
Party-List System. Veterans produced the First Party Rule,[20] and Justice Vicente
V. Mendozas dissent in Veterans presented Germanys Niemeyer formula [21] as
an alternative.
The Constitution left to Congress the determination of the manner of allocating
the seats for party-list representatives. Congress enacted R.A. No.
7941, paragraphs (a) and (b) of Section 11 and Section 12 of which provide:
Section 11. Number of Party-List Representatives. x x x

prescribed by Section 5, Article VI of the Constitution, Section

11 (1st par.) of RA 7941 and Comelec Resolution No. 2847
dated 25 June 1996. Since there are 220 District
Representatives in the 14th Congress, there shall be 55 PartyList Representatives. All seats shall have to be proclaimed.
(b) All party-list groups shall initially be allotted one (1) seat
for every two per centum (2%) of the total party-list votes they
obtained; provided, that no party-list groups shall have more
than three (3) seats (Section 11, RA 7941).
(c) The remaining seats shall, after deducting the seats
obtained by the party-list groups under the immediately
preceding paragraph and after deducting from their total the
votes corresponding to those seats, the remaining seats shall
be allotted proportionately to all the party-list groups which
have not secured the maximum three (3) seats under the 2%
threshold rule, in accordance with Section 12 of RA 7941. [23]

In determining the allocation of seats for the second vote,

[22]
the following procedure shall be observed:
(a) The parties, organizations, and coalitions shall be ranked
from the highest to the lowest based on the number of votes
they garnered during the elections.
(b) The parties, organizations, and coalitions receiving at least
two percent (2%) of the total votes cast for the party-list
system shall be entitled to one seat each: Provided, That
those garnering more than two percent (2%) of the
votes shall be entitled to additional seats in proportion
to their total number of votes: Provided, finally, That each
party, organization, or coalition shall be entitled to not more
than three (3) seats.
Section 12. Procedure in Allocating Seats for Party-List
Representatives. The COMELEC shall tally all the votes for the
parties, organizations, or coalitions on a nationwide basis, rank
them according to the number of votes received and allocate
party-list representatives proportionately according to the
percentage of votes obtained by each party, organization, or
coalition as against the total nationwide votes cast for the
party-list system. (Emphasis supplied)
In G.R. No. 179271, BANAT presents two interpretations through three formulas
to allocate party-list representative seats.
The first interpretation allegedly harmonizes the provisions of Section 11(b) on
the 2% requirement with Section 12 of R.A. No. 7941. BANAT described this
procedure as follows:
(a) The party-list representatives shall constitute twenty
percent (20%) of the total Members of the House of
Representatives including those from the party-list groups as

Forty-four (44)
interpretation.

party-list

seats

will

be

awarded

under

BANATs

first

The second interpretation presented by BANAT assumes that the 2% vote

requirement is declared unconstitutional, and apportions the seats for party-list
representatives by following Section 12 of R.A. No. 7941. BANAT states that the
COMELEC:
(a) shall tally all the votes for the parties, organizations, or
coalitions on a nationwide basis;
(b) rank them according to the number of votes received; and,
(c) allocate party-list representatives proportionately according
to the percentage of votes obtained by each party,
organization or coalition as against the total nationwide votes
cast for the party-list system.[24]
BANAT used two formulas to obtain the same results: one is based on the
proportional percentage of the votes received by each party as against the
total nationwide party-list votes, and the other is by making the votes of a
party-list with a median percentage of votes as the divisor in computing the
allocation of seats.[25] Thirty-four (34) party-list seats will be awarded under
BANATs second interpretation.
In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the
COMELECs original 2-4-6 formula and the Veterans formula for systematically
preventing all the party-list seats from being filled up. They claim that both
formulas do not factor in the total number of seats alloted for the entire PartyList System. Bayan Muna, Abono, and A Teacher reject the three-seat cap, but
accept the 2% threshold. After determining the qualified parties, a second
percentage is generated by dividing the votes of a qualified partyby the total
votes of all qualified parties only. The number of seats allocated to a qualified
party is computed by multiplying the total party-list seats available with the
second percentage. There will be a first round of seat allocation, limited to
using the whole integers as the equivalent of the number of seats allocated to

the concerned party-list. After all the qualified parties are given their seats, a
second round of seat allocation is conducted. The fractions, or remainders, from
the whole integers are ranked from highest to lowest and the remaining seats
on the basis of this ranking are allocated until all the seats are filled up. [26]

20

UNI-MAD

245,382

67

BAHANDI

46,612

21

ABS

235,086

68

ADD

45,624

22

KAKUSA

228,999

69

AMANG

43,062

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

23

KABATAAN

228,637

70

ABAY PARAK

42,282

24

ABA-AKO

218,818

71

BABAE KA

36,512

25

ALIF

217,822

72

SB

34,835

26

SENIOR
CITIZENS

213,058

73

ASAP

34,098

27

AT

197,872

74

PEP

33,938

28

VFP

196,266

75

ABA ILONGGO

33,903

29

ANAD

188,521

76

VENDORS

33,691

30

BANAT

177,028

77

ADD-TRIBAL

32,896

31

ANG KASANGGA 170,531

78

ALMANA

32,255

32

BANTAY

169,801

79

AANGAT
PILIPINO

KA 29,130

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

Table 1. Ranking of the participating parties from the highest

to the lowest based on the number of votes garnered during
the elections.[27]

Rank

Party

Votes
Garnered

Rank

Party

Votes
Garnered

BUHAY

1,169,234

48

KALAHI

88,868

BAYAN MUNA

979,039

49

APOI

79,386

33

ABAKADA

166,747

80

AAPS

26,271

CIBAC

755,686

50

BP

78,541

34

1-UTAK

164,980

81

HAPI

25,781

GABRIELA

621,171

51

AHONBAYAN

78,424

35

TUCP

162,647

82

AAWAS

22,946

APEC

619,657

52

BIGKIS

77,327

36

COCOFED

155,920

83

SM

20,744

A TEACHER

490,379

53

PMAP

75,200

37

AGHAM

146,032

84

AG

16,916

AKBAYAN

466,112

54

AKAPIN

74,686

38

ANAK

141,817

85

AGING PINOY

16,729

ALAGAD

423,149

55

PBA

71,544

39

ABANSE! PINAY

130,356

86

APO

16,421

COOP-NATCCO

409,883

56

GRECON

62,220

40

PM

119,054

87

BIYAYANG BUKID

16,241

10

BUTIL

409,160

57

BTM

60,993

41

AVE

110,769

88

ATS

14,161

11

BATAS

385,810

58

A SMILE

58,717

42

SUARA

110,732

89

UMDJ

9,445

12

ARC

374,288

59

NELFFI

57,872

43

ASSALAM

110,440

90

BUKLOD FILIPINA

8,915

13

ANAKPAWIS

370,261

60

AKSA

57,012

44

DIWA

107,021

91

LYPAD

8,471

14

ABONO

339,990

61

BAGO

55,846

45

ANC

99,636

92

AA-KASOSYO

8,406

15

AMIN

338,185

62

BANDILA

54,751

46

SANLAKAS

97,375

93

KASAPI

6,221

16

AGAP

328,724

63

AHON

54,522

47

ABC

90,058

TOTAL

15,950,9

17

AN WARAY

321,503

64

ASAHAN MO

51,722

18

YACAP

310,889

65

AGBIAG!

50,837

19

FPJPM

300,923

66

SPI

50,478

The first clause of Section 11(b) of R.A. No. 7941 states that parties,
organizations, and coalitions receiving at least two percent (2%) of the total
votes cast for the party-list system shall be entitled to one seat each. This
clause guarantees a seat to the two-percenters. In Table 2 below, we use the

first 20 party-list candidates for illustration purposes.The percentage of votes

garnered by each party is arrived at by dividing the number of votes garnered
by each party by 15,950,900, the total number of votes cast for all party-list
candidates.
Table 2. The first 20 party-list candidates and their respective
percentage of votes garnered over the total votes for the
party-list.[28]

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

Rank

Party

Votes
Garnered

BUHAY

1,169,234

BAYAN MUNA

979,039

CIBAC

755,686

We rule that, in computing the allocation of additional seats, the continued

operation of the two percent threshold for the distribution of the additional
Votes Garnered
seats as found in the second clause of Section 11(b) of R.A. No. 7941
over Total Votes Guaranteed
is unconstitutional. This Court finds that the two percent threshold makes it
for Party-List, in Seat
mathematically impossible to achieve the maximum number of available party
%
list seats when the number of available party list seats exceeds 50. The
continued operation of the two percent threshold in the distribution of the
7.33%
1
additional seats frustrates the attainment of the permissive ceiling that 20% of
6.14%
1
the members of the House of Representatives shall consist of party-list
representatives.
4.74%
1

GABRIELA

621,171

3.89%

APEC

619,657

3.88%

A TEACHER

490,379

3.07%

AKBAYAN

466,112

2.92%

ALAGAD

423,149

2.65%

COOP-NATCCO

409,883

2.57%

10

BUTIL

409,160

2.57%

11

BATAS

385,810

2.42%

12

ARC

374,288

2.35%

13

ANAKPAWIS

370,261

2.32%

14

ABONO

339,990

2.13%

15

AMIN

338,185

2.12%

16

AGAP

328,724

2.06%

17

AN WARAY

321,503

2.02%

[29]

Total

17

18

YACAP

310,889

1.95%

19

FPJPM

300,923

1.89%

20

UNI-MAD

245,382

1.54%

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

To illustrate: There are 55 available party-list seats. Suppose there are 50

million votes cast for the 100 participants in the party list elections. A party
that has two percent of the votes cast, or one million votes, gets a guaranteed
seat. Let us further assume that the first 50 parties all get one million
votes. Only 50 parties get a seat despite the availability of 55 seats. Because of
the operation of the two percent threshold, this situation will repeat itself even
if we increase the available party-list seats to 60 seats and even if we increase
the votes cast to 100 million. Thus, even if the maximum number of parties get
two percent of the votes for every party, it is always impossible for the number
of occupied party-list seats to exceed 50 seats as long as the two percent
threshold is present.
We therefore strike down the two percent threshold only in relation to the
distribution of the additional seats as found in the second clause of Section
11(b) of R.A. No. 7941. The two percent threshold presents an unwarranted
obstacle to the full implementation of Section 5(2), Article VI of the Constitution
and prevents the attainment of the broadest possible representation of party,
sectoral or group interests in the House of Representatives. [30]
In determining the allocation of seats for party-list representatives under
Section 11 of R.A. No. 7941, the following procedure shall be observed:
1.
The parties, organizations, and coalitions shall be ranked from the
highest to the lowest based on the number of votes they garnered during the
elections.
2.
The parties, organizations, and coalitions receiving at least two
percent (2%) of the total votes cast for the party-list system shall be entitled to
one guaranteed seat each.
3.
Those garnering sufficient number of votes, according to the
ranking in paragraph 1, shall be entitled to additional seats in proportion to
their total number of votes until all the additional seats are allocated.

4.
Each party, organization, or coalition shall be entitled to not more
than three (3) seats.
In computing the additional seats, the guaranteed seats shall no longer be
included because they have already been allocated, at one seat each, to every
two-percenter. Thus, the remaining available seats for allocation as additional
seats are the maximum seats reserved under the Party List System less the
guaranteed seats. Fractional seats are disregarded in the absence of a
provision in R.A. No. 7941 allowing for a rounding off of fractional seats.

Table 3. Distribution of Available Party-List Seats

Rank

Party

Votes
Garnered

(First Round)
(A)

(B)

Additional
Seats

A Teacher

490,379

3.07%

1.17

AKBAYAN

466,112

2.92%

1.11

ALAGAD

423,149

2.65%

1.01

COOP-NATCCO 409,883

2.57%

10

BUTIL

409,160

2.57%

11

BATAS

385,810

2.42%

12

ARC

374,288

2.35%

13

ANAKPAWIS

370,261

2.32%

14

ABONO

339,990

2.13%

15

AMIN

338,185

2.12%

16

AGAP

328,724

2.06%

17

AN WARAY

321,503

2.02%

18

YACAP

310,889

1.95%

19

FPJPM

300,923

1.89%

20

UNI-MAD

245,382

1.54%

21

ABS

235,086

1.47%

22

KAKUSA

228,999

1.44%

23

KABATAAN

228,637

1.43%

24

ABA-AKO

218,818

1.37%

25

ALIF

217,822

1.37%

SENIOR
CITIZENS

213,058

1.34%

AT

197,872

1.24%

VFP

196,266

1.23%

29

ANAD

188,521

1.18%

30

BANAT

177,028

1.11%

31

ANG
KASANGGA

170,531

1.07%

32

BANTAY

169,801

1.06%

33

ABAKADA

166,747

1.05%

34

1-UTAK

164,980

1.03%

35

TUCP

162,647

1.02%

36

COCOFED

155,920

0.98%

[31]

In declaring the two percent threshold unconstitutional, we do not limit our

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

Votes
Guaranteed
Garnered
Seat
over
Total
Votes for
Party List,
in %

26
(B) plus
(C),
in
27
whole
integers
28

(Second
Round)
(C)

(D)

BUHAY

1,169,234

7.33%

2.79

BAYAN MUNA

979,039

6.14%

2.33

CIBAC

755,686

4.74%

1.80

GABRIELA

621,171

3.89%

1.48

APEC

619,657

3.88%

1.48

Total

17

55

Applying the procedure of seat allocation as illustrated in Table 3 above, there

are 55 party-list representatives from the 36 winning party-list organizations. All
55 available party-list seats are filled. The additional seats allocated to the
parties with sufficient number of votes for one whole seat, in no case to exceed
a total of three seats for each party, are shown in column (D).
Participation of Major Political Parties in Party-List Elections
The Constitutional Commission adopted a multi-party system that allowed all
political parties to participate in the party-list elections. The
deliberations of the Constitutional Commission clearly bear this out, thus:
MR. MONSOD. Madam President, I just want to say that we
suggested or proposed the party list system because we
wanted to open up the political system to a pluralistic society
through a multiparty system. x x x We are for opening up
the system, and we would like very much for the
sectors to be there. That is why one of the ways to do
that is to put a ceiling on the number of
representatives from any single party that can sit
within the 50 allocated under the party list system. x x
x.
xxx
MR. MONSOD. Madam President, the candidacy for the 198
seats is not limited to political parties. My question is this: Are
we going to classify for example Christian Democrats and
Social Democrats as political parties? Can they run under the
party list concept or must they be under the district legislation
side of it only?
MR. VILLACORTA. In reply to that query, I think these parties
that the Commissioner mentioned can field candidates for the
Senate as well as for the House of Representatives. Likewise,
they can also field sectoral candidates for the 20
percent or 30 percent, whichever is adopted, of the
seats that we are allocating under the party list
system.
MR. MONSOD. In other words, the Christian Democrats can
field district candidates and can also participate in the party
list system?
MR. VILLACORTA. Why not? When they come to the party
list system, they will be fielding only sectoral
candidates.
MR. MONSOD. May I be clarified
participate in the party list system?

on

that? Can

UNIDO

MR. VILLACORTA. Yes, why not? For as long as they field

candidates who come from the different marginalized
sectors that we shall designate in this Constitution.
MR. MONSOD. Suppose Senator Taada wants to run under
BAYAN group and says that he represents the farmers, would
he qualify?
MR. VILLACORTA. No, Senator Taada would not qualify.
MR. MONSOD. But UNIDO can field candidates under the party
list system and say Juan dela Cruz is a farmer. Who would pass
on whether he is a farmer or not?
MR. TADEO. Kay Commissioner Monsod, gusto ko lamang
linawin
ito. Political
parties,
particularly
minority
political parties, are not prohibited to participate in the
party list election if they can prove that they are also
organized along sectoral lines.
MR. MONSOD. What the Commissioner is saying is that all
political parties can participate because it is precisely the
contention of political parties that they represent the broad
base of citizens and that all sectors are represented in
them. Would the Commissioner agree?
MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang
UNIDO na isang political party, it will dominate the party list at
mawawalang saysay din yung sector. Lalamunin mismo ng
political parties ang party list system. Gusto ko lamang bigyan
ng diin ang reserve. Hindi ito reserve seat sa marginalized
sectors. Kung titingnan natin itong 198 seats, reserved din ito
sa political parties.
MR. MONSOD. Hindi po reserved iyon kasi anybody can run
there. But my question to Commissioner Villacorta and
probably also to Commissioner Tadeo is that under this
system, would UNIDO be banned from running under the party
list system?
MR. VILLACORTA. No, as I said, UNIDO may field sectoral
candidates. On that condition alone, UNIDO may be
allowed to register for the party list system.
MR. MONSOD. May I inquire from Commissioner Tadeo if he
shares that answer?
MR. TADEO. The same.
MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral
lines.
xxxx

MR. OPLE. x x x In my opinion, this will also create the stimulus

for political parties and mass organizations to seek common
ground. For example, we have the PDP-Laban and the UNIDO. I
see no reason why they should not be able to make common
goals with mass organizations so that the very leadership of
these parties can be transformed through the participation of
mass organizations. And if this is true of the administration
parties, this will be true of others like the Partido ng Bayan
which is now being formed. There is no question that they will
be attractive to many mass organizations. In the opposition
parties to which we belong, there will be a stimulus for us to
contact mass organizations so that with their participation, the
policies of such parties can be radically transformed because
this amendment will create conditions that will challenge both
the mass organizations and the political parties to come
together. And the party list system is certainly available,
although it is open to all the parties. It is understood that the
parties will enter in the roll of the COMELEC the names of
representatives of mass organizations affiliated with them. So
that we may, in time, develop this excellent system that they
have in Europe where labor organizations and cooperatives,
for example, distribute themselves either in the Social
Democratic Party and the Christian Democratic Party in
Germany, and their very presence there has a transforming
effect upon the philosophies and the leadership of those
parties.
It is also a fact well known to all that in the United States, the
AFL-CIO always vote with the Democratic Party. But the
businessmen, most of them, always vote with the Republican
Party, meaning that there is no reason at all why political
parties and mass organizations should not combine, reenforce,
influence and interact with each other so that the very
objectives that we set in this Constitution for sectoral
representation are achieved in a wider, more lasting, and more
institutionalized way. Therefore, I support this [MonsodVillacorta] amendment. It installs sectoral representation as a
constitutional gift, but at the same time, it challenges the
sector to rise to the majesty of being elected representatives
later on through a party list system; and even beyond that, to
become actual political parties capable of contesting political
power in the wider constitutional arena for major political
parties.
x x x [32] (Emphasis supplied)
R.A. No. 7941 provided the details for the concepts put forward by the
Constitutional Commission. Section 3 of R.A. No. 7941 reads:
Definition of Terms. (a) The party-list system is a mechanism
of
proportional
representation
in
the
election
of
representatives to the House of Representatives from national,
regional and sectoral parties or organizations or coalitions
thereof registered with the Commission on Elections

(COMELEC). Component parties or organizations of a coalition

may participate independently provided the coalition of which
they form part does not participate in the party-list system.
(b) A party means either a political party or a sectoral party or
a coalition of parties.
(c) A political party refers to an organized group of citizens
advocating an ideology or platform, principles and policies for
the general conduct of government and which, as the most
immediate means of securing their adoption, regularly
nominates and supports certain of its leaders and members as
candidates for public office.
It is a national party when its constituency is spread over the
geographical territory of at least a majority of the regions. It is
a regional party when its constituency is spread over the
geographical territory of at least a majority of the cities and
provinces comprising the region.
(d) A sectoral party refers to an organized group of citizens
belonging to any of the sectors enumerated in Section 5
hereof whose principal advocacy pertains to the special
interests and concerns of their sector,
(e) A sectoral organization refers to a group of citizens or a
coalition of groups of citizens who share similar physical
attributes or characteristics, employment, interests or
concerns.
(f) A coalition refers to an aggrupation of duly registered
national, regional, sectoral parties or organizations for political
and/or election purposes.
Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any
party from dominating the party-list elections.
Neither the Constitution nor R.A. No. 7941 prohibits major political parties from
participating in the party-list system. On the contrary, the framers of the
Constitution clearly intended the major political parties to participate in partylist elections through their sectoral wings. In fact, the members of the
Constitutional Commission voted down, 19-22, any permanent sectoral seats,
and in the alternative the reservation of the party-list system to the sectoral
groups.[33] In defining a party that participates in party-list elections as either a
political party or a sectoral party, R.A. No. 7941 also clearly intended that major
political parties will participate in the party-list elections. Excluding the major
political parties in party-list elections is manifestly against the Constitution, the
intent of the Constitutional Commission, and R.A. No. 7941. This Court cannot
engage in socio-political engineering and judicially legislate the exclusion of
major political parties from the party-list elections in patent violation of the
Constitution and the law.
Read together, R.A. No. 7941 and the deliberations of the Constitutional
Commission state that major political parties are allowed to establish, or form

coalitions with, sectoral organizations for electoral or political purposes. There

should not be a problem if, for example, the Liberal Party participates in the
party-list election through the Kabataang Liberal ng Pilipinas (KALIPI), its
sectoral youth wing. The other major political parties can thus organize, or
affiliate with, their chosen sector or sectors. To further illustrate, the
Nacionalista Party can establish a fisherfolk wing to participate in the party-list
election, and this fisherfolk wing can field its fisherfolk nominees. Kabalikat ng
Malayang Pilipino (KAMPI) can do the same for the urban poor.
The qualifications of party-list nominees are prescribed in Section 9 of R.A. No.
7941:
Qualifications of Party-List Nominees. No person shall be
nominated as party-list representative unless he is a natural
born citizen of the Philippines, a registered voter, a resident of
the Philippines for a period of not less than one (1) year
immediately preceding the day of the elections, able to read
and write, bona fide member of the party or organization
which he seeks to represent for at least ninety (90) days
preceding the day of the election, and is at least twenty-five
(25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be
twenty-five (25) but not more than thirty (30) years of age on
the day of the election. Any youth sectoral representative who
attainsthe age of thirty (30) during his term shall be allowed to
continue until the expiration of his term.
Under Section 9 of R.A. No. 7941, it is not necessary that the party-list
organizations nominee wallow in poverty, destitution and infirmity [34] as there is
no financial status required in the law. It is enough that the nominee of the
sectoral party/organization/coalition belongs to the marginalized and
underrepresented sectors,[35] that is, if the nominee represents the fisherfolk, he
or she must be a fisherfolk, or if the nominee represents the senior citizens, he
or she must be a senior citizen.
Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire
20% allocation of party-list representatives found in the Constitution. The
Constitution, in paragraph 1, Section 5 of Article VI, left the determination of
the number of the members of the House of Representatives to Congress: The
House of Representatives shall be composed of not more than two hundred and
fifty members, unless otherwise fixed by law, x x x. The 20% allocation of partylist representatives is merely a ceiling; party-list representatives cannot be
more than 20% of the members of the House of Representatives. However, we
cannot allow the continued existence of a provision in the law which will
systematically prevent the constitutionally allocated 20% party-list
representatives from being filled. The three-seat cap, as a limitation to the
number of seats that a qualified party-list organization may occupy, remains a
valid statutory device that prevents any party from dominating the party-list
elections. Seats for party-list representatives shall thus be allocated in
accordance with the procedure used in Table 3 above.

However, by a vote of 8-7, the Court decided to continue the ruling

in Veterans disallowing major political parties from participating in the party-list
elections, directly or indirectly. Those who voted to continue disallowing major
political parties from the party-list elections joined Chief Justice Reynato S. Puno
in his separate opinion. On the formula to allocate party-list seats, the Court is
unanimous in concurring with this ponencia.
WHEREFORE, we PARTIALLY
GRANT the
petition. We SET
ASIDE the
Resolution of the COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well
as the Resolution dated 9 July 2007 in NBC No. 07-60. We declare
unconstitutional the two percent threshold in the distribution of additional
party-list seats. The allocation of additional seats under the Party-List System
shall be in accordance with the procedure used in Table 3 of this Decision. Major
political parties are disallowed from participating in party-list elections. This
Decision is immediately executory. No pronouncement as to costs.
SO ORDERED.

G.R. No. 147589

June 26, 2001

ANG BAGONG BAYANI-OFW LABOR PARTY (under the acronym OFW),

represented
herein
by
its
secretary-general, MOHAMMAD
OMAR
FAJARDO, petitioner,
vs.
ANG BAGONG BAYANI-OFW LABOR PARTY GO! GO! PHILIPPINES; THE
TRUE MARCOS LOYALIST ASSOCIATION OF THE PHILIPPINES;
PHILIPPINE LOCAL AUTONOMY; CITIZENS MOVEMENT FOR JUSTICE,
ECONOMY, ENVIRONMENT AND PEACE; CHAMBER OF REAL ESTATE
BUILDERS
ASSOCIATION;
SPORTS
&
HEALTH
ADVANCEMENT
FOUNDATION, INC.; ANG LAKAS NG OVERSEAS CONTRACT WORKERS
(OCW);
BAGONG
BAYANI
ORGANIZATION
and
others
under
"Organizations/Coalitions" of Omnibus Resolution No. 3785; PARTIDO
NG MASANG PILIPINO; LAKAS NUCD-UMDP; NATIONALIST PEOPLE'S
COALITION;
LABAN
NG
DEMOKRATIKONG
PILIPINO;
AKSYON
DEMOKRATIKO; PDP-LABAN; LIBERAL PARTY; NACIONALISTA PARTY;
ANG BUHAY HAYAANG YUMABONG; and others under "Political Parties"
of Omnibus Resolution No. 3785. respondents.
x---------------------------------------------------------x
G.R. No. 147613 June 26, 2001
BAYAN
MUNA, petitioner,
vs.
COMMISSION ON ELECTIONS; NATIONALIST PEOPLE'S COALITION
(NPC); LABAN NG DEMOKRATIKONG PILIPINO (LDP); PARTIDO NG
MASANG PILIPINO (PMP); LAKAS-NUCD-UMDP; LIBERAL PARTY;
MAMAMAYANG AYAW SA DROGA; CREBA; NATIONAL FEDERATION OF
SUGARCANE
PLANTERS;
JEEP;
and
BAGONG
BAYANI
ORGANIZATION, respondents.
PANGANIBAN, J.:
The party-list system is a social justice tool designed not only to give more law
to the great masses of our people who have less in life, but also to enable them
to become veritable lawmakers themselves, empowered to participate directly
in the enactment of laws designed to benefit them. It intends to make the
marginalized and the underrepresented not merely passive recipients of the
State's benevolence, but active participants in the mainstream of
representative democracy. Thus, allowing all individuals and groups, including
those which now dominate district elections, to have the same opportunity to
participate in party-list elections would desecrate this lofty objective and
mongrelize the social justice mechanism into an atrocious veneer for traditional
politics.

The Case
Before us are two Petitions under Rule 65 of the Rules of Court, challenging
Omnibus Resolution No. 3785 1issued by the Commission on Elections
(Comelec) on March 26, 2001. This Resolution approved the participation of 154
organizations and parties, including those herein impleaded, in the 2001 partylist elections. Petitioners seek the disqualification of private respondents,
arguing mainly that the party-list system was intended to benefit the
marginalized and underrepresented; not the mainstream political parties, the
non-marginalized or overrepresented.
The Factual Antecedents
With the onset of the 2001 elections, the Comelec received several Petitions for
registration filed by sectoral parties, organizations and political parties.
According to the Comelec, "[v]erifications were made as to the status and
capacity of these parties and organizations and hearings were scheduled day
and night until the last party w[as] heard. With the number of these petitions
and the observance of the legal and procedural requirements, review of these
petitions as well as deliberations takes a longer process in order to arrive at a
decision and as a result the two (2) divisions promulgated a separate Omnibus
Resolution and individual resolution on political parties. These numerous
petitions and processes observed in the disposition of these petition[s] hinder
the early release of the Omnibus Resolutions of the Divisions which were
promulgated only on 10 February 2001." 2
Thereafter, before the February 12, 2001 deadline prescribed under Comelec
Resolution No. 3426 dated December 22, 2000, the registered parties and
organizations filed their respective Manifestations, stating their intention to
participate in the party-list elections. Other sectoral and political parties and
organizations whose registrations were denied also filed Motions for
Reconsideration, together with Manifestations of their intent to participate in
the party-list elections. Still other registered parties filed their Manifestations
beyond the deadline.
The Comelec gave due course or approved the Manifestations (or
accreditations) of 154 parties and organizations, but denied those of several
others in its assailed March 26, 2001 Omnibus Resolution No. 3785, which we
quote:
"We carefully deliberated the foregoing matters, having in mind that this
system of proportional representation scheme will encourage multi-partisan
[sic] and enhance the inability of small, new or sectoral parties or organization
to directly participate in this electoral window.

"It will be noted that as defined, the 'party-list system' is a 'mechanism of

proportional representation' in the election of representatives to the House of
Representatives from national, regional, and sectoral parties or organizations or
coalitions thereof registered with the Commission on Elections.

Thereafter, Comments 14 on the second Petition were received by the Court and,
on May 17, 2001, the Oral Argument was conducted as scheduled. In an Order
given in open court, the parties were directed to submit their respective
Memoranda simultaneously within a non-extendible period of five days. 15

"However, in the course of our review of the matters at bar, we must recognize
the fact that there is a need to keep the number of sectoral parties,
organizations and coalitions, down to a manageable level, keeping only those
who substantially comply with the rules and regulations and more importantly
the sufficiency of the Manifestations or evidence on the Motions for
Reconsiderations or Oppositions." 3

Issues:

On April 10, 2001, Akbayan Citizens Action Party filed before the Comelec a
Petition praying that "the names of [some of herein respondents] be deleted
from
the
'Certified
List
of
Political
Parties/Sectoral
Parties/Organizations/Coalitions Participating in the Party List System for the
May 14, 2001 Elections' and that said certified list be accordingly amended." It
also asked, as an alternative, that the votes cast for the said respondents not
be counted or canvassed, and that the latter's nominees not be
proclaimed. 4 On April 11, 2001, Bayan Muna and Bayan Muna-Youth also filed a
Petition for Cancellation of Registration and Nomination against some of herein
respondents. 5
On April 18, 2001, the Comelec required the respondents in the two
disqualification cases to file Comments within three days from notice. It also set
the date for hearing on April 26, 2001, 6 but subsequently reset it to May 3,
2001. 7 During the hearing, however, Commissioner Ralph C. Lantion merely
directed the parties to submit their respective memoranda. 8
Meanwhile, dissatisfied with the pace of the Comelec, Ang Bagong Bayani-OFW
Labor Party filed a Petition 9before this Court on April 16, 2001. This Petition,
docketed as GR No. 147589, assailed Comelec Omnibus Resolution No. 3785. In
its Resolution dated April 17, 2001, 10 the Court directed respondents to
comment on the Petition within a non-extendible period of five days from
notice. 11
On April 17, 2001, Petitioner Bayan Muna also filed before this Court a
Petition, 12 docketed as GR No. 147613, also challenging Comelec Omnibus
Resolution No. 3785. In its Resolution dated May 9, 2001, 13 the Court ordered
the consolidation of the two Petitions before it; directed respondents named in
the second Petition to file their respective Comments on or before noon of May
15, 2001; and called the parties to an Oral Argument on May 17, 2001. It added
that the Comelec may proceed with the counting and canvassing of votes cast
for the party-list elections, but barred the proclamation of any winner therein,
until further orders of the Court.

During the hearing on May 17, 2001, the Court directed the parties to address
the following issues:
"1. Whether or not recourse under Rule 65 is proper under the
premises. More specifically, is there no other plain, speedy or adequate
remedy in the ordinary course of law?
"2. Whether or not political parties may participate in the party-list
elections.
"3. Whether or not the party-list system is exclusive to 'marginalized
and underrepresented' sectors and organizations.
"4. Whether or not the Comelec committed grave abuse of discretion in
promulgating Omnibus Resolution No. 3785." 16
The Court's Ruling
The Petitions are partly meritorious. These cases should be remanded to the
Comelec which will determine, after summary evidentiary hearings, whether
the 154 parties and organizations enumerated in the assailed Omnibus
Resolution satisfy the requirements of the Constitution and RA 7941, as
specified in this Decision.
First Issue:
Recourse Under Rule 65
Respondents contend that the recourse of both petitioners under Rule 65 is
improper because there are other plain, speedy and adequate remedies in the
ordinary course of law. 17 The Office of the Solicitor General argues that
petitioners should have filed before the Comelec a petition either for
disqualification or for cancellation of registration, pursuant to Sections 19, 20,
21 and 22 of Comelec Resolution No. 3307-A 18 dated November 9, 2000. 19
We disagree. At bottom, petitioners attack the validity of Comelec Omnibus
Resolution 3785 for having been issued with grave abuse of discretion, insofar

as it allowed respondents to participate in the party-list elections of 2001.

Indeed, under both the Constitution 20 and the Rules of Court, such challenge
may be brought before this Court in a verified petition for certiorari under Rule
65.
Moreover, the assailed Omnibus Resolution was promulgated by Respondent
Commission en banc; hence, no motion for reconsideration was possible, it
being a prohibited pleading under Section 1 (d), Rule 13 of the Comelec Rules
of Procedure. 21
The Court also notes that Petitioner Bayan Muna had filed before the Comelec a
Petition for Cancellation of Registration and Nomination against some of herein
respondents. 22 The Comelec, however, did not act on that Petition. In view of
the pendency of the elections, Petitioner Bayan Muna sought succor from this
Court, for there was no other adequate recourse at the time. Subsequent
events have proven the urgency of petitioner's action; to this date, the Comelec
has not yet formally resolved the Petition before it. But a resolution may just be
a formality because the Comelec, through the Office of the Solicitor General,
has made its position on the matter quite clear.

the questioned Resolution." 27 For its part, Petitioner Bayan Muna objects to the
participation of "major political parties." 28 On the other hand, the Office of the
Solicitor General, like the impleaded political parties, submits that the
Constitution and RA No. 7941 allow political parties to participate in the partylist elections. It argues that the party-list system is, in fact, open to all
"registered national, regional and sectoral parties or organizations." 29
We now rule on this issue. Under the Constitution and RA 7941, private
respondents cannot be disqualified from the party-list elections, merely on the
ground that they are political parties. Section 5, Article VI of the Constitution
provides that members of the House of Representatives may "be elected
through a party-list system of registered national, regional, and sectoral parties
or organizations."
Furthermore, under Sections 7 and 8, Article IX (C) of the Constitution, political
parties may be registered under the party-list system.
"Sec. 7. No votes cast in favor of a political party, organization, or
coalition shall be valid, except for those registered under the party-list
system as provided in this Constitution.

In any event, this case presents an exception to the rule that certiorari shall lie
only in the absence of any other plain, speedy and adequate remedy. 23 It has
been held that certiorari is available, notwithstanding the presence of other
remedies, "where the issue raised is one purely of law, where public interest is
involved, and in case of urgency." 24 Indeed, the instant case is indubitably
imbued with public interest and with extreme urgency, for it potentially
involves the composition of 20 percent of the House of Representatives.

"Sec. 8. Political parties, or organizations or coalitions registered under

the party-list system, shall not be represented in the voters'
registration boards, boards of election inspectors, boards of
canvassers, or other similar bodies. However, they shall be entitled to
appoint poll watchers in accordance with law." 30

Moreover, this case raises transcendental constitutional issues on the party-list

system, which this Court must urgently resolve, consistent with its duty to
"formulate guiding and controlling constitutional principles, precepts, doctrines,
or rules." 25

During the deliberations in the Constitutional Commission, Comm. Christian S.

Monsod pointed out that the participants in the party-list system may "be a
regional party, a sectoral party, a national party, UNIDO, 31Magsasaka, or a
regional party in Mindanao." 32 This was also clear from the following exchange
between Comms. Jaime Tadeo and Blas Ople: 33

Finally, procedural requirements "may be glossed over to prevent a miscarriage

of justice, when the issue involves the principle of social justice x x x when the
decision sought to be set aside is a nullity, or when the need for relief is
extremely urgent and certiorari is the only adequate and speedy remedy
available." 26
Second Issue:
Participation of Political Parties
In its Petition, Ang Bagong Bayani-OFW Labor Party contends that "the inclusion
of political parties in the party-list system is the most objectionable portion of

"MR. TADEO. Naniniwala ba kayo na ang party list ay pwedeng paghati-hatian

ng UNIDO, PDP-Laban, PNP, Liberal at Nacionalista?
MR. OPLE. Maaari yan sapagkat bukas ang party list system sa lahat ng mga
partido."
Indeed, Commissioner Monsod stated that the purpose of the party-list
provision was to open up the system, in order to give a chance to parties that
consistently place third or fourth in congressional district elections to win a seat
in Congress. 34 He explained: "The purpose of this is to open the system. In the
past elections, we found out that there were certain groups or parties that, if
we count their votes nationwide, have about 1,000,000 or 1,500,000 votes. But

they were always third or fourth place in each of the districts. So, they have no
voice in the Assembly. But this way, they would have five or six representatives
in the Assembly even if they would not win individually in legislative districts.
So, that is essentially the mechanics, the purpose and objectives of the partylist system."
For its part, Section 2 of RA 7941 also provides for "a party-list system of
registered national, regional and sectoral parties or organizations or coalitions
thereof, x x x." Section 3 expressly states that a "party" is "either a political
party or a sectoral party or a coalition of parties." More to the point, the law
defines "political party" as "an organized group of citizens advocating an
ideology or platform, principles and policies for the general conduct of
government and which, as the most immediate means of securing their
adoption, regularly nominates and supports certain of its leaders and members
as candidates for public office."
Furthermore, Section 11 of RA 7941 leaves no doubt as to the participation of
political parties in the party-list system. We quote the pertinent provision
below:
"x x x
"For purposes of the May 1998 elections, the first five (5) major political parties
on the basis of party representation in the House of Representatives at the start
of the Tenth Congress of the Philippines shall not be entitled to participate in
the party-list system.
x x x"
Indubitably, therefore, political parties even the major ones -- may participate
in the party-list elections.
Third Issue:
Marginalized and Underrepresented
That political parties may participate in the party-list elections does not mean,
however, that any political party -- or any organization or group for that matter
-- may do so. The requisite character of these parties or organizations must be
consistent with the purpose of the party-list system, as laid down in the
Constitution and RA 7941. Section 5, Article VI of the Constitution, provides as
follows:

shall be elected from legislative districts apportioned among the

provinces, cities, and the Metropolitan Manila area in accordance with
the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall
be elected through a party-list system of registered national, regional,
and sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per centum of
the total number of representatives including those under the party
list. For three consecutive terms after the ratification of this
Constitution, one-half of the seats allocated to party-list
representatives shall be filled, as provided by law, by selection or
election from the labor, peasant, urban poor, indigenous cultural
communities, women, youth, and such other sectors as may be
provided by law, except the religious sector." (Emphasis supplied.)
Notwithstanding the sparse language of the provision, a distinguished member
of the Constitutional Commission declared that the purpose of the party-list
provision was to give "genuine power to our people" in Congress. Hence, when
the provision was discussed, he exultantly announced: "On this first day of
August 1986, we shall, hopefully, usher in a new chapter to our national history,
by giving genuine power to our people in the legislature." 35
The foregoing provision on the party-list system is not self-executory. It is, in
fact, interspersed with phrases like "in accordance with law" or "as may be
provided by law"; it was thus up to Congress to sculpt in granite the lofty
objective of the Constitution. Hence, RA 7941 was enacted. It laid out the
statutory policy in this wise:
"SEC. 2. Declaration of Policy. -- The State shall promote proportional
representation in the election of representatives to the House of
Representatives through a party-list system of registered national, regional and
sectoral parties or organizations or coalitions thereof, which will enable Filipino
citizens belonging to marginalized and underrepresented sectors, organizations
and parties, and who lack well-defined political constituencies but who could
contribute to the formulation and enactment of appropriate legislation that will
benefit the nation as a whole, to become members of the House of
Representatives. Towards this end, the State shall develop and guarantee a full,
free and open party system in order to attain the broadest possible
representation of party, sectoral or group interests in the House of
Representatives by enhancing their chances to compete for and win seats in
the legislature, and shall provide the simplest scheme possible."
The Marginalized and Underrepresented to Become Lawmakers Themselves

"(1) The House of Representatives shall be composed of not more than

two hundred and fifty members, unless otherwise fixed by law, who

The foregoing provision mandates a state policy of promoting proportional

representation by means of the Filipino-style party-list system, which will
"enable" the election to the House of Representatives of Filipino citizens,
1. who belong to marginalized
organizations and parties; and

and

underrepresented

sectors,

2. who lack well-defined constituencies; but

3. who could contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole.
The key words in this policy are "proportional representation," "marginalized
and underrepresented," and "lack ofwell-defined constituencies."
"Proportional representation" here does not refer to the number of people in a
particular district, because the party-list election is national in scope. Neither
does it allude to numerical strength in a distressed or oppressed group. Rather,
it refers to the representation of the "marginalized and underrepresented" as
exemplified by the enumeration in Section 5 of the law; namely, "labor,
peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals."
However, it is not enough for the candidate to claim representation of the
marginalized and underrepresented, because representation is easy to claim
and to feign. The party-list organization or party must factually and truly
represent the marginalized and underrepresented constituencies mentioned in
Section 5. 36 Concurrently, the persons nominated by the party-list candidateorganization must be "Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties."
Finally, "lack of well-defined constituenc[y] " refers to the absence of a
traditionally identifiable electoral group, like voters of a congressional district or
territorial unit of government. Rather, it points again to those with disparate
interests identified with the "marginalized or underrepresented."
In the end, the role of the Comelec is to see to it that only those Filipinos who
are "marginalized and underrepresented" become members of Congress under
the party-list system, Filipino-style.
The intent of the Constitution is clear: to give genuine power to the people, not
only by giving more law to those who have less in life, but more so by enabling
them to become veritable lawmakers themselves. Consistent with this intent,
the policy of the implementing law, we repeat, is likewise clear: "to enable
Filipino citizens belonging to marginalized and underrepresented sectors,

organizations and parties, x x x, to become members of the House of

Representatives." Where the language of the law is clear, it must be applied
according to its express terms. 37
The marginalized and underrepresented sectors to be represented under the
party-list system are enumerated in Section 5 of RA 7941, which states:
"SEC. 5. Registration. -- Any organized group of persons may register as a
party, organization or coalition for purposes of the party-list system by filing
with the COMELEC not later than ninety (90) days before the election a petition
verified by its president or secretary stating its desire to participate in the
party-list system as a national, regional or sectoral party or organization or a
coalition of such parties or organizations, attaching thereto its constitution, bylaws, platform or program of government, list of officers, coalition agreement
and other relevant information as the COMELEC may require: Provided, that the
sector shall include labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans, overseas workers,
and professionals."
While the enumeration of marginalized and underrepresented sectors is not
exclusive, it demonstrates the clear intent of the law that not all sectors can be
represented under the party-list system. It is a fundamental principle of
statutory construction that words employed in a statute are interpreted in
connection with, and their meaning is ascertained by reference to, the words
and the phrases with which they are associated or related. Thus, the meaning
of a term in a statute may be limited, qualified or specialized by those in
immediate association. 38
The Party-List System Desecrated by the OSG Contentions
Notwithstanding the unmistakable statutory policy, the Office of the Solicitor
General submits that RA No. 7941 "does not limit the participation in the partylist system to the marginalized and underrepresented sectors of society." 39 In
fact, it contends that any party or group that is not disqualified under Section
6 40 of RA 7941 may participate in the elections. Hence, it admitted during the
Oral Argument that even an organization representing the super rich of Forbes
Park or Dasmarias Village could participate in the party-list elections. 41
The declared policy of RA 7941 contravenes the position of the Office of the
Solicitor General (OSG). We stress that the party-list system seeks to enable
certain Filipino citizens specifically those belonging to marginalized and
underrepresented sectors, organizations and parties to be elected to the
House of Representatives. The assertion of the OSG that the party-list system is
not exclusive to the marginalized and underrepresented disregards the clear
statutory policy. Its claim that even the super-rich and overrepresented can
participate desecrates the spirit of the party-list system.

Indeed, the law crafted to address the peculiar disadvantages of Payatas hovel
dwellers cannot be appropriated by the mansion owners of Forbes Park. The
interests of these two sectors are manifestly disparate; hence, the OSG's
position to treat them similarly defies reason and common sense. In contrast,
and with admirable candor, Atty. Lorna Patajo-Kapunan 42 admitted during the
Oral Argument that a group of bankers, industrialists and sugar planters could
not join the party-list system as representatives of their respective sectors. 43
While the business moguls and the mega-rich are, numerically speaking, a tiny
minority, they are neither marginalized nor underrepresented, for the stark
reality is that their economic clout engenders political power more awesome
than their numerical limitation. Traditionally, political power does not
necessarily emanate from the size of one's constituency; indeed, it is likely to
arise more directly from the number and amount of one's bank accounts.
It is ironic, therefore, that the marginalized and underrepresented in our midst
are the majority who wallow in poverty, destitution and infirmity. It was for
them that the party-list system was enacted -- to give them not only genuine
hope, but genuine power; to give them the opportunity to be elected and to
represent the specific concerns of their constituencies; and simply to give them
a direct voice in Congress and in the larger affairs of the State. In its noblest
sense, the party-list system truly empowers the masses and ushers a new hope
for genuine change. Verily, it invites those marginalized and underrepresented
in the past the farm hands, the fisher folk, the urban poor, even those in the
underground movement to come out and participate, as indeed many of them
came out and participated during the last elections. The State cannot now
disappoint and frustrate them by disabling and desecrating this social justice
vehicle.
Because the marginalized and underrepresented had not been able to win in
the congressional district elections normally dominated by traditional politicians
and vested groups, 20 percent of the seats in the House of Representatives
were set aside for the party-list system. In arguing that even those sectors who
normally controlled 80 percent of the seats in the House could participate in the
party-list elections for the remaining 20 percent, the OSG and the Comelec
disregard the fundamental difference between the congressional district
elections and the party-list elections.
As earlier noted, the purpose of the party-list provision was to open up the
system, 44 in order to enhance the chance of sectoral groups and organizations
to gain representation in the House of Representatives through the simplest
scheme possible. 45 Logic shows that the system has been opened to those who
have never gotten a foothold within it -- those who cannot otherwise win in
regular elections and who therefore need the "simplest scheme possible" to do
so. Conversely, it would be illogical to open the system to those who have long

been within it -- those privileged sectors that have long dominated the
congressional district elections.
The import of the open party-list system may be more vividly understood when
compared to a student dormitory "open house," which by its nature allows
outsiders to enter the facilities. Obviously, the "open house" is for the benefit of
outsiders only, not the dormers themselves who can enter the dormitory even
without such special privilege. In the same vein, the open party-list system is
only for the "outsiders" who cannot get elected through regular elections
otherwise; it is not for the non-marginalized or overrepresented who already fill
the ranks of Congress.
Verily, allowing the non-marginalized and overrepresented to vie for the
remaining seats under the party-list system would not only dilute, but also
prejudice the chance of the marginalized and underrepresented, contrary to the
intention of the law to enhance it. The party-list system is a tool for the benefit
of the underprivileged; the law could not have given the same tool to others, to
the prejudice of the intended beneficiaries.
This Court, therefore, cannot allow the party-list system to be sullied and
prostituted by those who are neither marginalized nor underrepresented. It
cannot let that flicker of hope be snuffed out. The clear state policy must
permeate every discussion of the qualification of political parties and other
organizations under the party-list system.
Refutation of the Separate Opinions
The Separate Opinions of our distinguished colleagues, Justices Jose C. Vitug
and Vicente V. Mendoza, are anchored mainly on the supposed intent of the
framers of the Constitution as culled from their deliberations.
The fundamental principle in constitutional construction, however, is that the
primary source from which to ascertain constitutional intent or purpose is the
language of the provision itself. The presumption is that the words in which the
constitutional provisions are couched express the objective sought to be
attained. 46 In other words, verba legis still prevails. Only when the meaning of
the words used is unclear and equivocal should resort be made to extraneous
aids of construction and interpretation, such as the proceedings of the
Constitutional Commission or Convention, in order to shed light on and
ascertain the true intent or purpose of the provision being construed. 47
Indeed, as cited in the Separate Opinion of Justice Mendoza, this Court stated in
Civil Liberties Union v. Executive Secretary 48 that "the debates and proceedings
of the constitutional convention [may be consulted] in order to arrive at the
reason and purpose of the resulting Constitution x x x only when other guides
fail as said proceedings are powerless to vary the terms of the Constitution

when the meaning is clear. Debates in the constitutional convention 'are of

value as showing the views of the individual members, and as indicating the
reason for their votes, but they give us no light as to the views of the large
majority who did not talk, much less of the mass or our fellow citizens whose
votes at the polls gave that instrument the force of fundamental law. We think
it safer to construe the constitution from what appears upon its face.' The
proper interpretation therefore depends more on how it was understood by the
people adopting it than in the framers' understanding thereof."
Section 5, Article VI of the Constitution, relative to the party-list system, is
couched in clear terms: the mechanics of the system shall be provided by law.
Pursuant thereto, Congress enacted RA 7941. In understanding and
implementing party-list representation, we should therefore look at the law
first. Only when we find its provisions ambiguous should the use of extraneous
aids of construction be resorted to.
But, as discussed earlier, the intent of the law is obvious and clear from its
plain words. Section 2 thereof unequivocally states that the party-list system of
electing
congressional
representatives
was
designed
to
"enable
underrepresented sectors, organizations and parties, and who lack well-defined
political constituencies but who could contribute to the formulation and
enactment of appropriate legislation that will benefit the nation as a whole x x
x." The criteria for participation is well defined. Thus, there is no need for
recourse to constitutional deliberations, not even to the proceedings of
Congress. In any event, the framers' deliberations merely express their
individual opinions and are, at best, only persuasive in construing the meaning
and purpose of the constitution or statute.
Be it remembered that the constitutionality or validity of Sections 2 and 5 of RA
7941 is not an issue here. Hence, they remain parts of the law, which must be
applied plainly and simply.
Fourth Issue:
Grave Abuse of Discretion
From its assailed Omnibus Resolution, it is manifest that the Comelec failed to
appreciate fully the clear policy of the law and the Constitution. On the
contrary, it seems to have ignored the facet of the party-list system discussed
above. The OSG as its counsel admitted before the Court that any group, even
the non-marginalized and overrepresented, could field candidates in the partylist elections.
When a lower court, or a quasi-judicial agency like the Commission on
Elections, violates or ignores the Constitution or the law, its action can be
struck down by this Court on the ground of grave abuse of discretion. 49Indeed,

the function of all judicial and quasi-judicial instrumentalities is to apply the law
as they find it, not to reinvent or second-guess it. 50
In its Memorandum, Petitioner Bayan Muna passionately pleads for the outright
disqualification of the major political parties Respondents Lakas-NUCD, LDP,
NPC, LP and PMP on the ground that under Comelec Resolution No. 4073, they
have been accredited as the five (six, including PDP-Laban) major political
parties in the May 14, 2001 elections. It argues that because of this, they have
the "advantage of getting official Comelec Election Returns, Certificates of
Canvass, preferred poll watchers x x x." We note, however, that this
accreditation does not refer to the party-list election, but, inter alia, to the
election of district representatives for the purpose of determining which parties
would be entitled to watchers under Section 26 of Republic Act No. 7166.
What is needed under the present circumstances, however, is a factual
determination of whether respondents herein and, for that matter, all the 154
previously approved groups, have the necessary qualifications to participate in
the party-list elections, pursuant to the Constitution and the law.
Bayan Muna also urges us to immediately rule out Respondent Mamamayan
Ayaw sa Droga (MAD), because "it is a government entity using government
resources and privileges." This Court, however, is not a trier of facts. 51It is not
equipped to receive evidence and determine the truth of such factual
allegations.
Basic rudiments of due process require that respondents should first be given
an opportunity to show that they qualify under the guidelines promulgated in
this Decision, before they can be deprived of their right to participate in and be
elected under the party-list system.
Guidelines for Screening Party-List Participants
The Court, therefore, deems it proper to remand the case to the Comelec for
the latter to determine, after summary evidentiary hearings, whether the 154
parties and organizations allowed to participate in the party-list elections
comply with the requirements of the law. In this light, the Court finds it
appropriate to lay down the following guidelines, culled from the law and the
Constitution, to assist the Comelec in its work.
First, the political party, sector, organization or coalition must represent the
marginalized and underrepresented groups identified in Section 5 of RA 7941.
In other words, it must show -- through its constitution, articles of incorporation,
bylaws, history, platform of government and track record -- that it represents
and seeks to uplift marginalized and underrepresented sectors. Verily, majority
of its membership should belong to the marginalized and underrepresented.

And it must demonstrate that in a conflict of interests, it has chosen or is likely

to choose the interest of such sectors.
Second, while even major political parties are expressly allowed by RA 7941
and the Constitution to participate in the party-list system, they must comply
with the declared statutory policy of enabling "Filipino citizens belonging to
marginalized and underrepresented sectors x x x to be elected to the House of
Representatives." In other words, while they are not disqualified merely on the
ground that they are political parties, they must show, however, that they
represent the interests of the marginalized and underrepresented. The counsel
of Aksyon Demokratiko and other similarly situated political parties admitted as
much during the Oral Argument, as the following quote shows:
"JUSTICE PANGANIBAN: I am not disputing that in my question. All I am saying
is, the political party must claim to represent the marginalized and
underrepresented sectors?
ATTY. KAPUNAN: Yes, Your Honor, the answer is yes."52
Third, in view of the objections 53 directed against the registration of Ang Buhay
Hayaang Yumabong, which is allegedly a religious group, the Court notes the
express constitutional provision that the religious sector may not be
represented in the party-list system. The extent of the constitutional
proscription is demonstrated by the following discussion during the
deliberations of the Constitutional Commission:
"MR. OPLE. x x x
In the event that a certain religious sect with nationwide and even international
networks of members and supporters, in order to circumvent this prohibition,
decides to form its own political party in emulation of those parties I had
mentioned earlier as deriving their inspiration and philosophies from wellestablished religious faiths, will that also not fall within this prohibition?
MR. MONSOD. If the evidence shows that the intention is to go around the
prohibition, then certainly the Comelec can pierce through the legal fiction." 54
The following discussion is also pertinent:
"MR. VILLACORTA. When the Commissioner proposed "EXCEPT RELIGIOUS
GROUPS," he is not, of course, prohibiting priests, imams or pastors who may
be elected by, say, the indigenous community sector to represent their group.
REV. RIGOS. Not at all, but I am objecting to anybody who represents the Iglesia
ni Kristo, the Catholic Church, the Protestant Church et cetera." 55

Furthermore, the Constitution provides that "religious denominations and sects

shall not be registered." 56 The prohibition was explained by a member 57 of the
Constitutional Commission in this wise: "[T] he prohibition is on any religious
organization registering as a political party. I do not see any prohibition here
against a priest running as a candidate. That is not prohibited here; it is the
registration of a religious sect as a political party." 58
Fourth, a party or an organization must not be disqualified under Section 6 of
RA 7941, which enumerates the grounds for disqualification as follows:
"(1) It is a religious sect or denomination, organization or association
organized for religious purposes;
(2) It advocates violence or unlawful means to seek its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign government, foreign
political party, foundation, organization, whether directly or through
any of its officers or members or indirectly through third parties for
partisan election purposes;
(5) It violates or fails to comply with laws, rules or regulations relating
to elections;
(6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
(8) It fails to participate in the last two (2) preceding elections or fails
to obtain at least two per centum (2%) of the votes cast under the
party-list system in the two (2) preceding elections for the constituency
in which it has registered."59
Note should be taken of paragraph 5, which disqualifies a party or group for
violation of or failure to comply with election laws and regulations. These laws
include Section 2 of RA 7941, which states that the party-list system seeks to
"enable Filipino citizens belonging to marginalized and underrepresented
sectors, organizations and parties x x x to become members of the House of
Representatives." A party or an organization, therefore, that does not comply
with this policy must be disqualified.
Fifth, the party or organization must not be an adjunct of, or a project organized
or an entity funded or assisted by, the government. By the very nature of the
party-list system, the party or organization must be a group of citizens,

organized by citizens and operated by citizens. It must be independent of the

government. The participation of the government or its officials in the affairs of
a party-list candidate is not only illegal 60 and unfair to other parties, but also
deleterious to the objective of the law: to enable citizens belonging to
marginalized and underrepresented sectors and organizations to be elected to
the House of Representatives.
Sixth, the party must not only comply with the requirements of the law; its
nominees must likewise do so. Section 9 of RA 7941 reads as follows:
"SEC. 9. Qualifications of Party-List Nominees. No person shall be nominated
as party-list representative unless he is a natural-born citizen of the Philippines,
a registered voter, a resident of the Philippines for a period of not less than one
(1) year immediately preceding the day of the election, able to read and write,
a bona fide member of the party or organization which he seeks to represent
for at least ninety (90) days preceding the day of the election, and is at least
twenty-five (25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five (25)
but not more than thirty (30) years of age on the day of the election. Any youth
sectoral representative who attains the age of thirty (30) during his term shall
be allowed to continue in office until the expiration of his term."
Seventh, not only the candidate party or organization must represent
marginalized and underrepresented sectors; so also must its nominees. To
repeat, under Section 2 of RA 7941, the nominees must be Filipino citizens
"who belong to marginalized and underrepresented sectors, organizations and
parties." Surely, the interests of the youth cannot be fully represented by a
retiree; neither can those of the urban poor or the working class, by an
industrialist. To allow otherwise is to betray the State policy to give genuine
representation to the marginalized and underrepresented.
Eighth, as previously discussed, while lacking a well-defined political
constituency, the nominee must likewise be able to contribute to the
formulation and enactment of appropriate legislation that will benefit the nation
as a whole. Senator Jose Lina explained during the bicameral committee
proceedings that "the nominee of a party, national or regional, is not going to
represent a particular district x x x."61

legislation that will benefit the nation as a whole, to become members of the
House of Representatives."
Crucial to the resolution of this case is the fundamental social justice principle
that those who have less in life should have more in law. The party-list system
is one such tool intended to benefit those who have less in life. It gives the
great masses of our people genuine hope and genuine power. It is a message
to the destitute and the prejudiced, and even to those in the underground, that
change is possible. It is an invitation for them to come out of their limbo and
seize the opportunity.
Clearly, therefore, the Court cannot accept the submissions of the Comelec and
the other respondents that the party-list system is, without any qualification,
open to all. Such position does not only weaken the electoral chances of the
marginalized and underrepresented; it also prejudices them. It would gut the
substance of the party-list system. Instead of generating hope, it would create
a mirage. Instead of enabling the marginalized, it would further weaken them
and aggravate their marginalization.
In effect, the Comelec would have us believe that the party-list provisions of the
Constitution and RA 7941 are nothing more than a play on dubious words, a
mockery of noble intentions, and an empty offering on the altar of people
empowerment. Surely, this could not have been the intention of the framers of
the Constitution and the makers of RA 7941.
WHEREFORE, this case is REMANDED to the Comelec, which is hereby
DIRECTED to immediately conduct summary evidentiary hearings on the
qualifications of the party-list participants in the light of the guidelines
enunciated in this Decision. Considering the extreme urgency of determining
the winners in the last party-list elections, the Comelec is directed to begin its
hearings for the parties and organizations that appear to have garnered such
number of votes as to qualify for seats in the House of Representatives. The
Comelec is further DIRECTED to submit to this Court its compliance report
within 30 days from notice hereof.1wphi1.nt
The Resolution of this Court dated May 9, 2001, directing the Comelec "to
refrain from proclaiming any winner" during the last party-list election, shall
remain in force until after the Comelec itself will have complied and reported its
compliance with the foregoing disposition.

Epilogue
The linchpin of this case is the clear and plain policy of the law: "to enable
Filipino citizens belonging to marginalized and underrepresented sectors,
organizations and parties, and who lack well-defined political constituencies but
who could contribute to the formulation and enactment of appropriate

This Decision is immediately executory upon the Commission on Elections'

receipt thereof. No pronouncement as to costs.
SO ORDERED.

G.R. No. 177271

May 4, 2007

BANTAY REPUBLIC ACT OR BA-RA 7941, represented by MR.

AMEURFINO E. CINCO, Chairman, AND URBAN POOR FOR LEGAL
REFORMS (UP-LR), represented by MRS. MYRNA P. PORCARE,
Secretary-General, Petitioners,
vs.
COMMISSION ON ELECTIONS, BIYAHENG PINOY, KAPATIRAN NG MGA
NAKAKULONG NA WALANG SALA (KAKUSA), BARANGAY ASSOCIATION
FOR NATIONAL ADVANCEMENT AND TRANSPARENCY (BANAT), AHON
PINOY, AGRICULTURAL SECTOR ALLIANCE OF THE PHILIPPINES, INC.
(AGAP), PUWERSA NG BAYANING ATLETA (PBA), ALYANSA NG MGA
GRUPONG HALIGI NG AGHAM AT TEKNOLOHIYA PARA SA MAMAMAYAN,
INC. (AGHAM), BABAE PARA SA KAUNLARAN (BABAE KA), AKSYON
SAMBAYANAN (AKSA), ALAY SA BAYAN NG MALAYANG PROPESYUNAL
AT REPORMANG KALAKAL (ABAY-PARAK), AGBIAG TIMPUYOG ILOCANO,
INC. (AGBIAG!), ABANTE ILONGGO, INC. (ABA ILONGGO), AANGAT TAYO
(AT), AANGAT ANG KABUHAYAN (ANAK), BAGO NATIONAL CULTURAL
SOCIETY OF THE PHILIPPINES (BAGO), ANGAT ANTAS-KABUHAYAN
PILIPINO MOVEMENT (AANGAT KA PILIPINO), ARTS BUSINESS AND
SCIENCE PROFESSIONAL (ABS), ASSOSASYON NG MGA MALILIIT NA
NEGOSYANTENG GUMAGANAP INC. (AMANG), SULONG BARANGAY
MOVEMENT,
KASOSYO
PRODUCERS
CONSUMER
EXCHANGE
ASSOCIATION, INC. (KASOSYO), UNITED MOVEMENT AGAINST DRUGS
(UNI-MAD), PARENTS ENABLING PARENTS (PEP), ALLIANCE OF NEOCONSERVATIVES (ANC), FILIPINOS FOR PEACE, JUSTICE AND PROGRESS
MOVEMENT (FPJPM), BIGKIS PINOY MOVEMENT (BIGKIS), 1-UNITED
TRANSPORT KOALISYON (1-UNTAK), ALLIANCE FOR BARANGAY
CONCERNS (ABC), BIYAYANG BUKID, INC., ALLIANCE FOR NATIONALISM
AND DEMOCRACY (ANAD), AKBAY PINOY OFW-NATIONAL INC., (APOI),
ALLIANCE TRANSPORT SECTOR (ATS), KALAHI SECTORAL PARTY
(ADVOCATES FOR OVERSEAS FILIPINO) AND ASSOCIATION OF
ADMINISTRATORS, PROFESSIONALS AND SENIORS (AAPS),Respondents.
x--------------------------------------------------x
G.R. No. 177314

May 4, 2007

REP. LORETTA ANN P. ROSALES, KILOSBAYAN FOUNDATION, BANTAY

KATARUNGAN
FOUNDATION,Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.
DECISION
GARCIA, J.:

Before the Court are these two consolidated petitions for certiorari and
mandamus to nullify and set aside certain issuances of the Commission on
Elections (Comelec) respecting party-list groups which have manifested their
intention to participate in the party-list elections on May 14, 2007.
In the first petition, docketed as G.R. No. 177271, petitioners Bantay Republic
Act (BA-RA 7941, for short) and the Urban Poor for Legal Reforms (UP-LR, for
short) assail the various Comelec resolutions accrediting private respondents
Biyaheng Pinoy et al., to participate in the forthcoming party-list elections on
May 14, 2007 without simultaneously determining whether or not their
respective nominees possess the requisite qualifications defined in Republic Act
(R.A.) No. 7941, or the "Party-List System Act" and belong to the marginalized
and underrepresented sector each seeks to represent. In the second, docketed
as G.R. No. 177314, petitioners Loreta Ann P. Rosales, Kilosbayan Foundation
and Bantay Katarungan Foundation impugn Comelec Resolution 07-0724 dated
April 3, 2007 effectively denying their request for the release or disclosure of
the names of the nominees of the fourteen (14) accredited participating partylist groups mentioned in petitioner Rosales previous letter-request.
While both petitions commonly seek to compel the Comelec to disclose or
publish the names of the nominees of the various party-list groups named in
the petitions,1 the petitioners in G.R. No. 177271 have the following additional
prayers: 1) that the 33 private respondents named therein be "declare[d] as
unqualified to participate in the party-list elections as sectoral organizations,
parties or coalition for failure to comply with the guidelines prescribed by the
[Court] in [Ang Bagong Bayani v. Comelec 2]" and, 2) correspondingly, that the
Comelec be enjoined from allowing respondent groups from participating in the
May 2007 elections.
In separate resolutions both dated April 24, 2007, the Court en banc required
the public and private respondents to file their respective comments on the
petitions within a non-extendible period of five (5) days from notice. Apart from
respondent Comelec, seven (7) private respondents 3 in G.R. No. 177271 and
one party-list group4mentioned in G.R. No. 177314 submitted their separate
comments. In the main, the separate comments of the private respondents
focused on the untenability and prematurity of the plea of petitioners BA-RA
7941 and UP-LR to nullify their accreditation as party-list groups and thus
disqualify them and their respective nominees from participating in the May 14,
2007 party-list elections.
The facts:
On January 12, 2007, the Comelec issued Resolution No. 7804 prescribing rules
and regulations to govern the filing of manifestation of intent to participate and
submission of names of nominees under the party-list system of representation
in connection with the May 14, 2007 elections. Pursuant thereto, a number of

organized groups filed the necessary manifestations. Among these and

ostensibly subsequently accredited by the Comelec to participate in the 2007
elections - are 14 party-list groups, namely: (1) BABAE KA; (2) ANG KASANGGA;
(3)AKBAY PINOY; (4) AKSA; (5) KAKUSA; (6) AHON PINOY; (7) OFW PARTY;
(8) BIYAHENG PINOY; (9) ANAD; (10) AANGAT ANG KABUHAYAN; (11) AGBIAG;
(12) BANAT; (13) BANTAY LIPAD; (14) AGING PINOY. Petitioners BA-RA 7941 and
UP-LR presented a longer, albeit an overlapping, list.

RESOLVED, moreover, that the Commission will disclose/publicize the names of

party-list nominees in connection with the May 14, 2007 Elections only after
3:00 p.m. on election day.

Subsequent events saw BA-RA 7941 and UP-LR filing with the Comelec an
Urgent Petition to Disqualify, thereunder seeking to disqualify the nominees of
certain party-list organizations. Both petitioners appear not to have the names
of the nominees sought to be disqualified since they still asked for a copy of the
list of nominees. Docketed in the Comelec as SPA Case No 07-026, this urgent
petition has yet to be resolved.

According to petitioner Rosales, she was able to obtain a copy of the April 3,
2007 Resolution only on April 21, 2007. She would later state the observation
that the last part of the "Order empowering the Law Department to implement
this resolution and reply to all letters inquiring on the party-list nominees is
apparently a fool-proof bureaucratic way to distort and mangle the truth and
give the impression that the antedated Resolution of April 3, 2007 is the final
answer to the two formal requests of Petitioners".10

Meanwhile, reacting to the emerging public perception that the individuals

behind the aforementioned 14 party-list groups do not, as they should, actually
represent the poor and marginalized sectors, petitioner Rosales, in G.R. No.
177314, addressed a letter5 dated March 29, 2007 to Director Alioden Dalaig of
the Comelecs Law Department requesting a list of that groups nominees.
Another letter6 of the same tenor dated March 31, 2007 followed, this time
petitioner Rosales impressing upon Atty. Dalaig the particular urgency of the
subject request.
Neither the Comelec Proper nor its Law Department officially responded to
petitioner Rosales requests. The April 13, 2007 issue of the Manila
Bulletin, however, carried the front-page banner headline "COMELEC WONT
BARE PARTY-LIST NOMINEES",7 with the following sub-heading: "Abalos says
party-list polls not personality oriented."
On April 16, 2007, Atty. Emilio Capulong, Jr. and ex-Senator Jovito R. Salonga, in
their own behalves and as counsels of petitioner Rosales, forwarded a letter 8 to
the Comelec formally requesting action and definitive decision on Rosales
earlier plea for information regarding the names of several party-list nominees.
Invoking their constitutionally-guaranteed right to information, Messrs.
Capulong and Salonga at the same time drew attention to the banner headline
adverted to earlier, with a request for the Comelec, "collectively or individually,
to issue a formal clarification, either confirming or denying the banner
headline and the alleged statement of Chairman Benjamin Abalos, Sr. xxx"
Evidently unbeknownst then to Ms. Rosales, et al., was the issuance of
Comelec en banc Resolution 07-07249 under date April 3, 2007 virtually
declaring the nominees names confidential and in net effect denying petitioner
Rosales basic disclosure request. In its relevant part, Resolution 07-0724 reads
as follows:

Let the Law Department implement this resolution and reply to all letters
addressed to the Commission inquiring on the party-list nominees. (Emphasis
added.)

The herein consolidated petitions are cast against the foregoing factual setting,
albeit petitioners BA-RA 7941 and UP-LR appear not to be aware, when they
filed their petition on April 18, 2007, of the April 3, 2007 Comelec Resolution
07-0724.
To start off, petitioners BA-RA 7941 and UP-LR would have the Court cancel the
accreditation accorded by the Comelec to the respondent party-list groups
named in their petition on the ground that these groups and their respective
nominees do not appear to be qualified. In the words of petitioners BA-RA 7941
and UP-LR, Comelec xxx committed grave abuse of discretion when it granted the assailed
accreditations even withoutsimultaneously determining whether the nominees
of herein private respondents are qualified or not, or whether or not the
nominees are likewise belonging to the marginalized and underrepresented
sector they claim to represent in Congress, in accordance with No. 7 of the
eight-point guidelines prescribed by the Honorable Supreme in the Ang Bagong
Bayani11 case which states that, "not only the candidate party or organization
must represent marginalized and underrepresented sectors; so also must its
nominees." In the case of private respondents, public respondent Comelec
granted accreditations without the required simultaneous determination of the
qualification of the nominees as part of the accreditation process of the partylist organization itself. (Words in bracket added; italization in the original) 12
The Court is unable to grant the desired plea of petitioners BA-RA 7941 and UPLR for cancellation of accreditation on the grounds thus advanced in their
petition. For, such course of action would entail going over and evaluating the
qualities of the sectoral groups or parties in question, particularly whether or
not they indeed represent marginalized/underrepresented groups. The exercise
would require the Court to make a factual determination, a matter which is

outside the office of judicial review by way of special civil action for certiorari.
In certiorari proceedings, the Court is not called upon to decide factual issues
and the case must be decided on the undisputed facts on record. 13 The sole
function of a writ of certiorari is to address issues of want of jurisdiction or
grave abuse of discretion and does not include a review of the tribunals
evaluation of the evidence.14
Not lost on the Court of course is the pendency before the Comelec of SPA Case
No. 07-026 in which petitioners BA-RA 7941 and UP-LR themselves seek to
disqualify the nominees of the respondent party-list groups named in their
petition.
Petitioners BA-RA 7941s and UP-LRs posture that the Comelec committed
grave abuse of discretion when it granted the assailed accreditations without
simultaneously determining the qualifications of their nominees is without
basis. Nowhere in R.A. No. 7941 is there a requirement that the qualification of
a party-list nominee be determined simultaneously with the accreditation of an
organization. And as aptly pointed out by private respondent Babae Para sa
Kaunlaran (Babae Ka), Section 4 of R.A. No. 7941 requires a petition for
registration of a party-list organization to be filed with the Comelec "not later
than ninety (90) days before the election" whereas the succeeding Section 8
requires the submission "not later than forty-five (45) days before the election"
of the list of names whence party-list representatives shall be chosen.
Now to the other but core issues of the case. The petition in G.R. No. 177314
formulates and captures the main issues tendered by the petitioners in these
consolidated cases and they may be summarized as follows:
1. Whether respondent Comelec, by refusing to reveal the names of
the nominees of the various party-list groups, has violated the right to
information and free access to documents as guaranteed by the
Constitution; and
2. Whether respondent Comelec is mandated by the Constitution to
disclose to the public the names of said nominees.
While the Comelec did not explicitly say so, it based its refusal to disclose the
names of the nominees of subject party-list groups on Section 7 of R.A. 7941.
This provision, while commanding the publication and the posting in polling
places of a certified list of party-list system participating groups, nonetheless
tells the Comelec not to show or include the names of the party-list nominees in
said certified list. Thus:
SEC. 7. Certified List of Registered Parties.- The COMELEC shall, not later than
sixty (60) days before election, prepare a certified list of national, regional, or
sectoral parties, organizations or coalitions which have applied or who have

manifested their desire to participate under the party-list system and distribute
copies thereof to all precincts for posting in the polling places on election
day. The names of the party-list nominees shall not be shown on the
certified list. (Emphasis added.)
And doubtless part of Comelecs reason for keeping the names of the party list
nominees away from the public is deducible from the following excerpts of the
news report appearing in the adverted April 13, 2007 issue of theManila
Bulletin:
The Commission on Elections (COMELEC) firmed up yesterday its decision not
to release the names of nominees of sectoral parties, organizations, or
coalitions accredited to participate in the party-list election which will be held
simultaneously with the May 14 mid-term polls.
COMELEC Chairman Benjamin S. Abalos, Sr. said he and [the other five
COMELEC] Commissioners --- believe that the party list elections must not
be personality oriented.
Abalos said under [R.A.] 7941 , the people are to vote for sectoral parties,
organizations, or coalitions, not for their nominees.
He said there is nothing in R.A. 7941 that requires the Comelec to disclose the
names of nominees. xxx (Words in brackets and emphasis added)
Insofar as the disclosure issue is concerned, the petitions are impressed with
merit.
Assayed against the non-disclosure stance of the Comelec and the given
rationale therefor is the right to information enshrined in the selfexecutory15 Section 7, Article III of the Constitution, viz:
Sec.7. The right of the people to information on matters of public concern shall
be recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well to government
research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
Complementing and going hand in hand with the right to information is another
constitutional provision enunciating the policy of full disclosure and
transparency in Government. We refer to Section 28, Article II of the
Constitution reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts
and implements a policy of full public disclosure of all its transactions involving
public interest.
The right to information is a public right where the real parties in interest are
the public, or the citizens to be precise. And for every right of the people
recognized as fundamental lies a corresponding duty on the part of those who
govern to respect and protect that right. This is the essence of the Bill of Rights
in a constitutional regime.16 Without a governments acceptance of the
limitations upon it by the Constitution in order to uphold individual liberties,
without an acknowledgment on its part of those duties exacted by the rights
pertaining to the citizens, the Bill of Rights becomes a sophistry.
By weight of jurisprudence, any citizen can challenge any attempt to obstruct
the exercise of his right to information and may seek its enforcement by
mandamus.17 And since every citizen by the simple fact of his citizenship
possesses the right to be informed, objections on ground of locus standi are
ordinarily unavailing.18
Like all constitutional guarantees, however, the right to information and its
companion right of access to official records are not absolute. As articulated
in Legaspi, supra, the peoples right to know is limited to "matters of public
concern" and is further subject to such limitation as may be provided by law.
Similarly, the policy of full disclosure is confined to transactions involving
"public interest" and is subject to reasonable conditions prescribed by law. Too,
there is also the need of preserving a measure of confidentiality on some
matters, such as military, trade, banking and diplomatic secrets or those
affecting national security.19
The terms "public concerns" and "public interest" have eluded precise
definition. But both terms embrace, to borrow from Legaspi, a broad spectrum
of subjects which the public may want to know, either because these directly
affect their lives, or simply because such matters naturally whet the interest of
an ordinary citizen. At the end of the day, it is for the courts to determine, on a
case to case basis, whether or not at issue is of interest or importance to the
public.
If, as in Legaspi, it was the legitimate concern of a citizen to know if certain
persons employed as sanitarians of a health department of a city are civil
service eligibles, surely the identity of candidates for a lofty elective public
office should be a matter of highest public concern and interest.
As may be noted, no national security or like concerns is involved in the
disclosure of the names of the nominees of the party-list groups in question.
Doubtless, the Comelec committed grave abuse of discretion in refusing the

legitimate demands of the petitioners for a list of the nominees of the party-list
groups subject of their respective petitions. Mandamus, therefore, lies.
The last sentence of Section 7 of R.A. 7941 reading: "[T]he names of the partylist nominees shall not be shown on the certified list" is certainly not a justifying
card for the Comelec to deny the requested disclosure. To us, the prohibition
imposed on the Comelec under said Section 7 is limited in scope and duration,
meaning, that it extends only to the certified list which the same provision
requires to be posted in the polling places on election day. To stretch the
coverage of the prohibition to the absolute is to read into the law something
that is not intended. As it were, there is absolutely nothing in R.A. No. 7941 that
prohibits the Comelec from disclosing or even publishing through mediums
other than the "Certified List" the names of the party-list nominees. The
Comelec obviously misread the limited non-disclosure aspect of the provision
as an absolute bar to public disclosure before the May 2007 elections. The
interpretation thus given by the Comelec virtually tacks an unconstitutional
dimension on the last sentence of Section 7 of R.A. No. 7941.
The Comelecs reasoning that a party-list election is not an election of
personalities is valid to a point. It cannot be taken, however, to justify its
assailed non-disclosure stance which comes, as it were, with a weighty
presumption of invalidity, impinging, as it does, on a fundamental right to
information.20 While the vote cast in a party-list elections 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 is very much aware of newspaper reports detailing the purported
reasons behind the Comelecs disinclination to release the names of party-list
nominees. It is to be stressed, however, that the Court is in the business of
dispensing justice on the basis of hard facts and applicable statutory and
decisional laws. And lest it be overlooked, the Court always assumes, at the
first instance, the presumptive validity and regularity of official acts of
government officials and offices.
It has been repeatedly said in various contexts that the people have the right to
elect their representatives on the basis of an informed judgment. Hence the
need for voters to be informed about matters that have a bearing on their
choice. The ideal cannot be achieved in a system of blind voting, as veritably
advocated in the assailed resolution of the Comelec. The Court, since the 1914
case of Gardiner v. Romulo, 21 has consistently made it clear that it frowns upon
any interpretation of the law or rules that would hinder in any way the free and
intelligent casting of the votes in an election. 22 So it must be here for still other
reasons articulated earlier.

In all, we agree with the petitioners that respondent Comelec has a

constitutional duty to disclose and release the names of the nominees of the
party-list groups named in the herein petitions.
WHEREFORE, the petition in G.R. No. 177271 is partly DENIED insofar as it
seeks to nullify the accreditation of the respondents named therein. However,
insofar as it seeks to compel the Comelec to disclose or publish the names of
the nominees of party-list groups, sectors or organizations accredited to
participate in the May 14, 2007 elections, the same petition and the petition in
G.R. No. 177314 are GRANTED. Accordingly, the Comelec is hereby ORDERED to
immediately disclose and release the names of the nominees of the party-list
groups, sectors or organizations accredited to participate in the May 14, 2007
party-list elections. The Comelec is further DIRECTED to submit to the Court its
compliance herewith within five (5) days from notice hereof.
This Decision is declared immediately executory upon its receipt by the
Comelec.
No pronouncement as to cost.
SO ORDERED.

G.R. No. 203766

April 2, 2013

ATONG PAGLAUM, INC., represented by

Igot, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

its

President,

Mr.

Alan

1st
CONSUMERS
ALLIANCE
FOR
RURAL
ENERGY,
CARE), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

INC.

(1-

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

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

G.R. No. 203976

G.R. Nos. 203818-19

ALLIANCE FOR RURAL AND AGRARIAN

(ARARO), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

AKO
BICOL
POLITICAL
PARTY
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

(AKB), Petitioner,

RECONSTRUCTION,

INC.

x-----------------------x
x-----------------------x
G.R. No. 203981
G.R. No. 203922
ASSOCIATION
OF
PHILIPPINE
ELECTRIC
COOPERATIVES
(APEC),represented by its President Congressman Ponciano D.
Payuyo, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

ASSOCIATION FOR RIGHTEOUSNESS ADVOCACY ON LEADERSHIP (ARAL)

PARTY-LIST, represented herein by Ms. Lourdes L. Agustin, the partys
Secretary
General, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x

x-----------------------x
G.R. No. 204002
G.R. No. 203936
AKSYON MAGSASAKA-PARTIDO TINIG NG MASA, represented by its
President
Michael
Abas
Kida,Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

ALLIANCE
FOR
RURAL
vs.
COMMISSION ON ELECTIONS, Respondent.

CONCERNS, Petitioner,

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

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

G.R. No. 204094

G.R. No. 203958

ALLIANCE FOR NATIONALISM AND DEMOCRACY (ANAD), Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

KAPATIRAN
NG
MGA
NAKULONG
NA
(KAKUSA), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

WALANG

SALA,

INC.

x-----------------------x
G.R. No. 204100

x-----------------------x
G.R. No. 203960

1-BRO PHILIPPINE GUARDIANS BROTHERHOOD, INC., (1BRO-PGBI)

formerly
PGBI, Petitioner,

vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x

BANTAY PARTY LIST, represented by Maria Evangelina F. Palparan,

President, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

G.R. No. 204122

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

1
GUARDIANS
NATIONALIST
PHILIPPINES,
INC.,
(1GANAP/GUARDIANS), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC composed of SIXTO S.
BRILLANTES,
JR.,
Chairman,
RENE
V.
SARMIENTO,
Commissioner,LUCENITO
N.
TAGLE,
Commissioner,ARMANDO
C.
VELASCO,
Commissioner,ELIAS
R.
YUSOPH,
Commissioner,
andCHRISTIAN ROBERT S. LIM, Commissioner,Respondents.

G.R. No. 204153

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

G.R. No. 204158

G.R. No. 204125

ABROAD
PARTY
LIST, Petitioner,
vs.
COMMISSION ON ELECTIONS, CHAIRMAN SIXTO S. BRILLANTES, JR.,
COMMISSIONERS RENE V. SARMIENTO, ARMANDO C. VELASCO, ELIAS R.
YUSOPH, CHRISTIAN ROBERT S. LIM, MARIA GRACIA CIELO M. PADACA,
LUCENITO TAGLE, AND ALL OTHER PERSONS ACTING ON THEIR
BEHALF,Respondents.

AGAPAY NG INDIGENOUS PEOPLES RIGHTS ALLIANCE, INC. (A-IPRA),

represented by its Secretary General,Ronald D. Macaraig, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

PASANG MASDA NATIONWIDE PARTY by its President Roberto "Ka

Obet"
Martin, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondents.
x-----------------------x

x-----------------------x
x-----------------------x
G.R. No. 204126
G.R. No. 204174
KAAGAPAY NG NAGKAKAISANG AGILANG PILIPINONG MAGSASAKA
(KAP), formerly known as AKO AGILA NG NAGKAKAISANG MAGSASAKA
(AKO AGILA), represented by its Secretary General, Leo R. San
Buenaventura, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

AANGAT TAYO PARTY LIST-PARTY, represented by its President Simeon

T.
Silva,
Jr., Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x

x-----------------------x
G.R. No. 204216
G.R. No. 204139
ALAB NG MAMAMAHAYAG (ALAM), represented by Atty. Berteni
Catalua
Causing, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

COCOFED-PHILIPPINE
COCONUT
PRODUCERS
INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x

x-----------------------x
G.R. No. 204220
G.R. No. 204141

FEDERATION,

ABANG
LINGKOD
PARTY-LIST, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

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

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

UNITED MOVEMENT AGAINST DRUGS FOUNDATION (UNIMAD) PARTYLIST, Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

G.R. No. 204236

FIRM
24-K
ASSOCIATION,
vs.
COMMISSION ON ELECTIONS, Respondent.

G.R. No. 204318

INC., Petitioner,
x-----------------------x
G.R. No. 204321

x-----------------------x
G.R. No. 204238
ALLIANCE
OF
BICOLNON
PARTY
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

(ABP), Petitioner,

ANG AGRIKULTURA NATIN ISULONG (AANI), represented by its

Secretary
General
Jose
C.
Policarpio,
Jr.,Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x

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

G.R. No. 204323

G.R. No. 204239

BAYANI PARTYLIST as represented byHomer Bueno,

Fitrylin
Dalhani,Israel
de
Castro,
Dante
Navarroand
Guiling
Mamondiong, Petitioner,
vs.
COMMISSION ON ELECTIONS, CHAIRMAN SIXTO S. BRILLANTES, JR.,
COMMISSIONERS RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO
C. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM, and MARIA
GRACIA CIELO M. PADACA, Respondents.

GREEN FORCE FOR THE ENVIRONMENT SONS AND DAUGHTERS OF

MOTHER
EARTH
(GREENFORCE),Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204240
AGRI-AGRA NA REPORMA PARA SA MAGSASAKA NG PILIPINAS
MOVEMENT (AGRI), represented by its Secretary General, Michael
Ryan
A.
Enriquez, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204263
A BLESSED PARTY LIST A.K.A. BLESSEDFEDERATION OF FARMERS AND
FISHERMEN
INTERNATIONAL,
INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

x-----------------------x
G.R. No. 204341
ACTION
LEAGUE
OF
INDIGENOUS
MASSES(ALIM)
PARTY-LIST,
represented herein by its President Fatani S. Abdul Malik, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204356
BUTIL
FARMERS
vs.
COMMISSION ON ELECTIONS, Respondent.

PARTY, Petitioner,

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

G.R. No. 204374

G.R. No. 204358

BINHI-PARTIDO
NG
MGA
MAGSASAKA
PARA
MAGSASAKA, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

ALLIANCE OF ADVOCATES IN MININGADVANCEMENT FOR NATIONAL

PROGRESS
(AAMA), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

SA

MGA

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

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

G.R. No. 204379

G.R. No. 204359

ALAGAD NG SINING (ASIN) represented by its President, Faye Maybelle

Lorenz, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

SOCIAL MOVEMENT FOR ACTIVEREFORM AND TRANSPARENCY

(SMART), represented by its Chairman, Carlito B. Cubelo, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

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

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

G.R. No. 204394

G.R. No. 204364

ASSOCIATION
OF
GUARD
UTILITY
HELPER,
AIDER,
RIDER,
DRIVER/DOMESTIC HELPER, JANITOR, AGENT AND NANNY OF THE
PHILIPPINES,
INC.
(GUARDJAN), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

ADHIKAIN AT KILUSAN NG ORDINARYONG-TAO, PARA SA LUPA,

PABAHAY, HANAPBUHAY AT KAUNLARAN (AKO BUHAY), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, SIXTO S. BRILLANTES, JR., RENE
V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO C. VELASCO, ELIAS R.
YUSOPH, CHRISTIAN ROBERT S. LIM, and MA. GRACIA CIELO M.
PADACA, in their capacities as Commissioners thereof, Respondents.
x-----------------------x
G.R. No. 204367
AKBAY
KALUSUGAN
INCORPORATION(AKIN), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

x-----------------------x
G.R. No. 204402
KALIKASAN PARTY-LIST, represented by its President, Clemente G.
Bautista, Jr., and Secretary General, Frances Q. Quimpo, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204408

x-----------------------x
G.R. No. 204370
AKO AN BISAYA (AAB), represented by itsSecretary General, Rodolfo T.
Tuazon, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

PILIPINO
ASSOCIATION
FOR
COUNTRY-URBAN
POOR
YOUTH
ADVANCEMENT
AND
WELFARE
(PACYAW),Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204410

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

1-UNITED
TRANSPORT
KOALISYON
vs.
COMMISSION ON ELECTIONS, Respondent.

(1-UTAK), Petitioner,

G.R. No. 204435

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

1 ALLIANCE ADVOCATING AUTONOMY PARTY

vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

G.R. No. 204421

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

COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE

PHILIPPINES, INC. SENIOR CITIZEN PARTY-LIST, represented herein by
its 1st nominee and Chairman, Francisco G. Datol, Jr., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

G.R. No. 204436

(1AAAP), Petitioner,

ABYAN ILONGGO PARTY (AI), represented byits Party President, Rolex

T.
Suplico, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

x-----------------------x
x-----------------------x
G.R. No. 204425
G.R. No. 204455
COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE
PHILIPPINES,
INC., Petitioner,
vs.
COMMISSION ON ELECTIONS and ANY OF ITS OFFICERS AND AGENTS,
ACTING FOR AND IN ITS BEHALF, INCLUDING THE CHAIR AND
MEMBERSOF THE COMMISSION, Respondents.
x-----------------------x
G.R. No. 204426
ASSOCIATION OF LOCAL ATHLETICS ENTREPRENEURS AND HOBBYISTS,
INC.
(ALA-EH), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, SIXTO S. BRILLANTES, JR., RENE
V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO C. VELASCO, ELIAS R.
YUSOPH, CHRISTIAN ROBERT S. LIM, and MA. GRACIA CIELO M.
PADACA, in their respective capacities as COMELEC Chairperson and
Commissioners, Respondents.
x-----------------------x
G.R. No. 204428
ANG GALING PINOY (AG), represented by its Secretary General,
Bernardo
R.
Corella,
Jr., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x

MANILA TEACHER SAVINGS AND LOAN ASSOCIATION, INC., Petitioner,

vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204484
PARTIDO NG BAYAN ANG BIDA (PBB), represented by its Secretary
General,
Roger
M.
Federazo,Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204485
ALLIANCE OF ORGANIZATIONS, NETWORKS AND ASSOCIATIONS OF THE
PHILIPPINES,
INC.
(ALONA),Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204486
1st KABALIKAT NG
KABAGIS), Petitioner,

BAYAN

GINHAWANG

SANGKATAUHAN

(1st

vs.
COMMISSION ON ELECTIONS, Respondent.

qualify under RA 7941 and

Ang Bagong Bayani.
Omnibus Resolution dated 27 November 2012 9

x-----------------------x
G.R. No. 204490
PILIPINAS
PARA
SA
PINOY
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

20445
5

12-041
(PLM)

Manila
Savings
Loan
Association,
(Manila
Teachers)

20442
6

12-011
(PLM)

Association
of
Local
Athletics
Entrepreneurs
and
Hobbyists,
Inc. (ALA-EH)

(PPP), Petitioner,

PERLAS-BERNABE,*
DECISION
CARPIO, J.:

20443
5

12-057
(PLM)

These cases constitute 54 Petitions for Certiorari and Petitions for Certiorari and
Prohibition1 filed by 52 party-list groups and organizations assailing the
Resolutions issued by the Commission on Elections (COMELEC) disqualifying
them from participating in the 13 May 2013 party-list elections, either by denial
of their petitions for registration under the party-list system, or cancellation of
their registration and accreditation as party-list organizations.
This Court resolved to consolidate the 54 petitions in the Resolutions dated 13
November 2012,2 20 November 2012,3 27 November 2012,4 4 December
2012,5 11 December 2012,6 and 19 February 2013.7
The Facts Pursuant to the provisions of Republic Act No. 7941 (R.A. No. 7941)
and COMELEC Resolution Nos. 9366 and 9531, approximately 280 groups and
organizations registered and manifested their desire to participate in the 13
May 2013 party-list elections.
SPP No.

Group

Grounds for Denial

A. Via the COMELEC En Bancs automatic review of the COMELEC

Divisions resolutions approving registration of groups/organizations
Resolution dated 23 November 20128
1

20437
9

- Failure to show that its

members belong to the
marginalized;
and
- Failure of the nominees to
qualify.

Resolution dated 27 November 201210

The Cases

G.R.
No.

Teachers - A non-stock savings and

and loan association cannot be
considered marginalized and
Inc. underrepresented;
and
- The first and second
nominees are not teachers by
profession.

12-099
(PLM)

Alagad
Sining (ASIN)

ng - The "artists" sector is not

considered marginalized and
underrepresented;
- Failure to prove track
record;
and
- Failure of the nominees to

1
Advocating
Autonomy
(1AAAP)

Alliance - Failure of the nominees to

qualify: although registering
Party as a regional political party,
two of the nominees are not
residents of the region; and
four of the five nominees do
not
belong
to
the
marginalized
and
underrepresented.

Resolution dated 27 November 201211

5

20436
7

12-104
(PL)

Akbay
Kalusugan
(AKIN), Inc.

- Failure of the group to show

that its nominees belong to
the urban poor sector.

Resolution dated 29 November 201212

6

20437
0

12-011
(PP)

Ako
(AAB)

An

Bisaya - Failure to represent a

marginalized
sector
of
society, despite the formation
of a sectoral wing for the
benefit of farmers of Region
8;
- Constituency has district
representatives;
- Lack of track record in
representing peasants and
farmers;
and
Nominees
are
neither
farmers nor peasants.

Resolution dated 4 December 201213

20443
6

12-009
(PP),
12-165
(PLM)

Abyan
Party (AI)

Ilonggo - Failure to show that the

party
represents
a
marginalized
and
underrepresented sector, as
the Province of Iloilo has
district
representatives;
- Untruthful statements in the
memorandum;
and
- Withdrawal of three of its
five nominees.

interests;
and
- The nominees do not belong
to the sector which the group
claims to represent.
Resolution dated 14 November 201217
1
1

20439
4

12-145
(PL)

Resolution dated 4 December 201214

8

20448
5

12-175
(PL)

Alliance
of
Organizations,
Networks
and
Associations
of
the
Philippines,
Inc. (ALONA)

- Failure to establish that the

group can represent 14
sectors; - The sectors of
homeowners
associations,
entrepreneurs
and cooperatives are not
marginalized
and
underrepresented;
and
- The nominees do not belong
to the marginalized and
underrepresented.

B. Via the COMELEC En Bancs review on motion for reconsideration

of the COMELEC Divisions resolutions denying registration of groups
and organizations
Resolution dated 7 November 201215
9

20413
9

12-127
(PL)

Alab
Mamamahayag
(ALAM)

ng - Failure to prove track

record as an organization;
- Failure to show that the
group actually represents the
marginalized
and
underrepresented;
and
- Failure to establish that the
group can represent all
sectors it seeks to represent.

Resolution dated 7 November 201216

1
0

20440
2

12-061
(PP)

Kalikasan
Party-List - The group reflects an
(KALIKASAN)
advocacy
for
the
environment, and is not
representative
of
the
marginalized
and
underrepresented;
- There is no proof that
majority of its members
belong to the marginalized
and
underrepresented;
The
group
represents
sectors
with
conflicting

Association
Guard,
Helper,
Rider,
Domestic
Helper,
Janitor,
and
Nanny
of
Philippines,
(GUARDJAN)

of
Utility
Aider,
Driver/

Failure
to
prove
membership base and track
record;
- Failure to present activities
that sufficiently benefited its
intended constituency; and
Agent - The nominees do not belong
to any of the sectors which
the the group seeks to represent.
Inc.

Resolution dated 5 December 201218

1
2

20449
0

12-073
(PLM)

Pilipinas
Para
Pinoy (PPP)

sa - Failure to show that the

group
represents
a
marginalized
and
underrepresented sector, as
Region
12
has
district
representatives;
and
- Failure to show a track
record
of
undertaking
programs for the welfare of
the sector the group seeks to
represent.

In a Resolution dated 5 December 2012, 19 the COMELEC En Banc affirmed the

COMELEC Second Divisions resolution to grant Partido ng Bayan ng Bidas
(PBB) registration and accreditation as a political party in the National Capital
Region. However, PBB was denied participation in the 13 May 2013 party-list
elections because PBB does not represent any "marginalized and
underrepresented" sector; PBB failed to apply for registration as a party-list
group; and PBB failed to establish its track record as an organization that seeks
to uplift the lives of the "marginalized and underrepresented." 20
These 13 petitioners (ASIN, Manila Teachers, ALA-EH, 1AAAP, AKIN, AAB, AI,
ALONA, ALAM, KALIKASAN, GUARDJAN, PPP, and PBB) were not able to secure a
mandatory injunction from this Court. The COMELEC, on 7 January 2013 issued
Resolution No. 9604,21 and excluded the names of these 13 petitioners in the
printing of the official ballot for the 13 May 2013 party-list elections.
Pursuant to paragraph 222 of Resolution No. 9513, the COMELEC En Banc
scheduled summary evidentiary hearings to determine whether the groups and
organizations that filed manifestations of intent to participate in the 13 May
2013 party-list elections have continually complied with the requirements of
R.A. No. 7941 and Ang Bagong Bayani-OFW Labor Party v. COMELEC 23 (Ang
Bagong Bayani). The COMELEC disqualified the following groups and
organizations from participating in the 13 May 2013 party-list elections:

G.R.
No.

SPP
No.

Group

Grounds for Denial

Foundation
(UNIMAD)

Resolution dated 10 October 201224

1

203818
-19

12154
(PLM)
12177
(PLM)

AKO
Political
(AKB)

Bicol Retained
registration
and
Party accreditation
as
a
political
party, but denied participation
in
the
May
2013
party-list
elections
Failure
to
represent
any
marginalized
and
underrepresented
sector;
The
Bicol
region
already
has
representatives
in
Congress;
and
The
nominees
are
not
marginalized
and
underrepresented.

Omnibus Resolution dated 11 October 201225

Omnibus Resolution dated 16 October 201226

6

204100

12196
(PLM)

1-Bro
Philippine
Guardians
Brotherhood,
Inc. (1BRO-PGBI)

Cancelled
registration
- Failure to define the sector
it
seeks
to
represent;
and
- The nominees do not belong
to
a
marginalized
and
underrepresented sector.

204122

12223
(PLM)

1
Guardians
Nationalist
Philippines,
Inc.
(1GANAP/
GUARDIANS)

Cancelled
registration
The
party
is
a
military
fraternity;
The
sector
of
community
volunteer
workers
is
too
broad to allow for meaningful
representation;
and
- The nominees do not appear
to belong to the sector of
community
volunteer
workers.

20426

12257
(PLM)

Blessed
Cancelled
registration
Federation
of Three
of
the
seven
Farmers
and nominees
do
not
belong
to
Fishermen
the
sector
of
farmers
and
International,
fishermen,
the
sector
sought
Inc.
(A to
be
represented;
and
BLESSED
- None of the nominees are
Party-List)
registered
voters
of
Region
XI, the region sought to be
represented.

203766

12161
(PLM)

Atong
Paglaum, Cancelled
registration
and
Inc.
(Atong accreditation
Paglaum)
- The nominees do not belong
to the sectors which the party
represents;
and
- The party failed to file its
Statement
of
Contributions
and
Expenditures
for
the
2010 Elections.

203981

12187
(PLM)

Association
for Cancelled
registration
and
Righteousness
accreditation
Advocacy
on - Failure to comply, and for
Leadership
violation
of
election
laws;
(ARAL)
The
nominees
do
not
represent
the
sectors
which
the
party
represents;
and
- There is doubt that the party
is
organized
for
religious
purposes.

204002

12188
(PLM)

Alliance
for Cancelled
registration
and
Rural
Concerns accreditation
(ARC)
- Failure of the nominees to
qualify;
and
- Failure of the party to prove
that majority of its members
belong to the sectors it seeks
to represent.

Resolution dated 16 October 201227

12220
(PLM)

United
Movement
Against

204318

Cancelled
registration
accreditation
Drugs The
sectors
of

and
drug

counsellors
and
lecturers,
veterans and the youth, are
not
marginalized
and
underrepresented;
Failure
to
establish
track
record;
and
- Failure of the nominees to
qualify
as
representatives
of
the youth and young urban
professionals.

203960

12260
(PLM)

1st
Consumers
Alliance
for
Rural
Energy,
Inc. (1-CARE)

Cancelled
registration
- The sector of rural energy
consumers
is
not
marginalized
and
underrepresented;
- The partys track record is
related
to
electric
cooperatives
and
not
rural
energy
consumers;
and
- The nominees do not belong

to the sector
consumers.

of

rural

energy

farmers that the party seeks to

represent;
Only
four
nominees
were
submitted
to
the
COMELEC;
and
- Failure to show meaningful
activities for its constituency.

Resolution dated 16 October 201228

1
0

203922

12201
(PLM)

Association
Philippine
Electric
Cooperatives
(APEC)

of Cancelled
registration
and
accreditation
Failure
to
represent
a
marginalized
and
underrepresented
sector;
and
- The nominees do not belong
to the sector that the party
claims to represent.

1
4

203936

12248
(PLM)

Aksyon
Magsasaka-Partido
Tinig
ng
Masa (AKMA-PTM)

1
5

204126

12263
(PLM)

Kaagapay
Nagkakaisang
Agilang
Pilipinong
Magsasaka
(KAP)

1
6

204364

12180
(PLM)

Adhikain
at
Kilusan
ng
Ordinaryong
Tao
Para
sa
Lupa,
Pabahay,
Hanapbuhay
at
Kaunlaran
(AKO-BAHAY)

Cancelled
registration
Failure
to
show
that
nominees
actually
belong
to
the sector, or that they have
undertaken
meaningful
activities for the sector.

1
7

204141

12229
(PLM)

The
True
Marcos
Loyalist
(for
God,
Country
and
People)
Association
of
the
Philippines,
Inc. (BANTAY)

Cancelled
registration
Failure
to
show
that
majority of its members are
marginalized
and
underrepresented;
and
- Failure to prove that two of
its
nominees
actually
belong
to
the
marginalized
and

Resolution dated 23 October 201229

1
1

204174

12232
(PLM)

Aangat
Party-List
( AT )

Tayo Cancelled
registration
and
Party accreditation
The
incumbent
representative
in
Congress
failed
to
author
or
sponsor
bills that are beneficial to the
sectors
that
the
party
represents
(women,
elderly,
youth,
urban
poor);
and
- The nominees do not belong
to
the
marginalized
sectors
that
the
party
seeks
to
represent.

Omnibus Resolution dated 24 October 201230

1
2

203976

12288
(PLM)

Alliance
for
Rural
and
Agrarian
Reconstruction,
Inc. (ARARO)

Cancelled
registration
and
accreditation
- The interests of the peasant
and urban poor sectors that
the
party
represents
differ;
- The nominees do not belong
to the sectors that the party
seeks
to
represent;
- Failure to show that three of
the nominees are bona fide
party
members;
and
- Lack of a Board resolution
to participate in the party-list
elections.

Omnibus Resolution dated 24 October 201231

1
3

204240

12279
(PLM)

Agri-Agra
na Cancelled
registration
Reporma Para sa - The party ceased to exist for
Magsasaka
ng more than a year immediately
Pilipinas
after the May 2010 elections;
Movement
- The nominees do not belong
(AGRI)
to the sector of peasants and

Cancelled
registration
Failure
to
show
that
majority of its members are
marginalized
and
underrepresented;
- Failure to prove that four of
its
nine
nominees
actually
belong to the farmers sector;
and
- Failure to show that five of
its
nine
nominees
work
on
uplifting
the
lives
of
the
members of the sector.

ng Cancelled
registration
- The Manifestation of Intent
and
Certificate
of
Nomination
were
not
signed
by
an
appropriate
officer
of
the
party;
- Failure to show track record
for the farmers and peasants
sector;
and
Failure
to
show
that
nominees
actually
belong
to
the sector, or that they have
undertaken
meaningful
activities for the sector.

underrepresented.
1
8

1
9

2
0

204408

204153

203958

12217
(PLM)

12277
(PLM)

12015
(PLM)

Pilipino
Association
for
Country Urban
Poor
Youth
Advancement
and
Welfare
( PA C YAW )

Cancelled
registration
Change
of
sector
(from
urban
poor
youth
to
urban
poor)
necessitates
a
new
application;
- Failure to show track record
for
the
marginalized
and
underrepresented;
Failure
to
prove
that
majority of its members and
officers
are
from
the
urban
poor
sector;
and
The
nominees
are
not
members of the urban poor
sector.

Pasang
Masda
Nationwide
Party
(PASANG
MASDA)

Cancelled
registration
- The party represents drivers
and operators, who may have
conflicting
interests;
and
Nominees
are
either
operators or former operators.

Kapatiran
ng
mga
Nakulong
na Walang Sala,
Inc. (KAKUSA)

Cancelled
registration
Failure
to
prove
that
na
Walang
Sala,
Inc.
(KAKUSA)
majority
of
its
officers
and
members
belong
to
the
marginalized
and
underrepresented;
The
incumbent
representative
in
Congress
failed
to
author
or
sponsor
bills that are beneficial to the
sector
that
the
party
represents
(persons
imprisoned
without
proof
of
guilt
beyond
reasonable
doubt);
- Failure to show track record
for
the
marginalized
and
underrepresented;
and
The
nominees
did
not
appear to be marginalized and
underrepresented.

Resolution dated 30 October 201232

2
1

204428

12256
(PLM)

Ang
Pinoy (AG)

Galing Cancelled
accreditation
Failure
summary

registration
to

and

attend
the
hearing;

- Failure to show track record

for
the
marginalized
and
underrepresented;
and
The
nominees
did
not
appear to be marginalized and
underrepresented.
Resolution dated 7 November 201233
2
2

204094

12185
(PLM)

Alliance
Nationalism
Democracy
(ANAD)

for Cancelled
registration
and
and accreditation
Failure
to
represent
an
identifiable
marginalized
and
underrepresented
sector;
- Only three nominees were
submitted
to
the
COMELEC;
The
nominees
do
not
belong
to
the
marginalized
and
underrepresented;
and
Failure
to
submit
its
Statement
of
Contribution
and
Expenditures
for
the
2007 Elections.

Omnibus Resolution dated 7 November 201234

2
3

204239

12060
(PLM)

Green Force for

the
Environment
Sons
and
Daughters
of
Mother
Earth
(GREENFORCE)

Cancelled
registration
and
accreditation
- The party is an advocacy
group and does not represent
the
marginalized
and
underrepresented;
- Failure to comply with the
track record requirement; and
The
nominees
are
not
marginalized citizens.

2
4

204236

12254
(PLM)

Firm
Association,
(FIRM 24-K)

2
5

204341

12269
(PLM)

Action
League Cancelled
registration
and
of
Indigenous accreditation
Masses (ALIM)
- Failure to establish that its
nominees are members of the
indigenous
people
in
the

24-K Cancelled
registration
and
Inc. accreditation
The
nominees
do
not
belong to the sector that the
party
seeks
to
represent
(urban poor and peasants of
the
National
Capital
Region);
- Only two of its nominees
reside in the National Capital
Region;
and
- Failure to comply with the
track record requirement.

Mindanao
and
Cordilleras
sector that the party seeks to
represent;
Only
two
of
the
partys
nominees
reside
in
the
Mindanao
and
Cordilleras;
and
- Three of the nominees do
not appear to belong to the
marginalized.

204358

12204
(PLM)

Alliance
of
Advocates
in
Mining
Advancement
for
National
Progress
(AAMA)

2
7

204359

12272
(PLM)

Social
Movement
for
Active
Reform
and
Transparency
(SMART)

204321

Cancelled
registration
- The sector it represents is a
specifically
defined
group
which
may
not
be
allowed
registration under the party-list
system;
and
- Failure to establish that the
nominees
actually
belong
to
the sector.

Resolution dated 7 November 201236

12252
(PLM)

204238

12173
(PLM)

Alliance
Bicolnon
(ABP)

Cancelled
registration
The
nominees
are
disqualified
from
representing
the
sectors
that
the
party
represents;
- Failure to comply with the
track record requirement; and
- There is doubt as to whether
majority of its members are
marginalized
and
underrepresented.

of Cancelled
registration
Party accreditation
Defective
registration
accreditation
dating
back
2010;
Failure
to
represent
sector;
- Failure to establish that
nominees are employed in
construction
industry,
sector it claims to represent.

and
and
to
any
and
the
the
the

Resolution dated 7 November 201238

2
9

204323

12210

Ang
Agrikultura Cancelled
registration
and
Natin
Isulong accreditation
(AANI)
- Failure to establish a track
record of enhancing the lives
of
the
marginalized
and
underrepresented
farmers
which it claims to represent;
and
- More than a majority of the
partys
nominees
do
not
belong to the farmers sector.

Resolution dated 7 November 201240

3
1

204125

12292
(PLM)

Resolution dated 7 November 201237

2
8

Failure
to
prove
a
track
record of trying to uplift the
marginalized
and
underrepresented
sector
of
professionals;
and
- One nominee was declared
unqualified
to
represent
the
sector of professionals.

Resolution dated 7 November 201239

3
0

Resolution dated 7 November 201235

2
6

(PLM)

Bayani
Party Cancelled
List (BAYANI)
accreditation

registration

and

Agapay
ng Cancelled
registration
and
Indigenous
accreditation
Peoples
Rights - Failure to prove that its five
Alliance,
Inc. nominees are members of the
(A-IPRA)
indigenous
people
sector;
- Failure to prove that its five
nominees
actively
participated
in
the
undertakings of the party; and
- Failure to prove that its five
nominees
are
bona
fide
members.

Resolution dated 7 November 201241

3
2

204216

12202
(PLM)

Philippine
Coconut
Producers
Federation,
(COCOFED)

Cancelled
registration
and
accreditation
- The party is affiliated with
Inc. private
and
government
agencies
and
is
not
marginalized;
- The party is assisted by the
government
in
various
projects;
and
The
nominees
are
not
members
of
the
marginalized
sector of coconut farmers and
producers.

Resolution dated 7 November 201242

3
3

204220

12238
(PLM)

Abang
Lingkod Cancelled
registration
Party-List
- Failure to establish a track
(ABANG
record
of
continuously
LINGKOD)
representing
the
peasant
farmers
sector;
Failure
to
show
that
its
members
actually
belong
to
the
peasant
farmers
sector;
and
Failure
to
show
that
its
nominees
are
marginalized
and
underrepresented,
have
actively
participated
in
programs
for
the
advancement of farmers, and
adhere to its advocacies.

The
partys
nominees
neither appear to belong to
the
sectors
they
seek
to
represent,
nor
to
have
actively
participated
in
the
undertakings of the party.
Resolution dated 3 December 201246
3
7

204486

12194
(PLM)

Resolution dated 14 November 201243

3
4

204158

12158
(PLM)

Action
Brotherhood
Active
Dreamers,
(ABROAD)

Cancelled
registration
and
for accreditation - Failure to show that
the
Inc. party
is
actually
able
to
represent all of the sectors it
claims
to
represent;
- Failure to show a complete
track record of its activities
since
its
registration;
and
- The nominees are not part
of any of the sectors which
the party seeks to represent.

Resolution dated 28 November 201244

3
5

204374

12228
(PLM)

Binhi-Partido
ng
mga
Magsasaka
Para
sa
mga
Magsasaka
(BINHI)

Cancelled
registration
and
accreditation
The
party
receives
assistance
from
the
government
through
the
Department
of
Agriculture;
and
- Failure to prove that the
group
is
marginalized
and
underrepresented.

Resolution dated 28 November 201245

3
6

204356

12136
(PLM)

Butil
Farmers Cancelled
registration
and
Party (BUTIL)
accreditation
- Failure to establish that the
agriculture
and
cooperative
sectors
are
marginalized
and
underrepresented;
and

1st
Kabalikat
Bayan
Ginhawang
Sangkatauhan
(1st
KABAGIS)

Cancelled
registration
and
ng accreditation
Declaration
of
untruthful
statements;
- Failure to exist for at least
one
year;
and
None
of
its
nominees
belong
to
the
labor,
fisherfolk,
and
urban
poor
indigenous
cultural
communities
sectors
which
it
seeks to represent.

Resolution dated 4 December 201247

3
8

204410

12198
(PLM)

1-United
Transport
Koalisyon (1-UTAK)

Cancelled
accreditation
- The party represents drivers
and operators, who may have
conflicting
interests;
and
- The partys nominees do not
belong
to
any
marginalized
and underrepresented sector.

Resolution dated 4 December 201248

3
9

204421
,
204425

12157
(PLM)
,
12191
(PLM)

Coalition
of
Senior
Citizens
in
the
Philippines,
Inc.
(SENIOR
CITIZENS)

Cancelled
registration
- The party violated election
laws
because
its
nominees
had
a
term-sharing
agreement.

These 39 petitioners (AKB, Atong Paglaum, ARAL, ARC, UNIMAD, 1BRO-PGBI,

1GANAP/GUARDIANS, A BLESSED Party-List, 1-CARE, APEC, AT, ARARO, AGRI,
AKMA-PTM, KAP, AKO-BAHAY, BANTAY, PACYAW, PASANG MASDA, KAKUSA, AG,
ANAD, GREENFORCE, FIRM 24-K, ALIM, AAMA, SMART, ABP, BAYANI, AANI, AIPRA, COCOFED, ABANG LINGKOD, ABROAD, BINHI, BUTIL, 1st KABAGIS, 1-UTAK,
SENIOR CITIZENS) were able to secure a mandatory injunction from this Court,
directing the COMELEC to include the names of these 39 petitioners in the
printing of the official ballot for the 13 May 2013 party-list elections.
Petitioners prayed for the issuance of a temporary restraining order and/or writ
of preliminary injunction. This Court issued Status Quo Ante Orders in all
petitions. This Decision governs only the 54 consolidated petitions that were
granted Status Quo Ante Orders, namely:

G.R. No.

SPP No.

Group

204122

12-223
(PLM)

1
Guardians
Nationalist
(1GANAP/GUARDIANS)

203766

12-161
(PLM)

Atong Paglaum, Inc. (Atong Paglaum)

204318

12-220
(PLM)

United Movement
(UNIMAD)

204263

12-257
(PLM)

Blessed Federation of Farmers and Fishermen

International, Inc. (A BLESSED Party-List)

Resolution dated 13 November 2012

203818-19

Philippines,

Inc.

12-154
(PLM)
12-177
(PLM)

AKO Bicol Political Party (AKB)

203981

12-187
(PLM)

Association for Righteousness

Leadership (ARAL)

204002

12-188
(PLM)

Alliance for Rural Concerns (ARC)

204174

12-232
(PLM)

Aangat Tayo Party-List Party (AT)

203922

12-201
(PLM)

Association of Philippine Electric Cooperatives

(APEC)

204126

12-263
(PLM)

Kaagapay ng Nagkakaisang Agilang Pilipinong

Magsasaka (KAP)

203960

12-260
(PLM)

1st
Consumers
(1-CARE)

204364

12-180
(PLM)

Adhikain at Kilusan ng Ordinaryong Tao Para sa

Lupa, Pabahay, Hanapbuhay at Kaunlaran
(AKO-BAHAY)

203936

12-248
(PLM)

Aksyon Magsasaka-Partido
(AKMA-PTM)

204139

12-127 (PL)

Alab ng Mamamahayag (ALAM)

204220

203958

12-015
(PLM)

Kapatiran ng mga Nakulong na Walang Sala,

Inc. (KAKUSA)

12-238
(PLM)

Abang
LINGKOD)

204236

12-288
(PLM)

Alliance for Rural and Agrarian Reconstruction,

Inc. (ARARO)

12-254
(PLM)

Firm 24-K Association, Inc. (FIRM 24-K)

203976

204238

12-173
(PLM)

Alliance of Bicolnon Party (ABP)

Alliance

for

Rural

Advocacy

Energy,

Tinig

ng

on

Inc.
Masa

Resolution dated 20 November 2012

for

Nationalism

Lingkod

Drugs

Party-List

Foundation

(ABANG

204094

12-185
(PLM)

Alliance
(ANAD)

Democracy

204239

12-060
(PLM)

Green Force for the Environment Sons and

Daughters of Mother Earth (GREENFORCE)

204125

12-292
(PLM)

Agapay ng Indigenous Peoples Rights Alliance,

Inc. (A-IPRA)

204321

12-252
(PLM)

Ang Agrikultura Natin Isulong (AANI)

204100

12-196
(PLM)

1-Bro Philippine
(1BRO-PGBI)

204323

12-210
(PLM)

Bayani Party List (BAYANI)

204341

12-269
(PLM)

Action League of Indigenous Masses (ALIM)

204358

12-204
(PLM)

Alliance of Advocates in Mining Advancement

for National Progress (AAMA)

Guardians

and

Against

Brotherhood,

Inc.

Resolution dated 27 November 2012

204141

12-229
(PLM)

The True Marcos Loyalist (for God, Country

and People) Association of the Philippines, Inc.
(BANTAY)

204240

12-279
(PLM)

Agri-Agra na Reporma Para sa Magsasaka ng

Pilipinas Movement (AGRI)

204359

12-272
(PLM)

Social Movement for

Transparency (SMART)

204216

12-202
(PLM)

Philippine Coconut Producers Federation, Inc.

(COCOFED)

204356

12-136
(PLM)

Butil Farmers Party (BUTIL)

204158

12-158
(PLM)

Action Brotherhood for Active Dreamer, Inc.

(ABROAD)

Resolution dated 11 December 2012

Resolutions dated 4 December 2012

204402

12-061 (PL)

Active

Kalikasan Party-List (KALIKASAN)

Reform

and

204394

12-145 (PL)

Association of Guard, Utility Helper, Aider,

Rider, Driver/Domestic Helper, Janitor, Agent
and
Nanny
of
the
Philippines,
Inc.
(GUARDJAN)

204408

12-217
(PLM)

Pilipino Association for Country Urban Poor

Youth Advancement and Welfare (PACYAW)

204428

12-256
(PLM)

Ang Galing Pinoy (AG)

204490

12-073
(PLM)

Pilipinas Para sa Pinoy (PPP)

204379

12-099
(PLM)

Alagad ng Sining (ASIN)

204367

12-104 (PL)

Akbay Kalusugan (AKIN)

204426

12-011
(PLM)

Association of Local Athletics

and Hobbyists, Inc. (ALA-EH)

204455

12-041
(PLM)

Manila Teachers Savings and Loan Association,

Inc. (Manila Teachers)

204374

12-228
(PLM)

Binhi-Partido ng mga Magsasaka Para sa mga

Magsasaka (BINHI)

204370

12-011 (PP)

Ako An Bisaya (AAB)

204435

12-057
(PLM)

1
Alliance
(1AAAP)

204486

12-194
(PLM)

1st
Kabalikat
ng
Bayan
Sangkatauhan (1st KABAGIS)

204410

12-198
(PLM)

1-United Transport Koalisyon (1-UTAK)

204421,
204425

12-157
(PLM)
12-191
(PLM)

Coalition of Senior Citizens in the Philippines,

Inc. (SENIOR CITIZENS)

204436

12-009 (PP), Abyan Ilonggo Party (AI)

12-165
(PLM)

204485

12-175 (PL)

Alliance
of
Organizations,
Networks
Associations of the Philippines, Inc. (ALONA)

204484

11-002

Partido ng Bayan ng Bida (PBB)

Advocating

12-277
(PLM)

Pasang Masda
MASDA)

Nationwide

We rule upon two issues: first, whether the COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction in disqualifying petitioners
from participating in the 13 May 2013 party-list elections, either by denial of
their new petitions for registration under the party-list system, or by
cancellation of their existing registration and accreditation as party-list
organizations; and second, whether the criteria for participating in the party-list
system laid down in Ang Bagong Bayani and Barangay Association for National
Advancement and Transparency v. Commission on Elections 49 (BANAT) should
be applied by the COMELEC in the coming 13 May 2013 party-list elections.
The Courts Ruling

Entrepreneurs

We hold that the COMELEC did not commit grave abuse of discretion in
following prevailing decisions of this Court in disqualifying petitioners from
participating in the coming 13 May 2013 party-list elections. However, since the
Court adopts in this Decision new parameters in the qualification of national,
regional, and sectoral parties under the party-list system, thereby abandoning
the rulings in the decisions applied by the COMELEC in disqualifying petitioners,
we remand to the COMELEC all the present petitions for the COMELEC to
determine who are qualified to register under the party-list system, and to
participate in the coming 13 May 2013 party-list elections, under the new
parameters prescribed in this Decision.
The Party-List System

Autonomy

Party

Ginhawang

and

Resolution dated 11 December 2012

204153

The Issues

Party

(PASANG

The 1987 Constitution provides the basis for the party-list system of
representation. Simply put, the party-list system is intended to democratize
political power by giving political parties that cannot win in legislative district
elections a chance to win seats in the House of Representatives. 50 The voter
elects two representatives in the House of Representatives: one for his or her
legislative district, and another for his or her party-list group or organization of
choice. The 1987 Constitution provides:
Section 5, Article VI
(1) The House of Representatives shall be composed of not more than
two hundred and fifty members, unless otherwise fixed by law, who
shall be elected from legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila area in accordance with
the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall
be elected through a party-list system of registered national, regional,
and sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per centum of
the total number of representatives including those under the party
list. For three consecutive terms after the ratification of this
Constitution, one-half of the seats allocated to party-list
representatives shall be filled, as provided by law, by selection or

election from the labor, peasant, urban poor, indigenous cultural

communities, women, youth, and such other sectors as may be
provided by law, except the religious sector.
Sections 7 and 8, Article IX-C
Sec. 7. No votes cast in favor of a political party, organization, or coalition shall
be valid, except for those registered under the party-list system as provided in
this Constitution.
Sec. 8. Political parties, or organizations or coalitions registered under the
party-list system, shall not be represented in the voters registration boards,
boards of election inspectors, boards of canvassers, or other similar bodies.
However, they shall be entitled to appoint poll watchers in accordance with law.
Commissioner Christian S. Monsod, the main sponsor of the party-list system,
stressed that "the party-list system is not synonymous with that of the
sectoral representation."51 The constitutional provisions on the party-list
system should be read in light of the following discussion among its framers:
MR. MONSOD: x x x.
I would like to make a distinction from the beginning that the proposal for the
party list system is not synonymous with that of the sectoral representation.
Precisely, the party list system seeks to avoid the dilemma of choice of sectors
and who constitute the members of the sectors. In making the proposal on the
party list system, we were made aware of the problems precisely cited by
Commissioner Bacani of which sectors will have reserved seats. In effect, a
sectoral representation in the Assembly would mean that certain sectors would
have reserved seats; that they will choose among themselves who would sit in
those reserved seats. And then, we have the problem of which sector because
as we will notice in Proclamation No. 9, the sectors cited were the farmers,
fishermen, workers, students, professionals, business, military, academic,
ethnic and other similar groups. So these are the nine sectors that were
identified here as "sectoral representatives" to be represented in this
Commission. The problem we had in trying to approach sectoral representation
in the Assembly was whether to stop at these nine sectors or include other
sectors. And we went through the exercise in a caucus of which sector should
be included which went up to 14 sectors. And as we all know, the longer we
make our enumeration, the more limiting the law become because when we
make an enumeration we exclude those who are not in the enumeration.
Second, we had the problem of who comprise the farmers. Let us just say the
farmers and the laborers. These days, there are many citizens who are called
"hyphenated citizens." A doctor may be a farmer; a lawyer may also be a
farmer. And so, it is up to the discretion of the person to say "I am a farmer" so
he would be included in that sector.
The third problem is that when we go into a reserved seat system of sectoral
representation in the Assembly, we are, in effect, giving some people two votes
and other people one vote. We sought to avoid these problems by presenting a
party list system. Under the party list system, there are no reserved seats for

sectors. Let us say, laborers and farmers can form a sectoral party or a sectoral
organization that will then register and present candidates of their party. How
do the mechanics go? Essentially, under the party list system, every voter has
two votes, so there is no discrimination. First, he will vote for the representative
of his legislative district. That is one vote. In that same ballot, he will be asked:
What party or organization or coalition do you wish to be represented in the
Assembly? And here will be attached a list of the parties, organizations or
coalitions that have been registered with the COMELEC and are entitled to be
put in that list. This can be a regional party, a sectoral party, a national party,
UNIDO, Magsasaka or a regional party in Mindanao. One need not be a farmer
to say that he wants the farmers' party to be represented in the Assembly. Any
citizen can vote for any party. At the end of the day, the COMELEC will then
tabulate the votes that had been garnered by each party or each organization
one does not have to be a political party and register in order to participate
as a party and count the votes and from there derive the percentage of the
votes that had been cast in favor of a party, organization or coalition.
When such parties register with the COMELEC, we are assuming that 50 of the
250 seats will be for the party list system. So, we have a limit of 30 percent of
50. That means that the maximum that any party can get out of these 50 seats
is 15. When the parties register they then submit a list of 15 names. They have
to submit these names because these nominees have to meet the minimum
qualifications of a Member of the National Assembly. At the end of the day,
when the votes are tabulated, one gets the percentages. Let us say, UNIDO
gets 10 percent or 15 percent of the votes; KMU gets 5 percent; a womens
party gets 2 1/2 percent and anybody who has at least 2 1/2 percent of the
vote qualifies and the 50 seats are apportioned among all of these parties who
get at least 2 1/2 percent of the vote.
What does that mean? It means that any group or party who has a constituency
of, say, 500,000 nationwide gets a seat in the National Assembly. What is the
justification for that? When we allocate legislative districts, we are saying that
any district that has 200,000 votes gets a seat. There is no reason why a group
that has a national constituency, even if it is a sectoral or special interest
group, should not have a voice in the National Assembly. It also means that, let
us say, there are three or four labor groups, they all register as a party or as a
group. If each of them gets only one percent or five of them get one percent,
they are not entitled to any representative. So, they will begin to think that if
they really have a common interest, they should band together, form a
coalition and get five percent of the vote and, therefore, have two seats in the
Assembly. Those are the dynamics of a party list system.
We feel that this approach gets around the mechanics of sectoral
representation while at the same time making sure that those who really have
a national constituency or sectoral constituency will get a chance to have a
seat in the National Assembly. These sectors or these groups may not have the
constituency to win a seat on a legislative district basis. They may not be able
to win a seat on a district basis but surely, they will have votes on a nationwide
basis.
The purpose of this is to open the system. In the past elections, we found out
that there were certain groups or parties that, if we count their votes

nationwide; have about 1,000,000 or 1,500,000 votes. But they were always
third place or fourth place in each of the districts. So, they have no voice in the
Assembly. But this way, they would have five or six representatives in the
Assembly even if they would not win individually in legislative districts. So, that
is essentially the mechanics, the purpose and objectives of the party list
system.

MR. VILLACORTA. Yes, why not? For as long as they field candidates who
come from the different marginalized sectors that we shall designate
in this Constitution.

BISHOP BACANI: Madam President, am I right in interpreting that when we

speak now of party list system though we refer to sectors, we would be
referring to sectoral party list rather than sectors and party list?

MR. VILLACORTA. No, Senator Taada would not qualify.

MR. MONSOD: As a matter of fact, if this body accepts the party list system, we
do not even have to mention sectors because the sectors would be included in
the party list system. They can be sectoral parties within the party list
system.
xxxx
MR. MONSOD. Madam President, I just want to say that we suggested or
proposed the party list system because we wanted to open up the political
system to a pluralistic society through a multiparty system. x x x We are for
opening up the system, and we would like very much for the sectors to
be there. That is why one of the ways to do that is to put a ceiling on
the number of representatives from any single party that can sit
within the 50 allocated under the party list system. x x x.
xxx
MR. MONSOD. Madam President, the candidacy for the 198 seats is not
limited to political parties. My question is this: Are we going to
classify for example Christian Democrats and Social Democrats as
political parties? Can they run under the party list concept or must
they be under the district legislation side of it only?
MR. VILLACORTA. In reply to that query, I think these parties that the
Commissioner mentioned can field candidates for the Senate as well
as for the House of Representatives. Likewise, they can also field
sectoral candidates for the 20 percent or 30 percent, whichever is
adopted, of the seats that we are allocating under the party list
system.
MR. MONSOD. In other words, the Christian Democrats can field district
candidates and can also participate in the party list system?

MR. MONSOD. Suppose Senator Taada wants to run under BAYAN group and
says that he represents the farmers, would he qualify?

MR. MONSOD. But UNIDO can field candidates under the party list system and
say Juan dela Cruz is a farmer. Who would pass on whether he is a farmer or
not?
MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political
parties, particularly minority political parties, are not prohibited to
participate in the party list election if they can prove that they are
also organized along sectoral lines.
MR. MONSOD. What the Commissioner is saying is that all political parties can
participate because it is precisely the contention of political parties that they
represent the broad base of citizens and that all sectors are represented in
them. Would the Commissioner agree?
MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang
political party, it will dominate the party list at mawawalang saysay din yung
sector. Lalamunin mismo ng political parties ang party list system. Gusto ko
lamang bigyan ng diin ang "reserve." Hindi ito reserve seat sa marginalized
sectors. Kung titingnan natin itong 198 seats, reserved din ito sa political
parties.
MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my
question to Commissioner Villacorta and probably also to Commissioner Tadeo
is that under this system, would UNIDO be banned from running under the
party list system?
MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On
that condition alone, UNIDO may be allowed to register for the party
list system.
MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that
answer?
MR. TADEO. The same.

MR. VILLACORTA. Why not? When they come to the party list system,
they will be fielding only sectoral candidates.

MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines.

MR. MONSOD. May I be clarified on that? Can UNIDO participate in the

party list system?

MR. MONSOD: Sino po ang magsasabi kung iyong kandidato ng UNIDO ay hindi
talagang labor leader or isang laborer? Halimbawa, abogado ito.

MR. TADEO: Iyong mechanics.

MR. MONSOD: Hindi po mechanics iyon because we are trying to solve an
inherent problem of sectoral representation. My question is: Suppose UNIDO
fields a labor leader, would he qualify?
MR. TADEO: The COMELEC may look into the truth of whether or not a
political party is really organized along a specific sectoral line. If such
is verified or confirmed, the political party may submit a list of
individuals who are actually members of such sectors. The lists are to
be published to give individuals or organizations belonging to such
sector the chance to present evidence contradicting claims of
membership in the said sector or to question the claims of the
existence of such sectoral organizations or parties. This proceeding
shall be conducted by the COMELEC and shall be summary in
character. In other words, COMELEC decisions on this matter are final
and unappealable.52 (Emphasis supplied)
Indisputably, the framers of the 1987 Constitution intended the party-list
system to include not only sectoral parties but also non-sectoral parties. The
framers intended the sectoral parties to constitute a part, but not the entirety,
of the party-list system. As explained by Commissioner Wilfredo
Villacorta, political parties can participate in the party-list system "For
as long as they field candidates who come from the different
marginalized sectors that we shall designate in this Constitution." 53
In fact, the framers voted down, 19-22, a proposal to reserve permanent seats
to sectoral parties in the House of Representatives, or alternatively, to reserve
the party-list system exclusively to sectoral parties. As clearly explained by
Justice Jose C. Vitug in his Dissenting Opinion in Ang Bagong Bayani:
The draft provisions on what was to become Article VI, Section 5, subsection
(2), of the 1987 Constitution took off from two staunch positions the first
headed by Commissioner Villacorta, advocating that of the 20 per centum of
the total seats in Congress to be allocated to party-list representatives half
were to be reserved to appointees from the marginalized and underrepresented
sectors. The proposal was opposed by some Commissioners. Mr. Monsod
expressed the difficulty in delimiting the sectors that needed representation. He
was of the view that reserving seats for the marginalized and underrepresented
sectors would stunt their development into full-pledged parties equipped with
electoral machinery potent enough to further the sectoral interests to be
represented. The Villacorta group, on the other hand, was apprehensive that
pitting the unorganized and less-moneyed sectoral groups in an electoral
contest would be like placing babes in the lion's den, so to speak, with the
bigger and more established political parties ultimately gobbling them up. R.A.
7941 recognized this concern when it banned the first five major political
parties on the basis of party representation in the House of Representatives
from participating in the party-list system for the first party-list elections held in
1998 (and to be automatically lifted starting with the 2001 elections). The
advocates for permanent seats for sectoral representatives made an effort
towards a compromise that the party-list system be open only to
underrepresented and marginalized sectors. This proposal was further whittled

down by allocating only half of the seats under the party-list system to
candidates from the sectors which would garner the required number of votes.
The majority was unyielding. Voting 19-22, the proposal for permanent seats,
and in the alternative the reservation of the party-list system to the sectoral
groups, was voted down. The only concession the Villacorta group was able to
muster was an assurance of reserved seats for selected sectors for three
consecutive terms after the enactment of the 1987 Constitution, by which time
they would be expected to gather and solidify their electoral base and brace
themselves in the multi-party electoral contest with the more veteran political
groups.54(Emphasis supplied)
Thus, in the end, the proposal to give permanent reserved seats to certain
sectors was outvoted. Instead, the reservation of seats to sectoral
representatives was only allowed for the first three consecutive terms. 55 There
can be no doubt whatsoever that the framers of the 1987 Constitution
expressly rejected the proposal to make the party-list system exclusively for
sectoral parties only, and that they clearly intended the party-list system to
include both sectoral and non-sectoral parties.
The common denominator between sectoral and non-sectoral parties is that
they cannot expect to win in legislative district elections but they can garner, in
nationwide elections, at least the same number of votes that winning
candidates can garner in legislative district elections. The party-list system will
be the entry point to membership in the House of Representatives for both
these non-traditional parties that could not compete in legislative district
elections.
The indisputable intent of the framers of the 1987 Constitution to include in the
party-list system both sectoral and non-sectoral parties is clearly written in
Section 5(1), Article VI of the Constitution, which states:
Section 5. (1) The House of Representative shall be composed of not more that
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.
(Emphasis supplied)
Section 5(1), Article VI of the Constitution is crystal-clear that there shall be "a
party-list system of registered national, regional, and sectoral parties
or organizations." The commas after the words "national," and "regional,"
separate national and regional parties from sectoral parties. Had the framers of
the 1987 Constitution intended national and regional parties to be at the same
time sectoral, they would have stated "national and regional sectoral parties."
They did not, precisely because it was never their intention to make the partylist system exclusively sectoral.
What the framers intended, and what they expressly wrote in Section 5(1),
could not be any clearer: the party-list system is composed of three different
groups, and the sectoral parties belong to only one of the three groups. The

text of Section 5(1) leaves no room for any doubt that national and regional
parties are separate from sectoral parties.
Thus, the party-list system is composed of three different groups: (1)
national parties or organizations; (2) regional parties or organizations; and (3)
sectoral parties or organizations. National and regional parties or organizations
are different from sectoral parties or organizations. National and regional
parties or organizations need not be organized along sectoral lines and need
not represent any particular sector.
Moreover, Section 5(2), Article VI of the 1987 Constitution mandates that,
during the first three consecutive terms of Congress after the ratification of the
1987 Constitution, "one-half of the seats allocated to party-list representatives
shall be filled, as provided by law, by selection or election from the labor,
peasant, urban poor, indigenous cultural communities, women, youth, and such
other sectors as may be provided by law, except the religious sector." This
provision clearly shows again that the party-list system is not exclusively for
sectoral parties for two obvious reasons.
First, the other one-half of the seats allocated to party-list representatives
would naturally be open to non-sectoral party-list representatives, clearly
negating the idea that the party-list system is exclusively for sectoral parties
representing the "marginalized and underrepresented." Second, the reservation
of one-half of the party-list seats to sectoral parties applies only for the first
"three consecutive terms after the ratification of this Constitution," clearly
making the party-list system fully open after the end of the first three
congressional terms. This means that, after this period, there will be no seats
reserved for any class or type of party that qualifies under the three groups
constituting the party-list system.
Hence, the clear intent, express wording, and party-list structure
ordained in Section 5(1) and (2), Article VI of the 1987 Constitution
cannot be disputed: the party-list system is not for sectoral parties
only, but also for non-sectoral parties.
Republic Act No. 7941 or the Party-List System Act, which is the law that
implements the party-list system prescribed in the Constitution, provides:
Section 3. Definition of Terms. (a) The party-list system is a mechanism of
proportional representation in the election of representatives to the House of
Representatives from national, regional and sectoral parties or organizations or
coalitions thereof registered with the Commission on Elections (COMELEC).
Component parties or organizations of a coalition may participate
independently provided the coalition of which they form part does not
participate in the party-list system.
(b) A party means either a political party or a sectoral party or
a coalition of parties.
(c) A political party refers to an organized group of citizens
advocating an ideology or platform, principles and policies for

the general conduct of government and which, as the most

immediate means of securing their adoption, regularly
nominates and supports certain of its leaders and members as
candidates for public office.
It is a national party when its constituency is spread over the
geographical territory of at least a majority of the regions. It is a
regional party when its constituency is spread over the geographical
territory of at least a majority of the cities and provinces comprising
the region.
(d) A sectoral party refers to an organized group of citizens
belonging to any of the sectors enumerated in Section 5 hereof
whose principal advocacy pertains to the special interest and
concerns of their sector.
(e) A sectoral organization refers to a group of citizens or a coalition of
groups of citizens who share similar physical attributes or
characteristics, employment, interests or concerns.
(f) A coalition refers to an aggrupation of duly registered national,
regional, sectoral parties or organizations for political and/or election
purposes. (Emphasis supplied)
Section 3(a) of R.A. No. 7941 defines a "party" as "either a political party or
a sectoral party or a coalition of parties." Clearly, a political party is different
from a sectoral party. Section 3(c) of R.A. No. 7941 further provides that
a "political party refers to an organized group of citizens advocating an
ideology or platform, principles and policies for the general conduct of
government." On the other hand, Section 3(d) of R.A. No. 7941 provides that
a "sectoral party refers to an organized group of citizens belonging to any of
the sectors enumerated in Section 5 hereof whose principal advocacy
pertains to the special interest and concerns of their sector." R.A. No.
7941 provides different definitions for a political and a sectoral party. Obviously,
they are separate and distinct from each other.
R.A. No. 7941 does not require national and regional parties or
organizations to represent the "marginalized and underrepresented"
sectors. To require all national and regional parties under the party-list system
to represent the "marginalized and underrepresented" is to deprive and
exclude, by judicial fiat, ideology-based and cause-oriented parties from the
party-list system. How will these ideology-based and cause-oriented parties,
who cannot win in legislative district elections, participate in the electoral
process if they are excluded from the party-list system? To exclude them from
the party-list system is to prevent them from joining the parliamentary
struggle, leaving as their only option the armed struggle. To exclude them from
the party-list system is, apart from being obviously senseless, patently contrary
to the clear intent and express wording of the 1987 Constitution and R.A. No.
7941.

Under the party-list system, an ideology-based or cause-oriented political party

is clearly different from a sectoral party. A political party need not be organized
as a sectoral party and need not represent any particular sector. There is no
requirement in R.A. No. 7941 that a national or regional political party must
represent a "marginalized and underrepresented" sector. It is sufficient that the
political party consists of citizens who advocate the same ideology or platform,
or the same governance principles and policies, regardless of their
economic status as citizens.
Section 5 of R.A. No. 7941 states that "the sectors shall include labor, peasant,
fisherfolk,
urban
poor,
indigenous
cultural
communities, elderly, handicapped, women,
youth, veterans,
overseas
workers, and professionals."56The sectors mentioned in Section 5 are not all
necessarily "marginalized and underrepresented." For sure, "professionals" are
not by definition "marginalized and underrepresented," not even the elderly,
women, and the youth. However, professionals, the elderly, women, and the
youth may "lack well-defined political constituencies," and can thus organize
themselves into sectoral parties in advocacy of the special interests and
concerns of their respective sectors.
Section 6 of R.A. No. 7941 provides another compelling reason for holding that
the law does not require national or regional parties, as well as certain sectoral
parties in Section 5 of R.A. No. 7941, to represent the "marginalized and
underrepresented." Section 6 provides the grounds for the COMELEC to refuse
or cancel the registration of parties or organizations after due notice and
hearing.
Section 6. Refusal and/or Cancellation of Registration. The COMELEC may,
motu proprio or upon verified complaint of any interested party, refuse 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.
None of the 8 grounds to refuse or cancel registration refers to nonrepresentation of the "marginalized and underrepresented."
The phrase "marginalized and underrepresented" appears only once in
R.A. No. 7941, in Section 2 on Declaration of Policy. 57 Section 2 seeks "to
promote proportional representation in the election of representatives to the
House of Representatives through the party-list system," which will enable
Filipinos belonging to the"marginalized and underrepresented sectors,
organizations and parties, and who lack well-defined political
constituencies," to become members of the House of Representatives. While
the policy declaration in Section 2 of R.A. No. 7941 broadly refers to
"marginalized and underrepresented sectors, organizations and parties," the
specific implementing provisions of R.A. No. 7941 do not define or require that
the sectors, organizations or parties must be "marginalized and
underrepresented." On the contrary, to even interpret that all the sectors
mentioned in Section 5 are "marginalized and underrepresented" would lead to
absurdities.
How then should we harmonize the broad policy declaration in Section 2 of R.A.
No. 7941 with its specific implementing provisions, bearing in mind the
applicable provisions of the 1987 Constitution on the matter?
The phrase "marginalized and underrepresented" should refer only to
the sectors in Section 5 that are, by their nature, economically
"marginalized and underrepresented." These sectors are: labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans,
overseas workers, and other similar sectors. For these sectors, a majority of
the members of the sectoral party must belong to the "marginalized
and underrepresented." The nominees of the sectoral party either
must belong to the sector, or must have a track record of advocacy for
the
sector
represented. Belonging
to
the
"marginalized
and
underrepresented" sector does not mean one must "wallow in poverty,
destitution or infirmity." It is sufficient that one, or his or her sector, is below the
middle class. More specifically, the economically "marginalized and
underrepresented" are those who fall in the low income group as classified by
the National Statistical Coordination Board.58
The recognition that national and regional parties, as well as sectoral parties of
professionals, the elderly, women and the youth, need not be "marginalized
and underrepresented" will allow small ideology-based and cause-oriented
parties who lack "well-defined political constituencies" a chance to win seats in
the House of Representatives. On the other hand, limiting to the "marginalized
and underrepresented" the sectoral parties for labor, peasant, fisherfolk,
urban poor, indigenous cultural communities, handicapped, veterans, overseas
workers, and other sectors that by their nature are economically at the margins
of society, will give the "marginalized and underrepresented" an opportunity to
likewise win seats in the House of Representatives.

This interpretation will harmonize the 1987 Constitution and R.A. No. 7941 and
will give rise to a multi-party system where those "marginalized and
underrepresented," both in economic and ideological status, will have the
opportunity to send their own members to the House of Representatives. This
interpretation will also make the party-list system honest and transparent,
eliminating the need for relatively well-off party-list representatives to
masquerade as "wallowing in poverty, destitution and infirmity," even as they
attend sessions in Congress riding in SUVs.

of major political parties in party-list elections must be geared towards the

entry, as members of the House of Representatives, of the "marginalized and
underrepresented" and those who "lack well-defined political constituencies,"
giving them a voice in law-making. Thus,to participate in party-list elections, a
major political party that fields candidates in the legislative district elections
must organize a sectoral wing, like a labor, peasant, fisherfolk, urban poor,
professional, women or youth wing, that can register under the party-list
system.

The major political parties are those that field candidates in the legislative
district elections. Major political parties cannot participate in the party-list
elections since they neither lack "well-defined political constituencies" nor
represent "marginalized and underrepresented" sectors. Thus, the national
or regional parties under the party-list system are necessarily those
that do not belong to major political parties. This automatically reserves
the national and regional parties under the party-list system to those who "lack
well-defined political constituencies," giving them the opportunity to have
members in the House of Representatives.

Such sectoral wing of a major political party must have its own constitution, bylaws, platform or program of government, officers and members, a majority of
whom must belong to the sector represented. The sectoral wing is in itself an
independent sectoral party, and is linked to a major political party through a
coalition. This linkage is allowed by Section 3 of R.A. No. 7941, which provides
that "component parties or organizations of a coalition may participate
independently (in party-list elections) provided the coalition of which they form
part does not participate in the party-list system."

To recall, Ang Bagong Bayani expressly declared, in its second guideline for the
accreditation of parties under the party-list system, that "while even major
political parties are expressly allowed by RA 7941 and the Constitution to
participate in the party-list system, they must comply with the declared
statutory policy of enabling Filipino citizens belonging to marginalized and
underrepresented sectors xxx to be elected to the House of Representatives.
"However, the requirement in Ang Bagong Bayani, in its second guideline, that
"the
political
party
xxx
must
represent
the
marginalized
and
underrepresented," automatically disqualified major political parties from
participating in the party-list system. This inherent inconsistency in Ang
Bagong Bayani has been compounded by the COMELECs refusal to register
sectoral wings officially organized by major political parties. BANAT merely
formalized the prevailing practice when it expressly prohibited major
political parties from participating in the party-list system, even through their
sectoral wings.
Section 11 of R.A. No. 7941 expressly prohibited the "first five (5) major
political parties on the basis of party representation in the House of
Representatives at the start of the Tenth Congress" from participating in the
May 1988 party-list elections.59 Thus, major political parties can
participate in subsequent party-list elections since the prohibition is
expressly limited only to the 1988 party-list elections. However, major
political parties should participate in party-list elections only through their
sectoral wings. The participation of major political parties through their sectoral
wings, a majority of whose members are "marginalized and underrepresented"
or lacking in "well-defined political constituencies," will facilitate the entry of
the "marginalized and underrepresented" and those who "lack well-defined
political constituencies" as members of the House of Representatives.
The 1987 Constitution and R.A. No. 7941 allow major political parties to
participate in party-list elections so as to encourage them to work assiduously
in extending their constituencies to the "marginalized and underrepresented"
and to those who "lack well-defined political constituencies." The participation

Section 9 of R.A. No. 7941 prescribes the qualifications of party-list nominees.

This provision prescribes a special qualification only for the nominee from the
youth sector.
Section 9. Qualifications of Party-List Nominees. No person shall be nominated
as party-list representative unless he is a natural-born citizen of the Philippines,
a registered voter, a resident of the Philippines for a period of not less than one
(1) year immediately preceding the day of the election, able to read and write,
a bona fide member of the party or organization which he seeks to represent
for at least ninety (90) days preceding the day of the election, and is at least
twenty-five (25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five (25)
but not more than thirty (30) years of age on the day of the election.
Any youth sectoral representative who attains the age of thirty (30) during his
term shall be allowed to continue in office until the expiration of his
term.1wphi1
A party-list nominee must be a bona fide member of the party or organization
which he or she seeks to represent.In the case of sectoral parties, to be a
bona fide party-list nominee one must either belong to the sector
represented, or have a track record of advocacy for such sector.
In disqualifying petitioners, the COMELEC used the criteria prescribed in Ang
Bagong Bayani and BANAT. Ang Bagong Bayani laid down the guidelines for
qualifying those who desire to participate in the party-list system:
First, the political party, sector, organization or coalition must
represent the marginalized and underrepresented groups identified in
Section 5 of RA 7941. x x x

Second, while even major political parties are expressly allowed by RA 7941
and the Constitution to participate in the party-list system, they must comply
with the declared statutory policy of enabling "Filipino citizens belonging to
marginalized and underrepresented sectors x x x to be elected to the House of
Representatives." x x x.
xxxx
Third, x x x the religious sector may not be represented in the party-list system.
x x x.
xxxx
Fourth, a party or an organization must not be disqualified under Section 6 of
RA 7941, which enumerates the grounds for disqualification as follows:
"(1) It is a religious sect or denomination, organization or association,
organized for religious purposes;

"SEC 9. Qualifications of Party-List Nominees. - No person shall be nominated as

party-list representative unless he is a natural-born citizen of the Philippines, a
registered voter, a resident of the Philippines for a period of not less than one
(1)year immediately preceding the day of the election, able to read and write,
a bona fide member of the party or organization which he seeks to represent
for at least ninety (90) days preceding the day of the election, and is at least
twenty-five (25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five (25)
but not more than thirty (30) years of age on the day of the election. Any youth
sectoral representative who attains the age of thirty (30) during his term shall
be allowed to continue in office until the expiration of his term."
Seventh, not only the candidate party or organization must represent
marginalized and underrepresented sectors; so also must its
nominees. x x x.
Eighth, x x x the nominee must likewise be able to contribute to the formulation
and enactment of appropriate legislation that will benefit the nation as a whole.
(Emphasis supplied)

(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."
Fifth, the party or organization must not be an adjunct of, or a project organized
or an entity funded or assisted by, the government. x x x.
xxxx
Sixth, the party must not only comply with the requirements of the law; its
nominees must likewise do so. Section 9 of RA 7941 reads as follows:

In 2009, by a vote of 8-7 in BANAT, this Court stretched the Ang Bagong
Bayani ruling further. In BANAT, the majority officially excluded major political
parties from participating in party-list elections, 60 abandoning even the lipservice that Ang Bagong Bayani accorded to the 1987 Constitution and R.A.No.
7941 that major political parties can participate in party-list elections.
The minority in BANAT, however, believed that major political parties can
participate in the party-list system through their sectoral wings. The minority
expressed that "[e]xcluding the major political parties in party-list elections is
manifestly against the Constitution, the intent of the Constitutional
Commission, and R.A. No. 7941. This Court cannot engage in socio-political
engineering and judicially legislate the exclusion of major political parties from
the party-list elections in patent violation of the Constitution and the law." 61 The
experimentations in socio-political engineering have only resulted in confusion
and absurdity in the party-list system. Such experimentations, in clear
contravention of the 1987 Constitution and R.A. No. 7941, must now come to
an end.
We cannot, however, fault the COMELEC for following prevailing jurisprudence
in disqualifying petitioners. In following prevailing jurisprudence, the COMELEC
could not have committed grave abuse of discretion. However, for the coming
13 May 2013 party-list elections, we must now impose and mandate the partylist system actually envisioned and authorized under the 1987 Constitution
and R.A. No. 7941. In BANAT, this Court devised a new formula in the allocation
of party-list seats, reversing the COMELEC's allocation which followed the then
prevailing formula in Ang Bagong Bayani. In BANAT, however, the Court did not
declare that the COMELEC committed grave abuse of discretion. Similarly, even
as we acknowledge here that the COMELEC did not commit grave abuse of
discretion, we declare that it would not be in accord with the 1987 Constitution
and R.A. No. 7941 to apply the criteria in Ang Bagong Bayani and BANAT in
determining who are qualified to participate in the coming 13 May 2013

party-list elections. For this purpose, we suspend our rule 62 that a party may
appeal to this Court from decisions or orders of the COMELEC only if the
COMELEC committed grave abuse of discretion.

2. National parties or organizations and regional parties or

organizations do not need to organize along sectoral lines and do not
need to represent any "marginalized and underrepresented" sector.

The COMELEC excluded from participating in the 13 May 2013 party-list

elections those that did not satisfy these two criteria: (1) all national, regional,
and sectoral groups or organizations must represent the "marginalized and
underrepresented" sectors, and (2) all nominees must belong to the
"marginalized and underrepresented" sector they represent. Petitioners may
have been disqualified by the COMELEC because as political or regional parties
they are not organized along sectoral lines and do not represent the
"marginalized and underrepresented." Also, petitioners' nominees who do not
belong to the sectors they represent may have been disqualified, although they
may have a track record of advocacy for their sectors. Likewise, nominees of
non-sectoral parties may have been disqualified because they do not belong to
any sector. Moreover, a party may have been disqualified because one or more
of its nominees failed to qualify, even if the party has at least one remaining
qualified nominee. As discussed above, the disqualification of petitioners, and
their nominees, under such circumstances is contrary to the 1987 Constitution
and R.A. No. 7941.

3. Political parties can participate in party-list elections provided they

register under the party-list system and do not field candidates in
legislative district elections. A political party, whether major or not,
that fields candidates in legislative district elections can participate in
party-list elections only through its sectoral wing that can separately
register under the party-list system. The sectoral wing is by itself an
independent sectoral party, and is linked to a political party through a
coalition.

This Court is sworn to uphold the 1987 Constitution, apply its provisions
faithfully, and desist from engaging in socio-economic or political
experimentations contrary to what the Constitution has ordained. Judicial power
does not include the power to re-write the Constitution. Thus, the present
petitions should be remanded to the COMELEC not because the COMELEC
committed grave abuse of discretion in disqualifying petitioners, but because
petitioners may now possibly qualify to participate in the coming 13 May 2013
party-list elections under the new parameters prescribed by this Court.

4. Sectoral parties or organizations may either be "marginalized and

underrepresented" or lacking in "well-defined political constituencies."
It is enough that their principal advocacy pertains to the special
interest and concerns of their sector. The sectors that are
"marginalized and underrepresented" include labor, peasant, fisherfolk,
urban poor, indigenous cultural communities, handicapped, veterans,
and overseas workers. The sectors that lack "well-defined political
constituencies" include professionals, the elderly, women, and the
youth.

WHEREFORE, all the present 54 petitions are GRANTED. The 13 petitions, which
have been granted Status Quo Ante Orders but without mandatory injunction to
include the names of petitioners in the printing of ballots, are remanded to the
Commission on Elections only for determination whether petitioners are
qualified to register under the party-list system under the parameters
prescribed in this Decision but they shall not participate in the 13 May 2013
part-list elections. The 41 petitions, which have been granted mandatory
injunctions to include the names of petitioners in the printing of ballots, are
remanded to the Commission on Elections for determination whether
petitioners are qualified to register under the party-list system and to
participate in the 13 May 2013 party-list elections under the parameters
prescribed in this Decision. The Commission on Elections may conduct
summary evidentiary hearings for this purpose. This Decision is immediately
executory.

Thus, we remand all the present petitions to the COMELEC. In determining who
may participate in the coming 13 May 2013 and subsequent party-list elections,
the COMELEC shall adhere to the following parameters:
1. Three different groups may participate in the party-list system: (1)
national parties or organizations, (2) regional parties or organizations,
and (3) sectoral parties or organizations.

5. A majority of the members of sectoral parties or organizations that

represent the "marginalized and underrepresented" must belong to the
"marginalized and underrepresented" sector they represent. Similarly,
a majority of the members of sectoral parties or organizations that lack
"well-defined political constituencies" must belong to the sector they
represent. The nominees of sectoral parties or organizations that
represent the "marginalized and underrepresented," or that represent
those who lack "well-defined political constituencies," either must
belong to their respective sectors, or must have a track record of
advocacy for their respective sectors. The nominees of national and
regional parties or organizations must be bona-fide members of such
parties or organizations.
6. National, regional, and sectoral parties or organizations shall not be
disqualified if some of their nominees are disqualified, provided that
they have at least one nominee who remains qualified.

SO ORDERED.

G.R. No. 165983

April 24, 2007

JOY
CHRISMA
B.
LUNA, Petitioner,
vs.
COMMISSION ON ELECTIONS, TOMAS LAYAO, SOLOMON LALUGAN III,
NELIA LAZAGA, ANTHONY LAYAO, CIPRIANO LAPEZ, JR., VICTORIA
LAYAO, MODERNO LAPEZ, RODRIGO PARIAS, and EUGENIO CABER
DONATO, Respondents.
DECISION
CARPIO, J.:
The Case
Before this Court is a petition for certiorari 1 with prayer for the issuance of a
temporary restraining order, writ of preliminary injunction or status quo order
questioning the 4 June 2004 Resolution of the Commission on Elections
(COMELEC) First Division and the 22 November 2004 Resolution of the
COMELEC En Banc in SPA Case No. 04-306. The 4 June 2004 Resolution denied
due course to the substitution of petitioner Joy Chrisma B. Luna (Luna) for Hans
Roger Luna (Hans Roger) and declared the substitution invalid. The 22
November 2004 Resolution denied Lunas motion for reconsideration.
The Facts
On 15 January 2004, Luna filed her certificate of candidacy for the position of
vice-mayor of Lagayan, Abra as a substitute for Hans Roger, who withdrew his
certificate of candidacy on the same date. Ruperto Blanco, Election Officer of
Lagayan, Abra removed the name of Hans Roger from the list of candidates and
placed the name of Luna.
On 20 April 2004, private respondents Tomas Layao, Solomon Lalugan III, Nelia
Lazaga, Anthony Layao, Cipriano Lapez, Jr., Victoria Layao, Moderno Lapez,
Rodrigo Parias, and Eugenio Caber Donato (private respondents) filed a
petition for the cancellation of the certificate of candidacy or disqualification of
Luna. Private respondents alleged that Luna made a false material
representation in her certificate of candidacy because Luna is not a registered
voter of Lagayan, Abra but a registered voter of Bangued, Abra. Private
respondents also claimed that Lunas certificate of candidacy was not validly
filed because the substitution by Luna for Hans Roger was invalid. Private
respondents alleged that Hans Roger was only 20 years old on election day
and, therefore, he was disqualified to run for vice-mayor and cannot be
substituted by Luna.21vvphi1.nt

The COMELECs Ruling

In the 4 June 2004 Resolution, the COMELEC First Division granted the petition
and denied due course to the substitution of Luna for Hans Roger. The
COMELEC First Division ruled that, while Luna complied with the procedural
requirements for substitution, Hans Roger was not a valid candidate for vicemayor. The COMELEC First Division pointed out that Hans Roger, being
underage,3 did not file a valid certificate of candidacy and, thus, Hans Roger
was not a valid candidate for vice-mayor who could be substituted by Luna. The
COMELEC First Division also ruled that Luna was not a registered voter of
Lagayan, Abra and that this was sufficient to disqualify Luna from running as
vice-mayor.
On 28 June 2004, Luna filed a motion for reconsideration with the COMELEC En
Banc. Luna added that the 4 June 2004 Resolution was issued in violation of her
right to due process because she was not given the opportunity to present
evidence on her behalf with the COMELEC First Division.
In the 22 November 2004 Resolution, the COMELEC En Banc denied the motion
for reconsideration and affirmed with modification the 4 June 2004 Resolution.
The COMELEC En Banc affirmed the finding that Hans Roger, being underage,
may not be validly substituted by Luna. The COMELEC En Banc also ruled that
Lunas right to due process was not violated because Luna was notified of the
petition and was given the opportunity to be heard. However, the COMELEC En
Banc ruled that Luna was a registered voter of Lagayan, Abra.
Hence, this petition.
In a Resolution dated 11 January 2005, we required the parties to maintain the
status quo prevailing before the issuance of the assailed COMELEC resolutions
pending the resolution of this petition. 4
The Issues
Luna raised the following issues:
1. Whether the COMELEC committed grave abuse of discretion when it
ruled that there was no violation of Lunas right to due process; and
2. Whether the COMELEC committed grave abuse of discretion when it
ruled that there was no valid substitution by Luna for Hans Roger.
The Courts Ruling
The petition is partly meritorious.

Lunas Right to Due Process was not Violated

Luna contends that her right to due process was violated because she was not
given the opportunity to present her evidence before the COMELEC First
Division.
Under Rule 23 of the 1993 COMELEC Rules of Procedure, a petition to deny due
course to or cancel a certificate of candidacy shall be heard summarily after
due notice. The law mandates that the candidates must be notified of the
petition against them and should be given the opportunity to present evidence
on their behalf.5 This is the essence of due process.
In this case, the COMELEC En Banc stated that the records showed that three
days after the petition was filed, the Provincial Election Supervisor, as hearing
officer, with the assistance of the Philippine National Police Provincial
Command, tried to personally serve a copy of the petition to Luna. But Luna
refused to formally receive the petition. On 26 April 2004, the Office of the
Provincial Election Supervisor sent the notice via registered mail and still Luna
did not file an answer.
The Court finds that Lunas right to due process was not violated. The COMELEC
notified Luna of the petition filed against her and Luna was given the
opportunity to present evidence on her behalf. This constitutes compliance with
the requirements of due process.
Substitution of Luna for Hans Roger was Valid
Luna contends that Hans Roger filed a valid certificate of candidacy and,
subsequently, upon Hans Rogers withdrawal of his certificate of candidacy,
there was a valid substitution by Luna.
On the other hand, the COMELEC ruled that Hans Roger, being under age, could
not be considered to have filed a valid certificate of candidacy and, therefore, is
not a valid candidate who could be substituted by Luna.
When a candidate files his certificate of candidacy, the COMELEC has a
ministerial duty to receive and acknowledge its receipt. Section 76 of the
Omnibus Election Code (Election Code) provides:
Sec. 76. Ministerial duty of receiving and acknowledging receipt.- The
Commission, provincial election supervisor, election registrar or officer
designated by the Commission or the board of election inspectors under the
succeeding section shall have the ministerial duty to receive and acknowledge
receipt of the certificate of candidacy.

In this case, when Hans Roger filed his certificate of candidacy on 5 January
2004,6 the COMELEC had the ministerial duty to receive and acknowledge
receipt of Hans Rogers certificate of candidacy. Thus, the COMELEC had the
ministerial duty to give due course to Hans Rogers certificate of candidacy. 7
On 15 January 2004, Hans Roger withdrew his certificate of candidacy. The
Election Code allows a person who has filed a certificate of candidacy to
withdraw the same prior to the election by submitting a written declaration
under oath.8 There is no provision of law which prevents a candidate from
withdrawing his certificate of candidacy before the election. 9
On the same date, Luna filed her certificate of candidacy as substitute for Hans
Roger. Section 77 of the Election Code prescribes the rules on substitution of an
official candidate of a registered political party who dies, withdraws, or is
disqualified for any cause after the last day for the filing of certificate of
candidacy. Section 77 of the Election Code provides:
Sec. 77. Candidates in case of death, disqualification or withdrawal of
another. - If after the last day for the filing of certificates of candidacy, an
official candidate of a registered or accredited political party dies, withdraws or
is disqualified for any cause, only a person belonging to, and certified by, the
same political party may file a certificate of candidacy to replace the candidate
who died, withdrew or was disqualified. The substitute candidate nominated by
the political party concerned may file his certificate of candidacy for the office
affected in accordance with the preceding sections not later than mid-day of
election day of the election. If the death, withdrawal or disqualification should
occur between the day before the election and mid-day of election day, said
certificate may be filed with any board of election inspectors in the political
subdivision where he is a candidate, or, in the case of candidates to be voted
for by the entire electorate of the country, with the Commission.
Since Hans Roger withdrew his certificate of candidacy and the COMELEC
found that Luna complied with all the procedural requirements for a valid
substitution,10 Luna can validly substitute for Hans Roger.
The COMELEC acted with grave abuse of discretion amounting to lack or excess
of jurisdiction in declaring that Hans Roger, being under age, could not be
considered to have filed a valid certificate of candidacy and, thus, could not be
validly substituted by Luna. The COMELEC may not, by itself, without the proper
proceedings, deny due course to or cancel a certificate of candidacy filed in due
form.11 In Sanchez v. Del Rosario,12 the Court ruled that the question of
eligibility or ineligibility of a candidate for non-age is beyond the usual and
proper cognizance of the COMELEC.
Section 7413 of the Election Code provides that the certificate of candidacy shall
state, among others, the date of birth of the person filing the certificate.

Section 7814 of the Election Code provides that in case a person filing a
certificate of candidacy has committed false material representation, a verified
petition to deny due course to or cancel the certificate of candidacy of said
person may be filed at any time not later than 25 days from the time of filing of
the certificate of candidacy.
If Hans Roger made a material misrepresentation as to his date of birth or age
in his certificate of candidacy, his eligibility may only be impugned through a
verified petition to deny due course to or cancel such certificate of candidacy
under Section 78 of the Election Code.
In this case, there was no petition to deny due course to or cancel the
certificate of candidacy of Hans Roger. The COMELEC only declared that Hans
Roger did not file a valid certificate of candidacy and, thus, was not a valid
candidate in the petition to deny due course to or cancel Lunas certificate of
candidacy. In effect, the COMELEC, without the proper proceedings, cancelled
Hans Rogers certificate of candidacy and declared the substitution by Luna
invalid.
It would have been different if there was a petition to deny due course to or
cancel Hans Rogers certificate of candidacy. For if the COMELEC cancelled
Hans Rogers certificate of candidacy after the proper proceedings, then he is
no candidate at all and there can be no substitution of a person whose
certificate of candidacy has been cancelled and denied due course. 15 However,
Hans Rogers certificate of candidacy was never cancelled or denied due course
by the COMELEC.
Moreover, Hans Roger already withdrew his certificate of candidacy before the
COMELEC declared that he was not a valid candidate. Therefore, unless Hans
Rogers certificate of candidacy was denied due course or cancelled in
accordance with Section 78 of the Election Code, Hans Rogers certificate of
candidacy was valid and he may be validly substituted by Luna.
WHEREFORE, we PARTLY GRANT the petition. We AFFIRM the ruling of the
COMELEC En Banc that there was no violation of petitioner Joy Chrisma B.
Lunas right to due process. We SET ASIDE the ruling of the COMELECEn
Banc that the substitution by petitioner Joy Chrisma B. Luna for Hans Roger
Luna was invalid. Petitioner Joy Chrisma B. Luna validly substituted for Hans
Roger Luna.
G.R. No. 193237

October 9, 2012

DOMINADOR
G.
JALOSJOS,
JR., Petitioner,
vs.
COMMISSION ON ELECTIONS and AGAPITO J. CARDINO, Respondents.

x-----------------------x
G.R. No. 193536
AGAPITO
J.
vs.
DOMINADOR
G.
JALOSJOS,
ELECTIONS, Respondents.

CARDINO, Petitioner,
JR.,

and

COMMISSION

ON

DECISION
CARPIO, J.:
These are two special civil actions for certiorari 1 questioning the resolutions of
the Commission on Elections (COMELEC) in SPA No. 09-076 (DC). In G.R. No.
193237, Dominador G. Jalosjos, Jr. (Jalosjos) seeks to annul the 10 May 2010
Resolution2 of the COMELEC First Division and the 11 August 2010
Resolution3 of the COMELEC En Banc, which both ordered the cancellation of his
certificate of candidacy on the ground of false material representation. In G.R.
No. 193536, Agapito J. Cardino (Cardino) challenges the 11 August 2010
Resolution of the COMELEC En Banc, which applied the rule on succession
under the Local Government Code in filling the vacancy in the Office of the
Mayor of Dapitan City, Zamboanga del Norte created by the cancellation of
Jalosjos certificate of candidacy.
The Facts
Both Jalosjos and Cardino were candidates for Mayor of Dapitan City,
Zamboanga del Norte in the May 2010 elections. Jalosjos was running for his
third term. Cardino filed on 6 December 2009 a petition under Section 78 of the
Omnibus Election Code to deny due course and to cancel the certificate of
candidacy of Jalosjos. Cardino asserted that Jalosjos made a false material
representation in his certificate of candidacy when he declared under oath that
he was eligible for the Office of Mayor.
Cardino claimed that long before Jalosjos filed his certificate of candidacy,
Jalosjos had already been convicted by final judgment for robbery and
sentenced to prisin mayor by the Regional Trial Court, Branch 18 (RTC) of Cebu
City, in Criminal Case No. CCC-XIV-140-CEBU. Cardino asserted that Jalosjos has
not yet served his sentence. Jalosjos admitted his conviction but stated that he
had already been granted probation. Cardino countered that the RTC revoked
Jalosjos probation in an Order dated 19 March 1987. Jalosjos refuted Cardino
and stated that the RTC issued an Order dated 5 February 2004 declaring that
Jalosjos had duly complied with the order of probation. Jalosjos further stated
that during the 2004 elections the COMELEC denied a petition for
disqualification filed against him on the same grounds. 4
The COMELEC En Banc narrated the circumstances of Jalosjos criminal record
as follows:

As backgrounder, Jalosjos and three (3) others were accused of the crime of
robbery on January 22, 1969 in Cebu City. On April 30, 1970, Judge Francisco
Ro. Cupin of the then Circuit Criminal Court of Cebu City found him and his coaccused guilty of robbery and sentenced them to suffer the penalty of prision
correccional minimum to prision mayor maximum. Jalosjos appealed this
decision to the Court of Appeals but his appeal was dismissed on August 9,
1973. It was only after a lapse of several years or more specifically on June 17,
1985 that Jalosjos filed a Petition for Probation before the RTC Branch 18 of
Cebu City which was granted by the court. But then, on motion filed by his
Probation Officer, Jalosjos probation was revoked by the RTC Cebu City on
March 19, 1987 and the corresponding warrant for his arrest was issued.
Surprisingly, on December 19, 2003, Parole and Probation Administrator
Gregorio F. Bacolod issued a Certification attesting that respondent Jalosjos, Jr.,
had already fulfilled the terms and conditions of his probation. This Certification
was the one used by respondent Jalosjos to secure the dismissal of the
disqualification case filed against him by Adasa in 2004, docketed as SPA No.
04-235.
This prompted Cardino to call the attention of the Commission on the decision
of the Sandiganbayan dated September 29, 2008 finding Gregorio F. Bacolod,
former Administrator of the Parole and Probation Administration, guilty of
violating Section 3(e) of R.A. 3019 for issuing a falsified Certification on
December 19, 2003 attesting to the fact that respondent Jalosjos had fully
complied with the terms and conditions of his probation. A portion of the
decision of the Sandiganbayan is quoted hereunder:
The Court finds that the above acts of the accused gave probationer Dominador
Jalosjos, Jr., unwarranted benefits and advantage because the subject
certification, which was issued by the accused without adequate or official
support, was subsequently utilized by the said probationer as basis of the
Urgent Motion for Reconsideration and to Lift Warrant of Arrest that he filed
with the Regional Trial Court of Cebu City, which prompted the said court to
issue the Order dated February 5, 2004 in Crim. Case No. CCC-XIV-140-CEBU,
declaring that said probationer has complied with the order of probation and
setting aside its Order of January 16, 2004 recalling the warrant or [sic] arrest;
and that said Certification was also used by the said probationer and became
the basis for the Commission on Elections to deny in its Resolution of August 2,
2004 the petition or [sic] private complainant James Adasa for the
disqualification of the probationer from running for re-election as Mayor of
Dapitan City in the National and Local Elections of 2004. 5
The COMELECs Rulings
On 10 May 2010, the COMELEC First Division granted Cardinos petition and
cancelled Jalosjos certificate of candidacy. The COMELEC First Division
concluded that "Jalosjos has indeed committed material misrepresentation in
his certificate of candidacy when he declared, under oath, that he is eligible for
the office he seeks to be elected to when in fact he is not by reason of a final
judgment in a criminal case, the sentence of which he has not yet served." 6 The
COMELEC First Division found that Jalosjos certificate of compliance of
probation was fraudulently issued; thus, Jalosjos has not yet served his
sentence. The penalty imposed on Jalosjos was the indeterminate sentence of

one year, eight months and twenty days of prisin correccional as minimum, to
four years, two months and one day of prisin mayor as maximum. The
COMELEC First Division ruled that Jalosjos "is not eligible by reason of his
disqualification as provided for in Section 40(a) of Republic Act No. 7160." 7
On 11 August 2010, the COMELEC En Banc denied Jalosjos motion for
reconsideration. The pertinent portions of the 11 August 2010 Resolution read:
With the proper revocation of Jalosjos earlier probation and a clear showing
that he has not yet served the terms of his sentence, there is simply no basis
for Jalosjos to claim that his civil as well as political rights have been violated.
Having been convicted by final judgment,
Jalosjos is disqualified to run for an elective position or to hold public office. His
proclamation as the elected mayor in the May 10, 2010 election does not
deprive the Commission of its authority to resolve the present petition to its
finality, and to oust him from the office he now wrongfully holds.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration is denied
for utter lack of merit. Jalosjos is hereby OUSTED from office and ordered to
CEASE and DESIST from occupying and discharging the functions of the Office
of the Mayor of Dapitan City, Zamboanga. Let the provisions of the Local
Government Code on succession apply.
SO ORDERED.8
Jalosjos filed his petition on 25 August 2010, docketed as G.R. No. 193237,
while Cardino filed his petition on 17 September 2010, docketed as G.R. No.
193536.
On 22 February 2011, this Court issued a Resolution dismissing G.R. No.
193237.
WHEREFORE, the foregoing premises considered, the Petition for Certiorari is
DISMISSED. The assailed Resolution dated May 10, 2010 and Resolution dated
August 11, 2010 of the Commission on Elections in SPA Case No. 09-076 (DC)
are hereby AFFIRMED.9
Cardino filed a Manifestation on 17 March 2011 praying that this Court take
judicial notice of its resolution in G.R. No. 193237. Jalosjos filed a Motion for
Reconsideration10 on 22 March 2011. On 29 March 2011, this Court resolved 11 to
consolidate G.R. No. 193536 with G.R. No. 193237.Jalosjos then filed a
Manifestation on 1 June 2012 which stated that "he has resigned from the
position of Mayor of the City of Dapitan effective 30 April 2012, which
resignation was accepted by the Provincial Governor of Zamboanga del Norte,
Atty. Rolando E. Yebes."12Jalosjos resignation was made "in deference with the
provision of the Omnibus Election Code in relation to his candidacy as Provincial
Governor of Zamboanga del Sur in May 2013."13

These cases are not rendered moot by Jalosjos resignation. In resolving

Jalosjos Motion for Reconsideration in G.R. No. 193237 and Cardinos Petition in
G.R. No. 193536, we address not only Jalosjos eligibility to run for public office
and the consequences of the cancellation of his certificate of candidacy, but
also COMELECs constitutional duty to enforce and administer all laws relating
to the conduct of elections.
The Issues
In G.R. No. 193237, Jalosjos argues that the COMELEC committed grave abuse
of discretion amounting to lack or excess of jurisdiction when it (1) ruled that
Jalosjos probation was revoked; (2) ruled that Jalosjos was disqualified to run as
candidate for Mayor of Dapitan City, Zamboanga del Norte; and (3) cancelled
Jalosjos certificate of candidacy without making a finding that Jalosjos
committed a deliberate misrepresentation as to his qualifications, as Jalosjos
relied in good faith upon a previous COMELEC decision declaring him eligible for
the same position from which he is now being ousted. Finally, the Resolutions
dated 10 May 2010 and 11 August 2010 were issued in violation of the
COMELEC Rules of Procedure.
In G.R. No. 193536, Cardino argues that the COMELEC acted with grave abuse
of discretion amounting to lack or excess of jurisdiction when it added to the
dispositive portion of its 11 August 2010 Resolution that the provisions of the
Local Government Code on succession should apply.
This Courts Ruling
The perpetual special disqualification against Jalosjos arising from his criminal
conviction by final judgment is a material fact involving eligibility which is a
proper ground for a petition under Section 78 of the Omnibus Election Code.
Jalosjos certificate of candidacy was void from the start since he was not
eligible to run for any public office at the time he filed his certificate of
candidacy. Jalosjos was never a candidate at any time, and all votes for Jalosjos
were stray votes. As a result of Jalosjos certificate of candidacy being void ab
initio, Cardino, as the only qualified candidate, actually garnered the highest
number of votes for the position of Mayor.
The dissenting opinions affirm with modification the 10 May 2010 Resolution of
the COMELEC First Division and the 11 August 2010 Resolution of the COMELEC
En Banc. The dissenting opinions erroneously limit the remedy against Jalosjos
to disqualification under Section 68 of the Omnibus Election Code and apply the
rule on succession under the Local Government Code.
A false statement in a certificate of candidacy that a candidate is eligible to run
for public office is a false material representation which is a ground for a
petition under Section 78 of the same Code. Sections 74 and 78 read:
Sec. 74. Contents of certificate of candidacy. The certificate of candidacy shall
state that the person filing it is announcing his candidacy for the office stated
therein and that he is eligible for said office; if for Member of the Batasang
Pambansa, the province, including its component cities, highly urbanized city or

district or sector which he seeks to represent; the political party to which he

belongs; civil status; his date of birth; residence; his post office address for all
election purposes; his profession or occupation; that he will support and defend
the Constitution of the Philippines and will maintain true faith and allegiance
thereto; that he will obey the laws, legal orders, and decrees promulgated by
the duly constituted authorities; that he is not a permanent resident or
immigrant to a foreign country; that the obligation imposed by his oath is
assumed voluntarily, without mental reservation or purpose of evasion; and
that the facts stated in the certificate of candidacy are true to the best of his
knowledge.
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A
verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by the person exclusively on the ground that any
material representation contained therein as required under Section 74 hereof
is false. The petition may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy and shall be decided,
after due notice and hearing, not later than fifteen days before the election.
(Emphasis supplied)
Section 74 requires the candidate to state under oath in his certificate of
candidacy "that he is eligible for said office." A candidate is eligible if he has a
right to run for the public office. 14 If a candidate is not actually eligible because
he is barred by final judgment in a criminal case from running for public office,
and he still states under oath in his certificate of candidacy that he is eligible to
run for public office, then the candidate clearly makes a false material
representation that is a ground for a petition under Section 78.
A sentence of prisin mayor by final judgment is a ground for disqualification
under Section 40 of the Local Government Code and under Section 12 of the
Omnibus Election Code. It is also a material fact involving the eligibility of a
candidate under Sections 74 and 78 of the Omnibus Election Code. Thus, a
person can file a petition under Section 40 of the Local Government Code or
under either Section 12 or Section 78 of the Omnibus Election Code. The
pertinent provisions read:
Section 40, Local Government Code:
Sec. 40. Disqualifications. - The following persons are disqualified from running
for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of
allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or non-political cases here or
abroad;
(f) Permanent residents in a foreign country or those who have
acquired the right to reside abroad and continue to avail of the same
right after the effectivity of this Code; and
(g) The insane or feeble-minded.
Section 12, Omnibus Election Code:
Sec. 12. Disqualifications. Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgment for
subversion, insurrection, rebellion or for any offense for which he was
sentenced to a penalty of more than eighteen months or for a crime involving
moral turpitude, shall be disqualified to be a candidate and to hold any office,
unless he has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five
years from his service of sentence, unless within the same period he again
becomes disqualified.

Prisin mayor and temporary disqualification. The duration of the penalties

of prisin mayor and temporary disqualification shall be from six years and one
day to twelve years, except when the penalty of disqualification is imposed as
an accessory penalty, in which case, it shall be that of the principal penalty.
xxxx
Art. 30. Effects of the penalties of perpetual or temporary absolute
disqualification. The penalties of perpetual or temporary absolute
disqualification for public office shall produce the following effects:
1. The deprivation of the public offices and employments which the
offender may have held, even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular
elective office or to be elected to such office.
3. The disqualification for the offices or public employments and for the
exercise of any of the rights mentioned.
In case of temporary disqualification, such disqualification as is
comprised in paragraphs 2 and 3 of this article shall last during the
term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office
formerly held.

Section 68, Omnibus Election Code:

Sec. 68. Disqualifications. Any candidate who, in an action or protest in
which he is a party is declared by final decision by a competent court guilty of,
or found by the Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials
performing electoral functions; (b) committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an amount in excess of that
allowed by this Code; (d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of
Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6,
shall be disqualified from continuing as a candidate, or if he has been elected,
from holding the office. Any person who is a permanent resident of or an
immigrant to a foreign country shall not be qualified to run for any elective
office under this Code, unless said person has waived his status as permanent
resident or immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws.
Revised Penal Code:
Art. 27. Reclusion perpetua. x x x

Art. 31. Effects of the penalties of perpetual or temporary special

disqualification. The penalties of perpetual or temporary special
disqualification for public office, profession or calling shall produce the following
effects:
1. The deprivation of the office, employment, profession or calling
affected.
2. The disqualification for holding similar offices or employments either
perpetually or during the term of the sentence, according to the extent
of such disqualification.
Art. 32. Effects of the penalties of perpetual or temporary special
disqualification for the exercise of the right of suffrage. The perpetual or
temporary special disqualification for the exercise of the right of suffrage shall
deprive the offender perpetually or during the term of the sentence, according
to the nature of said penalty, of the right to vote in any popular election for any
public office or to be elected to such office. Moreover, the offender shall not be
permitted to hold any public office during the period of his disqualification.
Art. 42. Prisin mayor its accessory penalties. The penalty of prisin
mayor shall carry with it that of temporary absolute disqualification and that of

perpetual special disqualification from the right of suffrage which the offender
shall suffer although pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon. (Emphasis supplied)
The penalty of prisin mayor automatically carries with it, by operation of
law,15 the accessory penalties of temporary absolute disqualification and
perpetual special disqualification. Under Article 30 of the Revised Penal Code,
temporary absolute disqualification produces the effect of "deprivation of the
right to vote in any election for any popular elective office or to be elected to
such office." The duration of the temporary absolute disqualification is the
same as that of the principal penalty. On the other hand, under Article 32 of the
Revised Penal Code perpetual special disqualification means that "the offender
shall not be permitted to hold any public office during the period of his
disqualification," which is perpetually. Both temporary absolute disqualification
and perpetual special disqualification constitute ineligibilities to hold elective
public office. A person suffering from these ineligibilities is ineligible to run for
elective public office, and commits a false material representation if he states
in his certificate of candidacy that he is eligible to so run.
In Lacuna v. Abes,16 the Court, speaking through Justice J.B.L. Reyes, explained
the import of the accessory penalty of perpetual special disqualification:
On the first defense of respondent-appellee Abes, it must be remembered that
appellees conviction of a crime penalized with prisin mayor which carried the
accessory penalties of temporary absolute disqualification and perpetual
special disqualification from the right of suffrage (Article 42, Revised Penal
Code); and Section 99 of the Revised Election Code disqualifies a person from
voting if he had been sentenced by final judgment to suffer one year or more of
imprisonment.
The accessory penalty of temporary absolute disqualification disqualifies the
convict for public office and for the right to vote, such disqualification to last
only during the term of the sentence (Article 27, paragraph 3, & Article 30,
Revised Penal Code) that, in the case of Abes, would have expired on 13
October 1961.
But this does not hold true with respect to the other accessory penalty of
perpetual special disqualification for the exercise of the right of suffrage. This
accessory penalty deprives the convict of the right to vote or to be elected to or
hold public office perpetually, as distinguished from temporary special
disqualification, which lasts during the term of the sentence. Article 32, Revised
Penal Code, provides:
Art. 32. Effects of the penalties of perpetual or temporary special
disqualification for the exercise of the right of suffrage. The perpetual or
temporary special disqualification for the exercise of the right of suffrage shall
deprive the offender perpetually or during the term of the sentence, according
to the nature of said penalty, of the right to vote in any popular election for any
public office or to be elected to such office. Moreover, the offender shall not be
permitted to hold any public office during the period of disqualification.

The word "perpetually" and the phrase "during the term of the sentence"
should be applied distributively to their respective antecedents; thus, the word
"perpetually" refers to the perpetual kind of special disqualification, while the
phrase "during the term of the sentence" refers to the temporary special
disqualification. The duration between the perpetual and the temporary (both
special) are necessarily different because the provision, instead of merging
their durations into one period, states that such duration is "according to the
nature of said penalty" which means according to whether the penalty is the
perpetual or the temporary special disqualification. (Emphasis supplied)
Clearly, Lacuna instructs that the accessory penalty of perpetual special
disqualification "deprives the convict of the right to vote or to be elected to or
hold public office perpetually."
The accessory penalty of perpetual special disqualification takes effect
immediately once the judgment of conviction becomes final. The effectivity of
this accessory penalty does not depend on the duration of the principal
penalty, or on whether the convict serves his jail sentence or not. The last
sentence of Article 32 states that "the offender shall not be permitted to hold
any public office during the period of his perpetual special disqualification."
Once the judgment of conviction becomes final, it is immediately executory.
Any public office that the convict may be holding at the time of his conviction
becomes vacant upon finality of the judgment, and the convict becomes
ineligible to run for any elective public office perpetually. In the case of Jalosjos,
he became ineligible perpetually to hold, or to run for, any elective public office
from the time his judgment of conviction became final.
Perpetual special disqualification is a ground for a petition under Section 78 of
the Omnibus Election Code because this accessory penalty is an ineligibility,
which means that the convict is not eligible to run for public office, contrary to
the statement that Section 74 requires him to state under oath. As used in
Section 74, 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 public office. As this Court held in Fermin v. Commission on Elections, 17 the
false material representation may refer to "qualifications or eligibility." One who
suffers from perpetual special disqualification is ineligible to run for public
office. If a person suffering from perpetual special disqualification files a
certificate of candidacy stating under oath that "he is eligible to run for (public)
office," as expressly required under Section 74, then he clearly makes a false
material representation that is a ground for a petition under Section 78. As this
Court explained in Fermin:
Lest it be misunderstood, the denial of due course to or the cancellation of the
CoC is not based on the lack of qualifications but on a finding that the
candidate made a material representation that is false, which may relate to the
qualifications required of the public office he/she is running for. It is noted that
the candidate states in his/her CoC that he/she is eligible for the office he/she
seeks. Section 78 of the OEC, therefore, is to be read in relation to the
constitutional and statutory provisions on qualifications or eligibility for public
office. If the candidate subsequently states a material representation in the
CoC that is false, the COMELEC, following the law, is empowered to deny due
course to or cancel such certificate. Indeed, the Court has already likened a

proceeding under Section 78 to a quo warranto proceeding under Section 253

of the OEC since they both deal with the eligibility or qualification of a
candidate, with the distinction mainly in the fact that a "Section 78" petition is
filed before proclamation, while a petition for quo warranto is filed after
proclamation of the winning candidate. 18(Emphasis supplied)
Conviction for robbery by final judgment with the penalty of prisin mayor, to
which perpetual special disqualification attaches by operation of law, is not a
ground for a petition under Section 68 because robbery is not one of the
offenses enumerated in Section 68. Insofar as crimes are concerned, Section 68
refers only to election offenses under the Omnibus Election Code and not to
crimes under the Revised Penal Code. For ready reference, we quote again
Section 68 of the Omnibus Election Code:
Sec. 68. Disqualifications. Any candidate who, in an action or protest in
which he is a party is declared by final decision by a competent court guilty of,
or found by the Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials
performing electoral functions;
(b) committed acts of terrorism to enhance his candidacy; (c) spent in his
election campaign an amount in excess of that allowed by this Code; (d)
solicited, received or made any contribution prohibited under Sections 89, 95,
96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from
continuing as a candidate, or if he has been elected, from holding the office.
Any person who is a permanent resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office under this Code, unless said
person has waived his status as permanent resident or immigrant of a foreign
country in accordance with the residence requirement provided for in the
election laws. (Emphasis supplied)
There is absolutely nothing in the language of Section 68 that will justify
including the crime of robbery as one of the offenses enumerated in this
Section. All the offenses enumerated in Section 68 refer to offenses under the
Omnibus Election Code. The dissenting opinion of Justice Reyes gravely errs
when it holds that Jalosjos conviction for the crime of robbery under the
Revised Penal Code is a ground for "a petition for disqualification under Section
68 of the OEC and not for cancellation of COC under Section 78 thereof." This
Court has already ruled that offenses punished in laws other than in the
Omnibus Election Code cannot be a ground for a petition under Section 68. In
Codilla, Sr. v. de Venecia,19 the Court declared:
The jurisdiction of the COMELEC to disqualify candidates is limited to those
enumerated in Section 68 of the Omnibus Election Code. All other election
offenses are beyond the ambit of COMELEC jurisdiction.They are criminal and
not administrative in nature. (Emphasis supplied)
A candidate for mayor during the 2010 local elections certifies under oath four
statements: (1) a statement that the candidate is a natural born or naturalized
Filipino citizen; (2) a statement that the candidate is not a permanent resident
of, or immigrant to, a foreign country; (3) a statement that the candidate is

eligible for the office he seeks election; and (4) a statement of the candidates
allegiance to the Constitution of the Republic of the Philippines. 20
We now ask: Did Jalosjos make a false statement of a material fact in his
certificate of candidacy when he stated under oath that he was eligible to run
for mayor? The COMELEC and the dissenting opinions all found that Jalosjos
was not eligible to run for public office. The COMELEC concluded that Jalosjos
made a false material representation that is a ground for a petition under
Section 78. The dissenting opinion of Justice Reyes, however, concluded that
the ineligibility of Jalosjos is a disqualification which is a ground for a petition
under Section 68 and not under Section 78. The dissenting opinion of Justice
Brion concluded that the ineligibility of Jalosjos is a disqualification that is not a
ground under Section 78 without, however, saying under what specific
provision of law a petition against Jalosjos can be filed to cancel his certificate
of candidacy.
What is indisputably clear is that the false material representation of Jalosjos is
a ground for a petition under Section 78. However, since the false material
representation arises from a crime penalized by prisin mayor, a petition under
Section 12 of the Omnibus Election Code or Section 40 of the Local Government
Code can also be properly filed. The petitioner has a choice whether to anchor
his petition on Section 12 or Section 78 of the Omnibus Election Code, or on
Section 40 of the Local Government Code. The law expressly provides multiple
remedies and the choice of which remedy to adopt belongs to the petitioner.
The COMELEC properly cancelled Jalosjos certificate of candidacy. A void
certificate of candidacy on the ground of ineligibility that existed at the time of
the filing of the certificate of candidacy can never give rise to a valid
candidacy, and much less to valid votes. 21 Jalosjos certificate of candidacy was
cancelled because he was ineligible from the start to run for Mayor. Whether his
certificate of candidacy is cancelled before or after the elections is immaterial
because the cancellation on such ground means he was never a valid candidate
from the very beginning, his certificate of candidacy being void ab initio.
Jalosjos ineligibility existed on the day he filed his certificate of candidacy, and
the cancellation of his certificate of candidacy retroacted to the day he filed it.
Thus, Cardino ran unopposed. There was only one qualified candidate for Mayor
in the May 2010 elections Cardino who received the highest number of
votes.
Decisions of this Court holding that the second-placer cannot be proclaimed
winner if the first-placer is disqualified or declared ineligible 22 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. 23 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.
Even without a petition under either Section 12 or Section 78 of the Omnibus
Election Code, or under Section 40 of the Local Government Code, the
COMELEC is under a legal duty to cancel the certificate of candidacy of anyone
suffering from the accessory penalty of perpetual special disqualification to run
for public office by virtue of a final judgment of conviction. The final judgment
of conviction is notice to the COMELEC of the disqualification of the convict
from running for public office. The law itself bars the convict from running for
public office, and the disqualification is part of the final judgment of conviction.
The final judgment of the court is addressed not only to the Executive branch,
but also to other government agencies tasked to implement the final judgment
under the law.
Whether or not the COMELEC is expressly mentioned in the judgment to
implement the disqualification, it is assumed that the portion of the final
judgment on disqualification to run for elective public office is addressed to the
COMELEC because under the Constitution the COMELEC is duty bound to
"enforce and administer all laws and regulations relative to the conduct of an
election."24 The disqualification of a convict to run for public office under the
Revised Penal Code, as affirmed by final judgment of a competent court, is part
of the enforcement and administration of "all laws" relating to the conduct of
elections.
To allow the COMELEC to wait for a person to file a petition to cancel the
certificate of candidacy of one suffering from perpetual special disqualification
will result in the anomaly that these cases so grotesquely exemplify. Despite a
prior perpetual special disqualification, Jalosjos was elected and served twice as
mayor. The COMELEC will be grossly remiss in its constitutional duty to "enforce
and administer all laws" relating to the conduct of elections if it does not motu
proprio bar from running for public office those suffering from perpetual special
disqualification by virtue of a final judgment.
WHEREFORE, the Motion for Reconsideration in G.R. No. 193237 is DENIED, and
the Petition in G.R. No. 193536 is GRANTED. The Resolutions dated 10 May
2010 and 11 August 2010 of the COMELEC First Division and the COMELEC En
Bane, respectively, in SPA No. 09-076 (DC), are AFFIRMED with the
MODIFICATION that Agapito J. Cardino ran unopposed in the May 2010 elections
and thus received the highest number of votes for Mayor. The COMELEC En
Bane is DIRECTED to constitute a Special City Board of Canvassers to proclaim
Agapito J. Cardino as the duly elected Mayor of Dapitan City, Zamboanga del
Norte.
Let copies of this Decision be furnished the Secretaries of the Department of
Justice and the Department of Interior and Local Government so they can cause
the arrest of, and enforce the jail sentence on, Dominador G. Jalosjos, Jr. due to
his conviction for the crime of robbery in a final judgment issued by the

Regional Trial Court (Branch 18) of Cebu City in Criminal Case No. CCC-XIV-140CEBU.

AMORA vs. COMELEC

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

1. The Petition for Disqualification is actually a Petition to Deny Due

Course or cancel a certificate of candidacy. Effectively, the petition of Olandria
is filed out of time;

DECISION
NACHURA, J.:

2. Olandrias claim does not constitute a proper ground for the

cancellation of the COC;

Before us is a petition for certiorari under Rule 64, in relation to Rule

65, of the Rules of Court, seeking to annul and set aside the Resolutions dated
April 29, 2010[1] and May 17, 2010,[2] respectively, of the Commission on
Elections (COMELEC) in SPA No. 10-046 (DC).
First, the undisputed facts.

On December 1, 2009, petitioner Sergio G. Amora, Jr. (Amora) filed his

Certificate of Candidacy (COC) for Mayor of Candijay, Bohol. At that time,
Amora was the incumbent Mayor of Candijay and had been twice elected to the
post, in the years 2004 and 2007.

To oppose Amora, the Nationalist Peoples Coalition (NPC) fielded Trygve

L. Olaivar (Olaivar) for the mayoralty post. Respondent Arnielo S. Olandria
(Olandria) was one of the candidates for councilor of the NPC in the same
municipality.

On March 5, 2010, Olandria filed before the COMELEC a Petition for

Disqualification against Amora. Olandria alleged that Amoras COC was not
properly sworn contrary to the requirements of the Omnibus Election Code
(OEC) and the 2004 Rules on Notarial Practice. Olandria pointed out that, in
executing his COC, Amora merely presented his Community Tax Certificate
(CTC) to the notary public, Atty. Oriculo Granada (Atty. Granada), instead of
presenting competent evidence of his identity. Consequently, Amoras COC had
no force and effect and should be considered as not filed.

Amora traversed Olandrias allegations in his Answer cum Position

Paper.[3] He countered that:

3. The COC is valid and effective because he (Amora) is personally

known to the notary public, Atty. Granada, before whom he took his oath in
filing the document;

4. Atty. Granada is, in fact, a close acquaintance since they have been
members of the League of Muncipal Mayors, Bohol Chapter, for several years;
and

5. Ultimately, he (Amora) sufficiently complied with the requirement

that the COC be under oath.

As previously adverted to, the Second Division of the COMELEC

granted the petition and disqualified Amora from running for Mayor of
Candijay, Bohol.

Posthaste, Amora filed a Motion for Reconsideration [4] before the

COMELEC en banc. Amora reiterated his previous arguments and emphasized
the asseverations of the notary public, Atty. Granada, in the latters affidavit,
[5]
to wit:

1. The COMELECs (Second Divisions) ruling is contrary to the objectives

and basic principles of election laws which uphold the primacy of the popular
will;

2. Atty. Granada states that while he normally requires the affiant to

show competent evidence of identity, in Amoras case, however, he accepted
Amoras CTC since he personally knows him;

3.
Apart from the fact that Amora and Atty.
Granada were both members of the League of Municipal Mayors, Bohol
Chapter, the two consider each other as distant relatives because Amoras
mother is a Granada;

weight because such evidence could and should have been

produced at the earliest possible opportunity.

The rules are absolute. Section 73 of the Election Code states:

4.
It is a matter of judicial notice that
practically everybody knows the Mayor, most especially lawyers and notaries
public, who keep themselves abreast of developments in local politics and have
frequent dealings with the local government; and

Section 73. Certificate of Candidacy. No

person shall be eligible for any elective public
office unless he files a sworn certificate of
candidacy within the period fixed herein.

5. In all, the COC filed by Amora does not lack the required formality of
an oath, and thus, there is no reason to nullify his COC.
Under the 2004 Rules on Notarial Practice of 2004 (Rules), the
requirements of notarization of an oath are:
Meanwhile, on May 10, 2010, national and local elections were held.
Amora obtained 8,688 votes, equivalent to 58.94% of the total votes cast,
compared to Olaivars 6,053 votes, equivalent to only 41.06% thereof.
Subsequently, the Muncipal Board of Canvassers of Candijay, Bohol, proclaimed
Amora as the winner for the position of Municipal Mayor of Candijay, Bohol.[6]
A week thereafter, or on May 17, 2010, in another turn of events, the
COMELEC en banc denied Amoras motion for reconsideration and affirmed the
resolution of the COMELEC (Second Division). Notably, three (3) of the seven (7)
commissioners dissented from the majority ruling. Commissioner Gregorio
Larrazabal (Commissioner Larrazabal) wrote a dissenting opinion, which was
concurred in by then Chairman Jose A.R. Melo and Commissioner Rene V.
Sarmiento.

In denying Amoras motion for reconsideration and upholding Olandrias

petition for disqualification of Amora, the COMELEC ratiocinated, thus:

[Amora] himself admitted in his Motion that the Second

Division was correct in pointing out that the CTC is no longer a
competent evidence of identity for purposes of notarization.

The COC therefore is rendered invalid when [petitioner] only

presented his CTC to the notary public. His defense that he is
personally known to the notary cannot be given recognition
because the best proof [of] his contention could have been the
COC itself. However, careful examination of the jurat portion of
the COC reveals no assertion by the notary public that he
personally knew the affiant, [petitioner] herein. Belated
production of an Affidavit by the Notary Public cannot be given

Section 2. Affirmation or Oath. The term

Affirmation or Oath refers to an act in which
an individual on a single occasion:

(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; and

(c)
avows under penalty of law to
the whole truth of the contents of the
instrument or document.

The required form of identification is prescribed in

[S]ection 12 of the same Rules, to wit:

Section 12. Competent Evidence of Identity.

The phrase competent evidence of identity
refers to the identification of an individual
based on:

(a)
at least one current identification
document
issued
by
an
official
agency bearing
the
photograph and
signature of the individual. x x x.

It is apparent that a CTC, which bears no photograph,

is no longer a valid form of identification for purposes of
Notarization of Legal Documents. No less than the Supreme
Court itself, when it revoked the Notarial Commission of a
member of the Bar in Baylon v. Almo, reiterated this when it
said:

As a matter of fact, recognizing the

established unreliability of a community tax
certificate in proving the identity of a person
who wishes to have his document notarized,
we did not include it in the list of competent
evidence of identity that notaries public
should use in ascertaining the identity of
persons appearing before them to have their
documents notarized.

Seeking other remedies, [Amora] maintained that Section 78

of the Election Code governs the Petition. Said section
provides that:

Sec. 78. Petition to deny due course to or

cancel a certificate of candidacy. A verified
petition seeking to deny due course or
to cancel a certificate of candidacy may
be filed by the person exclusively on the
ground that any material representation
contained therein as required under
Section 74 hereof is false. The petition
may be filed at any time not later than
twenty-five days from the time of the
filing of the certificate of candidacy and
shall be decided, after due notice and
hearing, not later than fifteen days before the
election.

[Amora] however failed to note that the Petition relies upon an

entirely different ground. The Petition has clearly stated that it
was invoking Section 73 of the Election Code, which prescribes
the mandatory requirement of filing a sworn certificate of
candidacy. As properly pointed out by [Olandria], he filed a
Petition to Disqualify for Possessing Some Grounds for
Disqualification, which, is governed by COMELEC Resolution
No. 8696, to wit:

B. PETITION
TO
DISQUALIFY
A
CANDIDATE PURSUANT TO SECTION 68 OF
THE OMNIBUS ELECTION CODE AND PETITION
TO DISQUALIFY FOR LACK OF QUALIFICATIONS
OR POSSESSING SOME GROUNDS FOR
DISQUALIFICATION

1. A verified petition to disqualify a

candidate
pursuant
to
Section 68 of the OEC and
the verified petition to
disqualify
a
candidate
for lack
of
qualifications
orpossessing
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;

code. The constitution is very clear that it is congress that

shall prescribe the qualifications (and disqualifications) of
candidates for local government positions. These grounds for
disqualification were laid down in both laws mentioned by
[Amora] and COMELEC Resolution 8696.[7]

Hence, this petition for certiorari imputing grave abuse of discretion to

the COMELEC. On June 15, 2010, we issued a Status Quo Ante Order and
directed respondents to comment on the petition. As directed, Olandria and the
COMELEC filed their respective Comments [8] which uniformly opposed the
petition. Thereafter, Amora filed his Reply.[9]

xxxx

3. The petition to disqualify a

candidate
for lack
of
qualification or possessing
some
grounds
for
disqualification, shall be
filed in ten (10) legible
copies, personally or through
a
duly
authorized
representative,
by
any
person of voting age, or duly
registered political party,
organization or coalition of
political
parties
on
the
ground that the candidate
does not possess all the
qualifications as provided for
by the Constitution or by
existing
law
or
who
possesses some grounds for
disqualification as provided
for by the Constitution or by
existing law.

Amora insists that the Petition for Disqualification filed by Olandria is

actually a Petition to Deny Due Course since the purported ground for
disqualification simply refers to the defective notarization of the COC. Amora is
adamant that Section 73 of the OEC pertains to the substantive qualifications of
a candidate or the lack thereof as grounds for disqualification, specifically, the
qualifications and disqualifications of elective local officials under the Local
Government Code (LGC) and the OEC. Thus, Olandrias petition was filed way
beyond the reglementary period of twenty-five (25) days from the date of the
filing of the disputed COC.

Moreover, Amora maintains that his COC is properly notarized and not
defective, and the presentation of his CTC to the notary public to whom he was
personally known sufficiently complied with the requirement that the COC be
under oath. Amora further alleges that: (1) Olaivar, his opponent in the
mayoralty post, and likewise a member of the NPC, is purportedly a fraternity
brother and close associate of Nicodemo T. Ferrer (Commissioner Ferrer), one of
the commissioners of the COMELEC who disqualified him; and (2) Olaivar
served as Consultant for the COMELEC, assigned to the Office of Commissioner
Ferrer.

Olandria and the COMELEC reiterated the arguments contained in the

COMELEC en banc resolution of May 17, 2010.

xxxx
Amoras petition is meritorious.
Finally, we do not agree with [Amora] when he stated that
the Second
Divisions Resolution
practically
supplanted
congress by adding another ground for disqualification, not
provided in the omnibus election code or the local government

We find that the COMELEC ruling smacks of grave abuse of discretion,

a capricious and whimsical exercise of judgment equivalent to lack of
jurisdiction. Certiorari lies where a court or any tribunal, board, or officer

exercising judicial or quasi-judicial functions has acted without or in excess of

jurisdiction or with grave abuse of discretion.[10]

(b)
Those removed from office as a result of
an administrative case;

In this case, it was grave abuse of discretion to uphold Olandrias claim

that an improperly sworn COC is equivalent to possession of a ground for
disqualification. Not by any stretch of the imagination can we infer this as an
additional ground for disqualification from the specific wording of the OEC in
Section 68, which reads:

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

SEC. 68. Disqualifications. Any candidate who, in an

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

and of Section 40 of the LGC, which provides:

SEC. 40. Disqualifications. The following persons are

disqualified from running for any elective local position:

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

(d)

Those with dual citizenship;

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

in

criminal

or

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

(g)

statement of a material representation in the said certificate

that is false. The petitions also have different effects. While a
person who is disqualified under Section 68 is merely
prohibited to continue as a candidate, the person whose
certificate is cancelled or denied due course under Section 78
is not treated as a candidate at all, as if he/she never filed a
CoC. Thus, in Miranda v. Abaya, this Court made the distinction
that a candidate who is disqualified under Section 68 can
validly be substituted under Section 77 of the OEC because
he/she remains a candidate until disqualified; but a person
whose CoC has been denied due course or cancelled under
Section 78 cannot be substituted because he/she is never
considered a candidate.[11]

The insane or feeble-minded.

It is quite obvious that the Olandria petition is not based on any of the grounds
for disqualification as enumerated in the foregoing statutory provisions.
Nowhere therein does it specify that a defective notarization is a ground for the
disqualification of a candidate. Yet, the COMELEC would uphold that petition
upon the outlandish claim that it is a petition to disqualify a candidate for lack
of qualifications or possessing some grounds for disqualification.

The proper characterization of a petition as one for disqualification under the

pertinent provisions of laws cannot be made dependent on the designation,
correctly or incorrectly, of a petitioner. The absurd interpretation of Olandria,
respondent herein, is not controlling; the COMELEC should have dismissed his
petition outright.

A petition for disqualification relates to the declaration of a candidate as

ineligible or lacking in quality or accomplishment fit for the position of mayor.
The distinction between a petition for disqualification and the formal
requirement in Section 73 of the OEC that a COC be under oath is not simply a
question of semantics as the statutes list the grounds for the disqualification of
a candidate.

Recently, we have had occasion to distinguish the various petitions for

disqualification and clarify the grounds therefor as provided in the OEC and the
LGC. We declared, thus:
To emphasize, a petition for disqualification on the one
hand, can be premised on Section 12 or 68 of the OEC, or
Section 40 of the LGC. On the other hand, a petition to deny
due course to or cancel a CoC can only be grounded on a

Apart from the qualifications provided for in the Constitution, the power to
prescribe additional qualifications for elective office and grounds for
disqualification therefrom, consistent with the constitutional provisions, is
vested in Congress.[12] However, laws prescribing qualifications for and
disqualifications from office are liberally construed in favor of eligibility since
the privilege of holding an office is a valuable one. [13] We cannot overemphasize
the principle that where a candidate has received popular mandate, all possible
doubts should be resolved in favor of the candidates eligibility, for to rule
otherwise is to defeat the will of the people. [14]

In stark contrast to the foregoing, the COMELEC allowed and confirmed the
disqualification of Amora although the latter won, and was forthwith
proclaimed, as Mayor of Candijay, Bohol.

Another red flag for the COMELEC to dismiss Olandrias petition is the
fact that Amora claims to personally know the notary public, Atty. Granada,
before whom his COC was sworn. In this regard, the dissenting opinion of
Commissioner Larrazabal aptly disposes of the core issue:

With all due respect to the well-written Ponencia, I respectfully

voice my dissent. The primary issue herein is whether it is
proper to disqualify a candidate who, in executing his
Certificate of Candidacy (COC), merely presented to the Notary
Public his Community Tax Certificate.

The majority opinion strictly construed the 2004 Rules

on Notarial Practice (the 2004 Notarial Rules) when it provided
that valid and competent evidence of identification must be
presented to render Sergio G. Amora, Jr.s [petitioners] COC
valid. The very wording of the 2004 Notarial Rules supports my
view that the instant motion for reconsideration ought to be
granted, to wit:

May 10, 2010 where [petitioner] was one of the candidates for
municipal mayor. To disqualify [petitioner] at this late stage
simply due to an overly strict reading of the 2004 Notarial
Rules will effectively deprive the people who voted for him
their rights to vote.

The Supreme Courts declaration in Petronila

Rulloda v. COMELEC et al. must not be taken lightly:

S.

Section 2. Affirmation or Oath . The term

Affirmation or Oath refers to an act in which
an individual on a single occasion:

(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; and

(c)
avows under penalty of
law to the whole truth of the contents of the
instrument or document.

As quoted supra, competent evidence of identity is

not required in cases where the affiant is personally known to
the Notary Public, which is the case herein. The records reveal
that [petitioner] submitted to this Commission a sworn
affidavit executed by Notary Public Oriculo A. Granada
(Granada), who notarized [petitioners] COC, affirming in his
affidavit that he personally knows [petitioner].

[Respondent], on the other hand, presented no

evidence to counter Granadas declarations. Hence, Granada[s]
affidavit, which narrates in detail his personal relation with
[petitioner], should be deemed sufficient.

The purpose of election laws is to give effect to, rather

than frustrate, the will of the voters. The people of
Candijay, Bohol has already exercised their right to suffrage on

Technicalities and procedural niceties in

election cases should not be made to stand in
the way of the true will of the electorate.
Laws governing election contests must be
liberally construed to the end that the will of
the people in the choice of public officials
may not be defeated by mere technical
objections.

Election contests involve public interest, and

technicalities and procedural barriers must
yield if they constitute an obstacle to the
determination of the true will of the electorate
in the choice of their elective officials. The
Court frowns upon any interpretation of the
law that would hinder in any way not only the
free and intelligent casting of the votes in an
election but also the correct ascertainment of
the results.[15]

Our ruling herein does not do away with the formal requirement that a COC be
sworn. In fact, we emphasize that the filing of a COC is mandatory and must
comply with the requirements set forth by law.[16]

Section 2 of the 2004 Rules on Notarial Practice lists the act to which
an affirmation or oath refers:

Sec. 2. Affirmation or Oath. The term Affirmation or Oath refers

to an act in which an individual on a single occasion:

(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; and

(c)

avows under penalty of law to the whole

truth of the contents of the instrument or
document.

In this case, however, contrary to the declarations of the COMELEC,

Amora complied with the requirement of a sworn COC. He readily explained
that he and Atty. Granada personally knew each other; they were not just
colleagues at the League of Municipal Mayors, Bohol Chapter, but they consider
each other as distant relatives. Thus, the alleged defect in the oath was not
proven by Olandria since the presentation of a CTC turned out to be sufficient in
this instance. On the whole, the COMELEC should not have brushed aside the
affidavit of Atty. Granada and remained inflexible in the face of Amoras victory
and proclamation as Mayor of Candijay, Bohol.

WHEREFORE, the petition is GRANTED. The Resolutions of the Commission on

Elections in SPA No. 10-046 (DC) dated April 29, 2010 and May 17, 2010,
respectively, areANULLED and SET ASIDE.
SO ORDERED.

PABLO C. VILLABER, petitioner, vs. COMMISSION ON ELECTIONS and

REP. DOUGLAS R. CAGAS, respondents.

Furthermore, even if the judgment of conviction was already final and

executory, it cannot be the basis for his disqualification since violation of B.P.
Blg. 22 does not involve moral turpitude.
[9]

DECISION
SANDOVAL-GUTIERREZ, J.:
In this petition for certiorari, Pablo C. Villaber, petitioner, seeks the
nullification of two Resolutions of the Commission on Elections (COMELEC) in
SPA-01-058. The first one was issued by its Second Division on April 30, 2001,
disqualifying him as a candidate for the position of Congressman in the First
District of the Province of Davao del Sur in the last May 14, 2001 elections, and
cancelling his certificate of candidacy; and the second is the en banc Resolution
dated May 10, 2001 denying his motion for reconsideration.
Both petitioner Villaber and respondent Douglas R. Cagas were rival
candidates for a congressional seat in the First District of Davao del Sur during
the May 14, 2001 elections. Villaber filed his certificate of candidacy for
Congressman on February 19, 2001, [1] while Cagas filed his on February 28,
2001.[2]
On March 4, 2001, Cagas filed with the Office of the Provincial Election
Supervisor, Commission On Elections (COMELEC), Davao del Sur, a consolidated
petition[3] to disqualify Villaber and to cancel the latters certificate of
candidacy. Cagas alleged in the said consolidated petition that on March 2,
1990, Villaber was convicted by the Regional Trial Court of Manila, Branch 15, in
Criminal Case No. 86-46197 for violation of Batas Pambansa Blg. 22 and was
sentenced to suffer one (1) year imprisonment. The check that bounced was in
the sum of P100,000.00.[4] Cagas further alleged that this crime involves
moral turpitude; hence, under Section 12 of the Omnibus Election Code, he is
disqualified to run for any public office. On appeal, the Court of Appeals (Tenth
Division), in its Decision dated April 23, 1992 in CA-G.R. CR No. 09017,
[5]
affirmed the RTC Decision. Undaunted, Villaber filed with this Court a petition
for review on certiorari assailing the Court of Appeals Decision, docketed as
G.R. No. 106709.However, in its Resolution[6] of October 26, 1992, this Court
(Third Division) dismissed the petition. On February 2, 1993, our Resolution
became final and executory.[7] Cagas also asserted that Villaber made a false
material representation in his certificate of candidacy that he is Eligible for the
office I seek to be elected which false statement is a ground to deny due course
or cancel the said certificate pursuant to Section 78 of the Omnibus Election
Code.
In his answer to the disqualification suit, Villaber countered mainly that
his conviction has not become final and executory because the affirmed
Decision was not remanded to the trial court for promulgation in his presence.
[8]

After the opposing parties submitted their respective position papers, the
case was forwarded to the COMELEC, Manila, for resolution.
On April 30, 2001, the COMELEC (Second Division), finding merit in Cagas
petition, issued the challenged Resolution [10] in SPA 01-058 declaring Villaber
disqualified as a candidate for and from holding any elective public office and
canceling his certificate of candidacy. The COMELEC ruled that a conviction for
violation of B.P Blg. 22 involves moral turpitude following the ruling of this
Court en banc in the administrative case of People vs. Atty. Fe Tuanda.[11]
Villaber filed a motion for reconsideration but was denied by the
COMELEC en banc in a Resolution[12] dated May 10, 2001.
Hence, this petition.
The sole issue for our Resolution is whether or not violation of B.P. Blg. 22
involves moral turpitude.
The COMELEC believes it is. In disqualifying petitioner Villaber from being
a candidate for Congressman, the COMELEC applied Section 12 of the Omnibus
Election Code which provides:
Sec. 12. Disqualifications. - Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by final
judgment for subversion, insurrection, rebellion, or for any offense for which
he has been sentenced to a penalty of more than eighteen months, or for a
crime involving moral turpitude, shall be disqualified to be a candidate
and to hold any office, unless he has been given plenary pardon or
granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five
years from his service of sentence, unless within the same period he again
becomes disqualified. (Emphasis ours)
As to the meaning of moral turpitude, we have consistently adopted the
definition in Blacks Law Dictionary as an act of baseness, vileness, or depravity
in the private duties which a man owes his fellow men, or to society in general,
contrary to the accepted and customary rule of right and duty between man

and woman, or conduct contrary to justice, honesty, modesty, or good morals.

[13]

In In re Vinzon,[14] the term moral turpitude is considered as

encompassing everything which is done contrary to justice, honesty, or good
morals.
We,
however,
clarified
in Dela
Torre
vs.
Commission
on
Elections[15] that not every criminal act involves moral turpitude, and that as to
what crime involves moral turpitude is for the Supreme Court to determine.
[16]
We further pronounced therein that:
in International Rice Research Institute vs. NLRC (221 SCRA 760 [1993]),
the Court admitted that it cannot always be ascertained whether moral
turpitude does or does not exist by merely classifying a crime as malum in se or
as malum prohibitum. There are crimes which are mala in se and yet but rarely
involve moral turpitude, and there are crimes which involve moral turpitude
and are mala prohibitaonly. In the final analysis, whether or not a crime
involves moral turpitude is ultimately a question of fact and
frequently depends on all the circumstances surrounding the violation
of the statute.(Emphasis ours)
We reiterate here our ruling in Dela Torre[17] that the determination of
whether a crime involves moral turpitude is a question of fact and frequently
depends on all the circumstances surrounding the violation of the statute.
In the case at bar, petitioner does not assail the facts and circumstances
surrounding the commission of the crime. In effect, he admits all the elements
of the crime for which he was convicted. At any rate, the question of whether or
not the crime involves moral turpitude can be resolved by analyzing its
elements alone, as we did in Dela Torre which involves the crime of fencing
punishable by a special law.[18]
Petitioner was charged for violating B.P. Blg. 22 under the following
Information:
That on or about February 13, 1986, in the City of Manila, Philippines, the said
accused did then and there willfully, unlawfully and feloniously make or draw
and issue to Efren D. Sawal to apply on account or for value Bank of Philippine
Islands (Plaza Cervantes, Manila) Check No. 958214 dated February 13, 1986
payable to Efren D. Sawal in the amount of P100,000.00, said accused well
knowing that at the time of issue he did not have sufficient funds in or
credit with the drawee bank for payment of such check in full upon its
presentment, which check, when presented for payment within ninety
(90) days from the date thereof, was subsequently dishonored by the
drawee bank for insufficiency of funds, and despite receipt of notice of

such dishonor, said accused failed to pay said Efren D. Sawal the
amount of said check or to make arrangement for full payment of the
same within five (5) banking days after receiving said notice. (Emphasis
ours)
He was convicted for violating Section 1 of B.P. Blg. 22 which provides:
SECTION 1. Checks without sufficient funds. - Any person who makes or draws
and issues any check to apply on account or for value, knowing at the time
of issue that he does not have sufficient funds in or credit with the
drawee bank for the payment of such check in full upon its
presentment, which check is subsequently dishonored by the drawee bank for
insufficiency of funds or credit or would have been dishonored for the same
reason had not the drawer, without any valid reason, ordered the bank to stop
payment, shall be punished by imprisonment of not less than thirty days but
not more than one (1) year or by a fine of not less than but not more than
double the amount of the check which fine shall in no case exceed Two Hundred
Thousand Pesos, or both such fine and imprisonment at the discretion of the
court. (Emphasis ours).
The elements of the offense under the above provision are:
1. The accused makes, draws or issues any check to apply to account
or for value;
2. The accused knows at the time of the issuance that he or
she does not have sufficient funds in, or credit with, the
drawee bank for the payment of the check in full upon its
presentment; and
3. The check is subsequently dishonored by the drawee bank for
insufficiency of funds or credit, or it would have been dishonored
for the same reason had not the drawer, without any valid reason,
ordered the bank to stop payment.[19]
The presence of the second element manifests moral turpitude. In People
vs. Atty. Fe Tuanda[20] we held that a conviction for violation of B.P. Blg. 22
imports deceit and certainly relates to and affects the good moral character of
a person.[21] The effects of the issuance of a worthless check, as we held in the
landmark case of Lozano vs. Martinez,[22] through Justice Pedro L. Yap,
transcends the private interests of the parties directly involved in the
transaction and touches the interests of the community at large. The mischief it
creates is not only a wrong to the payee or holder, but also an injury to the
public since the circulation of valueless commercial papers can very well
pollute the channels of trade and commerce, injure the banking system and
eventually hurt the welfare of society and the public interest. [23]Thus,

paraphrasing Blacks definition, a drawer who issues an unfunded check

deliberately reneges on his private duties he owes his fellow men or society in
a manner contrary to accepted and customary rule of right and duty, justice,
honesty or good morals.
Petitioner contends that this Courts pronouncement in People v. Atty. Fe
Tuanda,[24] insofar as it states that conviction under B.P. Blg. 22 involves moral
turpitude, does not apply to him since he is not a lawyer.

imposed on them only a fine double the amount of the check issued. We
considered the fact that petitioners brought the appeal, believing in good faith,
that no violation of B.P. Blg. 22 was committed, otherwise, they would have
simply accepted the judgment of the trial court and applied for probation to
evade prison term. We do the same here. We believe such would best serve the
ends of criminal justice.
In fine, we find no grave abuse of discretion committed by respondent
COMELEC in issuing the assailed Resolutions.

This argument is erroneous.

WHEREFORE, the petition is DISMISSED. Costs against petitioner.
In that case, the Court of Appeals affirmed Atty. Fe Tuandas conviction for
violation of B.P. Blg. 22 and, in addition, suspended her from the practice of law
pursuant to Sections 27 and 28 of Rule 138 of the Revised Rules of Court. Her
motion seeking the lifting of her suspension was denied by this Court on the
ground that the said offense involves moral turpitude. There we said in part:
We should add that the crimes of which respondent was convicted also
import deceit and violation of her attorneys oath and the Code of Professional
Responsibility, under both of which she was bound to obey the laws of the
land. Conviction of a crime involving moral turpitude might not (as in the
instant case, violation of B.P. Blg. 22 does not) relate to the exercise of the
profession of a lawyer; however, it certainly relates to and affects the
good moral character of a person convicted of such offense. x x x.
[25]
(Emphasis ours)
Clearly, in Tuanda, this Court did not make a distinction whether the
offender is a lawyer or a non-lawyer. Nor did it declare that such offense
constitutes moral turpitude when committed by a member of the Bar but is not
so when committed by a non-member.
We cannot go along with petitioners contention that this Courts ruling
in Tuanda has been abandoned or modified in the recent case of Rosa Lim vs.
People of the Philippines, [26] which reiterated the ruling in Vaca vs. Court of
Appeals.[27] In these two latter cases, the penalty of imprisonment imposed on
the accused for violation of B.P. Blg. 22 was deleted by this Court. Only a fine
was imposed.Petitioner insists that with the deletion of the prison sentence, the
offense no longer involves moral turpitude. We made no such
pronouncement. This is what we said in Rosa Lim:
In Vaca v. Court of Appeals, we held that in determining the penalty to be
imposed for violation of B.P. Blg. 22, the philosophy underlying the
Indeterminate Sentence Law applies. The philosophy is to redeem valuable
human material, and to prevent unnecessary deprivation of personal liberty
and economic usefulness with due regard to the protection of the social
order. There we deleted the prison sentence imposed on petitioners. We

SO ORDERED.

EUSEBIO EUGENIO K. LOPEZ, G.R. No. 182701

Petitioner,
Present:

the Philippines and resided in Barangay Bagacay. Thus, he said, he possessed

all the qualifications to run for Barangay Chairman.
After the votes for Barangay Chairman were canvassed, petitioner emerged as
the winner.[6]

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,

On February 6, 2008, COMELEC issued the assailed Resolution granting

the petition for disqualification, disposing as follows:
CORONA,

- versus - CARPIO MORALES,

AZCUNA,

WHEREFORE, premises considered, the instant Petition

for Disqualification is GRANTED and respondent Eusebio
Eugenio K. Lopez is DISQUALIFIED from running as Barangay
Chairman of Barangay Bagacay, San Dionisio, Iloilo.

TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE
and
BRION, JJ.

SO ORDERED.[7]
CASTRO,

COMMISSION ON ELECTIONS Promulgated:

and TESSIE P. VILLANUEVA,
Respondents. July 23, 2008
x -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
RESOLUTION

In ruling against petitioner, the COMELEC found that he was not able to
regain his Filipino citizenship in the manner provided by law. According to the
poll body, to be able to qualify as a candidate in the elections, petitioner should
have made a personal and sworn renunciation of any and all foreign
citizenship. This, petitioner failed to do.
His motion for reconsideration having been denied, petitioner resorted to the
present petition, imputing grave abuse of discretion on the part of the
COMELEC for disqualifying him from running and assuming the office of
Barangay Chairman.
We dismiss the petition.

REYES, R.T., J.:

A Filipino-American or any dual citizen cannot run for any elective public
position in the Philippines unless he or she personally swears to a renunciation
of all foreign citizenship at the time of filing the certificate of candidacy.
This is a petition for certiorari under Rule 65, in relation to Rule 64 of the Rules
on Civil Procedure assailing the (1) Resolution [1] and (2) Omnibus Order[2] of the
Commission on Elections (COMELEC), Second Division, disqualifying petitioner
from running as Barangay Chairman.
Petitioner Eusebio Eugenio K. Lopez was a candidate for the position of
Chairman of Barangay Bagacay, San Dionisio, Iloilo City in the synchronized
Barangay and Sangguniang Kabataan Elections held on October 29, 2007.
On October 25, 2007, respondent Tessie P. Villanueva filed a
petition[3] before the Provincial Election Supervisor of the Province of Iloilo,
praying for the disqualification of petitioner on the ground that he is an
American citizen, hence, ineligible from running for any public office. In his
Answer,[4] petitioner argued that he is a dual citizen, a Filipino and at the same
time an American, by virtue of Republic Act (R.A.) No. 9225, otherwise known
as the Citizenship Retention and Re-acquisition Act of 2003. [5] He returned to

Relying on Valles v. Commission on Elections,[8] petitioner argues that

his filing of a certificate of candidacy operated as an effective renunciation of
foreign citizenship.
We note, however, that the operative facts that led to this Courts ruling
in Valles are substantially different from the present case. In Valles, the
candidate, Rosalind Ybasco Lopez, was a dual citizen by accident of birth on
foreign soil.[9] Lopez was born of Filipino parents in Australia, a country which
follows the principle of jus soli. As a result, she acquired Australian citizenship
by operation of Australian law, but she was also considered a Filipino citizen
under Philippine law. She did not perform any act to swear allegiance to a
country other than the Philippines.
In contrast, petitioner was born a Filipino but he deliberately sought
American citizenship and renounced his Filipino citizenship. He later on became
a dual citizen by re-acquiring Filipino citizenship.
More importantly, the Courts 2000 ruling in Valles has been
superseded by the enactment of R.A. No. 9225 [10] in 2003. R.A. No. 9225
expressly provides for the conditions before those who re-acquired Filipino
citizenship may run for a public office in the Philippines. Section 5 of the said
law states:

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

defect of his candidacy.Garnering the most number of votes does not validate
the election of a disqualified candidate because the application of the
constitutional and statutory provisions on disqualification is not a matter of
popularity.[12]
In sum, the COMELEC committed no grave abuse of discretion in disqualifying
petitioner as candidate for Chairman in the Barangay elections of 2007.

xxxx
WHEREFORE, the petition is DISMISSED.
(2) Those seeking elective public office in
the Philippines shall meet the qualification for holding such
public office as required by the Constitution and existing laws
and, at the time of the filing of the certificate of
candidacy, make a personal and sworn renunciation of
any and all foreign citizenship before any public officer
authorized to administer an oath.(Emphasis added)
Petitioner re-acquired his Filipino citizenship under the cited law. This
new law explicitly provides that should one seek elective public office, he
should first make a personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer an oath.
Petitioner failed to comply with this requirement. We quote with
approval the COMELEC observation on this point:
While respondent was able to regain his Filipino
Citizenship by virtue of the Dual Citizenship Law when he took
his oath of allegiance before the Vice Consul of the Philippine
Consulate Generals Office in Los Angeles, California, the same
is not enough to allow him to run for a public office. The
above-quoted provision of law mandates that a candidate with
dual citizenship must make a personal and sworn renunciation
of any and all foreign citizenship before any public officer
authorized to administer an oath. There is no evidence
presented that will show that respondent complied
with the provision of R.A. No. 9225. Absent such proof we
cannot allow respondent to run for Barangay Chairman of
Barangay Bagacay.
For the renunciation to be valid, it must be contained in an
affidavit duly executed before an officer of law who is
authorized to administer an oath. The affiant must state in
clear and unequivocal terms that he is renouncing all
foreign citizenship for it to be effective. In the instant
case, respondent Lopezs failure to renounce his
American citizenship as proven by the absence of an
affidavit that will prove the contrary leads this
Commission to believe that he failed to comply with the
positive mandate of law. For failure of respondent to prove
that he abandoned his allegiance to the United States, this
Commission holds him disqualified from running for an elective
position in the Philippines.[11] (Emphasis added)
While it is true that petitioner won the elections, took his oath and began to
discharge the functions of Barangay Chairman, his victory can not cure the

SO ORDERED.

REP. MA. CATALINA L. GO, petitioner, vs. COMMISSION ON ELECTIONS,

FELIPE V. MONTEJO and ARVIN V. ANTONI, respondents.
DECISION
PARDO, J.:
The Case
In her petition for certiorari,[1] petitioner seeks to nullify the resolution of
the Commission on Elections (COMELEC) en banc declaring her disqualified to
run for the office of governor of Leyte and mayor of Baybay, Leyte, because she
filed certificates of candidacy for both positions and the withdrawal of her
certificate of candidacy for mayor was filed late by twenty eight minutes from
the deadline.
Forthwith, we issued an order[2] to maintain the status quo ante, in effect
allowing petitioners certificate of candidacy for governor in the meantime.
In its Comment,[3] the COMELEC justified its resolution on the ground that
petitioners affidavit of withdrawal of her certificate of candidacy for mayor of
Baybay, Leyte was ineffectual because it was submitted twenty eight (28)
minutes late at the office of the municipal election officer at Baybay. The
facsimile copy thereof was filed with said office at 12:28 a.m., 1 March 2001,
and the original copy thereof was actually received by the office of the
municipal election officer of Baybay at 1:15 p.m., the same day. The provincial
election supervisor of Leyte, with office at Tacloban City, to whom petitioner
filed her certificate of candidacy for governor at 11:47 p.m., 28 February 2001,
refused to accept the affidavit of withdrawal tendered simultaneously therewith
because, as he claimed, the affidavit must be filed with the office of the
municipal election officer of Baybay, Leyte where petitioner filed her certificate
of candidacy for mayor.
The Facts
Petitioner is the incumbent representative of the Fifth District, province of
Leyte, whose term of office will expire at noon on 30 June 2001.
On 27 February 2001, petitioner filed with the municipal election officer of
the municipality of Baybay, Leyte, a certificate of candidacy for mayor of
Baybay, Leyte.
On 28 February 2001, at 11:47 p.m., petitioner filed with the provincial
election supervisor of Leyte, with office at Tacloban City, another certificate of

candidacy for governor of the province of Leyte.Simultaneously therewith, she

attempted to file with the provincial election supervisor an affidavit of
withdrawal of her candidacy for mayor of the municipality of Baybay,
Leyte. However, the provincial election supervisor of Leyte refused to accept
the affidavit of withdrawal and suggested that, pursuant to a COMELEC
resolution, she should file it with the municipal election officer of Baybay, Leyte
where she filed her certificate of candidacy for mayor.
At that late hour, with only minutes left to midnight, the deadline for filing
certificates of candidacy or withdrawal thereof, and considering that the travel
time from Tacloban to Baybay was two (2) hours, petitioner decided to send her
affidavit of withdrawal by fax[4] to her father at Baybay, Leyte and the latter
submitted the same to the office of the lection officer of Baybay, Leyte at 12:28
a.m., 01 March 2001.[5] On the same day, at 1:15 p.m., the election officer of
Baybay, Leyte, received the original of the affidavit of withdrawal. [6]
On 05 March 2001, respondent Montejo filed with the provincial election
supervisor of Leyte, at Tacloban City a petition to deny due course and/or to
cancel the certificates of candidacy of petitioner. [7]Respondent Antoni filed a
similar petition to disqualify petitioner. [8] The petitions were based on the
ground that petitioner filed certificates of candidacy for two positions, namely,
that for mayor of Baybay, Leyte, and that for governor of Leyte, thus, making
her ineligible for both.
On 06 March 2001, Atty. Manuel L. Villegas, the provincial election
supervisor of Leyte, by 1st indorsement, referred the cases to the Commission
on Election, Manila, Law Department, on the ground that he was inhibiting
himself due to his prior action of refusing to receive the petitioners affidavit of
withdrawal tendered simultaneously with the filing of the certificate of
candidacy for governor on 28 February 2001.[9]
In the meantime, the Law Department, COMELEC, under Director Jose P.
Balbuena, made a study of the cases without affording petitioner an
opportunity to be heard or to submit responsive pleadings.On 05 April 2001,
they submitted a report and recommendation to the COMELEC en banc.[10]
The report and recommendation reads:
Submitted for due consideration is the petition filed by Atty. Felipe V. Montejo
and Atty. Arvin V. Antoni on March 5, 2001, before the Office of the Provincial
Election Supervisor of Leyte, seeking to deny due course and/or to cancel the
certificate of candidacy of Catalina L. Go for Governor of Leyte.

Both petitions which are exactly worded in the same language allege, as
follows:
This petition is heretofore filed pursuant to the provisions of Rule 23 of the
COMELEC RULES OF PROCEDURE and Section 15, as well, of RESOLUTION NO.
3253-A of the COMELEC EN BANC promulgated on November 20, 2000. Ditto,
this petition is filed within the reglementary period following the last day for the
filing of certificates of candidacy on February 28, 2001.

'No person shall be eligible for more than one office to be filled in the same
election, and if he files his certificate of candidacy for more than one office, he
shall not be eligible for any of them. However, before the expiration of the
period for the filing of certificates of candidacy, the person who has filed more
than one certificate of candidacy may declare under oath the office for which
he desires to be eligible and cancel the certificate of candidacy for the other
office or offices.
"In relation to Section (1) (b) of the Comelec Resolution No. 3253-A, to wit:

Petitioner Atty. Felipe V. Montejo is of voting age, Filipino, Lawyer by profession,

married, and a resident of #50 Juan Luna Street, Tacloban City, of which locality
he is a registered voter.
Respondent re. Catalina L. Go, on the other hand is likewise of legal age,
married, resident of Baybay, Leyte, of which locality she is a registered voter,
and the incumbent Member of the House of Representatives representing the
5th Congressional District of Leyte.
Respondent CATALINA L. GO filed a certificate of candidacy for the office of
Mayor of the Municipality of Baybay, Leyte on February 27, 2001. Without
cancelling or withdrawing the said certificate of candidacy this time for the
office of Provincial Governor of Leyte on February 28, 2001. However, before
the expiration of the period for the filing of certificates of candidacy,
respondent indubitably failed to declare under oath the office for which she
desires to be eligible and cancel the certificate of candidacy for the other office.
'Verily, at the time respondent filed her certificate of candidacy for Provincial
Governor, she knew fully well that she was ineligible for the said office, having
filed, a day earlier, a certificate of candidacy for Mayor of Baybay, Leyte.
Hence, respondent falsely represented in her certificate of candidacy for
Provincial Governor, and under oath, that she is ELIGIBLE for the said office; a
material fact required by law to be sworn to and contained in certificates of
candidacy. In fine, respondent likewise falsely represented in her certificates of
candidacy, under oath, that she will OBEY THE LAWS, ORDERS, DECRESS,
RESOLUTIONS AND REGULATIONS PROMULGATED AND ISSUED BY THE DULY
CONSTITUTED AUTHORITIES; a material fact required by law to be sworn to and
contained in certificates of candidacy.
"Petitioners' ground to deny due course and/or to cancel the said certificate of
candidacy is anchored on Section 73 of the Omnibus Election Code, quoted
hereunder.
'No person shall be eligible for any elective public office unless he files a sworn
certificate of candidacy within the period fixed herein.

'SECTION 1. Certificate of Candidacy. x x x x x (b) No person shall be eligible for

more than one office to be filled in the same election. If he files a certificate of
candidacy for more than one office he shall not be eligible for either. However,
before the expiration of the period for the filing of certificate of candidacy, he
may declare under oath the office for which he desire to be eligible and cancel
the certificate of candidacy for the office or offices.'
"Moreover, petitioners contended that CATALINA LOPEZ LORETO-GO is ineligible
to run for either Mayor of Baybay, Leyte or Governor of Leyte Province.
"Based on the certified list of candidate for the provincial candidates of Leyte
on March 7, 2001, the certificate of candidacy of Catalina Lopez Loreto-Go for
the position of Governor of Leyte was filed with the Office of the Provincial
Election Supervisor on February 28, 2001 at 11:47 p.m. the last day for filing
certificates of candidacy.
"In support of the petitions of Atty. Montejo and Atty. Antoni, is a certified
machine copy of the affidavit of withdrawal of Catalina L. Loreto-Go, which was
filed on March 01, 2001 at the Office of the Election Officer of Baybay, Leyte,
which she filed on February 28, 2001.
"The affidavit of withdrawal of Catalina Loreto-Go, a portion of which reads:
"1. That last February 27, 2001 I filed my certificate of candidacy for Mayor for
the MUNICIPALITY OF BAYBAY, LEYTE;
"2. That due to political exigency and influence from my political leaders urging
me to run for Mayor of the Municipality of Baybay, Leyte, I have no other
recourse but to follow desire of my political constituents;
"3. That therefore, I am formally withdrawing my certificate of candidacy for
Mayor of the Municipality of Baybay, Leyte and in it stead I am formally filing
my certificate for Governor of Leyte.

"A careful scrutiny and examination of Catalina Loreto-Go certificate of

candidacy for Governor of Leyte Province, although filed on the last day of
February 28, 2001, her affidavit of withdrawal for Mayor of Baybay, Leyte, was
filed only on March 1,2001 or one (1) day after the February 28, 2001
deadline. In other word, there are two (2) certificates of candidacy filed by
Catalina Loreto-Go, one for governor of Leyte and the other for Mayor of
Baybay, Leyte.
"Clearly, on March 1, 2001 when she filed her affidavit of withdrawal for Mayor
of Baybay, Leyte, both her certificates of candidacy for Mayor of Baybay, Leyte
and Governor of Leyte were still subsisting and effective making her liable for
filing two certificates of candidacy on different elective positions, thus,
rendering her ineligible for both positions, in accordance with Section (1) (b) of
Comelec Resolution No. 3253-A.
"PREMISES CONSIDERED, the Law Department RECOMMENDS as follows:
"1.) To give due course to the petition of Atty. Felipe V. Montejo and Atty. Arvin
V. Antonio against the certificates of candidacy of Catalina Loreto-Go for
Governor of Leyte; and
"2.) To direct the Provincial Election Supervisor of Leyte and the Election Officer
to delete/cancel the name of CATALINA LOPEZ LORETO-GO from the certified
list of candidates for Governor of Leyte and Mayoralty candidates of Baybay,
Leyte, and to accordingly notify the parties and the above-named Comelec
Officials."[11]
On 23 April 2001, the COMELEC en banc approved the recommendation of
the Director, Law Department and adopted the resolution in question as set out
in the opening paragraph of this decision.[12]
Hence, this petition.[13]
The Issues
At the oral argument on 07 May 2001, at 3:00 p.m., we defined the
following issues to be addressed by the parties:
I. Is petitioner disqualified to be candidate for governor of Leyte and
mayor of Baybay, Leyte because she filed certificates of
candidacy for both positions?
II. Was there a valid withdrawal of the certificate of candidacy for
municipal mayor of Baybay, Leyte?

(a) Must the affidavit of withdrawal be filed with the election officer of
the place where the certificate of candidacy was filed?
(b) May the affidavit of withdrawal be validly filed by fax?
II. Was there denial to petitioner of procedural due process of law?
The Court's Ruling
We grant the petition. We annul the COMELEC resolution declaring
petitioner disqualified for both positions of governor of Leyte and mayor of the
municipality of Baybay, Leyte. The filing of the affidavit of withdrawal with the
election officer of Baybay, Leyte, at 12:28 a.m., 1 March 2001 was a substantial
compliance with the requirement of the law.[14]
We hold that petitioner's withdrawal of her certificate of candidacy for
mayor of Baybay, Leyte was effective for all legal purposes, and left in full force
her certificate of candidacy for governor.[15]
Section 73, Batas Pambansa Blg. 881, otherwise known as the Omnibus
Election Code, provides that:
"SEC. 73. Certificate of candidacy.- No person shall be eligible for any elective
public office unless he files a sworn certificate of candidacy within the period
fixed herein.
"A person who has filed a certificate of candidacy may, prior to the election,
withdraw the same by submitting to the office concerned a written declaration
under oath.
"No person shall be eligible for more than one office to be filled in the same
election, and if he files his certificate of candidacy for more than one office, he
shall not be eligible for any of them. However, before the expiration of the
period for the filing of certificates of candidacy, the person who has
filed more than one certificate of candidacy may declare under oath
the office for which he desires to be eligible and cancel the certificate
of candidacy for the other office or offices."
There is nothing in this Section which mandates that the affidavit of
withdrawal must be filed with the same office where the certificate of
candidacy to be withdrawn was filed. Thus, it can be filed directly with the main
office of the COMELEC, the office of the regional election director concerned,
the office of the provincial election supervisor of the province to which the
municipality involved belongs, or the office of the municipal election officer of
the said municipality.

While it may be true that Section 12 of COMELEC Resolution No. 3253-A,

adopted on 20 November 2000, requires that the withdrawal be filed before the
election officer of the place where the certificate of candidacy was filed, [16] such
requirement is merely directory, and is intended for convenience. It is not
mandatory or jurisdictional. An administrative resolution can not contradict,
much less amend or repeal a law, or supply a deficiency in the law. [17] Hence,
the filing of petitioner's affidavit of withdrawal of candidacy for mayor of
Baybay with the provincial election supervisor of Leyte sufficed to effectively
withdraw such candidacy. The COMELEC thus acted with grave abuse of
discretion when it declared petitioner ineligible for both positions for which she
filed certificates of candidacy.
There is another important moiety that affects the validity of the COMELEC
resolution canceling petitioner's certificates of candidacy. It is that petitioner
was deprived of procedural due process of law.[18] The petition to cancel her
certificate of candidacy or to deny due course to both were filed before the
provincial election supervisor of Leyte who inhibited himself and referred the
cases to the Law Department, COMELEC, Manila. On 11 April 2001, the
COMELEC, First Division, acting on the first indorsement of Atty. Villegas
approved his inhibition and required the provincial election supervisor of Leyte
to immediately forward his copy of the records of these cases to the Regional
Election Director, Region 08, at Tacloban, Leyte, for hearing. [19] On 18 April
2001, Regional Election Director, Region 08, Atty. Adolfo A. Ibaez issued
summons/subpoena to petitioner Go to submit her consolidated answer to the
petitions and counter affidavits including position paper within three (3) days
from notice.[20] On 23 April 2001, petitioner submitted her consolidated position
paper.[21] On 25 April 2001, at 9:00 a.m., Director Ibaez set the cases for
hearing for reception of evidence of the parties.

"Sec. 3. Summary Proceeding. - The petition shall be heard summarily after

due notice. (emphasis supplied)
Obviously, the COMELEC en banc in approving the report and
recommendation of the Law Department, deprived the petitioner of procedural
due process of law.[22] The COMELEC, acting as a quasi-judicial tribunal, cannot
ignore the requirements of procedural due process in resolving cases before it.
[23]

WHEREFORE, the
Court
GRANTS the
petition.
The
Court
ANNULS COMELEC Resolution No. 3982, adopted on 23 April 2001, and
DECLARES valid petitioner's certificate of candidacy for Governor of Leyte. The
Chairman, Commision on Elections, Manila, and the provincial election
supervisor of Leyte shall immediately order the inclusion of petitioner's name in
the certified list of candidates for Governor, province of Leyte, to be posted in
each polling place/voting booth in every precinct throughout the province of
Leyte, in the voters information sheet to be given to each registered voter
therein, in the election returns, statement of votes by precincts, and certificate
of canvass, and all other election papers.
The status quo ante order heretofore issued is made permanent.
This decision is immediately executory. No motion for reconsideration shall
be entertained.
No costs.
SO ORDERED.

In the meantime, however, the Law Department, COMELEC conducted

an ex-parte study of the cases. It did not give petitioner an opportunity to be
heard. Petitioner was not required to submit a comment or opposition to the
petitions for cancellation of her certificates of candidacy and/or for
disqualification. It did not set the cases for hearing. It was not even aware of
the proceedings before Director Ibanez in Tacloban. After an ex-parte study of
the cases, on 05 April 2001, the Law Department submitted its report and
recommendation, approved by Director Balbuena, to the COMELEC en banc.
During the oral argument on 07 May 2001, Director Balbuena candidly
admitted that the COMELEC Rules of Procedure requires that notice be given to
the respondent. Indeed, Section 3, Rule 23 of said Rules on petition to deny due
course to or cancel certificates of candidacy explicitly provides:
"Rule 23 - Petition to Deny Due Course to or Cancel Certificates of Candidacy
"x x x x

ELEAZAR P. QUINTO and

GERINO A. TOLENTINO, JR.,
Petitioners,

versus -

COMMISSION ON
ELECTIONS,
Respondent.
x ----------------------------------------------------------------------------------------x

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.

G.R. No. 189698

Present:

PUNO, C.J.,
CARPIO,
CORONA,
We find the foregoing arguments meritorious.
CARPIO MORALES,
VELASCO, JR.,
I.
NACHURA,
Procedural Issues
LEONARDO-DE CASTRO,
First, we shall resolve the procedural issues on the timeliness of the
BRION,
COMELECs motion for reconsideration which was filed on December 15, 2009,
PERALTA,
as well as the propriety of the motions for reconsideration-in-intervention which
BERSAMIN,
were filed after the Court had rendered its December 1, 2009 Decision.
DEL CASTILLO,
ABAD,
i.
Timeliness of COMELECs Motion for Reconsideration
VILLARAMA, JR.,
PEREZ, and
Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court, [5] in relation
MENDOZA, JJ.
to Section 1, Rule 52 of the same rules, [6] COMELEC had a period of fifteen days
from receipt of notice of the assailed Decision within which to move for its
Promulgated:
reconsideration. COMELEC received notice of the assailed Decision on
December 2, 2009, hence, had until December 17, 2009 to file a Motion for
February 22, 2010 Reconsideration.

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 Code [3] and Section
4(a) of COMELEC Resolution No. 8678, [4]mainly on the ground that they violate
the equal protection clause of the Constitution and suffer from overbreadth.
The assailed Decision thus paved the way for public appointive officials to
continue discharging the powers, prerogatives and functions of their office
notwithstanding their entry into the political arena.
In support of their respective motions for reconsideration, respondent
COMELEC and movants-intervenors submit the following arguments:
(1) The assailed Decision is contrary to, and/or violative of, the
constitutional proscription against the participation of public
appointive officials and members of the military in partisan
political activity;
(2) The assailed provisions do not violate the equal protection clause
when they accord differential treatment to elective and appointive

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-inintervention shall be attached to the motion and served on the
original parties. (italics supplied)

Prescinding from our rule and ruling case law, we find that the IBPCebu 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.

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 court [12] 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]

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, [17] which repealed
Section 67 of the Omnibus Election Code[18] and rendered ineffective
Section 11 of R.A. 8436 insofar as it considered an elected official as
resigned only upon the start of the campaign period corresponding to
the positions for which they are running, [19] an elected official is not
deemed to have resigned from his office upon the filing of his
certificate of candidacy for the same or any other elected office or

position. In fine, an elected official may run for another position without
forfeiting his seat.
These laws and regulations implement Section 2(4), Article IX-B of the 1987
Constitution, which prohibits civil service officers and employees from engaging
in any electioneering or partisan political campaign.
The intention to impose a strict limitation on the participation of civil service
officers and employees in partisan political campaigns is unmistakable. The
exchange between Commissioner Quesada and Commissioner Foz during the
deliberations of the Constitutional Commission is instructive:
MS. QUESADA.
xxxx
Secondly, I would like to address the issue here as provided in
Section 1 (4), line 12, and I quote: "No officer or employee in
the civil service shall engage, directly or indirectly, in any
partisan political activity." This is almost the same provision as
in the 1973 Constitution. However, we in the government
service have actually experienced how this provision has been
violated by the direct or indirect partisan political activities of
many government officials.
So, is the Committee willing to include certain clauses that
would make this provision more strict, and which would deter
its violation?
MR. FOZ. Madam President, the existing Civil Service Law and
the implementing rules on the matter are more than
exhaustive enough to really prevent officers and employees in
the public service from engaging in any form of partisan
political
activity.
But
the
problem
really
lies
in
implementation because, if the head of a ministry, and even
the superior officers of offices and agencies of government will
themselves violate the constitutional injunction against
partisan political activity, then no string of words that we may
add to what is now here in this draft will really implement the
constitutional intent against partisan political activity. x x
x[20] (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 paramilitary 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 theGovernment, 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 deemed-resigned provision
in respect of elected officials) of the Omnibus Election Code, elected officials
are no longer considered ipso facto resigned from their respective offices upon
their filing of certificates of candidacy. In contrast, since Section 66 was not
repealed, the limitation on appointive officials continues to be operative they
are deemed resigned when they file their certificates of candidacy.
The petitioners in 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.

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 deemedresigned 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 inVillanueva, Jr. v. Court of Appeals, et
al.:[32]

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.

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)

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

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)
(2)
(3)
(4)

The classification rests on substantial distinctions;

It is germane to the purposes of the law;
It is not limited to existing conditions only; and
It applies equally to all members of the same class.[37]

Our assailed Decision readily acknowledged that these deemedresigned 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 deemedresigned provisions pursue their objective in a far too heavyhanded 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 federal[55] and state[56] 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 Governmentthe 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 evenhanded 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 expressivefalls within the scope of otherwise valid criminal laws that
reflect legitimate state interests in maintaining comprehensive
controls
over
harmful,
constitutionally
unprotected
conduct. Although such laws, if too broadly worded, may deter
protected speech to some unknown extent, there comes a
point where that effect-at best a prediction-cannot, with
confidence, justify invalidating a statute on its face and so
prohibiting a State from enforcing the statute against conduct
that is admittedly within its power to proscribe. To put the
matter another way, particularly where conduct and not
merely speech is involved, we believe that the overbreadth of
a statute must not only be real, but substantial as well, judged
in relation to the statute's plainly legitimate sweep. It is our
view that s 818 is not substantially overbroad and that
whatever overbreadth may exist should be cured through
case-by-case analysis of the fact situations to which its
sanctions, assertedly, may not be applied.
Unlike ordinary breach-of-the peace statutes or other
broad regulatory acts, s 818 is directed, by its terms, at
political expression which if engaged in by private persons
would plainly be protected by the First and Fourteenth
Amendments. But at the same time, s 818 is not a censorial
statute, directed at particular groups or viewpoints. The
statute, rather, seeks to regulate political activity in an evenhanded 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 resignto-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 subparagraphs 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.
Lynch[65] thatMancuso 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 Pawtucketprovision 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 farfetched 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
Broadrick, and Magill demonstrate

beyond

Carriers,
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. Telford[73] 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.
Fashing[76] and Morial, et al. v. Judiciary Commission of the State
of Louisiana, et al.[77] to buttress his dissent. Maintaining that resign-to-run
provisions are valid only when made applicable to specified officials, he
explains:
U.S. courts,
in
subsequent
cases,
sustained
the
constitutionality of resign-to-run provisions when applied
to specified or particular officials, as distinguished from
all others,[78] under a classification that is germane to
the
purposes
of
the
law. These
resign-to-run
legislations were not expressed in a general and
sweeping provision, and thus did not violate the test of
being germane to the purpose of the law, the second
requisite for a valid classification. Directed, as they were, to
particular officials, they were not overly encompassing as to
be overbroad. (emphasis in the original)
This
reading
is
a
regrettable
misrepresentation
of Clements and Morial. The resign-to-run provisions in these cases were
upheld not because they referred to specified or particular officials (vis--vis a
general class); the questioned provisions were found valid precisely because
the Court deferred to legislative judgment and found that a regulation

is not devoid of a rational predicate simply because it happens to be

incomplete. In fact, the equal protection challenge in Clements revolved
around the claim that the State of Texas failed to explain why some public
officials are subject to the resign-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 barangaylevel.
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. [88] In this
regard, some sensitivity to reality is needed; an invalid
application that is far-fetched does not deserve as much
weight as one that is probable. [89] The question is a matter of
degree.[90] Thus, assuming for the sake of argument that the
partisan-nonpartisan distinction is valid and necessary such
that a statute which fails to make this distinction is susceptible
to an overbreadth attack, the overbreadth challenge presently
mounted must demonstrate or provide this Court with some
idea of the number of potentially invalid elections (i.e. the
number of elections that were insulated from party rivalry but
were nevertheless closed to appointive employees) that may
in all probability result from the enforcement of the statute. [91]
The state of the record, however, does not permit us
to find overbreadth. Borrowing from the words of Magill v.
Lynch, indeed, such a step is not to be taken lightly, much less
to be taken in the dark, [92] especially since an overbreadth
finding in this case would effectively prohibit the State from
enforcing an otherwise valid measure against conduct that is
admittedly within its power to proscribe.[93]
This Court would do well to proceed with tiptoe caution, particularly
when it comes to the application of the overbreadth doctrine in the analysis of
statutes that purportedly attempt to restrict or burden the exercise of the right
to freedom of speech, for such approach is manifestly strong medicine that
must be used sparingly, and only as a last resort. [94]
In the United States, claims of facial overbreadth have been
entertained only where, in the judgment of the court, the possibility that
protected speech of others may be muted and perceived grievances left to
fester (due to the possible inhibitory effects of overly broad statutes) outweighs
the possible harm to society in allowing some unprotected speech or conduct to
go unpunished.[95] Facial overbreadth has likewise not been invoked where a
limiting construction could be placed on the challenged statute, and where
there are readily apparent constructions that would cure, or at least
substantially reduce, the alleged overbreadth of the statute. [96]
In the case at bar, the probable harm to society in permitting
incumbent appointive officials to remain in office, even as they actively pursue
elective posts, far outweighs the less likely evil of having arguably protected
candidacies blocked by the possible inhibitory effect of a potentially overly
broad statute.
In this light, the conceivably impermissible applications of the
challenged statutes which are, at best, bold predictions cannot justify
invalidating these statutes in toto and prohibiting the State from enforcing
them against conduct that is, and has for more than 100 years been,
unquestionably within its power and interest to proscribe. [97] Instead, the more

prudent approach would be to deal with these conceivably impermissible

applications through case-by-case adjudication rather than through a total
invalidation of the statute itself. [98]
Indeed, the anomalies spawned by our assailed Decision have taken
place. In his Motion for Reconsideration, intervenor Drilon stated that a number
of high-ranking Cabinet members had already filed their Certificates of
Candidacy without relinquishing their posts. [99] Several COMELEC election
officers had likewise filed their Certificates of Candidacy in their respective
provinces.[100] Even the Secretary of Justice had filed her certificate of
substitution for representative of the first district of Quezon province last
December 14, 2009[101] even as her position as Justice Secretary includes
supervision over the City and Provincial Prosecutors, [102] who, in turn, act as
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.

EUFROCINO M. CODILLA, SR., petitioner,

vs.
HON. JOSE DE VENECIA, ROBERTO P. NAZARENO, in their official
capacities as Speaker
and Secretary-General of the House of Representatives, respectively,
and MA. VICTORIA L. LOCSIN, respondents.
DECISION
PUNO, J.:
In a democracy, the first self-evident principle is that he who has been rejected
by the people cannot represent the people. Respondent Ma. Victoria L. Locsin
lost to petitioner Eufrocino M. Codilla, Sr. by 17,903 votes in the May 14, 2001
elections as Representative of the 4th legislative district of Leyte. The most
sophisticated legal alchemy cannot justify her insistence that she should
continue governing the people of Leyte against their will. The enforcement of
the sovereign will of the people is not subject to the discretion of any official of
the land.
This is a Petition for Mandamus and Quo Warranto directed against respondents
Speaker Jose De Venecia and Secretary-General Roberto P. Nazareno of the
House of Representatives to compel them to implement the decision of the
Commission on Elections en banc by (a) administering the oath of office to
petitioner as the duly-elected Representative of the 4th legislative district of
Leyte, and (b) registering the name of the petitioner in the Roll of Members of
the House of Representatives, and against respondent Ma. Victoria L. Locsin for
usurping, intruding into, and unlawfully holding and exercising the said public
office on the basis of a void proclamation.
The facts are uncontroverted. Petitioner and respondent Locsin were candidates
for the position of Representative of the 4th legislative district of Leyte during
the May 14, 2001 elections. At that time, petitioner was the Mayor of Ormoc
City while respondent Locsin was the sitting Representative of the 4th
legislative district of Leyte. On May 8, 2001, one Josephine de la Cruz, a
registered voter of Kananga, Leyte, filed directly with the COMELEC main office
a Petition for Disqualification1 against the petitioner for indirectly soliciting
votes from the registered voters of Kananga and Matag-ob, Leyte, in violation
of Section 68 (a) of the Omnibus Election Code. It was alleged that the
petitioner used the equipments and vehicles owned by the City Government of
Ormoc to extract, haul and distribute gravel and sand to the residents of
Kananga and Matag-ob, Leyte, for the purpose of inducing, influencing or
corrupting them to vote for him. Attached to the petition are the (a) Affidavits
of Basilio Bates,2 Danilo D. Maglasang,3 Cesar A. Laurente;4 (b) Joint Affidavit
of Agripino C. Alferez and Rogelio T. Salvera;5 (c) Extract Records from the
Police Blotter executed by Police Superintendent Elson G. Pecho;6 and (d)
Photographs showing government dump trucks, haulers and surfacers and
portions of public roads allegedly filled-in and surfaced through the intercession
of the respondent.7 The case was docketed as SPA No. 01-208 and assigned to
the COMELEC's Second Division.
On May 10, 2001, the COMELEC Second Division issued an Order delegating the
hearing and reception of evidence on the disqualification case to the Office of
the Regional Director of Region VIII.8 On May 11, 2001, the COMELEC Second

Division sent a telegram informing the petitioner that a disqualification case

was filed against him and that the petition was remanded to the Regional
Election Director for investigation.9
At the time of the elections on May 14, 2001, the Regional Election Director had
yet to hear the disqualification case. Consequently, petitioner was included in
the list of candidates for district representative and was voted for. The initial
results showed that petitioner was the winning candidate.
On May 16, 2001, before the counting could be finished, respondent Locsin
joined as intervenor in SPA No. 128 and filed a "Most Urgent Motion to Suspend
Proclamation of Respondent [herein petitioner]" with the COMELEC Second
Division.10 Respondent Locsin alleged that "the evidence on record against
respondent is very strong and unless rebutted remains." She urged the
Commission to set the hearing of the disqualification case and prayed for the
suspension of the proclamation of the respondent "so as not to render the
present disqualification case moot and academic." A copy of the Motion was
allegedly served on petitioner by registered mail but no registry receipt was
attached thereto.11
On May 18, 2001, respondent Locsin filed a "Second Most Urgent Motion to
Suspend Proclamation of Respondent" stating "there is clear and convincing
evidence showing that the respondent is undoubtedly guilty of the charges
against him and this remains unrebutted by the respondent." A copy of the
Motion was sent to the petitioner and the corresponding registry receipt was
attached to the pleading.12 The records, however, do not show the date the
petitioner received the motion.
On the same day, May 18, 2001, the COMELEC Second Division issued an ExParte Order13 directing the Provincial Board of Canvassers of Leyte to suspend
the proclamation of petitioner in case he obtains the highest number of votes
by reason of "the seriousness of the allegations in the petition for
disqualification."14 It also directed the Regional Election Director to speed up
the reception of evidence and to forward immediately the complete records
together with its recommendation to the Office of the Clerk of the
Commission.15 As a result, petitioner was not proclaimed as winner even
though the final election results showed that he garnered 71,350 votes as
against respondent Locsin's 53,447 votes.16
At the time that the COMELEC Second Division issued its Order suspending his
proclamation, the petitioner has yet to be summoned to answer the petition for
disqualification. Neither has said petition been set for hearing. It was only on
May 24, 2001 that petitioner was able to file an Answer to the petition for his
disqualification with the Regional Election Director, alleging that: (a) he has not
received the summons together with the copy of the petition; (b) he became
aware of the matter only by virtue of the telegram sent by the COMELEC
Second Division informing him that a petition was filed against him and that the
Regional Election Director was directed to investigate and receive evidence
therewith; and (c) he obtained a copy of the petition from the COMELEC
Regional Office No. 8 at his own instance.17 Petitioner further alleged that the
maintenance, repair and rehabilitation of barangay roads in the municipalities
of Matag-ob and Kananga were undertaken without his authority, participation
or directive as City Mayor of Ormoc. He attached in his Answer the following:
(a) Affidavit of Alex B. Borinaga;18 (b) Copy of the Excerpt from the Minutes of

the Regular Session of Barangay Monterico;19 (c) Affidavit of Wilfredo A. Fiel;20

(d) Supplemental Affidavit of Wilfredo A. Fiel;21 and (e) Affidavit of Arnel Y.
Padayao.22
On May 25, 2001, petitioner filed a Motion to Lift Order of Suspension,23
alleging that (a) he did not receive a copy of the Motion to Suspend his
Proclamation and hence, was denied the right to rebut and refute the
allegations in the Motion; (b) that he did not receive a copy of the summons on
the petition for disqualification and after personally obtaining a copy of the
petition, filed the requisite answer only on May 24, 2001; and (c) that he
received the telegraph Order of the COMELEC Second Division suspending his
proclamation only on May 22, 2001. He attached documentary evidence in
support of his Motion to Lift the Suspension of his proclamation, and requested
the setting of a hearing on his Motion.24
On May 30, 2001, an oral argument was conducted on the petitioner's Motion
and the parties were ordered to submit their respective memoranda.25 On June
4, 2001, petitioner submitted his Memorandum26 in support of his Motion
assailing the suspension of his proclamation on the grounds that: (a) he was
not afforded due process; (b) the order has no legal and factual basis; and (c)
evidence of his guilt is patently inexistent for the purpose of suspending his
proclamation. He prayed that his proclamation as winning congressional
candidate be expediently made, even while the disqualification case against
him continue upon due notice and hearing. He attached the following additional
evidence in his Memorandum: (a) Copy of certification issued by PNP Senior
Inspector Benjamin T. Gorre;27 (b) Certification issued by Elena S. Aviles, City
Budget Officer;28 (c) Copy of certification issued by Wilfredo A. Fiel, City
Engineer of Ormoc;29 (d) Joint Affidavit of Antonio Patenio and Pepito
Restituto;30 and (e) Affidavits of Demetrio Brion,31 Igmedio Rita32 and
Gerardo Monteza.33 Respondent Locsin's memorandum also contained
additional affidavits of his witnesses.34
Petitioner's Motion to Lift the Order of Suspension, however, was not resolved.
Instead, on June 14, 2001, the COMELEC Second Division promulgated its
Resolution35 in SPA No. 01-208 which found the petitioner guilty of indirect
solicitation of votes and ordered his disqualification. It directed the "immediate
proclamation of the candidate who garnered the highest number of votes xxx."
A copy of said Resolution was sent by fax to the counsel of petitioner in Cebu
City in the afternoon of the following day.36

COMELEC Second Division which ordered his disqualification, as well as an

Addendum to the Motion for Reconsideration.39 Petitioner alleged in his Motion
for Reconsideration that the COMELEC Second Division erred: (1) in
disqualifying petitioner on the basis solely of the dubious declaration of the
witnesses for respondent Locsin; (2) in adopting in toto the allegations of the
witnesses for respondent Locsin; and (3) in promulgating the resolution in
violation of its own rules of procedure and in directing therein the immediate
proclamation of the second highest 'vote getter.' Respondent Locsin and her copetitioner in SPA No. 01-208 filed a joint Opposition to the Motion for
Reconsideration.40
On June 21, 2001, petitioner filed with the COMELEC en banc a Petition for
Declaration of Nullity of Proclamation,41 docketed as SPC No. 01-324, assailing
the validity of the proclamation of respondent Locsin who garnered only the
second highest number of votes. Respondent Locsin filed her Answer alleging
that: (1) the Commission lost jurisdiction to hear and decide the case because
of the proclamation of Locsin and that any question on the "election, returns,
and qualification" of Locsin can only be taken cognizance of by the House of
Representatives Electoral Tribunal (HRET); (2) the case should be filed and
heard in the first instance by a Division of the Commission and not directly by
the Commission en banc; and (3) the proclamation of Locsin was valid because
she received the highest number of valid votes cast, the votes of Codilla being
stray.
On June 28, 2001, petitioner filed an Urgent Manifestation42 stating that he
was deprived of a fair hearing on the disqualification case because while the
documentary evidence adduced in his Memorandum was in support of his
Motion for the lifting of the suspension of his proclamation, the COMELEC
Second Division instead ruled on the main disqualification case. In consonance
with his prayer that a full-dress hearing be conducted on the disqualification
case, he submitted Affidavits of additional witnesses43 which he claims would
refute and substantially belie the allegations of petitioner's/intervenor's
witnesses. A Reply,44 Rejoinder45 and Sur-Rejoinder46 were respectively filed
by the parties. Consequently, the motion for reconsideration in SPA No. 01-208
and the petition for declaration of nullity in SPC No. 01-324 were submitted for
resolution.

By virtue of the said Resolution, the votes cast for petitioner, totaling 71,350,
were declared stray even before said Resolution could gain finality. On June 15,
2001, respondent Locsin was proclaimed as the duly elected Representative of
the 4th legislative district of Leyte by the Provincial Board of Canvassers of
Leyte. It issued a Certificate of Canvass of Votes and Proclamation of the
Winning Candidates for Member of the House of Representatives stating that
"MA. VICTORIA LARRAZABAL LOCSIN obtained a total of FIFTY THREE
THOUSAND FOUR HUNDRED FORTY SEVEN (53,447) votes representing the
highest number of votes legally cast in the legislative district for said office."37
Respondent Locsin took her oath of office on June 18, 2001 and assumed office
on June 30, 2001.

From the records, it appears that initially, a "Resolution" penned by

Commissioner Rufino S.B. Javier, dated July 24, 2001, was submitted to the
Office of the Chairman, dismissing the petition for declaration of nullity for lack
of jurisdiction and denying the motion for reconsideration filed by petitioner
Codilla.47 Commissioners Florentino A. Tuason, Jr. and Resurreccion Z. Borra
submitted their respective dissenting opinions48 to the Javier resolution. It
bears emphasis that Commissioner Tuason, Jr. was the ponente of the
Resolution of the COMELEC Second Division which ordered the disqualification
of petitioner but after considering the additional evidence presented by the
latter, he concluded that the totality of the evidence was clearly in petitioner's
favor. Equally worth mentioning is the fact that Commissioner Ralph C. Lantion,
who was the Presiding Commissioner of the Second Division, also dissented and
voted to grant Codilla's motion for reconsideration on the ground that "[T]he
people of Leyte have spoken and I respect the electorate's will. x x x." 49

On June 20, 2001, petitioner seasonably filed with the COMELEC en banc a
Motion for Reconsideration38 from the June 14, 2001 Resolution of the

On August 29, 2001, then COMELEC Chairman Alfredo L. Benipayo issued a

"Vote and Opinion and Summary of Votes" reversing the resolution of the

Second Division and declaring the proclamation of respondent Locsin as null

and void. The dispositive portion reads:

2. On the petition for Declaration of Nullity of proclamation of respondent Ma.

Victoria L. Locsin (SPC No. 01-324), I vote:

"JUDGMENT

(a) to GRANT the petition of Eufrocino M. Codilla, Sr., and declare as null and
void the proclamation of losing candidate Locsin, the proclamation being
violative of election laws, established jurisprudence, and resolutions of the
Commission on Elections;

WHEREFORE, in view of all the foregoing considerations, I concur with

Commissioner Resurreccion Z. Borra, Commissioner Florentino A. Tuason, Jr. and
Commissioner Ralph C. Lantion, in SPA No. 01-208, to GRANT the motion for
reconsideration and to REVERSE the resolution of the Commission (Second
Division) promulgated on June 1, 2001, disqualifying Codilla; and subsequently,
in SPC No. 01-324, to GRANT the petition of Eufrocino M. Codilla, Sr., and
declare as null and void the proclamation of losing candidate Locsin.

(b) to lift the order of suspension of proclamation of petitioner Codilla, issued by

the Commission (Second Division) on May 18, 2001, in SPA No. 01-208, having
been issued without hearing and without any finding that the evidence of guilt
of petitioner Codilla is strong and, thus, null and void;

Accordingly:
1. On the Motion for Reconsideration of the disqualification resolution against
Codilla, promulgated by the Commission (Second Division) on June 14, 2001
(SPA No. 01-208), I vote:
(a) to GRANT the Motion for Reconsideration of respondent-movant Eufrocino M.
Codilla, Sr., and to REVERSE the Resolution of the Commission (Second
Division) promulgated on June 14, 2001, for insufficiency of evidence;
(b) to lift the order of suspension of proclamation of petitioner Codilla, issued by
the Commission (Second Division) on May 18, 2001, having been issued
without hearing and without any finding that the evidence of guilt of petitioner
Codilla is strong and, thus, null and void;
(c) to nullify the order contained in the Resolution of the Commission (Second
Division) promulgated on June 14, 2001, for "(t)he immediate proclamation of
the candidate who garnered the highest number of votes, to the exclusion of
respondent" and the concurrent order for "the Provincial Board of Canvasser
(sic) of Leyte to immediately reconvene and thereafter proclaim forthwith the
candidate who obtained the highest number of votes counting out the
Respondent" the same being violative of election laws, established
jurisprudence, and resolutions of the Commission;
(d) to nullify the ruling contained in the Resolution of the Commission (Second
Division) promulgated o June 14, 2001, that the votes of respondent Codilla are
"considered stray and invalid" said ruling being issued on the basis of an
inapplicable decision, and contrary to established jurisprudence;

(c) to nullify the order contained in the Resolution of the Commission (Second
Division) promulgated on June 14, 2001, in SPA No. 01-208, for "(t)he
immediate proclamation of the candidate who garnered the highest number of
votes, to the exclusion of respondent" and the concurrent order for "the
provincial Board of Canvasser (sic) of Leyte to immediately reconvene and
thereafter proclaim forthwith the candidate who obtained the highest number
of votes counting out the Respondent" the same being violative of election
laws, established jurisprudence, and resolutions of the Commission;
(d) to nullify the ruling contained in the Resolution of the Commission (Second
Division) promulgated on June 14, 2001, in SPA No. 01-208, that the votes of
respondent Codilla are "considered stray and invalid" said ruling being issued
on the basis of an inapplicable decision, and contrary to established
jurisprudence;
(e) to order the provincial Board of Canvassers of Leyte, upon the finality of this
resolution, to reconvene and proclaim petitioner Codilla as the winning
candidate for Representative of the Fourth legislative district of Leyte he (sic)
having garnered the highest number of votes in the elections for the position;
and
(f) to order respondent Locsin, upon the finality of this resolution, to vacate the
office of Representative of the House of Representatives representing the
Fourth Legislative district of Leyte and, for this purpose, to inform the House of
Representatives through the Honorable Speaker of this resolution for its
attention and guidance.
Summary of Votes

(e) to order the Provincial Board of Canvassers of Leyte, upon the finality of this
resolution, to reconvene and proclaim petitioner Codilla as the winning
candidate for Representative of the Fourth Legislative district of Leyte to
comply with its ministerial duty to proclaim the candidate who garnered the
highest number of votes in the elections for that position; and
(f) to order intervenor-oppositor Locsin, upon the finality of this resolution, to
vacate the office of Representative of the House of Representatives
representing the Fourth legislative district of Leyte and, for this purpose, to
inform the House of Representatives through the Honorable Speaker of this
resolution for its attention and guidance; and

Considering the FOUR (4) VOTES of the Chairman and Commissioners

Resurreccion Z. Borra, Florentino A. Tuason, Jr., and Ralph C. Lantion, to grant
the Motion for Reconsideration of Codilla and reverse the disqualification
Resolution of the Commission (Second Division) in SPA No. 01-208, promulgated
on June 14, 2001, and as an inevitable consequence, in voting to grant the
petition for declaration of nullity of the proclamation of Ma. Victoria L. Locsin in
SPC No. 01-324, the verdict/opinion of the Chairman and the three (3)
Commissioners taken together now stands, as it is, the MAJORITY DECISION of
the Commission En Banc in both cases; and the "Resolution" submitted by
three (3) Commissioners, namely, Commissioner Rufino S.B. Javier,
Commissioner Luzviminda G. Tancangco, and Commissioner Mehol K. Sadain, is

considered, as it is, the MINORITY DECISION of the Commission En Banc in both

cases.
The MAJORTIY DECISION was arrived at after proper consultation with those
who joined the majority. The Chairman and the three (3) Commissioners
comprising the majority decided that no one will be assigned to write a Majority
Decision. Instead, each one will write his own separate opinion. Commissioners
Borra, Tuason, Jr. and the undersigned Chairman submitted separate opinions.
Commissioner Lantion wrote an explanation on his vote."50
The aforequoted judgment was adopted in a "Vote of Adoption" signed by
Commissioners Ralph C. Lantion, Resurreccion Z. Borra and Florentino A.
Tuason, Jr.51
Respondent Locsin did not appeal from this decision annulling her
proclamation. Instead, she filed a "Comment and Manifestation"52 with the
COMELEC en banc questioning the procedure and the manner by which the
decision was issued. In addition, respondent Locsin requested and was issued
an opinion by House of Representatives Executive Director and Chief Legal
Counsel Leonardo B. Palicte III declaring that the COMELEC has no jurisdiction
to nullify the proclamation of respondent Locsin after she had taken her oath
and assumed office since it is the HRET which is the sole judge of election,
returns and qualifications of Members of the House.53 Relying on this opinion,
respondent Locsin submitted a written privileged speech to the House during
its regular session on September 4, 2001, where she declared that she will not
only disregard but will openly defy and disobey the COMELEC en banc
resolution ordering her to vacate her position.54
On September 6, 2001, the COMELEC en banc issued an Order55 constituting
the members of the Provincial Board of Canvassers of Leyte to implement the
aforesaid decision. It likewise ordered the Board to reconvene and "proclaim the
candidate who obtained the highest number of votes in the district, as the dulyelected Representative of the Fourth Legislative district of Leyte, and
accordingly issue a Certificate of Canvass and Proclamation of Winning
Candidate for Member of the House of Representatives x x x, based on the
city/municipal certificates of canvass submitted beforehand to the previous
Provincial Board of Canvassers of Leyte x x x."
On September 12, 2001, petitioner Codilla was proclaimed by the Provincial
Board of Canvassers as the duly-elected Representative of the 4th legislative
district of Leyte, having obtained a total of 71,350 votes representing the
highest number of votes cast in the district.56 On the same day, petitioner took
his oath of office before Executive Judge Fortunito L. Madrona of the Regional
Trial Court of Ormoc City.57
On September 14, 2001, petitioner wrote the House of Representatives, thru
respondent Speaker De Venecia, informing the House of the August 29, 2001
COMELEC en banc resolution annulling the proclamation of respondent Locsin,
and proclaiming him as the duly-elected Representative of the 4th legislative
district of Leyte.58 Petitioner also served notice that "I am assuming the duties
and responsibilities as Representative of the fourth legislative district of Leyte
to which position I have been lawfully elected and proclaimed. On behalf of my
constituents, I therefore expect that all rights and privileges intended for the
position of Representative of the fourth legislative district of Leyte be accorded

to me, including all physical facilities and staff support." On the basis of this
letter, a Memorandum59 dated October 8, 2001 was issued by Legal Affairs
Deputy Secretary-General Gaudencio A. Mendoza, Jr., for Speaker De Venecia,
stating that "there is no legal obstacle to complying with the duly promulgated
and now final and executory COMELEC Decision of August 29, 2001 x x x."
These notwithstanding, and despite receipt by the House of Representatives of
a copy of the COMELEC en banc resolution on September 20, 2001,60 no action
was taken by the House on the letter-appeal of petitioner. Hence, petitioner
sought the assistance of his party, LAKAS-NUCD-UMDP, which sent a letter61
addressed to respondent Speaker De Venecia, dated October 25, 2001, and
signed by Party President Teofisto T. Guingona, Jr., Secretary-General Heherson
T. Alvarez, and Region VIII Party Chairman Sergio Antonio F. Apostol, requesting
the House of Representatives to act decisively on the matter in order that
petitioner "can avail of whatever remedy is available should their action remain
unfavorable or otherwise undecisive."
In response, Speaker De Venecia sent a letter62 dated October 30, 2001,
stating that:
"We recognize the finality of the COMELEC decision and we are inclined to
sustain it. However, Rep. Locsin has officially notified the HOUSE in her
privilege speech, inserted in the HOUSE Journal dated September 4, 2001, that
she shall 'openly defy and disobey' the COMELEC ruling. This ultimately means
that implementing the decision would result in the spectacle of having two (2)
legislators occupying the same congressional seat, a legal situation, the only
consideration, that effectively deters the HOUSE's liberty to take action.
In this light, the accepted wisdom is that the implementation of the COMELEC
decision is a matter that can be best, and with finality, adjudicated by the
Supreme Court, which, hopefully, shall act on it most expeditiously." (emphases
supplied)
Hence, the present petition for mandamus and quo warranto.
Petitioner submits that by virtue of the resolution of the COMELEC en banc
which has become final and executory for failure of respondent Locsin to appeal
therefrom, it has become the ministerial duty: (1) of the Speaker of the House
of Representatives, as its Administrative Head and Presiding Officer, to
implement the said resolution of the COMELEC en banc by installing him as the
duly-elected Representative of the 4th legislative district of Leyte; and (2) of
the Secretary-General, as official custodian of the records of the House, to
formally register his name in the Roll of Members of the House and delete the
name of respondent Locsin therefrom. Petitioner further contends that
respondent Locsin has been usurping and unlawfully holding the public office of
Representative of the 4th legislative district of Leyte considering that her
premature proclamation has been declared null and void by the COMELEC en
banc. He alleges that the action or inaction of public respondents has deprived
him of his lawful right to assume the office of Representative of the 4th
legislative district of Leyte.
In his Comment,63 public respondent Speaker De Venecia alleged that
mandamus will not lie to compel the implementation of the COMELEC decision
which is not merely a ministerial duty but one which requires the exercise of

discretion by the Speaker of the House considering that: (1) it affects the
membership of the House; and (2) there is nothing in the Rules of the House of
Representatives which imposes a duty on the House Speaker to implement a
COMELEC decision that unseats an incumbent House member.
In his Comment,64 public respondent Secretary-General Nazareno alleged that
in reading the name of respondent Locsin during the roll call, and in allowing
her to take her oath before the Speaker-elect and sit as Member of the House
during the Joint Session of Congress, he was merely performing official acts in
compliance with the opinions65 rendered by House of Representatives Chief
Counsel and Executive Director Leonardo C. Palicte III stating that the COMELEC
has no jurisdiction to declare the proclamation of respondent Locsin as null and
void since it is the HRET which is the sole judge of all election, returns and
qualifications of Members of the House. He also contends that the
determination of who will sit as Member of the House of Representatives is not
a ministerial function and cannot, thus, be compelled by mandamus.
Respondent Locsin, in her Comment,66 alleged that the Supreme Court has no
original jurisdiction over an action for quo warranto involving a member of the
House of Representatives for under Section 17, Article VI of the Constitution it
is the HRET which is the sole judge of all contests relating to the election,
returns and qualifications of Members of the House of Representatives. She
likewise asserts that this Court cannot issue the writ of mandamus against a coequal legislative department without grossly violating the principle of
separation of powers. She contends that the act of recognizing who should be
seated as a bona fide member of the House of Representatives is not a
ministerial function but a legislative prerogative, the performance of which
cannot be compelled by mandamus. Moreover, the prayer for a writ of
mandamus cannot be directed against the Speaker and Secretary-General
because they do not have the authority to enforce and implement the
resolution of the COMELEC.
Additionally, respondent Locsin urges that the resolution of the COMELEC en
banc is null and void for lack of jurisdiction. First, it should have dismissed the
case pending before it after her proclamation and after she had taken her oath
of office. Jurisdiction then was vested in the HRET to unseat and remove a
Member of the House of Representatives. Second, the petition for declaration of
nullity is clearly a pre-proclamation controversy and the COMELEC en banc has
no original jurisdiction to hear and decide a pre-proclamation controversy. It
must first be heard by a COMELEC Division. Third, the questioned decision is
actually a "hodge-podge" decision because of the peculiar manner in which the
COMELEC disposed of the case.
Finally, respondent Locsin asserts that the matter of her qualification and
eligibility has been categorically affirmed by the HRET when it dismissed the
quo warranto case filed against her, docketed as HRET Case No. 01-043,
entitled "Paciano Travero vs. Ma. Victoria Locsin," on the ground that "the
allegations stated therein are not proper grounds for a petition for quo warranto
against a Member of the House of Representatives under section 253 of the
Omnibus Election Code and Rule 17 of the HRET Rules, and that the petition
was filed late."67
In his Reply,68 petitioner asserts that the remedy of respondent Locsin from the
COMELEC decision was to file a petition for certiorari with the Supreme Court,

not to seek an opinion from the Chief Legal Counsel of the House of
Representatives; that the HRET has no jurisdiction over a petition for
declaration of nullity of proclamation which is based not on ineligibility or
disloyalty, but by reason that the candidate proclaimed as winner did not
obtain the highest number of votes; that the petition for annulment of
proclamation is a pre-proclamation controversy and, hence, falls within the
exclusive jurisdiction of the COMELEC pursuant to section 242 of B.P. Blg. 88169
and section 3, Article IX (C) of the Constitution; that respondent Speaker De
Venecia himself recognizes the finality of the COMELEC decision but has
decided to refer the matter to the Supreme Court for adjudication; that the
enforcement and implementation of a final decision of the COMELEC involves a
ministerial act and does not encroach on the legislative power of Congress; and
that the power to determine who will sit as Member of the House does not
involve an exercise of legislative power but is vested in the sovereign will of the
electorate.
The core issues in this case are: (a) whether the proclamation of respondent
Locsin by the COMELEC Second Division is valid; (b) whether said proclamation
divested the COMELEC en banc of jurisdiction to review its validity; and (c)
assuming the invalidity of said proclamation, whether it is the ministerial duty
of the public respondents to recognize petitioner Codilla, Sr. as the legally
elected Representative of the 4th legislative district of Leyte vice respondent
Locsin.
I
Whether the proclamation of respondent Locsin is valid.
After carefully reviewing the records of this case, we find that the proclamation
of respondent Locsin is null and void for the following reasons:
First. The petitioner was denied due process during the entire proceedings
leading to the proclamation of respondent Locsin.
COMELEC Resolution Nos. 340270 sets the procedure for disqualification cases
pursuant to section 68 of the Omnibus Election Code, viz:
"C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE
OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF
QUALIFICATIONS OR POSSESSING SAME GROUNDS FOR DISQUALIFICATION
(1) The verified petition to disqualify a candidate pursuant to Sec. 68 of the
Omnibus Election Code and the verified petition to disqualify a candidate for
lack of qualifications or possessing same grounds for disqualification, may be
filed any day after the last day for filing of certificates of candidacy but not
later than the date of proclamation.
(2) The petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus
Election Code shall be filed in ten (10) legible copies by any citizen of voting
age, or duly registered political party, organization or coalition of political
parties against any candidate who in an action or protest in which he is a party
is declared by final decision of a competent court guilty of, or found by the
Commission of:

2.a having given money or other material consideration to influence, induce or

corrupt the voters or public officials performing electoral functions;
2.b having committed acts of terrorism to enhance his candidacy;
2.c having spent in his election campaign an amount in excess of that allowed
by the Omnibus Election Code;
2.d having solicited, received or made any contribution prohibited under
Sections 89, 95, 96, 97 and 104 of the Omnibus Election Code;

Resolution No. 3402 clearly requires the COMELEC, through the Regional
Election Director, to issue summons to the respondent candidate together with
a copy of the petition and its enclosures, if any, within three (3) days from the
filing of the petition for disqualification. Undoubtedly, this is to afford the
respondent candidate the opportunity to answer the allegations in the petition
and hear his side. To ensure compliance with this requirement, the COMELEC
Rules of Procedure requires the return of the summons together with the proof
of service to the Clerk of Court of the COMELEC when service has been
completed, viz:
"Rule 14. Summons

2.e having violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k,
v, and cc, sub-paragraph 6 of the Omnibus Election Code, shall be disqualified
from continuing as a candidate, or if he has been elected, from holding the
office.
xxxxxxxxx
(4) Upon payment of the filing fee of P1,000.00 and legal research fee of
P20.00, the offices concerned shall docket the petition and assign to it a docket
number which must be consecutive, according to the order of receipt and must
bear the year and prefixed as SPA with the corresponding initial of the name of
the office, i.e. SPA (RED) No. C01-001; SPA (PES) No. C01-001;
(5) Within three (3) days from filing of the petitions, the offices concerned shall
issue summons to the respondent candidate together with a copy of the
petition and its enclosures, if any;
(6) The respondent shall be given three (3) days from receipt of summons
within which to file his verified answer (not a motion to dismiss) to the petition
in ten (10) legible copies, serving a copy thereof upon the petitioner. Grounds
for Motion to Dismiss may be raised as an affirmative defense;
(7) The proceeding shall be summary in nature. In lieu of the testimonies, the
parties shall submit their affidavits or counter-affidavits and other documentary
evidences including their position paper;
(8) The hearing must be completed within ten (10) days from the date of the
filing of the answer. The hearing officer concerned shall submit to the Clerk of
the Commission through the fastest means of communication, his findings,
reports and recommendations within five (5) days from the completion of the
hearing and reception of evidence together with the complete records of the
case;
(9) Upon receipt of the records of the case of the findings, reports and
recommendation of the hearing officer concerned, the Clerk of the Commission
shall immediately docket the case consecutively and calendar the same for
raffle to a division;
(10) The division to whom the case is raffled, shall after consultation, assign the
same to a member who shall pen the decision, within five (5) days from the
date of consultation."

xxxxxxxxx
Section 5. Return.- When the service has been completed by personal service,
the server shall give notice thereof, by registered mail, to the protestant or his
counsel and shall return the summons to the Clerk of Court concerned who
issued it, accompanied with the proof of service.
Section 6. Proof of Service.- Proof of service of summons shall be made in the
manner provided for in the Rules of Court in the Philippines."
Thereafter, hearings, to be completed within ten (10) days from the filing of the
Answer, must be conducted. The hearing officer is required to submit to the
Clerk of the Commission his findings, reports and recommendations within five
(5) days from the completion of the hearing and reception of evidence together
with the complete records of the case.
(a) Petitioner was not notified of the petition for his disqualification through the
service of summons nor of the Motions to suspend his proclamation.
The records of the case do not show that summons was served on the
petitioner. They do not contain a copy of the summons allegedly served on the
petitioner and its corresponding proof of service. Furthermore, private
respondent never rebutted petitioner's repeated assertion that he was not
properly notified of the petition for his disqualification because he never
received summons.71 Petitioner claims that prior to receiving a telegraphed
Order from the COMELEC Second Division on May 22, 2001, directing the
District Board of Canvassers to suspend his proclamation, he was never
summoned nor furnished a copy of the petition for his disqualification. He was
able to obtain a copy of the petition and the May 22 Order of the COMELEC
Second Division by personally going to the COMELEC Regional Office on May
23, 2001. Thus, he was able to file his Answer to the disqualification case only
on May 24, 2001.
More, the proclamation of the petitioner was suspended in gross violation of
section 72 of the Omnibus Election Code which provides:
"Sec. 72. Effects of disqualification cases and priority.- The Commission and the
courts shall give priority to cases of disqualification by reason of violation of
this Act to the end that a final decision shall be rendered not later than seven
days before the election in which the disqualification is sought.

Any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted. Nevertheless,
if for any reason, a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number
of votes in such election, his violation of the provisions of the preceding
sections shall not prevent his proclamation and assumption to office."
(emphases supplied)
In the instant case, petitioner has not been disqualified by final judgment when
the elections were conducted on May 14, 2001. The Regional Election Director
has yet to conduct hearing on the petition for his disqualification. After the
elections, petitioner was voted in office by a wide margin of 17,903. On May 16,
2001, however, respondent Locsin filed a Most Urgent Motion for the
suspension of petitioner's proclamation. The Most Urgent Motion contained a
statement to the effect that a copy was served to the petitioner through
registered mail. The records reveal that no registry receipt was attached to
prove such service.72 This violates COMELEC Rules of Procedure requiring
notice and service of the motion to all parties, viz:
"Section 4. Notice.- Notice of a motion shall be served by the movant to all
parties concerned, at least three (3) days before the hearing thereof, together
with a copy of the motion. For good cause shown, the motion may be heard on
shorter notice, especially on matters which the Commission or the Division may
dispose of on its own motion.
The notice shall be directed to the parties concerned and shall state the time
and place of the hearing of the motion.
Section 5. Proof of Service.- No motion shall be acted upon by the Commission
without proof of service of notice thereof, except when the Commission or a
Division is satisfied that the rights of the adverse party or parties are not
affected."
Respondent's Most Urgent Motion does not fall under the exceptions to notice
and service of motions. First, the suspension of proclamation of a winning
candidate is not a matter which the COMELEC Second Division can dispose of
motu proprio. Section 6 of R.A. No. 664673 requires that the suspension must
be "upon motion by the complainant or any intervenor", viz:
"Section 6. Effect of Disqualification Case.- Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason, a candidate is not
declared by final judgment before an election to be disqualified and he is voted
for and receives the winning number of votes in such election, the Court or
Commission (COMELEC) shall continue with the trial or hearing of the action,
inquiry, or protest and, upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong." (emphases supplied)
Second, the right of an adverse party, in this case, the petitioner, is clearly
affected. Given the lack of service of the Most Urgent Motion to the petitioner,
said Motion is a mere scrap of paper.74 It cannot be acted upon by the
COMELEC Second Division.

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

On this score, it bears emphasis that the hearing for Motion to Lift the Order of
Suspension cannot be substituted for the hearing in the disqualification case.
Although intrinsically linked, it is not to be supposed that the evidence of the
parties in the main disqualification case are the same as those in the Motion to
Lift the Order of Suspension. The parties may have other evidence which they
may deem proper to present only on the hearing for the disqualification case.
Also, there may be evidence which are unavailable during the hearing for the
Motion to Lift the Order of Suspension but which may be available during the
hearing for the disqualification case.

affidavits. With this lopsided evidence at hand, the result was predictable. The
Commission (Second Division) had no choice. Codilla was disqualified."81

In the case at bar, petitioner asserts that he submitted his Memorandum

merely to support his Motion to Lift the Order of Suspension. It was not
intended to answer and refute the disqualification case against him. This
submission was sustained by the COMELEC en banc. Hence, the members of
the COMELEC en banc concluded, upon consideration of the additional
affidavits attached in his Urgent Manifestation, that the evidence to disqualify
the petitioner was insufficient. More specifically, the ponente of the challenged
Resolution of the COMELEC Second Division held:

"Section 68. Disqualifications.- Any candidate who, in action or protest in which

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

"Indeed, I find from the records that the May 30, 2001 hearing of the COMELEC
(Second Division) concerns only the incident relating to the Motion to Lift Order
of Suspension of Proclamation. It also appears that the order for the submission
of the parties' respective memoranda was in lieu of the parties' oral argument
on the motion. This would explain the fact that Codilla's Memorandum refers
mainly to the validity of the issuance of the order of suspension of
proclamation. There is, however, no record of any hearing on the urgent motion
for the suspension of proclamation. Indeed, it was only upon the filing of the
Urgent Manifestation by Codilla that the Members of the Commission (Second
Division) and other Members of the Commission en banc had the opportunity to
consider Codilla's affidavits. This time, Codilla was able to present his side,
thus, completing the presentation of evidentiary documents from both
sides."78 (emphases supplied)
Indeed, careful reading of the petitioner's Memorandum shows that he confined
his arguments in support of his Motion to Lift the Order of Suspension. In said
Memorandum, petitioner raised the following issues: (a) he was utterly
deprived of procedural due process, and consequently, the order suspending
his proclamation is null and void; (b) the said order of suspension of
proclamation has no legal and factual basis; and (c) evidence of guilt on his
part is patently inexistent for the purpose of directing the suspension of his
proclamation.79 He urged the COMELEC Second Division to conduct a full dress
hearing on the main disqualification case should the suspension be lifted.80
(c) the Resolution of the COMELEC Second Division disqualifying the petitioner
is not based on substantial evidence.
The Resolution of the COMELEC Second Division cannot be considered to be
based on substantial evidence. It relied merely on affidavits of witnesses
attached to the petition for disqualification. As stressed, the COMELEC Second
Division gave credence to the affidavits without hearing the affiants. In
reversing said Resolution, the COMELEC en banc correctly observed:
"Lacking evidence of Codilla, the Commission (Second Division) made its
decisions based mainly on the allegation of the petitioner and the supporting

Worse, the Resolution of the COMELEC Second Division, even without the
evidence coming from the petitioner, failed to prove the gravamen of the
offense for which he was charged.82
Petitioner allegedly violated section 68 (a) of the Omnibus Election Code which
reads:

To be disqualified under the above-quoted provision, the following elements

must be proved: (a) the candidate, personally or through his instructions, must
have given money or other material consideration; and (b) the act of giving
money or other material consideration must be for the purpose of influencing,
inducing, or corrupting the voters or public officials performing electoral
functions.
In the case at bar, the petition for disqualification alleged that (a) petitioner
ordered the extraction, hauling and distribution of gravel and sand, and (b) his
purpose was to induce and influence the voters of Kananga and Matag-ob,
Leyte to vote for him. Pertinent portion of the petition reads:
"[T]he respondent [herein petitioner], within the election period, took
advantage of his current elective position as City Mayor of Ormoc City by
illegally and unlawfully using during the prohibited period, public equipments
and vehicles belonging to and owned by the City Government of Ormoc City in
extracting, hauling and distributing gravel and sand to the residents and voters
of the Municipalities of Kananga and Matag-ob Leyte, well within the territorial
limits of the 4th Congressional District of Leyte, which acts were executed
without period, and clearly for the illicit purpose of unduly inducing or directly
corrupting various voters of Kananga and Matag-ob, within the 4th legislative
district of Leyte, for the precise purpose of inducing and influencing the
voters/beneficiaries of Kananga and Matag-ob, Leyte to cast their votes for said
respondent."83
The affidavits relied upon by the COMELEC Second Division failed to prove
these allegations. For instance, Cesar A. Laurente merely stated that he saw
three (3) ten-wheeler dump trucks and a Hyundai Payloader with the markings
"Ormoc City Government" extracting and hauling sand and gravel from the
riverbed adjacent to the property owned by the Codilla family.84
Agripino C. Alferez and Rogelio T. Sulvera in their Joint Affidavit merely stated
that they saw white trucks owned by the City Government of Ormoc dumping
gravel and sand on the road of Purok 6, San Vicente, Matag-ob, Leyte. A
payloader then scattered the sand and gravel unloaded by the white trucks.85

On the other hand, Danilo D. Maglasang, a temporary employee of the City

Government of Ormoc assigned to check and record the delivery of sand and
gravel for the different barangays in Ormoc, stated as follows:
"3. That on April 20, 2001, I was ordered by Engr. Arnel Padayo, an employee of
the City Engineering Office, Ormoc City to go to Tagaytay, Kangga (sic), Leyte
as that will be the source of the sand and gravel. I inquired why we had to go to
Kananga but Engr. Padayao said that it's not a problem as it was Mayor
Eufrocino M. Codilla, Sr. who ordered this and the property is owned by the
family of Mayor Codilla. We were to deliver sand and gravel to whoever
requests from Mayor Codilla."86
Similarly, the Affidavit of Basilio Bates cannot prove the offense charged
against the petitioner. He alleged that on April 18, 2001, a white truck with the
marking "City Government of Ormoc" came to his lot at Montebello, Kananga,
Leyte and unloaded mixed sand and that the driver of the truck told him to
"vote for Codilla as a (sic) congressman during election."87 His statement is
hearsay. He has no personal knowledge of the supposed order of the petitioner
to distribute gravel and sand for the purpose of inducing the voters to vote for
him. The same could be said about the affidavits of Randy T. Merin,88 Alfredo
C. De la Pea,89 Miguel P. Pandac,90 Paquito Bregeldo, Cristeta Alferez ,
Glicerio Rios,91 Romulo Alkuino, Sr.,92 Abner Casas,93 Rita Trangia,94 and
Judith Erispe95 attached to respondent Locsin's Memorandum on the Motion to
Lift the Suspension of Proclamation.
Also valueless are the affidavits of other witnesses96 of respondent Locsin, all
similarly worded, which alleged that the petitioner ordered the repair of the
road in Purok 6, Barangay San Vicente, Matag-ob, Leyte and the flattening of
the area where the cockfights were to be held. These allegations are
extraneous to the charge in the petition for disqualification. More importantly,
these allegations do not constitute a ground to disqualify the petitioner based
on section 68 of the Omnibus Election Code.
To be sure, the petition for disqualification also ascribed other election offenses
against the petitioner, particularly section 261 of the Omnibus Election Code,
viz:
"Section 261. Prohibited Acts.- The following shall be guilty of an election
offense:
(a) Vote-buying and vote-selling.- (1) Any person who gives, offers or promises
money or anything of value, gives or promises any office or employment,
franchise or grant, public or private, or make or offers to make an expenditure,
directly or indirectly, or cause an expenditure to be made to any person,
association, corporation, entity or community in order to induce anyone or the
public in general, to vote for or against any candidate or withhold his vote in
the election, or to vote for or against any aspirant for the nomination or choice
of a candidate in a convention or similar selection process of a political party.
xxxxxxxxx
(o) Use of public funds, money deposited in trust, equipment, facilities owned
or controlled by the government for an election campaign.- Any person who
uses under any guise whatsoever directly or indirectly, xxx (3) any equipment,

vehicle, facility, apparatus, or paraphernalia owned by the government or by its

political subdivisions, agencies including government-owned or controlled
corporations, or by the Armed Forces of the Philippines for any election
campaign or for any partisan political activity x x x."
However, the jurisdiction of the COMELEC to disqualify candidates is limited to
those enumerated in section 68 of the Omnibus Election Code. All other
election offenses are beyond the ambit of COMELEC jurisdiction.97 They are
criminal and not administrative in nature. Pursuant to sections 265 and 268 of
the Omnibus Election Code, the power of the COMELEC is confined to the
conduct of preliminary investigation on the alleged election offenses for the
purpose of prosecuting the alleged offenders before the regular courts of
justice, viz:
"Section 265. Prosecution.- The Commission shall, through its duly authorized
legal officers, have the exclusive power to conduct preliminary investigation of
all election offenses punishable under this Code, and to prosecute the same.
The Commission may avail of the assistance of other prosecuting arms of the
government: Provided, however, That in the event that the Commission fails to
act on any complaint within four months from his filing, the complainant may
file the complaint with the office of the fiscal or with the Ministry of Justice for
proper investigation and prosecution, if warranted.
xxxxxxxxx
Section 268. Jurisdiction.- The regional trial court shall have the exclusive
original jurisdiction to try and decide any criminal action or proceeding for
violation of this Code, except those relating to the offense of failure to register
or failure to vote which shall be under the jurisdictions of metropolitan or
municipal trial courts. From the decision of the courts, appeal will lie as in other
criminal cases."
The COMELEC Second Division grievously erred when it decided the
disqualification case based on section 261 (a) and (o), and not on section 68 of
the Omnibus Election Code.
(d) Exclusion of the votes in favor of the petitioner and the proclamation of
respondent Locsin was done with undue haste.
The COMELEC Second Division ordered the exclusion of the votes cast in favor
of the petitioner, and the proclamation of the respondent Locsin, without
affording the petitioner the opportunity to challenge the same. In the morning
of June 15, 2001, the Provincial Board of Canvassers convened, and on the
strength of the said Resolution excluding the votes received by the petitioner,
certified that respondent Locsin received the highest number of votes. On this
basis, respondent Locsin was proclaimed.
Records reveal that the petitioner received notice of the Resolution of the
COMELEC Second Division only through his counsel via a facsimile message in
the afternoon of June 15, 200198 when everything was already fait accompli.
Undoubtedly, he was not able to contest the issuance of the Certificate of
Canvass and the proclamation of respondent Locsin. This is plain and simple
denial of due process.

The essence of due process is the opportunity to be heard. When a party is

deprived of that basic fairness, any decision by any tribunal in prejudice of his
rights is void.
Second. The votes cast in favor of the petitioner cannot be considered "stray"
and respondent cannot be validly proclaimed on that basis.
The Resolution of the COMELEC Second Division in SPA No. 01-208 contains two
dispositions: (1) it ruled that the petitioner was disqualified as a candidate for
the position of Congressman of the Fourth District of Leyte; and (2) it ordered
the immediate proclamation of the candidate who garnered the highest number
of votes, to the exclusion of the respondent [herein petitioner].
As previously stated, the disqualification of the petitioner is null and void for
being violative of due process and for want of substantial factual basis. Even
assuming, however, that the petitioner was validly disqualified, it is still
improper for the COMELEC Second Division to order the immediate exclusion of
votes cast for the petitioner as stray, and on this basis, proclaim the
respondent as having garnered the next highest number of votes.
(a) The order of disqualification is not yet final, hence, the votes cast in favor of
the petitioner cannot be considered "stray."
Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code require
a final judgment before the election for the votes of a disqualified candidate to
be considered "stray." Hence, when a candidate has not yet been disqualified
by final judgment during the election day and was voted for, the votes cast in
his favor cannot be declared stray. To do so would amount to disenfranchising
the electorate in whom sovereignty resides.99 For in voting for a candidate who
has not been disqualified by final judgment during the election day, the people
voted for him bona fide, without any intention to misapply their franchise, and
in the honest belief that the candidate was then qualified to be the person to
whom they would entrust the exercise of the powers of government.100
This principle applies with greater force in the case at bar considering that the
petitioner has not been declared by final judgment to be disqualified not only
before but even after the elections. The Resolution of the COMELEC Second
Division disqualifying the petitioner did not attain finality, and hence, could not
be executed, because of the timely filing of a Motion for Reconsideration.
Section 13, Rule 18 of the COMELEC Rules of Procedure on Finality of Decisions
and Resolutions reads:
"Sec. 13. Finality of Decisions or Resolutions.- (a) In ordinary actions, special
proceedings, provisional remedies and special reliefs, a decision or resolution of
the Commission en banc shall become final and executory after thirty (30) days
from its promulgation.
(b) In Special Actions and Special Cases a decision or resolution of the
Commission en banc shall become final and executory after five (5) days in
Special Actions and Special Cases and after fifteen (15) days in all other
proceedings, following their promulgation.
(c) Unless a motion for reconsideration is seasonably filed, a decision or
resolution of a Division shall become final and executory after the lapse of five

(5) days in Special Actions and Special Cases and after fifteen (15) days in all
other actions or proceedings, following its promulgation." (emphasis supplied)
In this wise, COMELEC Resolution No. 4116,101 issued in relation to the finality
of resolutions or decisions in disqualification cases, provides:
"This pertains to the finality of decisions or resolutions of the Commission en
banc or division, particularly on Special Actions (Disqualification Cases).
Special Action cases refer to the following:
(a) Petition to deny due course to a certificate of candidacy;
(b) Petition to declare a candidate as a nuisance candidate;
(c) Petition to disqualify a candidate; and
(d) Petition to postpone or suspend an election.
Considering the foregoing and in order to guide field officials on the finality of
decisions or resolutions on special action cases (disqualification cases) the
Commission, RESOLVES, as it is hereby RESOLVED, as follows:
(1) the decision or resolution of the En Banc of the Commission on
disqualification cases shall become final and executory after five (5) days from
its promulgation unless restrained by the Supreme Court;
(2) the decision or resolution of a Division on disqualification cases shall
become final and executory after the lapse of five (5) days unless a motion for
reconsideration is seasonably filed;
(3) where the ground for disqualification case is by reason of non-residence,
citizenship, violation of election laws and other analogous cases and on the day
of the election the resolution has not become final and executory the BEI shall
tally and count the votes for such disqualified candidate;
(4) the decision or resolution of the En Banc on nuisance candidates,
particularly whether the nuisance candidate has the same name as the bona
fide candidate shall be immediately executory;
(5) the decision or resolution of a DIVISION on nuisance candidate, particularly
where the nuisance candidate has the same name as the bona fide candidate
shall be immediately executory after the lapse of five (5) days unless a motion
for reconsideration is seasonably filed. In which case, the votes cast shall not
be considered stray but shall be counted and tallied for the bona fide
candidate.
All resolutions, orders and rules inconsistent herewith are hereby modified or
repealed."
Considering the timely filing of a Motion for Reconsideration, the COMELEC
Second Division gravely abused its discretion in ordering the immediate
disqualification of the petitioner and ordering the exclusion of the votes cast in
his favor. Section 2, Rule 19 of the COMELEC Rules of Procedure is very clear

that a timely Motion for Reconsideration shall suspend the execution or

implementation of the resolution, viz:
Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a
decision, resolution, order, or ruling of a Division shall be filed within five (5)
days from the promulgation thereof. Such motion, if not pro forma, suspends
the execution or implementation of the decision, resolution, order or ruling."
(emphases supplied)
(b) Respondent Locsin, as a mere second placer, cannot be proclaimed.
More brazen is the proclamation of respondent Locsin which violates the settled
doctrine that the candidate who obtains the second highest number of votes
may not be proclaimed winner in case the winning candidate is disqualified.102
In every election, the people's choice is the paramount consideration and their
expressed will must at all times be given effect. When the majority speaks and
elects into office a candidate by giving him the highest number of votes cast in
the election for the office, no one can be declared elected in his place.103 In
Domino v. COMELEC,104 this Court ruled, viz:
"It would be extremely repugnant to the basic concept of the constitutionally
guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed winner and imposed as representative of a
constituency, the majority of which have positively declared through their
ballots that they do not choose him. To simplistically assume that the second
placer would have received that (sic) other votes would be to substitute our
judgment for the mind of the voters. He could not be considered the first
among the qualified candidates because in a field which excludes the qualified
candidate, the conditions would have substantially changed.
xxxxxxxxx
The effect of a decision declaring a person ineligible to hold an office is only
that the election fails entirely, that the wreath of victory cannot be transferred
from the disqualified winner to the repudiated loser because the law then as
now only authorizes a declaration in favor of the person who has obtained a
plurality of votes, and does not entitle the candidate receiving the next highest
number of votes to be declared elected. In such case, the electors have failed
to make a choice and the election is a nullity. To allow the defeated and
repudiated candidate to take over the elective position despite his rejection by
the electorate is to disenfranchise the electorate without any fault on their part
and to undermine the importance and meaning of democracy and the people's
right to elect officials of their choice."105
Respondent Locsin proffers a distinction between a disqualification based on
personal circumstances such as age, residence or citizenship and
disqualification based on election offenses. She contends that the election of
candidates later disqualified based on election offenses like those enumerated
in section 68 of the Omnibus Election Code should be invalidated because they
violate the very essence of suffrage and as such, the votes cast in his favor
should not be considered.106
This contention is without merit. In the recent case of Trinidad v. COMELEC,107
this Court ruled that the effect of a judgment disqualifying a candidate, after

winning the election, based on personal circumstances or section 68 of the

Omnibus Election Code is the same: the second placer could not take the place
of the disqualified winner.
II
Whether the proclamation of respondent Locsin divested the COMELEC en banc
of jurisdiction to review its validity.
Respondent Locsin submits that the COMELEC en banc has no jurisdiction to
annul her proclamation. She maintains that the COMELEC en banc was been
divested of jurisdiction to review the validity of her proclamation because she
has become a member of the House of Representatives. Thus, she contends
that the proper forum to question her membership to the House of
Representatives is the House of Representative Electoral Tribunal (HRET).
We find no merit in these contentions.
First. The validity of the respondent's proclamation was a core issue in the
Motion for Reconsideration seasonably filed by the petitioner.
In his timely Motion for Reconsideration with the COMELEC en banc, petitioner
argued that the COMELEC Second Division erred thus:
"(1) in disqualifying petitioner on the basis solely of the dubious declaration of
the witnesses for respondent Locsin;
(2) in adopting in toto the allegations of the witnesses for respondent Locsin;
and
(3) in promulgating the resolution in violation of its own rules of procedure and
in directing therein the immediate proclamation of the second highest 'vote
getter.'" (emphases supplied)
In support of his third assignment of error, petitioner argued that "the Second
Division's directive for the immediate proclamation of the second highest votegetter is premature considering that the Resolution has yet to become final and
executory."108 Clearly, the validity of respondent Locsin's proclamation was
made a central issue in the Motion for Reconsideration seasonably filed by the
petitioner. Without doubt, the COMELEC en banc has the jurisdiction to rule on
the issue.
The fact that the Petition for Nullity of Proclamation was filed directly with the
COMELEC en banc is of no moment. Even without said Petition, the COMELEC
en banc could still rule on the nullity of respondent's proclamation because it
was properly raised in the Motion for Reconsideration.
Section 3, Article IX-C of the 1987 Constitution empowers the COMELEC en
banc to review, on motion for reconsideration, decisions or resolutions decided
by a division, viz:
"Sec. 3. The Commission on Elections may sit en banc or in two divisions, and
shall promulgate its rules of procedure in order to expedite disposition of
election cases, including pre-proclamation controversies. All such election cases

shall be heard and decided in division, provided that motions

reconsideration of decision shall be decided by the Commission en banc."

for

Pursuant to this Constitutional mandate, the COMELEC Rules of Procedure

provides:
"Rule 19. Motions for Reconsideration.Section 1. Grounds for Motion for Reconsideration.- A motion for
reconsideration may be filed on the grounds that the evidence is insufficient to
justify the decision, order or ruling, or that the said decision, order or ruling is
contrary to law.
Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a
decision, resolution, order, or ruling of a Division shall be filed within five (5)
days from the promulgation thereof. Such motion, if not pro forma, suspends
the execution or implementation of the decision, resolution, order or ruling."
Section 3. Form and Contents of Motion for Reconsideration.- The motion shall
be verified and shall point out specifically the findings or conclusions of the
decision, resolution, order or ruling which are not supported by the evidence or
which are contrary to law, making express reference to the testimonial or
documentary evidence or to the provisions of law alleged to be contrary to such
findings or resolutions.
Section 4. Effect of Motion for Reconsideration on Period to Appeal.- A motion to
reconsider a decision, resolution, order or ruling when not pro forma, suspends
the running of the period to elevate the matter to the Supreme Court.
Section 5. How Motion for Reconsideration Disposed Of.- Upon the filing of a
motion to reconsider a decision, resolution, order or ruling of a Division, the
Clerk of Court concerned shall, within twenty-four (24) hours from the filing
thereof, notify the Presiding Commissioner. The latter shall within two (2) days
thereafter certify the case to the Commission en banc.
Section 6. Duty of the Clerk of Court of the Commission to set Motion for
Hearing.- The Clerk of Court concerned shall calendar the motion for
reconsideration for the resolution of the Commission en banc within ten (10)
days from the certification thereof." (emphases supplied)
Since the petitioner seasonably filed a Motion for Reconsideration of the Order
of the Second Division suspending his proclamation and disqualifying him, the
COMELEC en banc was not divested of its jurisdiction to review the validity of
the said Order of the Second Division. The said Order of the Second Division
was yet unenforceable as it has not attained finality; the timely filing of the
motion for reconsideration suspends its execution. It cannot, thus, be used as
the basis for the assumption in office of the respondent as the duly elected
Representative of the 4th legislative district of Leyte.

her election and eligibility should be brought before the HRET pursuant to
section 17 of Article VI of the 1987 Constitution.109
We reject respondent's contention.
(a) The issue on the validity of the Resolution of the COMELEC Second Division
has not yet been resolved by the COMELEC en banc.
To stress again, at the time of the proclamation of respondent Locsin, the
validity of the Resolution of the COMELEC Second Division was seasonably
challenged by the petitioner in his Motion for Reconsideration. The issue was
still within the exclusive jurisdiction of the COMELEC en banc to resolve. Hence,
the HRET cannot assume jurisdiction over the matter.
In Puzon vs. Cua,110 even the HRET ruled that the "doctrinal ruling that once a
proclamation has been made and a candidate-elect has assumed office, it is
this Tribunal that has jurisdiction over an election contest involving members of
the House of Representatives, could not have been immediately applicable due
to the issue regarding the validity of the very COMELEC pronouncements
themselves." This is because the HRET has no jurisdiction to review resolutions
or decisions of the COMELEC, whether issued by a division or en banc.
(b) The instant case does not involve the election and qualification of
respondent Locsin.
Respondent Locsin maintains that the proper recourse of the petitioner is to file
a petition for quo warranto with the HRET.
A petition for quo warranto may be filed only on the grounds of ineligibility and
disloyalty to the Republic of the Philippines.111 In the case at bar, neither the
eligibility of the respondent Locsin nor her loyalty to the Republic of the
Philippines is in question. There is no issue that she was qualified to run, and if
she won, to assume office.
A petition for quo warranto in the HRET is directed against one who has been
duly elected and proclaimed for having obtained the highest number of votes
but whose eligibility is in question at the time of such proclamation. It is evident
that respondent Locsin cannot be the subject of quo warranto proceeding in the
HRET. She lost the elections to the petitioner by a wide margin. Her
proclamation was a patent nullity. Her premature assumption to office as
Representative of the 4th legislative district of Leyte was void from the
beginning. It is the height of absurdity for the respondent, as a loser, to tell
petitioner Codilla, Sr., the winner, to unseat her via a quo warranto proceeding.
III
Whether it is the ministerial duty of the public respondents to
recognize petitioner Codilla, Sr. as the legally elected Representative

Second. It is the House of Representatives Electoral Tribunal (HRET) which has

no jurisdiction in the instant case.

of the 4th legislative district of Leyte vice respondent Locsin.

Respondent contends that having been proclaimed and having taken oath as
representative of the 4th legislative district of Leyte, any question relative to

Under Rule 65, section 3 of the 1997 Rules of Civil Procedure, any person may
file a verified petition for mandamus "when any tribunal, corporation, board,

officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use and enjoyment of a right or office to
which such other is entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law."112 For a petition for mandamus to
prosper, it must be shown that the subject of the petition for mandamus is a
ministerial act or duty, and not purely discretionary on the part of the board,
officer or person, and that the petitioner has a well-defined, clear and certain
right to warrant the grant thereof.
The distinction between a ministerial and discretionary act is well delineated. A
purely ministerial act or duty is one which an officer or tribunal performs in a
given state of facts, in a prescribed manner, in obedience to the mandate of a
legal authority, without regard to or the exercise of his own judgment upon the
propriety or impropriety of the act done. If the law imposes a duty upon a
public officer and gives him the right to decide how or when the duty shall be
performed, such duty is discretionary and not ministerial. The duty is
ministerial only when the discharge of the same requires neither the exercise of
official discretion or judgment.113
In the case at bar, the administration of oath and the registration of the
petitioner in the Roll of Members of the House of Representatives representing
the 4th legislative district of Leyte is no longer a matter of discretion on the
part of the public respondents. The facts are settled and beyond dispute:
petitioner garnered 71,350 votes as against respondent Locsin who only got 53,
447 votes in the May 14, 2001 elections. The COMELEC Second Division initially
ordered the proclamation of respondent Locsin; on Motion for Reconsideration
the COMELEC en banc set aside the order of its Second Division and ordered
the proclamation of the petitioner. The Decision of the COMELEC en banc has
not been challenged before this Court by respondent Locsin and said Decision
has become final and executory.
In sum, the issue of who is the rightful Representative of the 4th legislative
district of Leyte has been finally settled by the COMELEC en banc, the
constitutional body with jurisdiction on the matter. The rule of law demands
that its Decision be obeyed by all officials of the land. There is no alternative to
the rule of law except the reign of chaos and confusion.
IN VIEW WHEREOF, the Petition for Mandamus is granted. Public Speaker of the
House of Representatives shall administer the oath of petitioner EUFROCINO M.
CODILLA, SR., as the duly-elected Representative of the 4th legislative district
of Leyte. Public respondent Secretary-General shall likewise register the name
of the petitioner in the Roll of Members of the House of Representatives after
he has taken his oath of office. This decision shall be immediately executory.
SO ORDERED.

CASAN
MACODE
MACQUILING, PETITIONER,
vs.
COMMISSION ON ELECTIONS, ROMMEL ARNADO Y CAGOCO, AND LINOG
G. BALUA. RESPONDENTS.

Respondent likewise contends that this Court failed to cite any law of the
United States "providing that a person who is divested of American citizenship
thru an Affidavit of Renunciation will re-acquire such American citizenship by
using a US Passport issued prior to expatriation." 4

RESOLUTION

American law does not govern in this jurisdiction. Instead, Section 40(d) of the
Local Government Code calls for application in the case before us, given the
fact that at the time Arnado filed his certificate of candidacy, he was not only a
Filipino citizen but, by his own declaration, also an American citizen. It is the
application of this law and not of any foreign law that serves as the basis for
Arnados disqualification to run for any local elective position.

SERENO, J.:
This Resolution resolves the Motion for Reconsideration filed by respondent on
May 10, 2013 and the Supplemental Motion for Reconsideration filed on May
20, 2013.
We are not unaware that the term of office of the local officials elected in the
May 2010 elections has already ended on June 30, 2010. Arnado, therefore, has
successfully finished his term of office. While the relief sought can no longer be
granted, ruling on the motion for reconsideration is important as it will either
affirm the validity of Arnados election or affirm that Arnado never qualified to
run for public office.
Respondent failed to advance any argument to support his plea for the reversal
of this Courts Decision dated April 16, 2013. Instead, he presented his
accomplishments as the Mayor of Kauswagan, Lanao del Norte and reiterated
that he has taken the Oath of Allegiance not only twice but six times. It must be
stressed, however, that the relevant question is the efficacy of his renunciation
of his foreign citizenship and not the taking of the Oath of Allegiance to the
Republic of the Philippines. Neither do his accomplishments as mayor affect the
question before this Court.
Respondent cites Section 349 of the Immigration and Naturalization Act of the
United States as having the effect of expatriation when he executed his
Affidavit of Renunciation of American Citizenship on April 3, 2009 and thus
claims that he was divested of his American citizenship. If indeed, respondent
was divested of all the rights of an American citizen, the fact that he was still
able to use his US passport after executing his Affidavit of Renunciation
repudiates this claim.
The Court cannot take judicial notice of foreign laws, 1 which must be presented
as public documents2 of a foreign country and must be "evidenced by an official
publication thereof."3 Mere reference to a foreign law in a pleading does not
suffice for it to be considered in deciding a case.

With all due respect to the dissent, the declared policy of Republic Act No. (RA)
9225 is that "all Philippine citizens who become citizens of another country
shall be deemed not to have lost their Philippine citizenship under the
conditions of this Act."5 This policy pertains to the reacquisition of Philippine
citizenship. Section 5(2)6 requires those who have re-acquired Philippine
citizenship and who seek elective public office, to renounce any and all foreign
citizenship.
This requirement of renunciation of any and all foreign citizenship, when read
together with Section 40(d) of the Local Government Code 7 which disqualifies
those with dual citizenship from running for any elective local position,
indicates a policy that anyone who seeks to run for public office must be solely
and exclusively a Filipino citizen. To allow a former Filipino who reacquires
Philippine citizenship to continue using a foreign passport which indicates the
recognition of a foreign state of the individual as its national even after the
Filipino has renounced his foreign citizenship, is to allow a complete disregard
of this policy.
Further, we respectfully disagree that the majority decision rules on a situation
of doubt.
Indeed, there is no doubt that Section 40(d) of the Local Government Code
disqualifies those with dual citizenship from running for local elective positions.
There is likewise no doubt that the use of a passport is a positive declaration
that one is a citizen of the country which issued the passport, or that a passport
proves that the country which issued it recognizes the person named therein as
its national.
It is unquestioned that Arnado is a natural born Filipino citizen, or that he
acquired American citizenship by naturalization. There is no doubt that he
reacquired his Filipino citizenship by taking his Oath of Allegiance to the
Philippines and that he renounced his American citizenship. It is also

indubitable that after renouncing his American citizenship, Arnado used his U.S.
passport at least six times.

upon departure on 29 July 2009 and upon arrival on 24 November 2009), these
incidents sum up to six.

If there is any remaining doubt, it is regarding the efficacy of Arnados

renunciation of his American citizenship when he subsequently used his U.S.
passport. The renunciation of foreign citizenship must be complete and
unequivocal. The requirement that the renunciation must be made through an
oath emphasizes the solemn duty of the one making the oath of renunciation to
remain true to what he has sworn to. Allowing the subsequent use of a foreign
passport because it is convenient for the person to do so is rendering the oath
a hollow act. It devalues the act of taking of an oath, reducing it to a mere
ceremonial formality.

The COMELEC En Banc concluded that "the use of the US passport was because
to his knowledge, his Philippine passport was not yet issued to him for his
use."10 This conclusion, however, is not supported by the facts. Arnado claims
that his Philippine passport was issued on 18 June 2009. The records show that
he continued to use his U.S. passport even after he already received his
Philippine passport. Arnados travel records show that he presented his U.S.
passport on 24 November 2009, on 21 January 2010, and on 23 March 2010.
These facts were never refuted by Arnado.

The dissent states that the Court has effectively left Arnado "a man without a
country".1wphi1 On the contrary, this Court has, in fact, found Arnado to have
more than one. Nowhere in the decision does it say that Arnado is not a Filipino
citizen. What the decision merely points out is that he also possessed another
citizenship at the time he filed his certificate of candidacy.
Well-settled is the rule that findings of fact of administrative bodies will not be
interfered with by the courts in the absence of grave abuse of discretion on the
part of said agencies, or unless the aforementioned findings are not supported
by substantial evidence.8 They are accorded not only great respect but even
finality, and are binding upon this Court, unless it is shown that the
administrative body had arbitrarily disregarded or misapprehended evidence
before it to such an extent as to compel a contrary conclusion had such
evidence been properly appreciated.9
Nevertheless, it must be emphasized that COMELEC First Division found that
Arnado used his U.S. Passport at least six times after he renounced his
American citizenship. This was debunked by the COMELEC En Banc, which
found that Arnado only used his U.S. passport four times, and which agreed
with Arnados claim that he only used his U.S. passport on those occasions
because his Philippine passport was not yet issued. The COMELEC En Banc
argued that Arnado was able to prove that he used his Philippine passport for
his travels on the following dates: 12 January 2010, 31 January 2010, 31 March
2010, 16 April 2010, 20 May 2010, and 4 June 2010.
None of these dates coincide with the two other dates indicated in the
certification issued by the Bureau of Immigration showing that on 21 January
2010 and on 23 March 2010, Arnado arrived in the Philippines using his U.S.
Passport No. 057782700 which also indicated therein that his nationality is USAAmerican. Adding these two travel dates to the travel record provided by the
Bureau of Immigration showing that Arnado also presented his U.S. passport
four times (upon departure on 14 April 2009, upon arrival on 25 June 2009,

Thus, the ruling of the COMELEC En Banc is based on a misapprehension of the

facts that the use of the U.S. passport was discontinued when Arnado obtained
his Philippine passport. Arnados continued use of his U.S. passport cannot be
considered as isolated acts contrary to what the dissent wants us to believe.
It must be stressed that what is at stake here is the principle that only those
who are exclusively Filipinos are qualified to run for public office. If we allow
dual citizens who wish to run for public office to renounce their foreign
citizenship and afterwards continue using their foreign passports, we are
creating a special privilege for these dual citizens, thereby effectively junking
the prohibition in Section 40(d) of the Local Government Code.
WHEREFORE, the Motion for Reconsideration and the Supplemental Motion for
Reconsideration are hereby DENIED with finality.
SO ORDERED.

FERNANDEZ vs. HRET

This petition for certiorari and prohibition filed under Rule 65 of the Rules of
Court stems from the Decision[1] in HRET CASE No. 07-034 for quo warranto
entitled Jesus L. Vicente v. Danilo Ramon S. Fernandez promulgated by the
House of Representatives Electoral Tribunal (HRET) on December 16, 2008 as
well as Minute Resolution No. 09-080 promulgated on April 30, 2009, likewise
issued by the HRET, denying petitioners Motion for Reconsideration.
The dispositive portion of the questioned Decision reads as follows:
WHEREFORE, the Tribunal DECLARES respondent Danilo Ramon S. Fernandez
ineligible for the Office of Representative of [the] First District of Laguna for lack
of residence in the district and [ORDERS] him to vacate his office.
As soon as this Resolution becomes final and executory, let notices be sent to
the President of the Philippines, the House of Representatives through the
Speaker, and the Commission on Audit through its Chairman, pursuant to Rule
96 of the 2004 Rules of the House of Representatives Electoral Tribunal.
No pronouncement as to costs.
SO ORDERED.[2]
On December 22, 2008, petitioner Danilo Ramon S. Fernandez (petitioner) filed
a Motion for Reconsideration of the above-quoted Decision. The HRET, in the
questioned Resolution, found petitioners Motion to be bereft of new issues/
arguments that [had] not been appropriately resolved[3] in the Decision.
Petitioner thus applied for relief to this Court, claiming that the questioned
Decision and Resolution should be declared null and void for having been
respectively issued with grave abuse of discretion amounting to lack of or in
excess of jurisdiction, and praying for the issuance of a writ of prohibition to
enjoin and prohibit the HRET from implementing the questioned Decision and
Resolution.[4]
The antecedent facts are clear and undisputed.
Petitioner filed for candidacy as Representative of the First Legislative District of
the Province of Laguna in the May 14, 2007 elections. In his Certificate of
Candidacy (COC), he indicated his complete/exact address as No. 13 Maharlika
St., Villa Toledo Subdivision, Barangay Balibago, Sta. Rosa City, Laguna (alleged
Sta. Rosa residence).[5]
Private respondent Jesus L. Vicente (private respondent) filed a Petition to Deny
Due Course to and/or Cancel Certificate of Candidacy and Petition for
Disqualification before the Office of the Provincial Election Supervisor of
Laguna. This was forwarded to the Commission on Elections (COMELEC) and
docketed therein as SPA No. 07-046 (PES). Private respondent sought the
cancellation of petitioners COC and the latters disqualification as a candidate
on the ground of an alleged material misrepresentation in his COC regarding his

place of residence, because during past elections, he had declared Pagsanjan,

Laguna as his address, and Pagsanjan was located in the Fourth Legislative
District of the Province of Laguna. Private respondent likewise claimed that
petitioner maintained another house in Cabuyao, Laguna, which was also
outside the First District.[6] The COMELEC (First Division) dismissed said
petition for lack of merit.[7]
Petitioner was proclaimed as the duly elected Representative of the First
District of Laguna on June 27, 2007, having garnered a total of 95,927 votes,
winning by a margin of 35,000 votes over the nearest candidate.[8]
On July 5, 2007, private respondent filed a petition for quo warranto before the
HRET, docketed as HRET CASE No. 07-034, praying that petitioner be declared
ineligible to hold office as a Member of the House of Representatives
representing the First Legislative District of the Province of Laguna, and that
petitioners election and proclamation be annulled and declared null and void.
[9]
Private respondents main ground for the quo warranto petition was that
petitioner lacked the required one-year residency requirement provided under
Article VI, Section 6 of the 1987 Constitution. In support of his petition, private
respondent argued that petitioner falsely declared under oath: (1) his alleged
Sta. Rosa residence; (2) the period of his residence in the legislative district
before May 14, 2007, which he indicated as one year and two months; and (3)
his eligibility for the office where he was seeking to be elected. Private
respondent presented the testimony of a certain Atty. Noel T. Tiampong, who
stated that petitioner is not from the alleged Sta. Rosa residence but a resident
of Barangay Pulo, Cabuyao, Laguna; as well as the respective testimonies of
Barangay Balibago Health Workers who attested that they rarely, if ever, saw
respondent in the leased premises at the alleged Sta. Rosa residence; and
other witnesses who testified that contrary to the misrepresentations of
petitioner, he is not a resident of the alleged Sta. Rosa residence. A witness
testified that petitioner attempted to coerce some of the other witnesses to
recant their declarations and change their affidavits. Finally, private respondent
presented as witness the lawyer who notarized the Contract of Lease dated
March 8, 2007 between petitioner as lessee and Bienvenido G. Asuncion as
lessor.[10]
Petitioner, as respondent in HRET Case No. 07-034, presented as his witnesses
residents of Villa de Toledo who testified that they had seen respondent and his
family residing in their locality, as well as Bienvenido G. Asuncion who testified
that petitioner is the lessee in Unit No. 13 Block 1 Lot I, Maharlika St., Villa de
Toledo Subdivision, Brgy. Balibago, Sta. Rosa City, Laguna. Petitioner likewise
presented Mr. Joseph Wade, President of South Point Homeowners Association
of Cabuyao, Laguna, as well as Engr. Larry E. Castro (Castro), who testified that
since February 2006 up to the present, petitioner had no longer been residing
in his property located at Block 28, Lot 18, South Point Subdivision, Cabuyao,
Laguna, and that said property was being offered for sale and temporarily being
used by Castro, together with some security men of petitioner and employees
of Rafters Music Lounge owned by petitioner.[11] Petitioner testified that he
had been a resident of Sta. Rosa even before February 2006; that he owned
property in another Sta. Rosa subdivision (Bel-Air); that he and his wife had put

up a business therein, the RAFTERS restaurant/ bar; and that he had prior
residence in another place also at Sta. Rosa as early as 2001.[12]
Since the HRET ruled in favor of private respondent, this petition was filed
before us.
In petitioners assignment of errors, he alleges that the HRET grievously erred
and committed grave abuse of discretion:
1.
In not placing on the quo warranto petitioner Jesus L. Vicente the burden
of proving that then respondent (now petitioner) Fernandez is not a qualified
candidate for Representative of the First District of the Province of Laguna;
2.

When it disregarded the ruling of a co-equal tribunal in SPA No. 07-046;

3.

When it added a property qualification to a Member of Congress;

4.
When it determined that the petitioner failed to comply with the one (1)
year residency requirement based on the contract of lease;
5.

SECTION 1. Burden of proof . Burden of proof is the duty of a party to present

evidence on the facts in issue necessary to establish his claim or defense by
the amount of evidence required by law.
Petitioner avers that private respondent failed to establish his claim and to
adduce evidence sufficient to overcome petitioners eligibility to be a candidate
for Representative of the First District of Laguna.
On the second assignment of error, petitioner submits that the HRET should
have been guided and/or cautioned by the COMELECs dispositions in SPA No.
07-046, wherein he was adjudged as qualified to run for the position of
Congressman of the First District of Laguna by an agency tasked by law and the
Constitution to ascertain the qualifications of candidates before election.
Petitioner claims that the HRET should have respected the findings of the
COMELEC and should have discreetly denied the petition.
On the third assignment of error, petitioner argues that under Article V, Section
1, of the 1987 Constitution, any citizen of the Philippines who is a qualified
voter may likewise, if so qualified under the appertaining law and the
constitution, be able to run and be voted for as a candidate for public office.
Said provision reads:

When it completely disregarded the testimonies of material witnesses;

6.
When it failed to consider the intent of the petitioner to transfer domicile
based on the totality of the evidence adduced; and
7.
When it failed to find the petitioner in HRET Case No. 07-034 guilty of
forum-shopping.[13]
On the first assignment of error, petitioner
pronouncement of the HRET in its decision:

questions

the

following

In the case before us, petitioner has clearly asserted, and respondent does not
deny, that his domicile of origin is Pagsanjan in the Fourth District of Laguna.
Hence, the burden is now on respondent to prove that he has abandoned his
domicile of origin, or since his birth, where he formerly ran for provincial Board
Member of Laguna in 1998, for Vice-Governor of Laguna in 2001 and for
Governor of Laguna in 2004. In all his Certificates of Candidacy when he ran for
these positions, he indicated under oath that his domicile or permanent
residence was in Pagsanjan in the Fourth District of Laguna, not in the First
District where he later ran in the last elections.[14]
Petitioner contends that it is a basic evidentiary rule that the burden of proof is
on he who alleges, and he who relies on such an allegation as his cause of
action should prove the same.[15] Since private respondent is the party
alleging that petitioner is not eligible for his position, it is therefore incumbent
on the former, who filed the quo warranto case before the HRET, to prove such
allegation. He cites in support of his contention Sec. 1, Rule 131 of the Rules of
Court, to wit:

SECTION 1. Suffrage may be exercised by all citizens of the Philippines not

otherwise disqualified by law, who are at least eighteen years of age, and who
shall have resided in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months immediately preceding the
election. No literacy, property, or other substantive requirement shall be
imposed on the exercise of suffrage.
Petitioner alleges that in the questioned Decision, the HRET added a new
qualification requirement for candidates seeking election to the position of
Member of the House of Representatives, and that is, they must be real
property owners in the legislative district where they seek election.
On the fourth assignment of error, petitioner addresses private respondents
arguments against the contract of lease that he presented as part of the proof
of his compliance with the residency requirement. Petitioner asserts that the
nomenclature used by contracting parties to describe a contract does not
determine its nature, but the decisive factor is the intention of the parties to a
contract as shown by their conduct, words, actions, and deeds prior to, during
and after executing the agreement.[16] Petitioner claims that he has presented
ample proof of his residency in terms of evidence more numerous and bearing
more weight and credibility than those of private respondent. He proceeds to
highlight some of the evidence he offered in the quo warranto case that
allegedly prove that his transfer of residence and intention to reside in Sta.
Rosa were proven by his stay in Villa de Toledo, to wit: (1) even earlier than
2006, he had purchased a house and lot in Bel-Air Subdivision in Sta. Rosa
which he rented out because he was not yet staying there at that time; (2) he
sent his children to schools in Sta. Rosa as early as 2002; and (3) he and his
wife established a restaurant business there in 2003. Petitioner contends that
when he and his family moved to Sta. Rosa by initially renting a townhouse in

Villa de Toledo, it cannot be said that he did this only in order to run for election
in the First Legislative District.[17]
As regards the alleged infirmities characterizing the execution of the contract of
lease and the renewal of said contract of lease, petitioner contends that these
are not material since the lessor, Bienvenido Asuncion, affirmed his stay in his
townhouse; the neighbors and other barangay personalities confirmed his and
his familys stay in their area; and petitioner has continued actual residence in
Sta. Rosa from early 2006 to the present. Petitioner claims that all these prove
that he had effectively changed his residence and could therefore likewise
transfer his voters registration from Pagsanjan to Sta. Rosa under Sec. 12 of
R.A. No. 8189.[18] Petitioner also alleges that he had become qualified to seek
elective office in his new place of residence and registration as a voter.
To further prove that he has made Sta. Rosa his domicile of choice from early
2006 to the present, petitioner points out that he and his wife had purchased a
lot in the same area, Villa de Toledo, on April 21, 2007, built a house thereon,
and moved in said house with their family.
Regarding the non-notarization of the contract of lease raised by private
respondent, petitioner avers that this does not necessarily nullify nor render the
parties transaction void ab initio.[19]
On the fifth assignment of error, petitioner alleges that the HRET relied on
private respondents witnesses in negating petitioners claim that he had validly
resided at the alleged Sta. Rosa residence for more than one year and two
months prior to the May 14, 2007 elections, and did not touch on the
testimonies of his witnesses. The questioned Decision pointed out petitioners
alleged non-appearance in the day-to-day activities of the Homeowners
Association and considered this as failure to prove that he is a resident of Villa
de Toledo, without considering the fact that private respondent failed to
discharge the burden of proof in support of his indictment against petitioner.
On the sixth assignment of error, petitioner claims that the questioned Decision
was arrived at based on the perceived weakness of his evidence and
arguments as respondent, instead of the strength of private respondents own
evidence and arguments in his quo warranto petition.
On the seventh and last assignment of error, petitioner alleges that the matters
raised in HRET Case No. 07-034 were no different from the ones raised by
private respondent before the COMELEC in SPA No. 07-046 (PES); thus, private
respondents petition should have been dismissed by the HRET for forumshopping.
In his Comment dated June 22, 2009, private respondent summarized the
issues raised in petitioners assignment of errors into two: (1) those that involve
the issue of conflict of jurisdiction between the HRET and the COMELEC
respecting the eligibility, qualification/s or disqualification of elective public
officials; and (2) those that involve factual and evidentiary matters designed as
supposed errors.[20]

Regarding the first issue, private respondent contends that the 1987
Constitution is most equivocal in declaring that the HRET is the sole judge of all
contests relating to the election, returns and qualifications of Members of the
House of Representatives, under the following provision:
Art. VI, SECTION 17. The Senate and the House of Representatives shall each
have an Electoral Tribunal which shall be the sole judge of all contests relating
to the election, returns, and qualifications of their respective Members.
Private respondent alleges that the above constitutional provision was adopted
by the HRET in its Rules, which read:
THE 1998 RULES OF THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL
The House of Representatives Electoral Tribunal hereby adopts and
promulgates the following Rules governing its proceedings as the sole judge of
all contests relating to the election, returns and qualifications of Members of
the House of Representatives, pursuant to Section 17, Article VI of the
Constitution.
xxx xxx xxx
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.
xxx xxx xxx
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, such that
the HRET cannot disregard any ruling of 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.

Anent the second issue, private respondent contends that petitioner raised
errors of judgment, mistakes in the factual findings, and/or flaws in the
evidence appreciation, which are appropriate on appeal, but not in a petition
for certiorari which is a special civil action, where the only allowable ground in
order to prosper is grave abuse of discretion amounting to lack or in excess of
jurisdiction.
For its part, public respondent HRET, through the Solicitor General, filed a
Comment dated July 14, 2009, arguing that it did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction when it held that
petitioner failed to comply with the one year residency requirement under
Section 6, Article VI of the 1987 Constitution.[21]
The HRET avers that the questioned Decision is supported by factual and legal
basis, for it found that the original and extended contracts of lease presented
by petitioner were defective and fabricated, as it contained several apparent, if
not visible, deficiencies as to form, i.e.[,] it being not notarized; the absence of
witnesses, the intercalations thereat especially on the term/period of the
alleged lease; the absence of respondents participation therein and some
others pointed out in the petition.[22] The Decision states that even if the
contract of lease was valid and legitimate, a fixed period of one year negates
the concept of permanency that would suffice to prove abandonment of
respondents previous residence or domicile at Pagsanjan. The Decision further
reads as follows:
Respondents connection to the First District of Laguna is an alleged lease
agreement of a townhouse unit in the area. The intention not to establish a
permanent home in the First District of Laguna is evident in his leasing a
townhouse unit instead of buying one. The short length of time he claims to be
a resident of the First District of Laguna (and the fact that his domicile of origin
is Pagsanjan, Laguna is not within the First District of Laguna) indicate that his
sole purpose in transferring his physical residence is not to acquire a new
residence or domicile but only to qualify as a candidate for Representative of
the First District of Laguna.[23]
xxx xxx xxx
Exhibit 3 is the very document that was produced and presented by respondent
to attest that while the original contract, replete with infirmities, as only for one
year expiring even before the May 14, 2007 elections, here now comes the
renewed Contract of Lease, signed by respondent himself, no longer his wife,
immaculately perfect on its face, now notarized and properly witnessed, and
even the terms and conditions thereof undeniably clear and explicit, with the
added feature of a prolonged 2-year period of lease that will go well beyond the
May 14, 2007 elections.
We cannot however, simply accept the renewed Contract of Lease (Exhibit 3)
on its face. In fact, as succinctly pointed out by petitioner, the renewed
Contract of Lease suffers from a more grievous infirmity.
x x x As respondents brother-in-law, Atty. Macalalag is prohibited from
notarizing a document that involves the respondent.[24]

xxx xxx xxx

But the lack of notarial authentication does not even constitute the main defect
of [Exhibit 3]. The surfacing of Exhibit 3 very late in the day cannot but lead to
the conclusion that the same was a mere afterthought. x x x[25]
xxx xxx xxx
We have to emphasize that the initial one-year lease contract expired on
February 27, 2007, and as such, standing alone, the same cannot prove and
will not establish the declared one-year and two months prior residence
eligibility requirement of respondent, unless it is shown that the expired lease
agreement was extended or renewed beyond the May 14, 2007 elections, and,
more importantly, accompanied by a copy of the claimed existing renewed
lease agreement. x x x[26]
xxx xxx xxx
By the unexplained delay in the production and presentation of Exhibit 3,
respondents residence qualifications suffered a fatal blow. For it can no longer
be denied that respondents claimed residence at the alleged townhouse unit in
Sta. Rosa for one year and two months prior to the May 14, 2007 election is not
only most doubtful, but also negates the concept of permanency that would
suffice to prove abandonment of respondents previous residence or domicile at
Pagsanjan.[27]
Furthermore, the HRET alleges that, as it found in the questioned Decision, the
witnesses presented who were residents of Sta. Rosa, Laguna were consistent
and credible in disputing petitioners alleged physical presence at any given
time in said place. Among these witnesses were three Barangay Health
Workers, one of whom, Rowena Dineros, submitted an affidavit that her job
required her to frequently go around Villa de Toledo, knocking on every
household door to inquire about its occupants, and not once did she see
petitioner at the alleged Sta. Rosa residence. The HRET claims that this
testimony was corroborated by another Barangay Health Worker (BHW), Jeanet
Cabingas, who stated in her affidavit that every time she accompanied her
niece, who was petitioners goddaughter, to request a favor from petitioner, the
latter would ask them to return to his house in Cabuyao, Laguna, even if she
was a resident of Sta. Rosa.[28] The Solicitor General quotes the following
portion from the questioned Decision:
What appears very evident from this is that respondent has absolutely not the
slightest intention to reside in Sta. Rosa permanently.
This ineluctably confirms that respondent has not developed animus manendi
over the latter place, Sta. Rosa[,] and that he has not actually abandoned his
old domicile of origin in Pagsanjan.[29]
As for the third BHW witness, Flocerfina Torres, the HRET gives credence to her
testimony that she conducted a household census in Villa de Toledo every three
months, but not once had she seen petitioner in the alleged Sta. Rosa

residence, and that she was advised by petitioner to proceed to his house in
Cabuyao, Laguna when she had attempted to solicit from petitioner at his
Rafters establishment because it was near her residence in Sta. Rosa. From the
foregoing testimonies, the HRET found in the questioned Decision that:
The uniform testimony of our 3 BHW witnesses disputing the physical presence
of the respondent at his claimed Toledo address during all the time that they
were performing their routine duties at that community, and which
encompassed the period of 1 year and 2 months before the May 14, 2007
election, revealed that he was not staying in Sta. Rosa.[30]
The HRET likewise contends that the fact that petitioner registered as a voter in
Sta. Rosa does not prove that he is a resident thereat, given that a voter is
required to reside in the place wherein he proposes to vote only for six months
preceding the election.
The HRET avers that this Court had explained the importance of property
ownership in Aquino v. COMELEC, et al.[31] and finds no merit in petitioners
insistence that the will of the electorate attests to his residence in Sta. Rosa
because, the HRET further avers, [a] disqualified candidate cannot assume
office.[32]
The HRET likewise contends that the purpose of the residency requirement is to
ensure that the person elected is familiar with the needs and problems of his
constituency.
The issues for determination are: (1) whether the HRET had jurisdiction over
the case; and (2) whether petitioner sufficiently complied with the one-year
residency requirement to be a Member of the House of Representatives, as
provided in the 1987 Constitution.
The first issue is procedural and involves the jurisdiction of the HRET vis--vis
that of the COMELEC in cases involving the qualification of Members of the
House of Representatives. Petitioner suggests that the matters raised in HRET
Case No. 07-034 were already passed upon by the COMELEC in SPA No. 07-046
(PES), thus the HRET should have dismissed the case for forum-shopping.
We do not agree. The 1987 Constitution explicitly provides under Article VI,
Section 17 thereof that the HRET and the Senate Electoral Tribunal (SET) shall
be the sole judges of all contests relating to the election, returns, and
qualifications of their respective members. The authority conferred upon the
Electoral Tribunal is full, clear and complete. The use of the word sole
emphasizes the exclusivity of the jurisdiction of these Tribunals,[33] which is
conferred upon the HRET and the SET after elections and the proclamation of
the winning candidates. A candidate who has not been proclaimed and who has
not taken his oath of office cannot be said to be a member of the House of
Representatives. [34]
Thus, private respondent correctly pointed out that a petition for quo warranto
is within the exclusive jurisdiction of the HRET, and cannot be considered forum
shopping even if, as in this case, the COMELEC had already passed upon in

administrative or quasi-judicial proceedings the issue of the qualification of the

Member of the House of Representatives while the latter was still a candidate.
Anent the second issue pertaining to petitioners compliance with the residency
requirement for Members of the House of Representatives, after studying the
evidence submitted by the parties, we find for petitioner, taking into account
our ruling in Frivaldo v. COMELEC,[35] which reads in part:
This Court has time and again liberally and equitably construed the electoral
laws of our country to give fullest effect to the manifest will of our people, for in
case of doubt, political laws must be interpreted to give life and spirit to the
popular mandate freely expressed through the ballot. Otherwise stated, legal
niceties and technicalities cannot stand in the way of the sovereign will. xxx
(Emphasis supplied)
For the foregoing reason, the Court must exercise utmost caution before
disqualifying a winning candidate, shown to be the clear choice of the
constituents that he wishes to represent in Congress.
The qualifications of a member of the House of Representatives are found in
Article VI, Section 6 of the Constitution, which provides:
Section 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 twenty-five years of age, able to read and write, and, except the partylist 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)
We find the interpretation of the HRET of the residency requirement under the
Constitution to be overly restrictive and unwarranted under the factual
circumstances of this case.
The evidence presented by private respondent before the HRET hardly suffices
to prove that petitioner failed to comply with the one-year residency
requirement under the Constitution. Private respondents documentary evidence
to disqualify petitioner mainly consisted of (a) petitioners certificates of
candidacy (COCs) for various positions in 1998, 2001 and 2004, which all
indicated his residence as Pagsanjan, Laguna within the Fourth District of said
province; (b) his application for a drivers license in August 2005 that indicated
Pagsanjan, Laguna as his residence; and (c) the statement in his COCs
including his 2007 COC for Congressman for the First District of Laguna that his
place of birth was Pagsanjan, Laguna.
The only thing these pieces of documentary evidence prove is that petitioners
domicile of origin was Pagsanjan, Laguna and it remained his domicile up to
2005, at the latest. On the other hand, what petitioner asserted in his 2007
COC is that he had been a resident of Sta. Rosa, Laguna in the First District of
Laguna as of February 2006 and respondents evidence failed contradict that
claim.

If it is true that petitioner and his family had been living in Sta. Rosa, Laguna as
of February 2006 with the intent to reside therein permanently, that would
more than fulfill the requirement that petitioner be a resident of the district
where he was a candidate for at least one year before election day, which in
this case was May 14, 2007.
In order to buttress his claim that he and his family actually resided in Sta.
Rosa, Laguna beginning at least in February 2006, petitioners evidence
included, among others: (a) original and extended lease contracts for a
townhouse in Villa de Toledo, Barangay Balibago, Sta. Rosa, Laguna; (b)
certification issued by the President of the Villa de Toledo Homeowners
Association, Inc, that petitioner has been a resident of said Subdivision since
February 2006; (c) affidavits of petitioners neighbors in Villa de Toledo attesting
that petitioner has been a resident of said subdivision since February 2006; (d)
certification of the barangay chairman of Barangay Balibago, Sta. Rosa, Laguna
that petitioner is a resident of Villa de Toledo within the said barangay; (e)
certificates of attendance of petitioners children in schools located in Sta. Rosa,
Laguna since 2005; and (f) DTI certificates of business issued in the name of
petitioner and his wife to show that they own and operate businesses in Sta.
Rosa, Laguna since 2003.
The fact that a few barangay health workers attested that they had failed to
see petitioner whenever they allegedly made the rounds in Villa de Toledo is of
no moment, especially considering that there were witnesses (including
petitioners neighbors in Villa de Toledo) that were in turn presented by
petitioner to prove that he was actually a resident of Villa de Toledo, in the
address he stated in his COC. The law does not require a person to be in his
home twenty-four (24) hours a day, seven days a week, in order to fulfill the
residency requirement. It may be that whenever these health workers do their
rounds petitioner was out of the house to attend to his own employment or
business. It is not amiss to note that even these barangay health workers, with
the exception of one, confirm seeing petitioners wife at the address stated in
petitioners 2007 COC. Indeed, these health workers testimonies do not
conclusively prove that petitioner did not in fact reside in Villa de Toledo for at
least the year before election day.
Neither do we find anything wrong if petitioner sometimes transacted business
or received visitors in his Cabuyao house, instead of the alleged Sta. Rosa
residence, as there is nothing in the residency requirement for candidates that
prohibits them from owning property and exercising their rights of ownership
thereto in other places aside from the address they had indicated as their place
of residence in their COC.
As regards the weight to be given the contract of lease vis--vis petitioners
previous COCs, we find Perez v. COMELEC[36] to be instructive in this case, and
quote the pertinent portions of the decision below:
In the case at bar, the COMELEC found that private respondent changed his
residence from Gattaran to Tuguegarao, the capital of Cagayan, in July 1990 on
the basis of the following: (1) the affidavit of Engineer Alfredo Ablaza, the
owner of the residential apartment at 13-E Magallanes St., Tuguegarao,
Cagayan, where private respondent had lived in 1990; (2) the contract of lease
between private respondent, as lessee, and Tomas T. Decena, as lessor, of a

residential apartment at Kamias St., Tanza, Tuguegarao, Cagayan, for the

period July 1, 1995 to June 30, 1996; (3) the marriage certificate, dated January
18, 1998, between private respondent and Lerma Dumaguit; (4) the certificate
of live birth of private respondent's second daughter; and (5) various letters
addressed to private respondent and his family, which all show that private
respondent was a resident of Tuguegarao, Cagayan for at least one (1) year
immediately preceding the elections on May 11, 1998.
There is thus substantial evidence supporting the finding that private
respondent had been a resident of the Third District of Cagayan and there is
nothing in the record to detract from the merit of this factual finding.
Petitioner contends that the fact that private respondent was a resident of
Gattaran, at least until June 22, 1997, is shown by the following documentary
evidence in the record, to wit: (1) his certificates of candidacy for governor of
Cagayan in the 1988, 1992 and 1995 elections; (2) his voter's registration
records, the latest of which was made on June 22, 1997; and (3) the fact that
private respondent voted in Gattaran, Cagayan, in the elections of 1987, 1988,
1992 and 1995.
The contention is without merit. The fact that a person is registered as a voter
in one district is not proof that he is not domiciled in another district. Thus, in
Faypon v. Quirino, this Court held that the registration of a voter in a place
other than his residence of origin is not sufficient to consider him to have
abandoned or lost his residence.
Nor is it of much importance that in his certificates of candidacy for provincial
governor in the elections of 1988, 1992, and 1995, private respondent stated
that he was a resident of Gattaran. Under the law, what is required for the
election of governor is residency in the province, not in any district or
municipality, one year before the election.
Moreover, as this Court said in Romualdez-Marcos v. COMELEC:
It is the fact of residence, not a statement in a certificate of candidacy, which
ought to be decisive in determining whether or not an individual has satisfied
the constitution's residency qualification requirement. The said statement
becomes material only when there is or appears to be a deliberate attempt to
mislead, misinform, or hide a fact which would otherwise render a candidate
ineligible.
In this case, although private respondent declared in his certificates of
candidacy prior to the May 11, 1998 elections that he was a resident of
Gattaran, Cagayan, the fact is that he was actually a resident of the Third
District not just for one (1) year prior to the May 11, 1998 elections but for
more than seven (7) years since July 1990. His claim that he had been a
resident of Tuguegarao since July 1990 is credible considering that he was
governor from 1988 to 1998 and, therefore, it would be convenient for him to
maintain his residence in Tuguegarao, which is the capital of the province of
Cagayan.

As always, the polestar of adjudication in cases of this nature is Gallego v. Vera,

in which this Court held: "[W]hen the evidence on the alleged lack of residence
qualification is weak or inconclusive and it clearly appears, as in the instant
case, that the purpose of the law would not be thwarted by upholding the right
to the office, the will of the electorate should be respected." In this case,
considering the purpose of the residency requirement, i.e., to ensure that the
person elected is familiar with the needs and problems of his constituency,
there can be no doubt that private respondent is qualified, having been
governor of the entire province of Cagayan for ten years immediately before his
election as Representative of that province's Third District.[37]
Thus, in the case above, the Court found that the affidavit of the lessor and the
contract of lease were sufficient proof that private respondent therein had
changed his residence. In the case now before us, although private respondent
raised alleged formal defects in the contract of lease, the lessor himself
testified that as far as he was concerned, he and petitioner had a valid contract
and he confirmed that petitioner and his family are the occupants of the leased
premises.
Petitioner correctly pointed out that the lack of proper notarization does not
necessarily nullify nor render the parties transaction void ab initio. In Mallari v.
Alsol, we found a contract of lease to be valid despite the non-appearance of
one of the parties before a notary public, and ruled in this wise:
Notarization converts a private document into a public document. However, the
non-appearance of the parties before the notary public who notarized the
document does not necessarily nullify nor render the parties' transaction void
ab initio. Thus:
. . . Article 1358 of the New Civil Code on the necessity of a public document is
only for convenience, not for validity or enforceability. Failure to follow the
proper form does not invalidate a contract. Where a contract is not in the form
prescribed by law, the parties can merely compel each other to observe that
form, once the contract has been perfected. This is consistent with the basic
principle that contracts are obligatory in whatever form they may have been
entered into, provided all essential requisites are present.
Hence, the Lease Contract is valid despite Mayor Perez's failure to appear
before the notary public. [38]

The HRET puts undue emphasis on the fact that petitioner is only leasing a
townhouse in Sta. Rosa while he owns houses in Pagsanjan and Cabuyao. His
ownership of properties in other places has been taken to mean that petitioner
did not intend to make Sta. Rosa his permanent residence or that he had not
abandoned his domicile of origin.
Although it is true that the latest acquired abode is not necessarily the domicile
of choice of a candidate, there is nothing in the Constitution or our election
laws which require a congressional candidate to sell a previously acquired
home in one district and buy a new one in the place where he seeks to run in
order to qualify for a congressional seat in that other district. Neither do we see
the fact that petitioner was only leasing a residence in Sta. Rosa at the time of
his candidacy as a barrier for him to run in that district. Certainly, the

Constitution does not require a congressional candidate to be a property owner

in the district where he seeks to run but only that he resides in that district for
at least a year prior to election day. To use ownership of property in the district
as the determinative indicium of permanence of domicile or residence implies
that only the landed can establish compliance with the residency requirement.
This Court would be, in effect, imposing a property requirement to the right to
hold public office, which property requirement would be unconstitutional.
This case must be distinguished from Aquino v. COMELEC[39] and Domino v.
COMELEC,[40] where the disqualified candidate was shown to be merely
leasing a residence in the place where he sought to run for office. In Aquino and
Domino, there appeared to be no other material reason for the candidate to
lease residential property in the place where he filed his COC, except to fulfill
the residency requirement under election laws.
In the case at bar, there are real and substantial reasons for petitioner to
establish Sta. Rosa as his domicile of choice and abandon his domicile of origin
and/or any other previous domicile. To begin with, petitioner and his wife have
owned and operated businesses in Sta. Rosa since 2003. Their children have
attended schools in Sta. Rosa at least since 2005. Although ownership of
property should never be considered a requirement for any candidacy,
petitioner had sufficiently confirmed his intention to permanently reside in Sta.
Rosa by purchasing residential properties in that city even prior to the May
2007 election, as evidenced by certificates of title issued in the name of
petitioner and his wife. One of these properties is a residence in Bel-Air, Sta.
Rosa which petitioner acquired even before 2006 but which petitioner had been
leasing out. He claims that he rented out this property because prior to 2006 he
had not decided to permanently reside in Sta. Rosa. This could explain why in
early 2006 petitioner had to rent a townhouse in Villa de Toledo his Bel-Air
residence was occupied by a tenant. The relatively short period of the lease
was also adequately explained by petitioner they rented a townhouse while
they were in the process of building their own house in Sta. Rosa. True enough,
petitioner and his spouse subsequently purchased a lot also in Villa de Toledo in
April 2007, about a month before election day, where they have constructed a
home for their familys use as a residence. In all, petitioner had adequately
shown that his transfer of residence to Sta. Rosa was bona fide and was not
merely for complying with the residency requirement under election laws.
It was incumbent upon private respondent to prove his assertion that petitioner
is indeed disqualified from holding his congressional seat. Private respondents
burden of proof was not only to establish that petitioners domicile of origin is
different from Sta. Rosa but also that petitioners domicile for the one year prior
to election day continued to be Pagsanjan, Laguna which was petitioners
domicile of origin or that petitioner had chosen a domicile other than Sta. Rosa,
Laguna for that same period. In other words, to prove petitioners
disqualification, the relevant period is the one year period prior to election day.
It would be absurd to rule that the petitioner in a quo warranto suit only needs
to prove that the candidate had some other previous domicile, regardless of
how remote in time from election day that previous domicile was established,
and then the candidate would already have the burden to prove abandonment
of that previous domicile. It is the burden of the petitioner in a quo warranto
case to first prove the very fact of disqualification before the candidate should
even be called upon to defend himself with countervailing evidence.

In our considered view, private respondent failed to discharge his burden of

proof. Petitioners COCs for previous elections and his 2005 application for a
drivers license only proved that his domicile of origin was Pagsanjan, Laguna
and it remained to be so up to 2005. Affidavits/testimonies of respondents
witnesses, at most, tended to prove that petitioner was on several instances
found in his house in Cabuyao, Laguna, which was not even his domicile of
origin. Cabuyao, Laguna is in the Second District of Laguna while petitioners
domicile of origin, Pagsanjan, is in the Fourth District of Laguna. Based on
private respondents own documentary submissions, Cabuyao was never even
stated as a domicile or residence in any of the petitioners COCs. Moreover,
owning an abode in Cabuyao where petitioner is occasionally found did not
prove that Cabuyao is petitioners real domicile. Indeed, disregarding Cabuyao
as petitioners domicile would be consistent with the established principle that
physical presence in a place sans the intent to permanently reside therein is
insufficient to establish domicile. Neither did private respondents submissions
refute petitioners evidence that since February 2006 petitioner has chosen Sta.
Rosa as his domicile.
To summarize, private respondents own evidence did not categorically establish
where petitioners domicile is nor did said evidence conclusively prove that for
the year prior to the May 14, 2007 petitioner had a domicile other than where
he actually resided, i.e. Sta. Rosa, Laguna. To be sure, Gallego v. Vera[41]
decreed that:
We might add that the manifest intent of the law in fixing a residence
qualification is to exclude a stranger or newcomer, unacquainted with the
conditions and needs of a community and not identified with the latter, from an
elective office to serve that community; and when the evidence on the alleged
lack of residence qualification is weak or inconclusive and it clearly appears, as
in the instant case, that the purpose of the law would not be thwarted by
upholding the right to the office, the will of the electorate should be respected.
xxx xxx xxx (Emphasis supplied)
Frivaldo[42] likewise prescribed that:
xxx xxx xxx To successfully challenge a winning candidate's qualifications, the
petitioner must clearly demonstrate that the ineligibility is so patently
antagonistic to constitutional and legal principles that overriding such
ineligibility and thereby giving effect to the apparent will of the people, would
ultimately create greater prejudice to the very democratic institutions and
juristic traditions that our Constitution and laws so zealously protect and
promote. xxx xxx xxx (Emphasis supplied)
In Torayno,[43] the Court had the occasion to say that:
The Constitution and the law requires residence as a qualification for seeking
and holding elective public office, in order to give candidates the opportunity to
be familiar with the needs, difficulties, aspirations, potentials for growth and all
matters vital to the welfare of their constituencies; likewise, it enables the
electorate to evaluate the office seekers' qualifications and fitness for the job
they aspire for. xxx xxx xxx

Recently, in Japzon v. COMELEC,[44] the Court, citing Papandayan, Jr. v.

COMELEC,[45] said:
In Papandayan, Jr. v. Commission on Elections, the Court provided a summation
of the different principles and concepts in jurisprudence relating to the
residency qualification for elective local officials. Pertinent portions of the ratio
in Papandayan are reproduced below:
Our decisions have applied certain tests and concepts in resolving the issue of
whether or not a candidate has complied with the residency requirement for
elective positions. The principle of animus revertendi has been used to
determine whether a candidate has an "intention to return" to the place where
he seeks to be elected. Corollary to this is a determination whether there has
been an "abandonment" of his former residence which signifies an intention to
depart therefrom. In Caasi v. Court of Appeals, this Court set aside the
appealed orders of the COMELEC and the Court of Appeals and annulled the
election of the respondent as Municipal Mayor of Bolinao, Pangasinan on the
ground that respondent's immigration to the United States in 1984 constituted
an abandonment of his domicile and residence in the Philippines. Being a green
card holder, which was proof that he was a permanent resident or immigrant of
the United States, and in the absence of any waiver of his status as such before
he ran for election on January 18, 1988, respondent was held to be disqualified
under 68 of the Omnibus Election Code of the Philippines (Batas Pambansa Blg.
881).
In Co v. Electoral Tribunal of the House of Representatives, respondent Jose
Ong, Jr. was proclaimed the duly elected representative of the 2nd District of
Northern Samar. The House of Representatives Electoral Tribunal (HRET) upheld
his election against claims that he was not a natural born Filipino citizen and a
resident of Laoang, Northern Samar. In sustaining the ruling of the HRET, this
Court, citing Faypon v. Quirino, applied the concept of animus revertendi or
"intent to return", stating that his absence from his residence in order to pursue
studies or practice his profession as a certified public accountant in Manila or
his registration as a voter other than in the place where he was elected did not
constitute loss of residence. The fact that respondent made periodical journeys
to his home province in Laoag revealed that he always had animus revertendi.
In Abella v. Commission on Elections and Larrazabal v. Commission on
Elections, it was explained that the determination of a person's legal residence
or domicile largely depends upon the intention that may be inferred from his
acts, activities, and utterances. In that case, petitioner Adelina Larrazabal, who
had obtained the highest number of votes in the local elections of February 1,
1988 and who had thus been proclaimed as the duly elected governor, was
disqualified by the COMELEC for lack of residence and registration
qualifications, not being a resident nor a registered voter of Kananga, Leyte.
The COMELEC ruled that the attempt of petitioner Larrazabal to change her
residence one year before the election by registering at Kananga, Leyte to
qualify her to run for the position of governor of the province of Leyte was proof
that she considered herself a resident of Ormoc City. This Court affirmed the
ruling of the COMELEC and held that petitioner Larrazabal had established her
residence in Ormoc City, not in Kananga, Leyte, from 1975 up to the time that
she ran for the position of Provincial Governor of Leyte on February 1, 1988.

There was no evidence to show that she and her husband maintained separate
residences, i.e., she at Kananga, Leyte and her husband at Ormoc City. The fact
that she occasionally visited Kananga, Leyte through the years did not signify
an intention to continue her residence after leaving that place.
In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that "domicile" and
"residence" are synonymous. The term "residence", as used in the election law,
imports not only an intention to reside in a fixed place but also personal
presence in that place, coupled with conduct indicative of such intention.
"Domicile" denotes a fixed permanent residence to which when absent for
business or pleasure, or for like reasons, one intends to return. In that case,
petitioner Philip G. Romualdez established his residence during the early 1980's
in Barangay Malbog, Tolosa, Leyte. It was held that the sudden departure from
the country of petitioner, because of the EDSA People's Power Revolution of
1986, to go into self-exile in the United States until favorable conditions had
been established, was not voluntary so as to constitute an abandonment of
residence. The Court explained that in order to acquire a new domicile by
choice, there must concur (1) residence or bodily presence in the new locality,
(2) an intention to remain there, and (3) an intention to abandon the old
domicile. There must be animus manendi coupled with animus non revertendi.
The purpose to remain in or at the domicile of choice must be for an indefinite
period of time; the change of residence must be voluntary; and the residence
at the place chosen for the new domicile must be actual.
Ultimately, the Court recapitulates in Papandayan, Jr. that it is the fact of
residence that is the decisive factor in determining whether or not an individual
has satisfied the residency qualification requirement.

We do not doubt that the residency requirement is a means to prevent a

stranger or newcomer from holding office on the assumption that such stranger
or newcomer would be insufficiently acquainted with the needs of his
prospective constituents. However, it is appropriate to point out at this juncture
that aside from petitioners actual, physical presence in Sta. Rosa for more than
a year prior to election day, he has demonstrated that he has substantial ties to
Sta. Rosa and the First District of Laguna for an even longer period than that.
Petitioner has business interests in Sta. Rosa comprised of restaurants and a
residential property for lease. Petitioner has two children studying in Sta. Rosa
schools even before 2006. These circumstances provided petitioner with
material reasons to frequently visit the area and eventually take up residence
in the said district. Significantly, petitioner previously served as Board Member
and Vice-Governor for the Province of Laguna, of which the First District and
Sta. Rosa are a part. It stands to reason that in his previous elected positions
petitioner has acquired knowledge of the needs and aspirations of the residents
of the First District who were among his constituents.
Simply put, petitioner could not be considered a stranger to the community
which he sought to represent and that evil that the residency requirement was
designed to prevent is not present in this case.
We take this occasion to reiterate our ruling in Sinaca v. Mula,[46] to wit:

[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.
WHEREFORE, premises considered, the petition is hereby GRANTED. The
decision of the HRET in HRET CASE No. 07-034 promulgated on December 16,
2008, and its Minute Resolution No. 09-080 promulgated on April 30, 2009 in
the same case, are hereby REVERSED AND SET ASIDE.
SO ORDERED.

TUPAY T. LOONG, petitioner, vs. COMMISSION ON ELECTIONS and

ABDUSAKUR TAN, respondents, YUSOP JIKIRI, intervenor.
DECISION
PUNO, J.:

suspension of the automated counting of ballots throughout the Sulu province.

[6] On the same day, COMELEC issued Minute Resolution No. 98-1747 ordering
a manual count but only in the municipality of Pata. The resolution reads:[7]
"x x x x x x x x x

In a bid to improve our elections, Congress enacted R.A. No. 8436 on December
22, 1997 prescribing the adoption of an automated election system. The new
system was used in the May 11, 1998 regular elections held in the Autonomous
Region in Muslim Mindanao (ARMM) which includes the Province of Sulu. Atty.
Jose Tolentino, Jr. headed the COMELEC Task Force to have administrative
oversight of the elections in Sulu.
The voting in Sulu was relatively peaceful and orderly.[1] The problem started
during the automated counting of votes for the local officials of Sulu at the Sulu
State College. At about 6 a.m. of May 12, 1998, some election inspectors and
watchers informed Atty. Tolentino, Jr. of discrepancies between the election
returns and the votes cast for the mayoralty candidates in the municipality of
Pata. Some ballots picked at random by Atty. Tolentino, Jr. confirmed that votes
in favor of a mayoralty candidate were not reflected in the printed election
returns. He suspended the automated counting of ballots in Pata and
immediately communicated the problem to the technical experts of COMELEC
and the suppliers of the automated machine. After consultations, the experts
told him that the problem was caused by the misalignment of the ovals
opposite the names of candidates in the local ballots. They found nothing
wrong with the automated machines. The error was in the printing of the local
ballots, as a consequence of which, the automated machines failed to read
them correctly.[2]
At 12:30 p.m. of the same day, Atty. Tolentino, Jr. called for an emergency
meeting of the local candidates and the military-police officials overseeing the
Sulu elections. Those who attended were the various candidates for governor,
namely, petitioner Tupay Loong, private respondent Abdusakur Tan, intervenor
Yusop Jikiri and Kimar Tulawie. Also in attendance were Brig. Gen. Edgardo
Espinosa, AFP, Marine forces, Southern Philippines, Brig. Gen. Percival Subala,
AFP, 3rd Marine Brigade, Supt. Charlemagne Alejandrino, Provincial Director,
Sulu, PNP Command and congressional candidate Bensandi Tulawie.[3]
The meeting discussed how the ballots in Pata should be counted in light of the
misaligned ovals. There was lack of agreement. Those who recommended a
shift to manual count were Brig. Generals Espinosa and Subala, PNP Director
Alejandrino, gubernatorial candidates Tan and Tulawie and congressional
candidate Bensandi Tulawie. Those who insisted on an automated count were
gubernatorial candidates Loong and Jikiri. In view of their differences in opinion,
Atty. Tolentino, Jr. requested the parties to submit their written position papers.
[4]

"In the matter of the Petition dated May 12, 1998 of Abdusakur Tan, Governor,
Sulu, to suspend or stop counting of ballots through automation (sic) machines
for the following grounds, quoted to wit
'1.. The Election Returns for the Municipality of Pata, Province of Sulu-District II
do not reflect or reveal the mandate of the voters:
'DISCUSSIONS
'That the watchers called the attention of our political leaders and candidates
regarding their discovery that the election returns generated after the last
ballots for a precinct is scanned revealed that some candidates obtained zero
votes, among others the Provincial Board Members, Mayor, Vice-Mayor, and the
councilors for the LAKAS-NUCD-UMDP;
'That the top ballot, however, reveals that the ballots contained votes for Anton
Burahan, candidate for Municipal Mayor while the Election Return shows zero
vote;
'That further review of the Election Return reveals that John Masillam, candidate
for Mayor under the LAKAS-NUCD-UMDP-MNLF obtains (sic) 100% votes of the
total number of voters who actually voted;
'The foregoing discrepancies were likewise noted and confirmed by the
chairmen, poll clerks and members of the Board of Election Inspectors (BEI)
such as Rena Jawan, Matanka Hajirul, Dulba Kadil, Teddy Mirajuli, Rainer Talcon,
Mike Jupakal, Armina Akmad, Romulo Roldan and Lerma Marawali to mention
some;
'The Pata incident can be confirmed by no less than Atty. Jose Tolentino, Head,
Task Force Sulu, whose attention was called regarding the discrepancies;
'The foregoing is a clear evidence that the automated machine (scanner)
cannot be relied upon as to truly reflect the contents of the ballots. If such
happened in the Municipality of Pata, it is very possible that the same is
happening in the counting of votes in the other municipalities of this province.
If this will not be suspended or stopped, the use of automated machines will
serve as a vehicle to frustrate the will of the sovereign people of Sulu;

Reports that the automated counting of ballots in other municipalities in Sulu

was not working well were received by the COMELEC Task Force. Local ballots in
five (5) municipalities were rejected by the automated machines. These
municipalities were Talipao, Siasi, Tudanan, Tapul and Jolo. The ballots were
rejected because they had the wrong sequence code.[5]

'Wherefore, the foregoing premises considered and in the interest of an honest

and orderly election, it is respectfully prayed of this Honorable Commission that
an Order be issued immediately suspending or stopping the use of the
automated machine (scanner) in the counting of votes for all the eighteen (18)
municipalities in the Province of Sulu and in lieu thereof, to avoid delay,
counting be done through the usual way known and tested by us.'

Private respondent Tan and Atty. Tolentino, Jr. sent separate communications to
the COMELEC en banc in Manila. Still, on May 12, 1998, Tan requested for the

"While the commission does not agree with the conclusions stated in the
petition, and the failure of the machine to read the votes may have been

occasioned by other factors, a matter that requires immediate investigation,

but in the public interest, the Commission,
'RESOLVED to grant the Petition dated May 12, 1998 and to Order that the
counting of votes shall be done manually in the Municipality of PATA, the only
place in Sulu where the automated machine failed to read the ballots, subject
to notice to all parties concerned."'
Before midnight of May 12,1998, Atty. Tolentino, Jr. was able to send to the
COMELEC en banc his report and recommendation, urging the use of the
manual count in the entire Province of Sulu, viz:[8]
"The undersigned stopped the counting in the municipality of Pata since he
discovered that votes for a candidate for mayor was credited in favor of the
other candidate. Verification with the Sulu Technical Staff, including Pat Squires
of ES & S, reveals that the cause of the error is the way the ballot was printed.
Aside from misalignment of the ovals and use of codes assigned to another
municipality (which caused the rejection of all local ballots in one precinct in
Talipao), error messages appeared on the screen although the actual condition
of the ballots would have shown a different message. Because of these, the
undersigned directed that counting for all ballots in Sulu be stopped to enable
the Commission to determine the problem and rectify the same. It is submitted
that stopping the counting is more in consonance with the Commission's
mandate than proceeding with an automated but inaccurate count.
"In view of the error discovered in Pata and the undersigned's order to suspend
the counting, the following documents were submitted to him.
"1. Unsigned letter dated May 12, 1998 submitted by Congressman Tulawie for
manual counting and canvassing;
"2. Petition of Governor Sakur Tan for manual counting;
"3. Position paper of Tupay Loong, Benjamin Loong and Asani Tamang for
automated count;
"4. MNLF Position for automated count; and
"5. Recommendation of General E.V. Espinosa, General PM Subala, and PD CS
Alejandrino for manual count;
"Additional marines have been deployed at the SSC. The undersigned is not
sure if it is merely intended to tame a disorderly crowd, inside and outside SSC,
or a show of force.
"It is submitted that since an error was discovered in a machine which is
supposed to have an error rate of 1: 1,000,000, not a few people would believe
that this error in Pata would extend to the other municipalities. Whether or not
this is true, it would be more prudent to stay away from a lifeless thing that has
sown tension and anxiety among and between the voters of Sulu.
Respectfully submitted:
12 May 1998
(Sgd.) JOSE M. TOLENTINO, JR."

The next day, May 13, 1998, COMELEC issued Resolution No. 98-1750
approving Atty. Tolentino, Jr.'s recommendation and the manner of its
implementation as suggested by Executive Director Resurreccion Z. Borra. The
Resolution reads:[9]
"In the matter of the Memorandum dated 13 May 1998 of Executive Director
Resurreccion Z. Borra, pertinent portion of which is quoted as follows:
"In connection with Min. Res. No. 98-1747 promulgated May 12, 1998 which
resolved to order that the counting of votes shall be done manually in the
municipality of Pata, the only place in Sulu where the automated counting
machine failed to read the ballots, subject to notice to all parties concerned,
please find the following:
"1. Handwritten Memo of Director Jose M. Tolentino, Jr., Task Force Head, Sulu,
addressed to the Executive Director on the subject counting and canvassing in
the municipality of Pata due to the errors of the counting of votes by the
machine brought about by the error in the printing of the ballot, causing
misalignment of ovals and use of codes assigned to another municipality.
He recommended to revert to the manual counting of votes in the whole of
Sulu. He attached the stand of Congressman Tulawie, Governor Sakur Tan and
recommendation of Brigadier General Edgardo Espinosa, General Percival
Subla, P/Supt. Charlemagne Alejandrino for manual counting. The position
paper of former Governor Tupay Loong, Mr. Benjamin Loong and Mr. Asani S.
Tammang, who are candidates for Governor and Congressman of 1st and 2nd
Districts respectively, who wanted the continuation of the automated counting.
"While the forces of AFP are ready to provide arm (sic) security to our Comelec
officials, BEIs and other deputies, the political tensions and imminent violence
and bloodshed may not be prevented, as per report received, the MNLF forces
are readying their forces to surround the venue for automated counting and
canvassing in Sulu in order that the automation process will continue.
"Director Borra recommends, that while he supports Minute Resolution No. 981747, implementation thereof shall be done as follows:
"1. That all the counting machines from Jolo, Sulu be transported back by C130
to Manila and be located at the available space at PICC for purposes of both
automated and manual operations. This approach will keep the COMELEC
officials away from violence and bloodshed between the two camps who are
determined to slug each other as above mentioned in Jolo, Sulu. Only
authorized political party and candidate watchers will be allowed in PICC with
proper security, both inside and outside the perimeters of the venue at PICC.
"2. With this process, there will be an objective analysis and supervision of the
automated and manual operations by both the MIS and Technical Expert of the
ES & S away from the thundering mortars and the sounds of sophisticated
heavy weapons from both sides of the warring factions.
"3. Lastly, it will be directly under the close supervision and control of
Commission on Elections En Banc.

"RESOLVED:
"1. To transport all counting machines from Jolo, Sulu by C130 to Manila for
purposes of both automated and manual operations, with notice to all parties
concerned;
"2. To authorize the official travel of the board of canvassers concerned for the
conduct of the automated and manual operations of the counting of votes at
PICC under the close supervision and control of the Commission En Banc. For
this purpose, to make available a designated space at the PICC;
"3. To authorize the presence of only the duly authorized representative of the
political parties concerned and the candidates watchers both outside and inside
the perimeters of the venue at PICC."
Atty. Tolentino, Jr. furnished the parties with copies of Minute Resolution No. 981750 and called for another meeting the next day, May 14, 1998, to discuss the
implementation of the resolution.[10] The meeting was attended by the parties,
by Lt. Gen. Joselin Nazareno, then the Chief of the AFP Southern Command, the
NAMFREL, media, and the public. Especially discussed was the manner of
transporting the ballots and the counting machines to the PICC in Manila. They
agreed to allow each political party to have at least one (1) escort/ watcher for
every municipality to acompany the flight. Two C130s were used for the
purpose.[11]
On May 15, 1998, the COMELEC en banc issued Minute Resolution No. 98-1796
laying down the rules for the manual count, viz:[12]
"In the matter of the Memorandum dated 15 May 1998 of Executive Director
Resurreccion Z. Borra, quoted to wit:
'In the implementation of COMELEC Min. Resolution No. 98-1750 promulgated
13 May 1998 in the manual counting of votes of Pata, Sulu, and in view of the
arrival of the counting machines, ballot boxes, documents and other election
paraphernalia for the whole province of Sulu now stored in PICC, as well as the
arrival of the Municipal Board of Canvassers of said Municipality in Sulu, and
after conference with some members of the Senior Staff and Technical
Committee of this Commission, the following are hereby respectfully
recommended:
'1. Manual counting of the local ballots of the automated election system in
Pata, Sulu;
'2. Automated counting of the national ballots considering that there are no
questions raised on the National Elective Officials as pre-printed in the marksensed ballots;
'3. The creation of the following Special Boards of Inspectors under the
supervision of Atty. Jose M. Tolentino, Jr., Task Force Head, Sulu, namely:
a) Atty. Mamasapunod M. Aguam
Ms. Gloria Fernandez
Ms. Esperanza Nicolas

b) Director Ester L. Villaflor-Roxas

Ms. Celia Romero
Ms. Rebecca Macaraya
c) Atty. Zenaida S. Soriano
Ms. Jocelyn Guiang
Ma. Jacelyn Tan
d) Atty. Erlinda C. Echavia
Ms. Theresa A. Torralba
Ms. Ma. Carmen Llamas
e) Director Estrella P. de Mesa
Ms. Teresita Velasco
Ms. Nelly Jaena
'4. Additional Special Board of Inspectors may be created when necesary.
'5. The Provincial Board of Canvassers which by standing Resolution is headed
by the Task Force Sulu Head shall consolidate the manual and automated
results as submitted by the Municipal Boards of Canvassers of the whole
province with two members composed of Directors Estrella P. de Mesa and
Ester L. Villaflor-Roxas;
'6. The political parties and the candidates in Sulu as well as the Party-List
Candidates are authorized to appoint their own watchers upon approval of the
Commission',
'RESOLVED to approve the foregoing recommendations in the implementation
of Min. Resolution No. 98-1750 promulgated on 13 May 1998 providing for the
manual counting of votes in the municipality of Pata, Sulu.
'RESOLVED, moreover, considering the recommendation of Comm. Manolo B.
Gorospe, Commissioner-In-Charge, ARMM, to conduct a parallel manual
counting on all 18 municipalities of Sulu as a final guidance of the reliability of
the counting machine which will serve as basis for the proclamation of the
winning candidates and for future reference on the use of the automated
counting machine."'
On May 18, 1998, petitioner filed his objection to Minute Resolution No. 981796, viz:[13]
"1. The minute resolution under agenda No. 98-1796 violates the provisions of
Republic Act No. 8436 providing for an automated counting of the ballots in the
Autonomous Region in Muslim Mindanao. The automated counting is mandatory
and could not be substituted by a manual counting. Where the machines are
allegedly defective, the only remedy provided for by law is to replace the
machine. Manual counting is prohibited by law;
"2. There are strong indications that in the municipality of Pata the ballots of
the said municipality were rejected by the counting machine because the
ballots were tampered and/or the texture of the ballots fed to the counting
machine are not the official ballots of the Comelec;

"3. The automated counting machines of the Comelec have been designed in
such a way that only genuine official ballots could be read and counted by the
machine;
"4. The counting machines in the other municipalities are in order. In fact, the
automated counting has already started. The automated counting in the
municipalities of Lugus and Panglima Tahil has been completed. There is no
legal basis for the 'parallel manual counting' ordained in the disputed minute
resolution."
Nonetheless, COMELEC started the manual count on the same date, May
18,1998.
On May 25, 1998, petitioner filed with this Court a petition for certiorari and
prohibition under Rule 65 of the Rules of Court. He contended that: (a)
COMELEC issued Minute Resolution Nos. 98-1747, 98-1750, and 98-1798
without prior notice and hearing to him; (b) the order for manual counting
violated R.A. No. 8436; (c) manual counting gave "opportunity to the following
election cheatings," namely:
"(a) The counting by human hands of the tampered, fake and counterfeit
ballots which the counting machines have been programmed to reject (Section
7, 8 & 9 of Rep. Act 8436).
"(b) The opportunity to substitute the ballots all stored at the PICC. In fact, no
less than the head of the COMELEC Task Force of Sulu, Atty. Jose M. Tolentino, Jr.
who recommended to the COMELEC the anomalous manual counting, had
approached the watchers of petitioners to allow the retrieval of the ballots,
saying "tayo, tayo lang mga watchers, pag-usapan natin," dearly indicating
overtures of possible bribery of the watchers of petitioner (ANNEX E).
"(c) With the creation by the COMELEC of only 22 Boards of Election Inspectors
to manually count the 1,194 precincts, the manipulators are given sufficient
time to change and tamper the ballots to be manually counted.
"(d) There is the opportunity of delaying the proclamation of the winning
candidates through the usually dilatory moves in a pre-proclamation
controversy because the returns and certificates of canvass are already human
(sic) made. In the automated counting there is no room for any dilatory preproclamation controversy because the returns and the MBC and PBC
certificates of canvass are machine made and immediate proclamation is
ordained thereafter."
Petitioner then prayed:
"WHEREFORE, it is most especially prayed of the Honorable Court that:
"1. upon filing of this petition, a temporary restraining order be issued enjoining
the COMELEC from conducting a manual counting of the ballots of the 1,194
precincts of the 18 municipalities of the Province of Sulu but instead proceed
with the automated counting of the ballots, preparation of the election returns
and MBC, PBC certificates of canvass and proclaim the winning candidates on
the basis of the automated counting and consolidation of results;

"2. this petition be given due course and the respondents be required to
answer;
"3. after due hearing, the questioned COMELEC En Banc Minute Resolutions of
May 12, 13, 15, and 17, 1998 be all declared null and void ab initio for having
been issued without jurisdiction and/or with grave abuse of discretion
amounting to lack of jurisdiction and for being in violation of due process of
law;
" 4. the winning candidates of the Province of Sulu be proclaimed on the basis
of the results of the automated counting, automated election returns,
automated MBC and PBC certificates of canvass;
"x x x."
On June 8, 1998, private respondent Tan was proclaimed governor- elect of Sulu
on the basis of the manual count.[14] Private respondent garnered 43,573
votes. Petitioner was third with 35,452 votes or a difference of 8,121 votes.
On June 23, 1998, this Court required the respondents to file their Comment to
the petition and directed the parties "to maintain the status quo prevailing at
the time of the filing of the petition."[15] The vice-governor elect was allowed
to temporarily discharge the powers and functions of governor.
On August 20, 1998, Yusop Jikiri, the LAKAS-NUCD-UMDP-MNLF candidate for
governor filed a motion for intervention and a Memorandum in Intervention.
[16] The result of the manual count showed he received 38,993 votes and
placed second. Similarly, he alleged denial of due process, lack of factual basis
of the COMELEC resolutions and illegality of manual count in light of R.A. No.
8436. TheCourt noted his intervention.[17] As similar petition for intervention
filed by Abdulwahid Sahidulla, a candidate for vice-governor, on October 7,
1998 was denied as it was filed too late.
In due time, the parties filed their respective Comments. On September 25,
1998, the Court heard the parties in oral arguments[18] which was followed by
the submission of their written memoranda.
The issues for resolution are the following:
1. Whether or not a petition for certiorari and prohibition under Rule 65 of the
Rules of Court is the appropriate remedy to invalidate the disputed COMELEC
resolutions.
2. Assuming the appropriateness of the remedy, whether or not COMELEC
committed grave abuse of discretion amounting to lack of jurisdiction in
ordering a manual count.
2.a. Is there a legal basis for the manual count?
2-b. Are its factual bases reasonable?
2.c. Were the petitioner and the intervenor denied due process by the
COMELEC when it ordered a manual count?

3. Assuming the manual count is illegal and that its result is unreliable, whether
or not it is proper to call for a special election for the position of governor of
Sulu.
We shall resolve the issues in seriatim.
First. We hold that certiorari is the proper remedy of the petitioner. Section 7,
Article IX(A) of the 1987 Constitution states that if "unless provided by this
Constitution or by law, any decision, order or ruling of each Commission may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty
days from receipt of a copy thereof." We have interpreted this provision to
mean final orders, rulings and decisions of the COMELEC rendered in the
exercise of its adjudicatory or quasi-judicial powers.[19] Contrariwise,
administrative orders of the COMELEC are not, as a general rule, fit subjects of
a petition for certiorari. The main issue in the case at bar is whether the
COMELEC gravely abused its discretion when it ordered a manual count of the
1998 Sulu local elections. A resolution of the issue will involve an interpretation
of R.A. No. 8436 on automated election in relation to the broad power of the
COMELEC under Section 2(1), Article IX(C) of the Constitution "to enforce and
administer all laws and regulations relative to the conduct of an election x x x."
The issue is not only legal but one of first impression and undoubtedly suffused
with significance to the entire nation. It is adjudicatory of the right of the
petitioner, the private respondent and the intervenor to the position of
governor of Sulu. These are enough considerations to call for an exercise of the
certiorari jurisdiction of this Court.
Second. The big issue, one of first impression, is whether the COMELEC
committed grave abuse of discretion amounting to lack of jurisdiction when it
ordered a manual count in light of R.A. No. 8436. The post election realities on
ground will show that the order for a manual count cannot be characterized as
arbitrary, capricious or whimsical.
a. It is well established that the automated machines failed to read correctly
the ballots in the municipality of Pata. A mayoralty candidate, Mr. Anton
Burahan, obtained zero votes despite the representations of the Chairman of
the Board of Election Inspectors and others that they voted for him. Another
candidate garnered 100% of the votes.
b. It is likewise conceded that the automated machines rejected and would not
count the local ballots in the municipalities of Talipao, Siasi, Indanan, Tapal and
Jolo.
c. These flaws in the automated counting of local ballots in the municipalities of
Pata, Talipao, Siasi, Indanan, Tapal and Jolo were carefully analyzed by the
technical experts of COMELEC and the supplier of the automated machines. All
of them found nothing wrong with the automated machines. They traced the
problem to the printing of local ballots by the National Printing Office. In the
case of the municipality of Pata, it was discovered that the ovals of the local
ballots were misaligned and could not be read correctly by the automated
machines. In the case of the municipalities of Talipao, Siasi, Indanan, Tapal and
Jolo, it turned out that the local ballots contained the wrong sequence code.
Each municipality was assigned a sequence code as a security measure. Ballots
with the wrong sequence code were programmed to be rejected by the
automated machines.

It is plain that to continue with the automated count in these five (5)
municipalities would result in a grossly erroneous count. It cannot also be
gainsaid that the count in these five (5) municipalities will affect the local
elections in Sulu. There was no need for more sampling of local ballots in these
municipalities as they suffered from the same defects. All local ballots in Pata
with misaligned ovals will be erroneously read by the automated machines.
Similarly, all local ballots in Talipao, Siasi, Indanan, Tapal and Jolo with wrong
sequence codes are certain to be rejected by the automated machines. There is
no showing in the records that the local ballots in these five (5) municipalities
are dissimilar which could justify the call for their greater sampling.
Third. These failures of automated counting created post election tension in
Sulu, a province with a history of violent elections. COMELEC had to act
decisively in view of the fast deteriorating peace and order situation caused by
the delay in the counting of votes. The evidence of this fragile peace and order
cannot be downgraded. In his handwritten report to the COMELEC dated May
12, 1998, Atty. Tolentino, Jr. stated:
"x x x
"Additional marines have been deployed at the SSC. The undersigned is not
sure if it is merely intended to tame a disorderly crowd inside and outside SSC,
or a show of force.
"It is submitted that since an error was discovered in a machine which is
supposed to have an error rate of 1:1,000,000, not a few people would believe
that this error in Pata would extend to the other municipalities. Whether or not
this is true, it would be more prudent to stay away from a lifeless thing that has
sown tension and anxiety among and between the voters of Sulu."
Executive Director Resurreccion Z. Borra, Task Force Head, ARMM in his May
13,1998 Memorandum to the COMELEC likewise stated:
"x x x
"While the forces of AFP are ready to provide arm (sic) security to our COMELEC
officials, BEI's and other deputies, the political tensions and imminent violence
and bloodshed may not be prevented, as per report received, the MNLF forces
are readying their forces to surround the venue for automated counting and
canvassing in Sulu in order that automation process will continue."
Last but not the least, the military and the police authorities unanimously
recommended manual counting to preserve peace and order. Brig. Gen.
Edgardo V. Espinosa, Commanding General, Marine Forces Southern Philippines,
Brig. Gen. Percival M. Subala, Commanding General, 3rd Marine Brigade, and
Supt. Charlemagne S. Alejandrino, Provincial Director, Sulu PNP Command
explained that it "x x x will not only serve the interest of majority of the political
parties involved in the electoral process but also serve the interest of the
military and police forces in maintaining peace and order throughout the
province of Sulu."
An automated count of the local votes in Sulu would have resulted in a wrong
count, a travesty of the sovereignty of the electorate. Its aftermath could have

been a bloodbath. COMELEC avoided this imminent probability by ordering a

manual count of the votes. It would be the height of irony if the Court
condemns COMELEC for aborting violence in the Sulu elections.
Fourth. We also find that petitioner Loong and intervenor Jikiri were not denied
due process. The Tolentino memorandum clearly shows that they were given
every opportunity to oppose the manual count of the local ballots in Sulu. They
were orally heard. They later submitted written position papers. Their
representatives escorted the transfer of the ballots and the automated
machines from Sulu to Manila. Their watchers observed the manual count from
beginning to end. We quote the Tolentino memorandum, viz:
"x x x
"On or about 6:00 a.m. of May 12, 1998, while automated counting of all the
ballots for the province of Sulu was being conducted at the counting center
located at the Sulu State College, the COMELEC Sulu Task Force Head (TF Head)
proceeded to the room where the counting machine assigned to the
municipality of Pata was installed to verify the cause of the commotion therein.
"During the interview conducted by the TF Head, the members of the Board of
Election Inspectors (BEI) and watchers present in said room stated that the
counting machine assigned to the municipality of Pata did not reflect the true
results of the voting thereat. The members of the BEI complained that their
votes were not reflected in the printout of the election returns since per
election returns of their precincts, the candidate they voted for obtained "zero".
After verifying the printout of some election returns as against the official
ballots, the TF Head discovered that votes cast in favor of a mayoralty
candidate were credited in favor of his opponents.
"In his attempt to remedy the situation, the TF Head suspended the counting of
all ballots for said municipality to enable COMELEC field technicians to
determine the cause of the technical error, rectify the same, and thereafter
proceed with automated counting. In the meantime, the counting of the ballots
for the other municipalities proceeded under the automated system.

"On or about 12:30 p.m., the TF Head presided over a conference at Camp
General Bautista (3rd Marine Brigade) to discuss the process by which the will
of the electorate could be determined. Present during the meeting were:
1. Brig. Gen. Edgardo Espinoza
Marine Forces, Southern Philippines
2. Brig. Gen. Percival Subala
3rd Marine Brigade
3. Provincial Dir. Charlemagne Alejandrino
Sulu PNP Command
4. Gubernatorial Candidate Tupay Loong
LAKAS-NUCD Loong Wing
5. Gubernatorial Candidate Abdusakur Tan
LAKAS-NUCD Tan Wing
6. Gubernatorial Candidate Yusop Jikiri
LAKAS-NUCD-MNLF Wing
7. Gubernatorial Candidate Kimar Tulawie
LAMMP
8. Congressional Candidate Bensaudi Tulawie
LAMMP
"During said meeting, all of the above parties verbally advanced their
respective positions. Those in favor of a manual count were:
1. Brig. Gen. Edgardo Espinoza
2. Brig. Gen. Percival Subala
3. Provincial Dir. Charlemagne Alenjandrino

"Technical experts of the supplier based in Manila were informed of the problem
and after numerous consultations through long distance calls, the technical
experts concluded that the cause of the error was in the manner the ballots for
local positions were printed by the National Printing Office (NPO), namely, that
the ovals opposite the names of the candidates were not properly aligned. As
regards the ballots for national positions, no error was found.
"Since the problem was not machine-related, it was obvious that the use of
counting machines from other municipalities to count the ballots of the
municipality of Pata would still result in the same erroneous count. Thus, it was
found necessary to determine the extent of the error in the ballot printing
process before proceeding with the automated counting.
"To avoid a situation where proceeding with automation will result in an
erroneous count, the TF Head, on or about 11:45 a.m. ordered the suspension
of the counting of all ballots in the province to enable him to call a meeting
with the heads of the political parties which fielded candidates in the province,
inform them of the technical error, and find solutions to the problem.

4. Gubernatorial Candidate Abdusakur Tan

5. Gubernatorial Candidate Kimar Tulawie
6. Congressional Candidate Bensaudi Tulawie and those in favor of an
automated count were:
1. Gubernatorial Candidate Tupay Loong
2. Gubernatorial Candidate Yusop Jikiri
"Said parties were then requested by the TF Head to submit their respective
position papers so that the same may be forwarded to the Commission en
banc, together with the recommendations of the TF Head.
'The TF Head returned to the counting center at the Sulu State College and
called his technical staff to determine the extent of the technical error and to

enable him to submit the appropriate recommendation to the Commission en

banc.
"Upon consultation with the technical staff, it was discovered that in the
Municipality of Talipao, some of the local ballots were rejected by the machine.
Verification showed that while the ballots were genuine, ballot paper bearing a
wrong "sequence code" was used by the NPO during the printing process.
"Briefly, the following is the manner by which a sequence code" determined
genuineness of a ballot. A municipality is assigned a specific machine (except
for Jolo, which was assigned two (2) machines, and sharing of one (1) machine
by two (2) municipalities, namely, H.P. Tahil and Maimbung, Pandami and K.
Caluang, Pata and Tongkil and Panamao and Lugus). A machine is then
assigned a specific "sequence code" as one of the security features to detect
whether the ballots passing through it are genuine. Since a counting machine is
programmed to read the specific "sequence code" assigned to it, ballots which
bear a "sequence code" assigned to another machine/municipality, even if said
ballots were genuine, will be rejected by the machine.
"Other municipalities, such as Siasi, Indanan, Tapul and Jolo also had the same
problem of rejected ballots. However, since the machine operators were not
aware that one of the reasons for rejection of ballots is the use of wrong
"sequence code", they failed to determine whether the cause for rejection of
ballots for said municipalities was the same as that for the municipality of
Talipao.
"In the case of 'misaligned ovals', the counting machine will not reject the
ballot because all the security features, such as "sequence code", are present
in the ballot, however, since the oval is misaligned or not placed in its proper
position, the machine will credit the shaded oval for the position where the
machine is programmed to "read" the oval. Thus, instead of rejecting the ballot,
the machine will credit the votes of a candidate in favor of his opponent, or in
the adjacent space where the oval should be properly placed.
"It could not be determined if the other municipalities also had the same
technical error in their official ballots since the "misaligned ovals" were
discovered only after members of the Board of Election Inspectors of the
Municipality of Pata complained that their votes were not reflected in the
printout of the election returns.
"As the extent or coverage of the technical errors could not be determined, the
TF Head, upon consultation with his technical staff, was of the belief that it
would be more prudent to count the ballots manually than to proceed with an
automated system which will result in an erroneous count.
"The TF Head thus ordered the indefinite suspension of counting of ballots until
such time as the Commission shall have resolved the petition/position papers to
be submitted by the parties. The TF Head and his staff returned to Camp
General Bautista to await the submission of the position papers of the parties
concerned.
"Upon receipt of the position papers of the parties, the TF Head faxed the same
in the evening of May 12, 1998, together with his handwritten recommendation
to proceed with a manual count." Attached are copies of the recommendations

of the TF Head (Annex "1"), and the position papers of the Philippine Marines
and Philippine National Police (Annex "2"), LAKAS-NUCD Tan Wing Annex (Annex
"3"), Lakas-NUCD Loong Wing (Annex "4"), LAKAS-NUCD-MNLF Wing (Annex
"5") and LAMMP (Annex "6"). Said recommendations and position papers were
the bases for the promulgation of COMELEC Minute Resolution No. 98-1750
dated May 13, 1998 (Annex "7"), directing among other things, that the ballots
and counting machines be transported by C130 to Manila for both automated
and manual operations.
"Minute Resolution No. 98-1750 was received by the TF Head through fax on or
about 5:30 in the evening of May 13, 1998. Copies were then served through
personal delivery to the heads of the political parties, with notice to them that
another conference will be conducted at the 3rd Marine Brigade on May 14,
1998 at 9:00 o'clock in the morning, this time, with Lt. General Joselin
Nazareno, then AFP Commander, Southern Command. Attached is a copy of
said notice (Annex "8") bearing the signatures of candidates Tan (Annex "8-A")
and Loong (Annex "8-B"), and the representatives of candidates Tulawie (Annex
"8-C") and Jikiri (Annex "8-D").
"On May 14, 1998, the TF Head presided over said conference in the presence
of the heads of the political parties of Sulu, together with their counsel,
including Lt. Gen. Nazareno, Brig. Gen. Subala, representatives of the
NAMFREL, media and the public.
"After hearing the sides of all parties concerned, including that of NAMFREL, the
procedure by which the ballots and counting machines were to be transported
to Manila was finalized, with each political party authorized to send at least one
(1) escort/watcher for every municipality to accompany the ballot boxes and
counting machines from the counting center at the Sulu State College to the
Sulu Airport up to the PICC, where the COMELEC was then conducting its
Senatorial Canvass. There being four parties, a total of seventy-two (72)
escorts/watchers accompanied the ballots and counting machines.
"Two C130s left Sulu on May 15, 1998 to transport all the ballot boxes and
counting machines, accompanied by all the authorized escorts. Said ballots
boxes reached the PICC on the same day, with all the escorts/watchers allowed
to station themselves at the ballot box storage area. On May 17, 1998, another
C130 left Sulu to ferry the members of the board of canvassers."
Fifth. The evidence is clear that the integrity of the local ballots was
safeguarded when they were transferred from Sulu to Manila and when they
were manually counted.
As shown by the Tolentino memorandum, representatives of the political parties
escorted the transfer of ballots from Sulu to PICC. Indeed, in his May 14, 1992
letter to Atty. Tolentino, Jr., petitioner Tupay Loong himself submitted the names
of his representatives who would accompany the ballot boxes and other
election paraphernalia, viz:[20]
"Dear Atty. Tolentino:
"Submitted herewith are the names of escort(s) to accompany the ballot boxes
and other election pharaphernalia to be transported to COMELEC, Manila, to
wit:

1. Jolo - Joseph Lu
2. Patikul - Fathie B. Loong
3. Indanan - - Dixon Jadi
4. Siasi - Jamal Ismael
5. K. Kaluang - Enjimar Abam
6. Pata - Marvin Hassan
7. Parang - Siyang Loong
8. Pangutaran - Hji. Nasser Loong
9. Marunggas - Taib Mangkabong
10. Luuk - Jun Arbison
11. Pandami - Orkan Osman
12. Tongkil - Usman Sahidulla
13. Tapul - Alphawanis Tupay
14. Lugus - Patta Alih
15. Maimbong - Mike Bangahan
16. P. Estino - Yasir lbba
17. Panamao - Hamba Loong
18. Talipao - Ismael Sali

"In the matter of the Memorandum dated 17 May 1998 of Executive Director
Resurreccion Z. Borra, re procedure of the counting of votes for Sulu for the
convening of the Board of Election Inspectors, the Municipal Board of
Canvassers and the Provincial Board of Canvassers on May 18, 1998 at 9:00
a.m. at the Philippine International Convention Center (PICC),
'RESOLVED to approve the following procedure for the counting of votes for
Sulu at the PICC:
'I. Common Provisions:
'1. Open the ballot box, retrieve the Minutes of Voting and the uncounted
ballots or the envelope containing the counted ballots as the case may be;
'2. Segregate the national ballots from the local ballots;
'3. Count the number of pieces of both the national and local ballots and
compare the same with the number of votes who actually voted as stated in
the Minutes of Voting:

"Hoping for your kind and (sic) consideration for approval on this matter.
"Thank you.
Very truly yours,

- If there is no Minutes of Voting, refer to the Voting Records at the back of the
VRRs to determine the number of voters who actually voted.

(Sgd.) Tupay T. Loong

- If there are more ballots than the number of voters who actually voted, the
poll clerk shall draw out as many local and national ballots as may be equal to
the excess and place them in the envelope for excess ballots.

(Sgd.) Asani S. Tammang"

'II Counting of Votes

The ballot boxes were consistently under the watchful eyes of the parties'
representatives. They were placed in an open space at the PICC. The watchers
stationed themselves some five (5) meters away from the ballot boxes. They
watched 24 hours a day and slept at the PICC.[21]

'A. National Ballots:

The parties' watchers again accompanied the transfer of the ballot boxes from
PICC to the public schools of Pasay City where the ballots were counted. After
the counting they once more escorted the return of the ballot boxes to PICC.
[22]
In fine, petitioner's charge that the ballots could have been tampered with
before the manual counting is totally unfounded.

'1. If the national ballots have already been counted, return the same inside the
envelope for counted ballots, reseal and place the envelope inside the ballot
box;
'2. If the national ballots have not yet been counted, place them inside an
envelope and give the envelope through a liaison officer to the machine
operator concerned for counting and printing of the election returns;
'3. The machine operator shall affix his signature and thumbmark thereon, and
return the same to the members of the BEI concerned for their signatures and
thumbmarks;

Sixth. The evidence also reveals that the result of the manual count is reliable.
It bears stressing that the ballots used in the case at bar were specially made
to suit an automated election. The ballots were uncomplicated. They had fairly
large ovals opposite the names of candidates. A voter needed only to check the
oval opposite the name of his candidate. When the COMELEC ordered a manual
count of the votes, it issued special rules as the counting involved a different
kind of ballot, albeit, more simple ballots. The Omnibus Election Code rules on
appreciation of ballots cannot apply for they only apply to elections where the
names of candidates are handwritten in the ballots. The rules were spelled out
in Minute Resolution 98-1798, viz:[23]

'4. The said returns shall then be placed in corresponding envelopes for
distribution;
'B. Local Ballots:
'1. Group the local ballots in piles of fifty (50);
'2. The Chairman shall read the votes while the poll clerk and the third member
shall simultaneously accomplish the election returns and the tally board
respectively.

'If the voters shaded more ovals than the number of positions to be voted for,
no vote shall be counted in favor of any candidate.
'3. After all the local ballots shall have been manually counted, the same shall
be given to the machine operator concerned for counting by the scanning
machine. The machine operator shall then save the results in a diskette and
print out the election returns for COMELEC reference.
'4. The BEI shall accomplish the certification portion of the election returns and
announce the results;
'5. Place the election returns in their respective envelopes and distribute them
accordingly;
'6. Return all pertinent election documents and paraphernalia inside the ballot
box.

Ms. Gloria Fernandez

Ms. Esperanza Nicolas
b) Director Ester L. Villaflor-Roxas
Ms. Celia Romero
Ms. Rebecca Macaraya
c) Atty. Zenaida S. Soriano
Ms. Jocelyn Guiang
Ma. Jocelyn Tan
d) Atty. Erlinda C. Echavia
Ms. Teresa A. Torralba
Ms. Ma. Carmen Llamas
e) Director Estrella P. de Mesa
Ms. Teresita Velasco
Ms. Nelly Jaena"

'III. Consolidation of Results

Later, the COMELEC utilized the services of 600 public school teachers from
Pasay City to do the manual counting. Five (5) elementary schools served as
the venues of the counting, viz:[25]

'A. National Ballots

'1. The results of the counting for the national ballots for each municipality shall
be consolidated by using the ERs of the automated election system;
'2. After the consolidation, the Machine Operator shall print the certificate of
canvass by municipality and statement of votes by precinct;
'3. To consolidate the provincial results, the MO shall load all the diskettes used
in the scanner to the ERs;
'4. The MO shall print the provincial certificate of canvass and the SOV by
municipality;
'5. In case there is system failure in the counting and/or consolidation of the
results, the POBC/MOBC shall revert to manual consolidation.

"1. Gotamco Elementary School, Gotamco Street, Pasay City - for the
municipalities of Indanan, Pangutaran, Panglima Tahil, Maimbung;
"2. Zamora Elementary School, Zamora Street, Pasay
municipalities of Jolo, Talipao, Panglima Estino, and Tapul;

City -

for the

"3. Epifanio Elementary School, Tramo Street, Pasay City - for the municipalities
of Parang, Lugus, Panamao;
"4. Burgos Elementary School, Burgos Street, Pasay City - for the municipalities
of Luuk and Tongkil;
5. Palma Elementary School - for the municipalities of Siasi and Kalingalang
Caluang."

'B. Local Ballots

'1. - The consolidation of votes shall
Provincial/Municipal Board of Canvassers;

be

done

manually

by

the

'2. The proclamation of winning candidates shall be based on the manual

consolidation.
'RESOLVED, moreover, that the pertinent provisions of COMELEC Resolution
Nos. 2971 and 3030 shall apply.
'Let the Executive Director implement this resolution."'
As aforestated, five (5) Special Boards were initially created under Atty.
Tolentino, Jr. to undertake the manual counting,[24] viz:
"a) Atty. Mamasapunod M. Aguam

From beginning to end, the manual counting was done with the watchers of the
parties concerned in attendance. Thereafter, the certificates of canvass were
prepared and signed by the City/Municipal Board of Canvassers composed of
the Chairman, Vice-Chairman, and Secretary. They were also signed by the
parties' watchers.[26]
The correctness of the manual count cannot therefore be doubted. There was
no need for an expert to count the votes. The naked eye could see the
checkmarks opposite the big ovals. Indeed, nobody complained that the votes
could not be read and counted. The COMELEC representatives had no difficulty
counting the votes. The 600 public school teachers of Pasay City had no
difficulty. The watchers of the parties had no difficulty. Petitioner did not object
to the rules on manual count on the ground that the ballots cannot be manually
counted. Indeed, in his original Petition, petitioner did not complain that the
local ballots could not be counted by a layman. Neither did the intervenor

complain in his petition for intervention. The allegation that it will take a trained
eye to read the ballots is more imagined than real.

defining the parameters of powers of COMELEC in the conduct of our elections.

Thus, we held in Sumulong v. COMELEC:[28]

This is not all. As private respondent Tan alleged, the manual count could not
have been manipulated in his favor because the results show that most of his
political opponents won. Thus, "the official results show that the two
congressional seats in Sulu were won by Congressman Hussin Amin of the
LAKAS-MNLF Wing for the 1st District and Congressman Asani Tammang of the
LAKAS-Loong Wing for the 2nd District. In the provincial level, of the eight (8)
seats for the Sangguniang Panlalawigan, two (2) were won by the camp of
respondent Tan; three (3) by the camp of petitioner Loong; two (2) by the MNLF;
and one (1) by LAMMP. In the mayoral race, seven (7) out of eighteen (18)
victorious municipal mayors were identified with respondent Tan; four (4) with
petitioner Loong; three (3) with the MNLF; two (2) with LAMMP and one (1) with
REPORMA."[27] There is logic to private respondent Tan's contention that if the
manual count was tampered, his candidates would not have miserably lost.

"Politics is a practical matter, and political questions must be dealt with

realistically - not from the standpoint of pure theory. The Commission on
Elections, because of its fact-finding facilities, its contacts with political
strategists, and its knowledge derived from actual experience in dealing with
political controversies, is in a peculiarly advantageous position to decide
complex political questions x x x. There are no ready made formulas for solving
public problems. Time and experience are necessary to evolve patterns that will
serve the ends of good government. In the matter of the administration of laws
relative to the conduct of election, x x x we must not by any excessive zeal
take away from the Commission on Elections the initiative which by
constitutional and legal mandates properly belongs to it."

Seventh. We further hold that petitioner cannot insist on automated counting

under R.A. No. 8436 after the machines misread or rejected the local ballots in
five (5) municipalities in Sulu. Section 9 of R.A. No. 8436 provides:
"SEC. 9. Systems Breakdown in the Counting Center. In the event of a systems
breakdown of all assigned machines in the counting center, the Commission
shall use any available machine or any component thereof from another
city/municipality upon approval of the Commission En Banc or any of its
divisions.
The transfer of such machines or any component thereof shall be undertaken in
the presence of representatives of political parties and citizens' arm of the
Commission who shall be notified by the election officer of such transfer.
There is a systems breakdown in the counting center when the machine fails to
read the ballots or fails to store/save results or fails to print the results after it
has read the ballots; or when the computer fails to consolidate election
results/reports or fails to print election results/reports after consolidation."
As the facts show, it was inutile for the COMELEC to use other machines to
count the local votes in Sulu. The errors in counting were due to the misprinting
of ovals and the use of wrong sequence codes in the local ballots. The errors
were not machine-related. Needless to state, to grant petitioner's prayer to
continue the machine count of the local ballots will certainly result in an
erroneous count and subvert the will of the electorate.
Eighth. In enacting R.A. No. 8436, Congress obviously failed to provide a
remedy where the error in counting is not machine-related for human foresight
is not all-seeing. We hold, however, that the vacuum in the law cannot prevent
the COMELEC from levitating above the problem. Section 2(1) of Article IX(C) of
the Constitution gives the COMELEC the broad power "to enforce and
administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum and recall." Undoubtedly, the text and intent
of this provision is to have COMELEC all the necessary and incidental powers for
it to achieve the objective of holding free, orderly, honest, peaceful, and
credible elections. Congruent to this intent, this Court has not been niggardly in

In the case at bar, the COMELEC order for a manual count was not only
reasonable. It was the only way to count the decisive local votes in the six (6)
municipalities of Pata, Talipao, Siasi, Tudanan, Tapul and Jolo. The bottom line is
that by means of the manual count, the will of the voters of Sulu was honestly
determined. We cannot kick away the will of the people by giving a literal
interpretation to R.A. 8436. R.A. 8436 did not prohibit manual counting when
machine count does not work. Counting is part and parcel of the conduct of an
election which is under the control and supervision of the COMELEC. It ought to
be self-evident that the Constitution did not envision a COMELEC that cannot
count the result of an election.
Ninth. Our elections are not conducted under laboratory conditions. In running
for public offices, candidates do not follow the rules of Emily Post. Too often,
COMELEC has to make snap judgments to meet unforseen circumstances that
threaten to subvert the will of our voters. In the process, the actions of
COMELEC may not be impeccable, indeed, may even be debatable. We cannot,
however, engage in a swivel chair criticism of these actions often taken under
very difficult circumstances. Even more, we cannot order a special election
unless demanded by exceptional circumstances. Thus, the plea for this Court to
call a special election for the governorship of Sulu is completely off-line. The
plea can only be grounded on failure of election. Section 6 of the Omnibus
Election Code tells us when there is a failure of election, viz:
"Sec. 6. Failure of election. - If on account of force majeure, terrorism, fraud, or
other analogous causes, the election in any polling place has not been held on
the date fixed, or had been suspended before the hour fixed by law for the
closing of the voting, or after the voting and during the preparation and the
transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of such cases the failure or
suspension of election would affect the result of the election, the Commission
shall on the basis of a verified petition by any interested party and after due
notice and hearing, call for the holding or continuation of the election, not held,
suspended or which resulted in a failure to elect but not later than thirty days
after the cessation of the cause of such postponement or suspension of the
election or failure to elect."
To begin with, the plea for a special election must be addressed to the
COMELEC and not to this Court. Section 6 of the Omnibus Election Code should
be read in relation to Section 4 of R.A. No. 7166 which provides:

"Sec. 4. Postponement, Failure of Election and Special Elections. - The

postponement, declaration of failure of elections 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 en banc by a majority vote of its members. The
causes for the declaration of a failure of election may occur before or after
casting of votes or on the day of the election."
The grounds for failure of election - force majeure, terrorism, fraud or other
analogous causes - clearly involve questions of fact. It is for this reason that
they can only be determined by the COMELEC en banc after due notice and
hearing to the parties. In the case at bar, petitioner never asked the COMILEC
en banc to call for a special election in Sulu. Even in his original petition with
this Court, petitioner did not pray for a special election. His plea for a special
election is a mere afterthought. Too late in the day and too unprocedural.
Worse, the grounds for failure of election are inexistent. The records show that
the voters of Sulu were able to cast their votes freely and fairly. Their votes
were counted correctly, albeit manually. The people have spoken. Their
sovereign will has to be obeyed.
There is another reason why a special election cannot be ordered by this Court.
To hold a special election only for the position of Governor will be discriminatory
and will violate the right of private respondent to equal protection of the law.
The records show that all elected officials in Sulu have been proclaimed and are
now discharging their powers and duties. Thus, two (2) congressmen, a vicegovernor, eight (8) members of the Sangguniang Panlalawigan and eighteen
(18) mayors, numerous vice-mayors and municipal councilors are now serving
in their official capacities. These officials were proclaimed on the basis of the
same manually counted votes of Sulu. If manual counting is illegal, their
assumption of office cannot also be countenanced. Private respondent's
election cannot be singled out as invalid for alikes cannot be treated unalikes.
A final word. Our decision merely reinforces our collective efforts to endow
COMELEC with enough power to hold free, honest, orderly and credible
elections. A quick flashback of its history is necessary lest our efforts be lost in
the labyrinth of time.
The COMELEC was organized under Commonwealth Act No. 607 enacted on
August 22,1940. The power to enforce our election laws was originally vested in
the President and exercised through the Department of Interior. According to
Dean Sinco,[29] the view ultimately emerged that an independent body could
better protect the right of suffrage of our people. Hence, the enforcement of
our election laws, while an executive power, was transferred to the COMELEC.
From a statutory creation, the COMELEC was transformed to a constitutional
body by virtue of the 1940 amendments to the 1935 Constitution which took
effect on December 2, 1940. COMELEC was generously granted the power to
"have exclusive charge of the enforcement and administration of all laws
relative to the conduct of elections x x x."[30]
Then came the 1973 Constitution. It further broadened the powers of COMELEC
by making it the sole Judge of all election contests relating to the election,
returns and qualifications of members of the national legislature and elective

provincial and city officials.[31] In fine, the COMELEC was given judicial power
aside from its traditional administrative and executive functions.
The 1987 Constitution quickened this trend of strengthening the COMELEC.
Today, COMLEC enforces and administers all laws and regulations relative to
the conduct of elections, plebiscites, initiatives, referenda and recalls. Election
contests involving regional, provincial and city elective officials are under its
exclusive original jurisdiction. All contests involving elective municipal and
barangay officials are under its appellate jurisdiction.[32]
Our decisions have been in cadence with the movement towards empowering
the COMELEC in order that it can more effectively perform its duty of
safeguarding the sanctity of our elections. In Cauton vs. COMELEC,[33] we laid
down this liberal approach, viz:
xxx
'The purpose of the Revised Election Code is to protect the integrity of elections
and to suppress all evils that may violate its purity and defeat the will of the
voters. The purity of the elections is one of the most fundamental requisites of
popular government. The Commission on Elections, by constitutional mandate,
must do everything in its power to secure a fair and honest canvass of the
votes cast in the elections. In the performance of its duties, the Commission
must be given a considerable latitude in adopting means and methods that will
insure the accomplishment of the great objective for which it was created -- to
promote free, orderly, and honest elections. The choice of means taken by the
Commission on Elections, unless they are clearly illegal or constitute grave
abuse of discretion, should not be interfered with."
In Pacis vs. COMELEC,[34] we reiterated the guiding principle that "clean
elections control the appropriateness of the remedy." The dissent, for all its
depth, is out of step with this movement. It condemns the COMELEC for
exercising its discretion to resort to manual count when this was its only viable
alternative. It would set aside the results of the manual count even when the
results are free from fraud and irregularity. Worse, it would set aside the
judgment of the people electing the private respondent as Governor. Upholding
the sovereignty of the people is what democracy is all about. When the
sovereignty of the people expressed thru the ballot is at stake, it is not enough
for this Court to make a statement but it should do everything to have that
sovereignty obeyed by all. Well done is always better than well said.
IN VIEW WHEREOF, the petition of Tupay Loong and the petition in intervention
of Yusop Jikiri are dismissed, there being no showing that public respondent
gravely abused its discretion in issuing Minute Resolution Nos. 98-1748, 981750, 98-1796 and 98-1798. Our status quo order of June 23, 1998 is lifted. No
costs.
SO ORDERED.

G.R. No. 100710 September 3, 1991

BENJAMIN P. ABELLA, petitioner,
vs.
COMMISSION ON ELECTIONS and ADELINA Y. LARRAZABAL, respondents.
G.R. No. 100739 September 3, 1991
ADELINA Y. LARRAZABAL, petitioner,
vs.
COMMSSION ON ELECTIONS and SILVESTRE DE LA CRUZ, respondents.
Sixto S. Brillantes, Jr. for petitioner in 100739.
Cesar A. Sevilla for petitioner in 100710.
Panganiban, Benitez, Baninaga & Bautista for private respondent S. de la Cruz.

GUTIERREZ, JR., J.:p

The main issue in these consolidated petitions centers on who is the rightful
governor of the province of Leyte 1) petitioner Adelina Larrazabal (G.R. No.
100739) who obtained the highest number of votes in the local elections of
February 1, 1988 and was proclaimed as the duly elected governor but who
was later declared by the Commission on Elections (COMELEC) "... to lack both
residence and registration qualifications for the position of Governor of Leyte as
provided by Art. X, Section 12, Philippine Constitution in relation to Title II,
Chapter I, Sec. 42, B.P. Blg. 137 and Sec. 89, R.A. No. 179 and is hereby
disqualified as such Governor"; 2) petitioner Benjamin Abella (G.R. No. 100710),
who obtained the second highest number of votes for the position of governor
but was not allowed by the COMELEC to be proclaimed as governor after the
disqualification of Larrazabal; or 3) Leopoldo E. Petilla, the vice-governor of the
province of. Leyte.
This is the fourth time that the controversy relating to the local elections in
February 1, 1988 for governor of the province of Leyte is elevated to this Court.
The antecedent facts of these cases are stated in the earlier consolidated cases
of BENJAMIN P. ABELLA and SILVESTRE T. DE LA CRUZ, petitioners, v. ADELINA
INDAY LARRAZABAL, PROVINCIAL BOARD OF CANVASSERS OF LEYTE and
COMMISSION ON ELECTIONS, respondents (G.R. Nos. 87721-30) and BENJAMN
P. ABELLA and SILVESTRE T. DE LA CRUZ, petitioners v. ADELINA LARRAZABAL
and COMMISSION ON ELECTIONS, respondents (G. R. No. 88004) 180 SCRA 509
[1989]), to wit:
The Court has ordered the consolidation of G.R. Nos 87721-30 and G.R. No.
88004 involving the same parties and the same election in 1988 for the office
of provincial governor of Leyte. Challenged in the petitions for certiorari are the
resolutions of the respondent Commission on Elections dismissing the preproclamation and disqualification cases filed by the herein petitioners against
private respondent Adelina Larrazabal.

Petitioner Benjamin P. Abella was the official candidate of the Liberal Party for
provincial governor of Leyte in the local election held on February 1, 1988. The
private respondent is the wife of Emeterio V. Larrazabal, the original candidate
of the Lakas ng Bansa-PDP-Laban who was disqualified by the Commission on
Elections on January 18, 1988, for lack of residence. (G.R. No. 88004, Rollo, pp.
102-104) (He filed a petition for certiorari to challenge this resolution. He,
however, filed an urgent ex-parte motion to withdraw petition which was
granted in a resolution dated January 21, 1988 and the case was dismissed.
[G.R. No. 81313]) On January 31, 1988, the day before the election, she filed
her own certificate of candidacy in substitution of her husband. (Ibid., p. 48)
The following day, at about 9:30 o'clock in the morning, Silvestre de la Cruz, a
registered voter of Tacloban City, filed a petition with the provincial election
supervisor of Leyte to disqualify her for alleged false statements in her
certificate of candidacy regarding her residence. (Id., pp. 113-118) This was
immediately transmitted to the main office of the Commission on Elections,
which could not function, however, because all but one of its members had not
yet been confirmed by the Commission on Appointments. De la Cruz then came
to this Court, which issued a temporary restraining order on February 4, 1988,
enjoining the provincial board of canvassers of Leyte 'from proclaiming Adelina
Larrazabal as the winning candidate for the Office of the Governor in the
province of Leyte, in the event that she obtains the winning margin of votes in
the canvass of election returns of said province.' (Id., p. 179) On March 1, 1988,
the Commission on Elections having been fully constituted, we remanded the
petition thereto for appropriate action, including maintenance or lifting of the
Court's temporary restraining order of February 4, 1988. (Id. pp. 182-184)
In the meantime, petitioner Abella, after raising various verbal objections (later
duly reduced to writing) during the canvass of the election returns, seasonably
elevated them to the Commission on Elections in ten separate appeals
docketed as SPC Nos. 88-627 to 88627-I. Pending resolution of these cases,
Abella intervened on March 7, 1988 in the disqualification case, docketed as
SPC No. 88-546, and the following day filed a complaint, with the Law
Department of the COMELEC charging the private respondent with falsification
and misrepresentation of her residence in her certificate of candidacy. On
March 22, 1988, the public respondent consolidated the pre-proclamation and
disqualification cases with the Second Division.
On February 3, 1989, this Division unanimously upheld virtually all the
challenged rulings of the provincial board of canvassers, mostly on the ground
that the objection raised were merely formal and did not affect the validity of
the returns or the ballots, and ordered the proclamation of the winner after
completion of the canvass. (G.R. Nos. 87721-30, Rollo, pp. 18-50) On that same
date, the disqualification case was also dismissed by a 2-1 decision, and the
matter was referred to the Law Department for 'preliminary investigation for
possible violation of Section 74 of the Omnibus Election Code. ' (G.R. Nos.
88004, Rollo, pp. 26-40)
The motion for reconsideration of the resolution on the pre-proclamation cases
was denied by the COMELEC en banc on April 13, 1989, with no dissenting
vote. (G.R. Nos. 87721-30, Rollo, pp. 51-56) These cases are the subject of G.R.
Nos. 87721-30, where we issued on April 18, 1989, another temporary
restraining order to the provincial board of canvassers of Leyte to CEASE and
DESIST from resuming the canvass of the contested returns and/or from
proclaiming private respondent Adelina Larrazabal Governor of Leyte.

The motion for reconsideration of the resolution on the qualification case was
also denied by the COMELEC en banc on May 4, 1989, but with three
commissioners dissenting. (G.R. No. 88004, Rollo, pp 47-61; penned by
Commissioner Abueg, Jr., with Commissioners Africa Rama, and Yorac,
dissenting) The dismissal of this case is the subject of G.R. No. 88004. (at pp.
511-513)
Disposing of the consolidated petitions, this Court rendered judgment as
follows:
1.
In G.R.Nos. 87721-30, the decision dated February 3, 1989, the
resolution dated April 13, 1989, are affirmed and the petition is DISMISSED.
2.
In G.R. No. 88004, the decision dated February 3,1989, and the
resolution dated May 4, 1989, are REVERSED and SET ASIDE. Respondent
Commission on Elections is ORDERED to directly hear and decide SPC Case No.
88-546 under Section 78 of the Omnibus Election Code, with authority to
maintain or lift our temporary restraining order of April 18, 1989, according to
its own assessment of the evidence against the private respondent.
The parties are enjoined to resolve this case with all possible speed, to the end
that the Governor of Leyte may be ascertained and installed without further
delay. (p. 520)
In view of these rulings, the COMELEC, upon motion of Larrazabal, lifted its
temporary restraining order against her proclamation paving Larrazabal's
proclamation and her assumption to the Office of Governor of Leyte while the
hearings in the disqualification case (SPC No. 88-546) continued.
On February 14, 1991, the second division in a 2-1 vote rendered a decision
disqualifying Larrazabal as governor.

It appearing that despite the filing of this petition before this Court and during
its pendency, the incumbent Vice-Governor of Leyte Hon. Leopoldo E. Petilla,
took his oath as Provincial Governor of Leyte and assumed the governorship as
contained in his telegraphic message, pursuant to COMELEC resolution SPC No.
88-546, promulgated on July 18, 1991, the Court further Resolved to ORDER
Hon. Leopoldo E. Petilla to MAINTAIN the status quo ante then prevailing and/or
existing before the filing of this petition and to DESIST from assuming the office
of the Governor and from discharging the duties and functions thereof. (Rollo100739, p. 204)
In G.R. No. 100739, petitioner Larrazabal professes that the COMELEC
completely disregarded our pronouncement in G.R. No. 88004 in that instead of
acting on SPC Case No. 88-546 under section 78 of the Election Code, the
COMELEC proceeded with a disqualification case not contemplated in G.R. No.
88004.
The argument is not meritorious.
The questioned decision and resolution of the COMELEC conform with this
Court's decision in G.R. No. 88004.
Initially, herein respondent Silvestre T. de la Cruz (Benjamin P. Abella, petitioner
in G.R. No. 100710 was allowed to intervene in the case) filed a petition with
the COMELEC to disqualify petitioner Larrazabal from running as governor of
Leyte on the ground that she misrepresented her residence in her certificate of
candidacy as Kananga, Leyte. It was alleged that she was in fact a resident of
Ormoc City like her husband who was earlier disqualified from running for the
same office. The COMELEC dismissed the petition and referred the case to its
Law Department for proper action on the ground that the petition was a
violation of Section 74 of the Election Code and, pursuant to it rules, should be
prosecuted as an election offense under Section 262 of the Code.
This Court reversed and set aside the COMELEC's ruling, to wit:

On July 18, 1991, the Commission en banc issued a resolution which denied
Larrazabal's motion to declare decision void and/or motion for reconsideration
and affirmed the second division's decision. In the same resolution, the
Commission disallowed Abella's proclamation as governor of Leyte.
Hence, these petitions.
We treat the various Comments as Answers and decide the petitions on their
merits.
Acting on a most urgent petition (motion) for the issuance of a restraining order
filed by petitioner Larrazabal, this Court issued a temporary restraining order
on August 1, 1991.
xxx

xxx

xxx

... [E]ffective immediately and continuing until further orders from this Court,
ordering the respondent on on Elections to CEASE and DESIST from enforcing,
implementing and executing the decision and resolution, respectively dated
February 14, 1991 and July 18, 1991.

The Court holds that the dismissal was improper. The issue of residence having
been squarely raised before it, it should not have been shunted aside to the
Law Department for a roundabout investigation of the private respondent's
qualification through the filing of a criminal prosecution, if found to be
warranted, with resultant disqualification of the accused in case of conviction.
The COMELEC should have opted for a more direct and speedy process
available under the law, considering the vital public interest involved and the
necessity of resolving the question of the earliest possible time for the benefit
of the inhabitants of Leyte.
In the view of the Court, the pertinent provision is Section 78 in relation to
Section 6 of R.A. No. 6646.
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A
verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74 hereof
is false. The petition may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy and shall be decided,
after due notice and hearing, not later than fifteen days before the election.

Section 6 of R.A. 6646 states as follows:

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 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. ...
xxx

xxx

xxx

governor of Leyte. They presented testimonial as well as documentary

evidence to prove their stance.
On the other hand, respondent Larrazabal maintained that she was a resident
and a registered voter of Kananga, Leyte. She, too presented testimonial as
well as documentary evidence to prove her stand.
The COMELEC ruled against the respondent, now petitioner Larrazabal.
In its questioned decision and resolution, the COMELEC found that petitioner
Larrazabal was neither a resident of Kananga, Leyte nor a registered voter
thereat. With these findings, the COMELEC disqualified the petitioner as
governor of the province of Leyte.

The above-stressed circumstances should explain the necessity for continuing

the investigation of the private respondent's challenged disqualification even
after the election notwithstanding that such matter is usually resolved before
the election. Independently of these circumstances, such proceedings are
allowed by Section 6 of RA. 6646 if for any reason a candidate is not declared
by final judgment before an election to be disqualified ...

The petitioner, however, avers that the COMELEC decision is erroneous when it
relied on the provisions of the Family Code to rule that the petitioner lacks the
required residence to qualify her to run for the position of governor of Leyte.
She opines that under "the Election Law, the matter of determination of the
RESIDENCE is more on the principle of INTENTION, the animus revertendi rather
than anything else."

In fine, the Court directed the COMELEC to determine the residence

qualification of petitioner Larrazabal in SPC Case No. 88-546. Concomitant with
this directive would be the disqualification of petitioner Larrazabal in the event
that substantial evidence is adduced that she really lacks the residence
provided by law to qualify her to run for the position of governor in Leyte.

In this regard she states that ... "her subsequent physical transfer of residence
to Ormoc City thereafter, did not necessarily erased (sic) or removed her
Kananga residence, for as long as she had the ANIMUS REVERTENDI evidenced
by her continuous and regular acts of returning there in the course of the years,
although she had physically resided at Ormoc City." (Petition, Rollo, p. 40)

In line with the Court's directive, the COMELEC conducted hearings in SPC Case
No. 88-546 to resolve the qualification of Larrazabal on the basis of two (2)
legal issues raised by Silvestre T. de la Cruz namely, Larrazabal's lack of legal
residence in the province of Leyte and her not being a registered voter in the
province, as required by Title II, Chapter I, Section 42, B.P. Blg. 337, in relation
to Article X, Section 12 of the Constitution, to wit:
Sec. 42. Qualification. (1) An elective local official must be a citizen of the
Philippines, at least twenty-three years of age on election day, a qualified voter
registered as such in the barangay, municipality, city or province where he
proposes to be elected, a resident therein for at least one year at the time of
the filing of his certificate of candidacy, and able to read and write English,
Pilipino, or any other local language or dialect.

As can be gleaned from the questioned decision, the COMELEC based its finding
that the petitioner lacks the required residence on the evidence of record to the
effect that despite protestations to the contrary made by the petitioner, she
has established her residence at Ormoc City from 1975 to the present and not
at Kananga, Leyte. Her attempt to purportedly change her residence one year
before the election by registering at Kananga, Leyte to qualify her to ran for the
position of governor of the province of Leyte clearly shows that she considers
herself already a resident of Ormoc City. In the absence of any evidence to
prove otherwise, the reliance on the provisions of the Family Code was proper
and in consonance with human experience. The petitioner did not present
evidence to show that she and her husband maintain separate residences, she
at Kananga, Leyte and her husband at Ormoc City. The second division of the
COMELEC in its decision dated February 14, 1991 states:

xxx

xxx

xxx

xxx

Sec. 12. Cities that are highly urbanized, as determined by law, and component
cities whose charters prohibit their voters from voting for provincial elective
officials, shall be independent of the province. The voters of component cities
within a province, whose charters contain no such prohibition, shall not be
deprived of their right to vote for elective provincial officials.
The position of petitioners De la Cruz and Abena was that respondent
Larrazabal is neither a resident nor a registered voter of Kananga, Leyte as she
claimed but a resident and registered voter of Ormoc City, a component city of
the province of Leyte but independent of the province pursuant to Section 12,
Article X of the Constitution thereby disqualifying her for the position of

xxx

xxx

But there is the more fundamental issue of residence. The only indications of a
change of residence so far as respondent is concerned are: the address
indicated in the application for cancellation filed by respondent indicating her
postal address as Kananga, Leyte, the annotation in her Voter's affidavit for
Precinct No. 15 that her registration was cancelled due to lack of residence; the
testimony of Anastacia Dasigan Mangbanag that she entered into a contract of
lease with option to buy with the spouses Emeterio and Inday Larrazabal over
two parcels of land the witness owned in Mahawan, Kananga, Leyte; that she
sees the spouses in the leased house in Kananga, that she was informed by
Inday Larrazabal that the spouses had decided to buy their property because
she wanted to beautify the house for their residence. She attached as annex

the written contract signed by her and the spouses; and the testimony of Adolfo
Larrazabal Exh. "10" cousin of the spouses that 'at a family meeting ... the
political plan of the Larrazabal clan was discussed, among which were (sic) the
problem of Terry's residence in Ormoc City' and that it was decided in said
meeting ... that Inday Larrazabal, wife of Terry, will transfer her Ormoc
Registration as a voter to Kananga, Leyte (so) she will be able to vote for Terry
and also help me in my candidacy; that they have been staying in Kananga,
very often as they have properties in Lonoy and a house in Mahawan.
The references to residence in the documents of cancellation and registration
are already assessed for their evidentiary value in relation to the documents
themselves above. The question must therefore be addressed in relation to the
testimony of Anastacia Dasigan Mangbanag and Adolfo V. Larrazabal. The gist
of the testimonies is that they leased properties in Mahawan, Leyte and that
they are seen in the house on the land leased. But the contract of lease with
option to purchase itself indicates as to where the legal residence of the
Jarrazabal is. The pertinent portion states:
SPS EMETERIO V. LARRAZABAL AND ADELINA Y. LARRAZABAL, both of legal age,
Filipino, and residents of Ormoc City, Philippines, hereinafter referred to as the
LESSEES.
The acknowledgment also indicates that Emeterio V. Larrazabal presented his
Residence Certificate No. 155774914 issued in Ormoc City.
The testimony of Adolfo Larrazabal reenforces this conclusion. It admits, as of
the second or third week of November, that the residence of Emeterio
Larrazabal was Ormoc City and that Inday Larrazabal was going to transfer her
registration so she may be able to vote for him.
For the purpose of running for public office, the residence requirement should
be read as legal residence or domicile, not any place where a party may have
properties and may visit from time to time.
The Civil Code is clear that '[F]or the exercise of civil rights and the fulfillment
of civil obligations, the domicile of natural persons is the place of their habitual
residence.
Arts. 68 and 69 of the Family Code, E.O. No. 209 also provide as follows:
Art. 68. The husband and wife are obliged to live together, observe mutual
love, respect and fidelity, and render mutual help and support.
Art. 69. The husband and wife shall fix the family domicile. In case of
disagreement, the court shall decide. The court may exempt one spouse from
living with the other if the latter should live abroad or there are other valid and
compelling reasons for the exemption. However, such exemption shall not
apply if the same is not compatible with the solidarity of the family.
Husband and wife as a matter of principle live together in one legal residence
which is their usual place of abode. (COMELEC decision, pp. 21-23; Rollo
100710, pp. 67-69; Emphsis supplied)

As regards the principle of ANIMUS REVERTENDI we ruled in the case of Faypon

v. Quirino, 96 Phil. 294 [1954]):
xxx

xxx

xxx

... [M]ere absence from one's residence or origin-domicile-to pursue studies,

engage in business, or practice his avocation, is not sufficient to constitute
abandonment or loss of such residence.' ... The determination of a persons
legal residence or domicile largely depends upon intention which may be
inferred from his acts, activities and utterances. The party who claims that a
person has abandoned or left his residence or origin must show and prove preponderantly such abandonment or loss.
xxx

xxx

xxx

... A citizen may leave the place of his birth to look for 'greener pastures' as the
saying goes, to improve his life, and that, of course, includes study in other
places, practice of his avocation, or engaging in business. When an election is
to be held, the citizen who left his birthplace to improve his lot may desire to
return to his native town to cast his ballot but for professional or business
reasons, or for any other reason, he may not absent himself from the place of
his professional or business activities; so there he registers as voter as he has
the qualifications to be one and is not willing to give up or lose the opportunity
to choose the officials who are to run the government especially in national
elections. Despite such registration, the animus revertendi to his home, to his
domicile or residence of origin, has not forsaken him. ... (at pp. 297-300)
In the instant case, there is no evidence to prove that the petitioner temporarily
left her residence in Kananga, Leyte in 1975 to pursue any calling, profession or
business. What is clear is that she established her residence in Ormoc City with
her husband and considers herself a resident therein. The intention of animus
revertendi not to abandon her residence in Kananga, Leyte therefor, is nor
present. The fact that she occasionally visits Kananga, Leyte through the years
does not signify an intention to continue her residence therein. It is common
among us Filipinos to often visit places where we formerly resided specially so
when we have left friends and relatives therein although for intents and
purposes we have already transferred our residence to other places.
Anent the issue of whether or not the petitioner is a registered voter of
Kananga, Leyte, the petitioner insists that she is such a registered voter based
on the following antecedents: 1) She cancelled her registration in Ormoc City
on November 25, 1987, and 2) she then transferred her registration to
Kananga, Leyte on November 25, 1987 by registering thereat and 3) she later
voted on election day (February 1, 1988) in Kananga, Leyte.
Despite the insistence of the petitioner, the evidence shows that her supposed
cancellation of registration in Ormoc City and transfer of registration in
Kananga, Leyte, is not supported by the records. As the COMELEC stated:
The train of events, which led to respondent's g of her certificate of candidacy
on the basis of her registration started on November 25, 1987, when she
allegedly filed all application for cancellation of registration Exh. "2-B".
Subsequent to this request, her voter's affidavit in Precinct 15, Ormoc City with
Serial No. 0918394 J was annotated with the words 'cancelled upon application

of the voter due to transfer of residence.' Thereafter, she registered in Precinct

No. 17, Mahawan, Kananga, Leyte on November 28,1987 which registration was
contained in Voter's Affidavit with Serial No. 0190840-J The cancellation of
registration was submitted to the Board of Election Inspectors on January 9,
1988 (Revision Day) on the submission of the sworn application at 4:30 p.m.
allegedly by a clerk from the Election Registrar's Office with only the poll clerk
and the third member because the Chairman of the Board of Election Inspectors
allegedly left earlier and did not come back. Exh. "3-B".
We find the version pressed by respondent unworthy of belief. The story is
marked by so many bizarre cirumtances not consistent with the ordinary course
of events or the natural behavior of persons. Among these are:
(1)
The application for cancellation of registration by respondent Adelina Y.
Larrazabal happened to be misplaced by a clerk in the Election Registrar's
Office for Ormoc City so it was not sent to the Board of Election Inspectors in a
sealed envelope;
(2)
The 'inadverterment' (sic) misplacement was discovered only on
January 9,1988;
(3)
The voter's affidavit was delivered by itself without any endorsement
or covering letter from the Election Registrar or anybody else;
(4)
The election clerk delivered the application for cancellation only
towards the last hour of the revision day, allegedly at 4:30 P.M., January 9,
1988;
(5)
All the members of the Board of Election Inspectors had already signed
the Minutes indicating that no revision of the voter's list was made as of 5:00
PM
(6)
The poll clerk and the third member prepared another minutes stating
that the election clerk had delivered the application for cancellation at 4:30 P.M.
without any reference to the minutes they had previously signed;
(7)
Emeterio Larrazabal, who was supposed to have registered in Precinct
17, Mahawan, Kananga, was supposed to have filled up an application for
cancellation of his registration in Precinct No. 15, Ormoc City at Precinct 17
concurrent with his registration. His application for cancellation was never
submitted in evidence.
(8)
The serial number of the voter's affidavits of the spouses Larrazabal in
Precinct No. 17 are far removed from the serial numbers of the other new
registrants in November 28, 1987 in the same precinct.
The most telling evidence is the list of voters (Form 2-A), Exh. "G", that the
Chairman and the poll clerk had written in Part II of the same, closed by the
signatures of both officials showing that there were only nine (9) additional
registered voters in Precinct 17, Mahawan, Kananga, Leyte, namely, Bantasan,
Merly; Conie; Limosnero Anita; Limosnero W; Pame Virginia; Savenario, Analiza;
Verallo, Ofelia; Basan, Juanita; and Acgang Bonifacio. This is consistent with the
list of new voters after the November 28, 1987 for Precinct No. 17, Mahawan,
Kananga, Leyte submitted by the Election of Kananga to the National Central

File of the Commission per certification of the Chief, National Central File
Division on January 25, 1988 dated January 25, 1988, Exh. 'C'. The affidavits
submitted by the Election Registrar to the Commission could only have come
from the Board of Election Inspectors of Precinct No. 17, after the November 28,
1987 registration, for the Election Registrar could not have had the affidavits of
these new registrants apart from those supplied by the Precinct itself. Why were
not the affidavits of the Larrazabals included? Was this part of the incredibly
bizarre series of inadvertence and neglect that spanned Ormoc City and
Kananga? This also explains the certification dated January 29, 1988, of the
Election Registrar of Kananga that as of that date Mrs. Adelina Larrazabal was
not a registered voter in any of the' precincts in Kananga. Exh. "L". It was only
on February 15, 1988, or two weeks after the election day that the same
Registrar certified for the first time that there were two voters lists, the first
without the names of the Larrazabals and the second, which appeared only
after February 1, submitted by the Chairman of the Board for Precinct 17 which
contained the spouses Larrazabals' names.
It might also be stressed that one set of voter's list Exh. "G" had the signature
of both the Chairman, poll clerk and third member of the board, while the one
which appeared later which included the names of the Larrazabal had the
signature only of the Chairman. Exh. "I".
From the certification of the National Central Files, it appears that the Serial
Nos. of the newly registered voters were as follows: 0189821-J 018922-J
0189823-J 0189824-J 0189825-J 0189826-J 0189827-J 0189828-J 0189839-J
The alleged registration of Emeterio V. Larrazabal and Adelina Y. Larrazabal are
inexplicably effected through voter's affidavits with Serial Nos. 0190893J and
01 90840-J. These serial numbers are traced per record of the Commission to
Precinct No. 6, municipality of Kananga, Leyte. Per official Project of precincts
on file with the Commission, Precinct No. 6 is a poblacion precinct located in
Kananga, Municipal High School Building. How these documents came to be
used in Precinct No. 17 in Barangay Mahawan and only by the Larrazabals has
never been explained.
It also takes a lot of straining to believe the story about the effort to cancel
registration on November 25, 1987, which application surfaced before the
Board of Election inspectors for Precinct No. 15, Ormoc City only on January 9,
1988, Revision Day. As pointed out by Petitioner, it is absurd that it would only
be on Revision Day, normally set aside for the purpose of receiving inclusion
and exclusion orders from the courts, that the application for cancellation would
be coincidentally found and delivered to the Board of Election Inspectors for
Precinct 15. Furthermore, the entire membership of the Board of Inspectors for
said precinct, signed a Minutes, Exh. "3-A" which indicates that no order of
inclusion or exclusion was received from any court and that the board
proceeded with the numbering of a total 229 voters for the precinct. The
Minutes also indicates that the Board adjourned at 5:00 p.m. Exh. "3-B" which
was supposedly prepared after Exh. "3-A" signed only by the poll clerk and third
member indicates that at 4:30 P.M. an unidentified clerk from the Election
Registrar's Office arrived with the application for cancellation of Vilma Manzano
and Adelina Larrazabal.
It also appears that on November 28, 1987, the Board of Election Inspectors for
Precinct 15, Ormoc City prepared the list of voters for said precinct, Exh. 'N'
where the name of Adelina Y. Larrazabal appears as voter No. 96 and Emeterio

V. Larrazabal is listed as Voter No. 98. At the back of the list there is a
certification that there was no voter which was included by court order and that
to voters, one Montero and one Salvame were excluded by virtue of such order.
As of January 29, 1988, when the certified true copy of the Voter's List for
Precinct 15 was furnished the petitioner, no additional entry was reflected on
the list which would show what transpired on January 9, 1988, as alleged by the
Election Registrar for Ormoc City and the poll clerk and third member of the
board of inspectors that a cancellation was effected. It taxes credulity
therefore, to lend belief to Exh. "2-C", when was issued by the City Registrar for
Ormoc only on February 1, 1990, which for the first time showed handwritten
annotations of cancellation of the registration of Adelina Larrazabal and Vilma
Manzano by witnesses Gratol and Patonog. If this evidence did not exist at the
time of the entry which purports to have been on January 9, 1988, this
evidence could have been used to confront within Carolina Quezon when she
testified and identified Exh. "N" on April 14, 1988. In fact if these entries
indicating (sic) were made, they would have been evident in Exh. 'W. The
failure to confront Quezon with the entries and the late submission of Exh. "2C" can only lead to two conclusions: these entries did not exist as of January
29, 1988 when the certification of the list of voters was made and that they
were annotated in the voter's list after that date. This is consistent with Exh. "P"
which was issued on February 11, 1988.
The relative weight of the parties' evidence supports petitioner's thesis that
respondent was not a registered voter in Precinct No. 17, Brgy. Mahawan,
Kananga, Leyte, and, that she and her husband Emeterio Larrazabal continued
to be registered voters in Precinct No. 15, Ormoc City. (Rollo, pp. 62-67;
COMELEC decision, pp. 22-27)
The Court is bound by these factual findings as they are supported by
substantial evidence:

Election of provincial governor and members of the Provincial Board of the

members of the Provincial Board of the Province of Leyte The qualified voters
of Ormoc City shall not be qualified and entitled to vote in the election of the
provincial governor and the members of the provincial board of the Province of
Leyte.
Relating therefore, section 89 of R.A. 179 to section 12, Article X of the
Constitution one comes up with the following conclusion: that Ormoc City when
organized was not yet a highly-urbanned city but is, nevertheless, considered
independent of the province of Leyte to which it is geographically attached
because its charter prohibits its voters from voting for the provincial elective
officials. The question now is whether or not the prohibition against the 'city's
registered voters' electing the provincial officials necessarily mean, a
prohibition of the registered voters to be elected as provincial officials.
The petitioner citing section 4, Article X of the Constitution, to wit:
Sec. 4. The President of the Philippines shall exercise general supervision over
local governments. Provinces with respect to component cities and
municipalities and cities and municipalities with respect to component
barangays, shall ensure that the acts of their component units are within the
scope of their prescribed powers and functions.
submits that "while a Component City whose charter prohibits its voters from
participating in the elections for provincial office, is indeed independent of the
province, such independence cannot be equated with a highly urbanized city;
rather it is limited to the administrative supervision aspect, and nowhere should
it lead to the conclusion that said voters are likewise prohibited from running
for the provincial offices." (Petition, p. 29)
The argument is untenable.

In Aratuc v. Commission on Elections (88 SCRA 251), speaking of the need to

preserve the 'independence and all the needed concomitant powers' of the
Commission on Elections, Justice Antonio P. Barredo declared that it is but
proper that the Court should accord the greatest measures of presumption of
regularity to its course of action ... to the end it may achieve its designed place
in the democratic fabric of our government ... (Abella v. Larrazabal, supra)
Failing in her contention that she is a resident and registered voter of Kananga,
Leyte, the petitioner poses an alternative position that her being a registered
voter in Ormoc City was no impediment to her candidacy for the position of
governor of the province of Leyte.
Section 12, Article X of the Constitution provides:
Cities that are highly urbanized, as determined by law, and component cities
whose charters prohibit their voters from voting for provincial elective officials,
shall be independent of the province. The voters of component cities within a
province, whose charters contain no such prohibition, shall not be deprived of
their right to vote for elective provincial officials.
Section 89 of Republic Act No. 179 creating the City of Ormoc provides:

Section 12, Article X of the Constitution is explicit in that aside from highlyurbanized cities, component cities whose charters prohibit their voters from
voting for provincial elective officials are independent of the province. In the
same provision, it provides for other component cities within a province whose
charters do not provide a similar prohibition. Necessarily, component cities like
Ormoc City whose charters prohibit their voters from voting for provincial
elective officials are treated like highly urbanized cities which are outside the
supervisory power of the province to which they are geographically attached.
This independence from the province carries with it the prohibition or mandate
directed to their registered voters not to vote and be voted for the provincial
elective offices. The resolution in G.R. No. 80716 entitled Peralta v. The
Commission on Elections, et al. dated December 10, 1987 applies to this case.
While the cited case involves Olongapo City which is classified as a highly
urbanized city, the same principle is applicable.
Moreover, Section 89 of Republic Act 179, independent of the constitutional
provision, prohibits registered voters of Ormoc City from voting and being voted
for elective offices in the province of Leyte. We agree with the COMELEC en
banc that "the phrase 'shall not be qualified and entitled to vote in the election
of the provincial governor and the members of the provincial board of the
Province of Leyte' connotes two prohibitions one, from running for and the

second, from voting for any provincial elective official." (Resolution En Banc, p.
6)
The petitioner takes exception to this interpretation. She opines that such
interpretation is "wrong English" since nowhere in the provision is there any
reference to a prohibition against running for provincial elective office. She
states that if the prohibition to run was indeed intended, the provision should
have been phrased "Shall not be qualified TO RUN in the election FOR
provincial governor." A comma should have been used after the word qualified
and after the word "vote" to clearly indicate that the phrase "in the election of
the provincial governor" is modified separately and distinctly by the words "not
qualified" and the words "not entitled to vote." (Petition, p. 19)
The Court finds the petitioner's interpretation fallacious.
In the case of Mapa v. Arroyo (175 SCRA 76 [1989]) this Court interpreted
Section 20 of Presidential Decree No. 957 in relation to the conjunction and, to
wit:
Time of Completion. Every owner or developer shall construct and provide
the facilities, improvements, infrastructures and other forms of development,
including water supply and lighting facilities, which are offered and indicated in
the approved subdivision or condominium plans. ...

Flores was nominated by the President on January 30, 1988 and was confirmed
by the Commission on Appointments on February 15, 1988. His term of office
was fixed by the President for three years from February 15, 1988 to February
15, 1991.)
The petitioner postulates that the President has no power to fix the terms of
office of the Commissioners of the COMELEC because the Constitution impliedly
fixes such terms of office. With regards to Commissioner Flores, the petitioner
professes that Flores' term of three (3) years expired on February 2, 1991
based in section 1(2), Article IX, C, of the Constitution, to wit:
xxx

xxx

xxx

(2)
The Chairman and the Commissioners shall be appointed by the
President with the consent of the Commission on Appointments for a term of
seven years without reappointment. Of those first appointed, three Members
shall hold office for seven years, two Members for five years, and the last
Members for three years, without reappointment. Any appointment to any
vacancy shall be only for the unexpired term of the predecessor. In no case
shall any Member be appointed or designated in a temporary or acting
capacity. In relation to the Transitory Provision of the 1987 Constitution (Article
XVIII) particularly Section 15 thereof, to wit:
xxx

xxx

xxx

The Court ruled:

We further reject petitioner's strained and tenuous application of the called
doctrine of last antecedent in the interpretation of Section 20 and, correlatively,
of Section 21. He would thereby have the enumeration of 'facilities,
improvements, infrastructures and other forms of development' interpreted to
mean that the demonstrative Phrase 'which are offered and indicated in the
approved subdivision plans, etc,' refer only to 'other forms of development' and
not to 'facilities, improvements and infrastructures.' While this subserves his
purpose, such bifurcation whereby the supposed adjectives phrase is set apart
from the antecedent words, is illogical and erroneous. The complete and
applicable rule is ad proximum antedecens flat relationisi impediatursentencia
(See Black's Law Dictionary, 4th Ed., 57 citing Brown v. Brown, Delta 3 Terry
157, 29 A. 2d 149, 153) Relative words refer to the nearest antecedent, unless
it be prevented by the context. In the present case, the employment of the
word 'and' between 'facilities, improvements, infrastructures' and 'other forms
of development,' far from supporting petitioner's theory, enervates it instead
since it is basic in legal hermeneutics that and is not meant to separate words
but is a conjunction used to denote a joinder or union. (at pp. 81-83)
Applying these principles to the instant case, the conjunction and between the
phrase shall not be qualified and entitled to vote refer to two prohibitions as
ruled by the COMELEC in relation to the demonstrative phrase "in the election
of the provincial governor and the members of the provincial board of the
Province of Leyte."
Finally, the petitioner contends that the February 14, 1991 decision of the
COMELEC's second division is null and void on the ground that on that date, the
term of Commissioner Andres Flores, one of the signatories of the majority
opinion (vote was 2-1) had already expired on February 2, 1991. (Commissioner

The incumbent Members of the Civil Service Commission, the Commission on

Elections, and the Commission on Audit shall continue in office for one year
after the ratification of this Constitution, unless they are sooner removed for
cause or become incapacitated to discharge The duties of their office or
appointed to a new term thereunder. In no case shall any Member serve longer
than seven years including service before the ratification of this Constitution.
There is no need to pass upon this constitutional issue raised by the petitioner.
The Court ruled in the case of Alger Electric, Inc. v. Court of Appeals (135 SCRA
37 [1985]):
xxx

xxx

xxx

... This Court does not decide questions of a constitutional nature unless
absolutely necessary to a decision of the case. If there exists some other
ground based on statute or general law or other grounds of construction, we
decide the case on a non-constitutional determination. (See Burton v. United
States, 196 U.S. 283; Siler v. Louisville & Nashville R. Co. 213 U.S. 175; Berea
College v. Kentucky 211 U.S. 45.) (at p. 45)
Even if we concede that Commissioner Flores' term expired on February 2,
1991, we fail to see how this could validate the holding of an elective office by
one who is clearly disqualified from running for that position and the continued
exercise of government powers by one without legal authority to do so. The
powers of this Court are broad enough to enjoin the violation of constitutional
and statutory provisions by public officers especially where, as in this case, we
merely affirm the decision of the COMELEC en banc promulgated at a time
when Commissioner Flores was no longer a member.

Moreover, under the peculiar circumstances of this case, the decision of the
second division of COMELEC would still be valid under the de facto doctrine.
Commissioner Flores was appointed for a three-year term from February 15,
1988 to February 15, 1991. In these three years he exercised his duties and
functions as Commissioner. Granting in the absence of a statute expressly
stating when the terms of the COMELEC Chairman and members commence
and expire, that his term expired on February 2, 1991 to enable a faithful
compliance with the constitutional provision that the terms of office in the
COMELEC are on a staggered basis commencing and ending at fixed intervals,
his continuance in office until February 15, 1991 has a color of validity.
Therefore, all his official acts from February 3, 1991 to February 15, 1991, are
considered valid. The Court ruled in the case of Leyte Acting Vice-Governor
Aurelio D. Menzon v. Leyte Acting Governor Leopoldo E. Perilla, et al. G.R. No.
90762, May 20, 1991:
And finally, even granting that the President, acting through the Secretary of
Local Government, possesses no power to appoint the petitioner, at the very
least, the petitioner is a de facto officer entitled to compensation.
There is no denying that the petitioner assumed the Office of the Vice-Governor
under color of a known appointment. As revealed by the records, the petitioner
was appointed by no less than the alter ego of the President, the Secretary of
Local Government, after which he took his oath of office before Senator Alberto
Romulo in the Office of Department of Local Government Regional Director Res
Salvatierra. Concededly, the appointment has the color of validity.
Petitioner Benjamin P. Abella in G.R. No. 100710 obtained the second highest
number of votes, next to Larrazabal in the local elections of February 1, 1988 in
the province of Leyte. The COMELEC en banc, after affirming the February 14,
1991 decision of its second division disqualifying arrazabal as governor
disallowed Abella from assuming position of governor in accordance with
section 6, Republic Act No. 6646 and the rulings in the cases of Frivaldo v.
Commission on Elections (174 SCRA 245 [1989]) and Labo, Jr. v. Commission on
Elections (176 SCRA 1 [1989]).
Abella claims that the Frivaldo and Labo cases were misapplied by the
COMELEC. According to him these cases are fundamentally different from SPC
No. 88-546 in that the Frivaldo and Labo cases were petitions for a quo
warranto filed under section 253 of the Omnibus Code, contesting the eligibility
of the respondents after they had been proclaimed duly elected to the Office
from which they were sought to be unseated while SPC No. 88-546 which was
filed before proclamation under section 78 of the Omnibus Election Code
sought to deny due course to Larrazabal's certificate of candidacy for material
misrepresentations and was seasonably filed on election day. He, therefore,
avers that since under section 6 of Republic Act 6646 it is provided therein that:
Any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes case for him shall not be counted.
the votes cast in favor of Larrazabal who obtained the highest number of votes
are not considered counted making her a non-candidate, he, who obtained the
second highest number of votes should be installed as regular Governor of
Leyte in accordance with the Court's ruling in G.R. No. 88004.

The petitioner's arguments are not persuasive.

While it is true that SPC No. 88-546 was originally a petition to deny due course
to the certificate of candidacy of Larrazabal and was filed before Larrazabal
could be proclaimed the fact remains that the local elections of February 1,
1988 in the province of Leyte proceeded with Larrazabal considered as a bonafide candidate. The voters of the province voted for her in the sincere belief
that she was a qualified candidate for the position of governor. Her votes were
counted and she obtained the highest number of votes. The net effect is that
the petitioner lost in the election. He was repudiated by the electorate. In the
Frivaldo and Labo cases, this is precisely the reason why the candidates who
obtained the second highest number of votes were not allowed to assume the
positions vacated by Frivaldo the governorship of Sorsogon, and Labo, the
position of mayor in Baguio City. The nature of the proceedings therefore, is not
that compelling. What matters is that in the event a candidate for an elected
position who is voted for and who obtains the highest number of votes is
disqualified for not possessing the eligibility requirements at the time of the
election as provided by law, the candidate who obtains the second highest
number of votes for the same position can not assume the vacated position. It
should be stressed that in G.R. No. 88004, the Court set aside the dismissal of
SPC No. 88-546, and directed the COMELEC to conduct hearings to determine
whether or not Larrazabal was qualified to be a candidate for the position of
governor in the province of Leyte. This is the import of the decision in G.R. No.
88004. Thus, the Court ruled in the case of Labo, Jr. v. Commission on Elections:
Finally, there is the question of whether or not the private respondent, who filed
the quo warranto petition, can replace the petitioner as mayor. He cannot. The
simple reason is that as he obtained only the second highest number of votes
in the election, he was obviously not the choice of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission on Elections,
(137 SCRA 740) decided in 1985. In that case, the candidate who placed
second was proclaimed elected after the votes for his winning rival, who was
disqualified as a turncoat and considered a non-candidate, were all disregard as
stray. In effect, the second placer won by default. That decision was supported
by eight members of the Court then, (Cuevas, J., ponente, with Makasiar,
Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and Aquino, JJ.,
concurring.) with three dissenting (Teehankee, Acting C.J., Abad Santos and
Melencio-Herrera, JJ.) and another two reserving their vote. (Plana and
Gutierrez, Jr., JJ.) One was on official leave. (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it should be
reversed in favor of the earlier case of Geronimo v. Ramos, (136 SCRA 435)
which represents the more logical and democratic rule. That case, which
reiterated the doctrine first announced in 1912 in Topacio v. Paredes, (23 Phil.
238) was supported by ten members of the Court, (Gutierrez, Jr., ponente, with
Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la
Fuente, Cuevas and Alampay, JJ., concurring) without any dissent, although one
reserved his vote, (Makasiar, J.) another took no part, (Aquino, J.) and two
others were on leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court
held:

... it would be extremely repugnant to the basic concept of the constitutionally

guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed a winner and imposed as the representative of a
constituency, the majority of which have positively declared through their
ballots that they do not choose him.
Sound policy dictates that public elective offices are filled by those who have
received the highest number of votes cast in the election for that office, and it
is a fundamental idea in all republican forms of government that no one can be
declared elected and no measure can be declared carried unless he or it
receives a majority or plurality of the legal votes cast in the election. (20
Corpus Juris 2nd, S 243, p. 676.)
The fact that the candidate who obtained the highest number of votes is later
declared to be disqualified or not eligible for the office to which he was elected
does not necessarily entitle the candidate who obtained the second highest
number of votes to be declared the winner of the elective office. The votes cast
for a dead, disqualified, or non-eligible person may not be valid the vote the
winner into office or maintain him there. However the absence of a statute
which clearly asserts a contrary politics and legislative policy on the matter, if
the votes were cast in the sincere belief that the candidate was alive, qualified,
or eligible, they should not be treated as stray, void or meaningless. (at pp. 2021)
In sum, the Court does not find any reason to reverse and set aside the
questioned decision and resolution of the COMELEC. The COMELEC has not
acted without or in excess of jurisdiction or in grave abuse of discretion.
WHEREFORE, the instant petitions are DISMISSED. The questioned decision of
the second division of the Commission on Elections dated February 14, 1991
and the questioned Resolution en banc of the Commission dated July 18, 1991
are hereby AFFIRMED. The temporary restraining order issued on August 1,
1991 is LIFTED. Costs against the petitioners.
SO ORDERED.

RAMON L. LABO, Jr., petitioner,

vs.
COMMISSION ON ELECTIONS, and ROBERTO ORTEGA, respondents.
G.R. No. 105384

July 3, 1992

ROBERTO C. ORTEGA, petitioner,

vs.
COMMISSION ON ELECTIONS, and RAMON L. LABO, Jr., respondents.

from the list of candidates for City Mayor of Baguio City. (Rollo, pp. 47-48; GR
No. 105111)
On the same date, Labo filed a motion to stay implementation of said resolution
until after he shall have raised the matter before this Court.
On May 10, 1992, respondent Comelec issued an Order which reads:

BIDIN, J.:

Acting on the "Urgent Ex-Parte Motion for Clarification", filed by respondent

(Labo) on May 9, 1992, the Commission resolves that the decision promulgated
on May 9, 1992 disqualifying respondent Ramon L. Labo, Jr., shall become final
and executory only after five (5) days from promulgation pursuant to Rule 18,
Section 13, Paragraph (b) of the Comelec Rules of Procedure.

This is the second time 1 that this Court is called upon to rule on the citizenship
of Ramon Labo, Jr., who, believing that he is a Filipino citizen launched his
candidacy for mayor of Baguio City in the last May 11, 1992 elections by filing
his certificate of candidacy on March 23, 1992.

Accordingly, respondent (Labo) may still continue to be voted upon as

candidate for City Mayor of Baguio City on May 11, 1992 subject to the final
outcome of this case in the event the issue is elevated to the Supreme Court
either on appeal or certiorari. (Rollo, p. 53; GR No. 105111; emphasis supplied)

Petitioner Roberto Ortega (GR No. 105384), on other hand, also filed his
certificate of candidacy for the same office on March 25, 1992.

On May 13, 1992, respondent Comelec resolved, motu proprio to suspend the
proclamation of Labo in the event he wins in the elections for the City Mayor of
Baguio. (Rollo, pp. 64-65; GR No. 105111)

Shortly after petitioner Labo filed his certificate of candidacy, petitioner Ortega
filed on March 26, 1992, a disqualification proceeding against Labo before the
Commission on Elections (Comelec), docketed as SPA No. 92-029, seeking to
cancel Labo's certificate of candidacy on the ground that Labo made a false
representation when he stated therein that he (Labo) is a "natural-born" citizen
of the Philippines.

On May 15, 1992, petitioner Labo filed the instant petition for review docketed
as G.R. No. 105111 with prayer, among others, for the issuance of a temporary
restraining order to set aside the May 9, 1992 resolution of respondent
Comelec; to render judgment declaring him as a Filipino citizen; and to direct
respondent Comelec to proceed with his proclamation in the event he wins in
the contested elections.

Summons in the disqualification case was issued by the Comelec on March 27,
1992 to petitioner Labo followed by a telegram dated April 1, 1992, requiring
him to file his Answer within three (3) non-extendible days but the latter failed
to respond.

On the same date, or on May 15, 1992 petitioner Ortega filed before the
Comelec an urgent motion for the implementation of its May 9, 1992 resolution
cancelling Labo's certificate of candidacy.

On April 15, 1992, Ortega filed a motion to declare Labo in default for failure to
file his Answer.

After an exchange of pleadings, respondent Comelec, in its resolution dated

May 26, 1992, denied Ortega's motion in view of the pending case (G.R. No.
105111) earlier filed by Labo of the same nature before this Court.

On April 24, 1992, the Comelec issued another order directing the Election
Registrar of Baguio City to personally deliver the summons. On May 4, 1992,
the disqualification case was set for reception of evidence. At the said hearing,
Ortega presented the decision of this Court in Labo v. Commission on Elections
(176 SCRA 1 [1989]) declaring Labo not a citizen of the Philippines. Labo, on
the other hand, though represented by counsel, did not present any evidence.
It was only on May 5, 1992 that petitioner submitted his Answer claiming
Filipino citizenship.
On May 9, 1992, respondent Comelec issued the assailed resolution, the
dispositive portion of which reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby
resolves, to grant the petition; respondent's (Labo's) certificate of candidacy is
hereby DENIED due course and ordered CANCELLED; the City Election Registrar
of Baguio City is hereby directed to delete the name of the respondent (Labo)

On June 1, 1992, Ortega filed a petition for mandamus docketed as G.R. No.
105384 praying for the implementation of the Comelec's May 9, 1992
resolution.
Petitioner Ortega argues that respondent Comelec committed grave abuse of
discretion when it refused to implement its May 9, 1992 resolution
notwithstanding the fact that said resolution disqualifying Ramon Labo has
already become final and executory.
After the parties have submitted their respective pleadings, the Court, on June
16, 1992, Resolved to consider the case submitted for decision.
I.

GR No. 105111

In essence, it is the contention of petitioner Labo that he is a Filipino citizen.

Alleging lack of trial on the merits as well as the lack of opportunity to be heard

in Labo v. Commission on Elections (supra), it is the submission of petitioner

that he can prove his Filipino citizenship.

now preclude the application of the ruling in the Labo v. Comelec case and the
respondent (Labo) now hold and enjoys Philippine citizenship.

Petitioner cites the 1980 US case of Vance v. Terrazas (444 US 252), wherein it
was held that in proving expatriation, an expatriating act an intent to relinquish
citizenship must be proved by a preponderance of evidence.

No evidence has been offered by respondent to show what these existing facts
and supervening events are to preclude the application of the Labo decision.
(emphasis supplied)

Petitioner contends that no finding was made either by the Commission on

Immigration or the Comelec as regards his specific intent to renounce his
Philippine citizenship.

The Commission is bound by the final declaration that respondent is not a

Filipino citizen. Consequently, respondent's verified statement in his certificate
of candidacy that he is a "natural-born" Filipino citizen is a false material
representation." (Rollo, pp. 45-48; GR No. 105111)

Petitioner also faults the Comelec for the supposed abbreviated proceedings in
SPA No. 92-029 which denied him adequate opportunity to present a full-dress
presentation of his case. Thus: a) only one (1) day was set for hearing of the
case, i.e., May 4, 1992; b) two days later, May 6, 1992 the hearing was set; c)
instead of holding a hearing, the Comelec issued the questioned resolution on
May 9, 1992.
If only to refresh the mind of petitioner Labo, as well as that of his counsel,
records disclose that summons were issued by respondent Comelec as early as
March 27, 1992 followed by a telegram on April 1, 1992. But petitioner chose to
ignore the same. Came April 15, 1992, petitioner Ortega filed a motion to
declare petitioner Labo in default. Over-extending him (Labo) the benefit of due
process, respondent Comelec issued another order dated April 24, 1992, this
time directing the Acting City Election Registrar of Baguio to personally serve
the summons. The alleged delay in the resolution of SPA No. 92-029 can only be
attributed to petitioner Labo and no one else. Thus, the respondent Comelec in
its resolution dated May 9, 1992 stated:
On May 4, 1992, the Acting Regional Election Registrar called this case for
reception of evidence. Surprisingly, while as of that date respondent had not
yet filed his Answer, a lawyer appeared for him.
The petitioner (Ortega) presented the certificate of candidacy of respondent
Ramon L. Labo, Jr., which contained in item 9 thereof the verified statement
that respondent is a "natural-born" Filipino citizen. To prove that respondent is
not a Filipino citizen, petitioner submitted the decision of the Supreme Court in
"Ramon L. Labo, Jr., petitioner, v. Comelec, et al.," GR No. 86564, August 1,
1989, the dispositive portion of which states:
WHEREFORE, petitioner Ramon J. (sic) Labo, Jr. is hereby declared NOT a citizen
of the Philippines and therefore DISQUALIFIED from continuing to serve as
Mayor of Baguio City. He is ordered to VACATE his office and surrender the
same to the Vice-Mayor of Baguio City once this decision becomes final and
executory.
No evidence was adduced for the respondent as in fact he had no Answer as of
the hearing.
On May 5, 1992, respondent (Labo) filed his verified Answer, insisting that he is
a Filipino citizen and continue to maintain and preserve his Filipino citizenship;
that he does not hold an Australian citizenship; that the doctrine of res judicata
does not apply in citizenship; and that "existing facts support his continuous
maintenance and holding of Philippine citizenship" and "supervening events

Up to this moment, petitioner Labo still failed to submit a scintilla of proof to

shore his claim before this Court that he has indeed reacquired his Philippine
citizenship.
Instead, petitioner relies in the US case of Vance v. Terrazas (supra). Suffice it to
state that petitioner has already pleaded Vance in his motion for
reconsideration in Labo v. Comelec (supra; Rollo, p. 375). Having been
previously passed upon, the Court sees no pressing need to re-examine the
same and make a lengthy dissertation thereon.
At any rate, the fact remains that he has not submitted in the instant case any
evidence, if there be any, to prove his reacquisition of Philippine citizenship
either before this Court or the Comelec. On this score alone, We find no grave
abuse of discretion committed by respondent Comelec in cancelling his (Labo's)
certificate of candidacy and declaring that he is NOT a Filipino citizen pursuant
to our ruling in the 1989 case of Labo v. Comelec (supra).
Petitioner Labo claims, however, that Sec. 72 2 of the Omnibus Election Code
"operates as a legislatively mandated special repatriation proceeding" and that
it allows his proclamation as the winning candidate since the resolution
disqualifying him was not yet final at the time the election was held.
The Court finds petitioner Labo's strained argument quixotic and untenable. In
the first place, Sec. 72 of the Omnibus Election Code has already been repealed
by Sec. 6 of RA No. 6646, to wit:
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 the
Commission shall continue with the trial and hearing of the action, inquiry, or
protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong. (emphasis supplied)
A perusal of the above provision would readily disclose that the Comelec can
legally suspend the proclamation of petitioner Labo, his reception of the
winning number of votes notwithstanding, especially so where, as in this case.
Labo failed to present any evidence before the Comelec to support his claim of
reacquisition of Philippine citizenship.

Furthermore, we need only to reiterate what we have stated in Labo v. Comelec

(supra), viz.,:
Under CA No. 63, as amended by P.D. No. 725, Philippine citizenship may be
reacquired by a direct act of Congress, by naturalization, or by repatriation. It
does not appear in the record, nor does the petitioner claim, that he has
reacquired Philippine citizenship by any of these methods. He does not point to
any judicial decree of naturalization or to any statute directly conferring
Philippine citizenship upon him. . . .
Petitioner Labo's status has not changed in the case at bar. To reiterate, he
(Labo) was disqualified as a candidate for being an alien. His election does not
automatically restore his Philippine citizenship, the possession of which is an
indispensable requirement for holding public office (Sec. 39, Local Government
Code).
Still, petitioner takes pains in raising a new argument not litigated before the
respondent Comelec. Petitioner claims that he has reacquired his Filipino
citizenship by citing his application for reacquisition of Philippine citizenship
filed before the Office of the Solicitor General pursuant to PD 725 and Letter of
Instruction No. 270 3 (Rollo, pp. 116-119; G.R. No. 105111).
To date, however, and despite favorable recommendation by the Solicitor
General, the Special Committee on Naturalization had yet acted upon said
application for repatriation. Indeed, such fact is even admitted petitioner. In the
absence of any official action or approval by the proper authorities, a mere
application for repratriation, does not, and cannot, amount to an automatic
reacquisition of the applicant's Philippine citizenship.
II.

GR No. 105384

Petitioner Ortega submits that since this Court did not issue a temporary
restraining order as regards the May 9, 1992 resolution of respondent Comelec
cancelling Labo's certificate of candidacy, said resolution has already become
final and executory. Ortega further posits the view that as a result of such
finality, the candidate receiving the next highest number of votes should be
declared Mayor of Baguio City.
We agree with Ortega's first proposition.
At the time petitioner Labo filed his petition (GR No. 105111) on May 15, 1992,
the May 9, 1992 resolution of respondent Comelec cancelling his (Labo's)
certificate of candidacy had already become final and executory a day earlier,
or on May 14, 1992, said resolution having been received by petitioner Labo on
the same day it was promulgated, i.e., May 9, 1992 and in the interim no
restraining order was issued by this Court.
Thus, Sec. 78 of the Omnibus Election Code provides:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy
xxx

xxx

xxx

(e)
The decision, order, or ruling of the Commission shall, after five (5)
days from receipt of a copy thereof by the parties, be final and executory
unless stayed by the Supreme Court. (emphasis supplied)
A similar provision is also found in Sec. 3, Rule 39 of the Comelec Rules of
procedure, to wit:
Sec. 3. Decisions final after five days. Decisions in
pre-proclamation cases and petitions to deny due course to or cancel
certificates of candidacy, to declare a candidate as nuisance candidate or to
disqualify a candidate, and to postpone or suspend elections shall become final
and executory after the lapse of five (5) days from their promulgation, unless
restrained by the Supreme Court. (emphasis supplied)
The resolution cancelling Labo's certificate of candidacy on the ground that he
is not a Filipino citizen having acquired finality on May 14, 1992 constrains Us
to rule against his proclamation as Mayor of Baguio City.
To begin with, one of the qualifications of an elective official is that he must be
a citizen of the Philippines. Thus, the Local Government Code provides:
Sec. 39. Qualifications. (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province
or, in the case of a member of the sangguniang panlalawigan, sangguniang
panlungsod, sangguniang bayan, the district where he intends to be elected; a
resident therein for at least one (1) year immediately preceding the day of the
election; and able to read and write Filipino or any other local language or
dialect. (emphasis supplied)
Undoubtedly, petitioner Labo, not being a Filipino citizen, lacks the fundamental
qualification for the contested office. Philippine citizenship is an indispensable
requirement for holding an elective office. As mandated by law: "An elective
local official must be a citizen of the Philippines."
The issue here is citizenship and/or Labo's alienage the very essence which
strikes at the very core of petitioner Labo's qualification to assume the
contested office, he being an alien and not a Filipino citizen. The fact that he
was elected by the majority of the electorate is of no moment. As we have held
in Frivaldo v. Commission on Elections (174 SCRA 245 [1989]):
. . . 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.
This brings us to the second issue raised by petitioner Ortega, i.e., whether the
disqualification of petitioner Labo entitles the candidate (Ortega) receiving the

next highest number of votes to be proclaimed as the winning candidate for

mayor of Baguio City.
We hold in the negative. The disqualification of petitioner Labo does not
necessarily entitle petitioner Ortega as the candidate with the next highest
number of votes to proclamation as the Mayor of Baguio City.

deny due course to petitioner's (Labo's) candidacy, the same did not deter the
people of Baguio City from voting for petitioner Labo, who, by then, was
allowed by the respondent Comelec to be voted upon, the resolution for his
disqualification having yet to attain the degree of finality (Sec. 78. Omnibus
Election Code).
And in the earlier case of Labo v. Comelec (supra), We held:

We make mention of petitioner Ortega because in his petition, he alleges that:

. . . the May 11, 1992 elections were held with both herein petitioner (Roberto
Ortega) and respondent LABO having been voted for the position of Mayor and
unofficial results indicate that if the name of respondent LABO were deleted
from the list of candidates, herein petitioner (Ortega) will be entitled to be
proclaimed as Mayor-elect of Baguio City. (Rollo, p. 7, GR No. 105384; emphasis
supplied)
and further prays this Court "to proclaim as the Mayor-elect of Baguio City the
candidate who may have garnered the most number of votes after the
exclusion of the name of respondent candidate LABO." (Rollo, p. 15, Ibid.)
Implicit, therefore, is petitioner Ortega's desire to be proclaimed Mayor-elect of
Baguio City.
As discussed hereunder, however, the Court finds Ortega's prayer devoid of
merit.
While Ortega may have garnered the second highest number of votes for the
office of city mayor, the fact remains that he was not the choice of the
sovereign will. Petitioner Labo was overwhelmingly voted by the electorate for
the office of mayor in the belief that he was then qualified to serve the people
of Baguio City and his subsequent disqualification does not make respondent
Ortega the mayor-elect. This is the import of the recent case of Abella v.
Comelec (201 SCRA 253 [1991]), wherein we held that:
While it is true that SPC No. 88-546 was originally a petition to deny due course
to the certificate of candidacy of Larrazabal and was filed before Larrazabal
could be proclaimed, the fact remains that the local elections of Feb. 1, 1988 in
the province of Leyte proceeded with Larrazabal considered as a bona fide
candidate. The voters of the province voted for her in the sincere belief that
she was a qualified candidate for the position of governor. Her votes was
counted and she obtained the highest number of votes. The net effect is that
petitioner lost in the election. He was repudiated by the electorate. . . . What
matters is that in the event a candidate for an elected position who is voted for
and who obtains the highest number of votes is disqualified for not possessing
the eligibility requirements at the time of the election as provided by law, the
candidate who obtains the second highest number of votes for the same
position cannot assume the vacated position. (emphasis supplied)
Our ruling in Abella applies squarely to the case at bar and we see no
compelling reason to depart therefrom. Like Abella, petitioner Ortega lost in the
election. He was repudiated by the electorate. He was obviously not the choice
of the people of Baguio City.
Thus, while respondent Ortega (GR No. 105111) originally filed a
disqualification case with the Comelec (docketed as SPA-92-029) seeking to

Finally, there is the question of whether or not the private respondent, who filed
the quo warranto petition, can replace the petitioner as mayor. He cannot. The
simple reason is that as he obtained only the second highest number of votes
in the election, he was obviously not the choice of the people of Baguio City.
The latest ruling of the Court in this issue is Santos v. Commission on Election,
(137 SCRA 740) decided in 1985. In that case, the candidate who placed
second was proclaimed elected after the votes for his winning rival, who was
disqualified as a turncoat and considered a non-candidate, were all disregarded
as stray. In effect, the second placer won by default. That decision was
supported by eight members of the Court then (Cuevas, J., ponente, with
Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay, and Aquino
JJ., concurring) with three dissenting (Teehankee, acting C.J., Abad Santos and
Melencio-Herrera) and another two reserving their votes (Plana and Gutierrez,
Jr.). One was on official leave (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it should be
reversed in favor of the earlier case of Geronimo v. Santos (136 SCRA 435),
which represents the more logical and democratic rule. That case, which
reiterated the doctrine first announced in 1912 in Topacio vs. Paredes (23 Phil.
238) was supported by ten members of the Court (Gutierrez, Jr., J., ponente,
with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la
Fuente, Cuevas and Alampay, JJ., concurring), without any dissent, . . . . There
the Court held:
. . . it would be extremely repugnant to the basic concept of the constitutionally
guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed a winner and imposed as the representative of a
constituency, the majority of which have positively declared through their
ballots that they did not choose him.
Sound policy dictates that public elective offices are filled by those who have
received the highest number of votes cast in the election for that office, and it
is a fundamental idea in all republican forms of government that no one can be
declared elected and no measure can be declared carried unless he or it
receives a majority or plurality of the legal votes cast in the election. (20
Corpus Juris 2nd, S 243, p. 676)
The fact that a candidate who obtained the highest number of votes is later
declared to be disqualified or not eligible for the office to which he was elected
does not necessarily entitle the candidate who obtained the second highest
number of votes to be declared the winner of the elective office. The votes cast
for a dead, disqualified, or non-eligible person may be valid to vote the winner
into office or maintain him there. However, in the absence of a statute which
clearly asserts a contrary political and legislative policy on the matter, if the

votes were cast in the sincere belief that that candidate was alive, qualified, or
eligible, they should not be treated as stray, void or meaningless.

Chapter 2.

The rule, therefore, is: the ineligibility of a candidate receiving majority votes
does not entitle the eligible candidate receiving the next highest number of
votes to be declared elected. A minority or defeated candidate cannot be
deemed elected to the office.

Sec. 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor,

Mayor and Vice-Mayor. (a) If a permanent vacancy occurs in the office of the
governor or mayor, the vice-governor or the vice-mayor concerned shall
become the governor or mayor. . . . (emphasis supplied)

Indeed, this has been the rule in the United States since 1849 (State ex rel.
Dunning v. Giles, 52 Am. Dec. 149).

WHEREFORE, the instant petitions are DISMISSED for lack of merit. Petitioners
both being ineligible for the Office of the City Mayor of Baguio City and in view
of the vacancy created in said office, the vice-mayor elect of said city in the
May 11, 1992 elections is hereby declared Mayor of Baguio City after
proclamation by the City Board of Canvassers. No costs.

It is therefore incorrect to argue that since a candidate has been disqualified,

the votes intended for the disqualified candidate should, in effect, be
considered null and void. This would amount to disenfranchising the electorate
in whom sovereignty resides. At the risk of being repetitious, the people of
Baguio City opted to elect petitioner Labo bona fide, without any intention to
misapply their franchise, and in the honest belief that Labo was then qualified
to be the person to whom they would entrust the exercise of the powers of the
government. Unfortunately, petitioner Labo turned out to be disqualified and
cannot assume the office.
Whether or not the candidate whom the majority voted for can or cannot be
installed, under no circumstances can a minority or defeated candidate be
deemed elected to the office. Surely, the 12,602 votes cast for petitioner
Ortega is not a larger number than the 27,471 votes cast for petitioner Labo (as
certified by the Election Registrar of Baguio City; rollo, p. 109; GR No. 105111).
The rule would have been different if the electorate fully aware in fact and in
law of a candidate's disqualification so as to bring such awareness within the
realm of notoriety, would nonetheless cast their votes in favor of the ineligible
candidate. In such case, the electorate may be said to have waived the validity
and efficacy of their votes by notoriously misapplying their franchise or
throwing away their votes, in which case, the eligible candidate obtaining the
next higher number of votes may be deemed elected.
But this is not the situation obtaining in the instant dispute. It has not been
shown, and none was alleged, that petitioner Labo was notoriously known as an
ineligible candidate, much less the electorate as having known of such fact. On
the contrary, petitioner Labo was even allowed by no less than the Comelec
itself in its resolution dated May 10, 1992 to be voted for the office of the city
mayor as its resolution dated May 9, 1992 denying due course to petitioner
Labo's certificate of candidacy had not yet become final and subject to the final
outcome of this case.
As aforesaid, the ineligibility of a candidate receiving majority votes does not
entitle the candidate receiving the next highest number of votes to be declared
elected. Ortega failed to satisfy the necessary requisite of winning the election
either by a majority or mere plurality of votes sufficient to elevate him in public
office as mayor of Baguio City. Having lost in the election for mayor, petitioner
Ortega was obviously not the choice of the people of Baguio City.
As a consequence of petitioners' ineligibility, a permanent vacancy in the
contested office has occurred. This should now be filled by the vice-mayor, in
accordance with Sec. 44 of the Local Government Code, to wit:

SO ORDERED.

Vacancies and Succession

JOSE B. AZNAR (as Provincial Chairman of PDP Laban in Cebu),

petitioner,
vs.
COMMISSION ON ELECTIONS and EMILIO MARIO RENNER OSMEA,
respondents.
Rufino B. Requina for petitioner.
Angara, Abello, Concepcion, Regala & Cruz for private respondent.

November 21, 1979 (Exh. "D"); Immigration Certificate of Clearance dated

January 3, 1980 (Exh. "E"). (pp. 117-118, Rollo)
Private respondent, on the other hand, maintained that he is a Filipino citizen,
alleging: that he is the legitimate child of Dr. Emilio D. Osmea, a Filipino and
son of the late President Sergio Osmea, Sr.; that he is a holder of a valid and
subsisting Philippine Passport No. 0855103 issued on March 25, 1987; that he
has been continuously residing in the Philippines since birth and has not gone
out of the country for more than six months; and that he has been a registered
voter in the Philippines since 1965. (pp. 107-108, Rollo)

PARAS, J.:

On March 3, 1988, COMELEC (First Division) directed the Board of Canvassers to

proclaim the winning candidates. Having obtained the highest number of votes,
private respondent was proclaimed the Provincial Governor of Cebu.

Before Us is a petition for certiorari assailing the Resolution of the Commission

on Elections (COMELEC) dated June 11, 1988, which dismissed the petition for
the disqualification of private respondent Emilio "Lito" Osmea as candidate for
Provincial Governor of Cebu Province.

Thereafter, on June 11, 1988, COMELEC (First Division) dismissed the petition
for disqualification for not having been timely filed and for lack of sufficient
proof that private respondent is not a Filipino citizen.

The facts of the case are briefly as follows:

Hence, the present petition.

On November 19, 1987, private respondent Emilio "Lito" Osmea filed his
certificate of candidacy with the COMELEC for the position of Provincial
Governor of Cebu Province in the January 18, 1988 local elections.

The petition is not meritorious.

On January 22, 1988, the Cebu PDP-Laban Provincial Council (Cebu-PDP Laban,
for short), as represented by petitioner Jose B. Aznar in his capacity as its
incumbent Provincial Chairman, filed with the COMELEC a petition for the
disqualification of private respondent on the ground that he is allegedly not a
Filipino citizen, being a citizen of the United States of America.
On January 27, 1988, petitioner filed a Formal Manifestation submitting a
Certificate issued by the then Immigration and Deportation Commissioner
Miriam Defensor Santiago certifying that private respondent is an American and
is a holder of Alien Certificate of Registration (ACR) No. B-21448 and Immigrant
Certificate of Residence (ICR) No. 133911, issued at Manila on March 27 and 28,
1958, respectively. (Annex "B-1").
The petitioner also filed a Supplemental Urgent Ex-Parte Motion for the
Issuance of a Temporary Restraining Order to temporarily enjoin the Cebu
Provincial Board of Canvassers from tabulating/canvassing the votes cast in
favor of private respondent and proclaiming him until the final resolution of the
main petition.

There are two instances where a petition questioning the qualifications of a

registered candidate to run for the office for which his certificate of candidacy
was filed can be raised under the Omnibus Election Code (B.P. Blg. 881), to wit:
(1)

Before election, pursuant to Section 78 thereof which provides that:

'Section 78. Petition to deny due course or to cancel a certificate of candidacy.

A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74 hereof
is false. The petition may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy and shall be decided,
after the notice and hearing, not later than fifteen days before the election.
and
(2)

After election, pursuant to Section 253 thereof, viz:

Thus, on January 28, 1988, the COMELEC en banc resolved to order the Board
to continue canvassing but to suspend the proclamation.

'Sec. 253. Petition for quo warranto. Any voter contesting the election of any
Member of the Batasang Pambansa, regional, provincial, or city officer on the
ground of ineligibility or of disloyalty to the Republic of the Philippines shall file
a sworn petition for quo warranto with the Commission within ten days after the
proclamation of the results of the election.

At the hearing before the COMELEC (First Division), the petitioner presented the
following exhibits tending to show that private respondent is an American
citizen: Application for Alien Registration Form No. 1 of the Bureau of
Immigration signed by private respondent dated November 21, 1979 (Exh. "B");
Alien Certificate of Registration No. 015356 in the name of private respondent
dated November 21, 1979 (Exh. "C"); Permit to Re-enter the Philippines dated

The records show that private respondent filed his certificate of candidacy on
November 19, 1987 and that the petitioner filed its petition for disqualification
of said private respondent on January 22, 1988. Since the petition for
disqualification was filed beyond the twenty five-day period required in Section
78 of the Omnibus Election Code, it is clear that said petition was filed out of
time.

The petition for the disqualification of private respondent cannot also be

treated as a petition for quo warranto under Section 253 of the same Code as it
is unquestionably premature, considering that private respondent was
proclaimed Provincial Governor of Cebu only on March 3, 1988.
However, We deem it is a matter of public interest to ascertain the
respondent's citizenship and qualification to hold the public office to which he
has been proclaimed elected. There is enough basis for us to rule directly on
the merits of the case, as the COMELEC did below.
Petitioner's contention that private respondent is not a Filipino citizen and,
therefore, disqualified from running for and being elected to the office of
Provincial Governor of Cebu, is not supported by substantial and convincing
evidence.
In the proceedings before the COMELEC, the petitioner failed to present direct
proof that private respondent had lost his Filipino citizenship by any of the
modes provided for under C.A. No. 63. Among others, these are: (1) by
naturalization in a foreign country; (2) by express renunciation of citizenship;
and (3) by subscribing to an oath of allegiance to support the Constitution or
laws of a foreign country. From the evidence, it is clear that private respondent
Osmea did not lose his Philippine citizenship by any of the three mentioned
hereinabove or by any other mode of losing Philippine citizenship.
In concluding that private respondent had been naturalized as a citizen of the
United States of America, the petitioner merely relied on the fact that private
respondent was issued alien certificate of registration and was given clearance
and permit to re-enter the Philippines by the Commission on Immigration and
Deportation. Petitioner assumed that because of the foregoing, the respondent
is an American and "being an American", private respondent "must have taken
and sworn to the Oath of Allegiance required by the U.S. Naturalization Laws."
(p. 81, Rollo)
Philippine courts are only allowed to determine who are Filipino citizens and
who are not. Whether or not a person is considered an American under the laws
of the United States does not concern Us here.
By virtue of his being the son of a Filipino father, the presumption that private
respondent is a Filipino remains. It was incumbent upon the petitioner to prove
that private respondent had lost his Philippine citizenship. As earlier stated,
however, the petitioner failed to positively establish this fact.
The cases of Juan Gallanosa Frivaldo v. COMELEC et al, (G.R. No. 87193, June
21, 1989) and Ramon L. Labo v. COMELEC et al (G.R. No. 86564, August 1,
1989) are not applicable to the case at bar.
In the Frivaldo case, evidence shows that he was naturalized as a citizen of the
United States in 1983 per certification from the United States District Court,
Northern District of California, as duly authenticated by Vice Consul Amado P.
Cortez of the Philippine Consulate General in San Francisco, California, U.S.A.
Frivaldo expressly admitted in his answer that he was naturalized in the United
States but claimed that he was forced to embrace American citizenship to
protect himself from the persecution of the Marcos government. The Court,

however, found this suggestion of involuntariness unacceptable, pointing out

that there were many other Filipinos in the United States similarly situated as
Frivaldo who did not find it necessary to abandon their status as Filipinos.
Likewise, in the case of Labo, records show that Labo was married to an
Australian citizen and that he was naturalized as an Australian citizen in 1976,
per certification from the Australian Government through its Consul in the
Philippines. This was later affirmed by the Department of Foreign Affairs.
The authenticity of the above evidence was not disputed by Labo. In fact, in a
number of sworn statements, Labo categorically declared that he was a citizen
of Australia.
In declaring both Frivaldo and Labo not citizens of the Philippines, therefore,
disqualified from serving as Governor of the Province of Sorsogon and Mayor of
Baguio City, respectively, the Court considered the fact that by their own
admissions, they are indubitably aliens, no longer owing any allegiance to the
Republic of the Philippines since they have sworn their total allegiance to a
foreign state.
In the instant case, private respondent vehemently denies having taken the
oath of allegiance of the United States (p. 81, Rollo). He is a holder of a valid
and subsisting Philippine passport and has continuously participated in the
electoral process in this country since 1963 up to the present, both as a voter
and as a candidate (pp. 107-108, Rollo). Thus, private respondent remains a
Filipino and the loss of his Philippine citizenship cannot be presumed.
In the learned dissent of Mr. Justice Teodoro Padilla, he stresses the fact that
because Osmea obtained Certificates of Alien Registration as an American
citizen, the first in 1958 when he was 24 years old and the second in 1979, he,
Osmea should be regarded as having expressly renounced Philippine
citizenship. To Our mind, this is a case of non sequitur (It does not follow).
Considering the fact that admittedly Osmea was both a Filipino and an
American, the mere fact that he has a Certificate stating he is an American
does not mean that he is not still a Filipino. Thus, by way of analogy, if a person
who has two brothers named Jose and Mario states or certifies that he has a
brother named Jose, this does not mean that he does not have a brother named
Mario; or if a person is enrolled as student simultaneously in two universities,
namely University X and University Y, presents a Certification that he is a
student of University X, this does not necessarily mean that he is not still a
student of University Y. In the case of Osmea, the Certification that he is an
American does not mean that he is not still a Filipino, possessed as he is, of
both nationalities or citizenships. Indeed, there is no express renunciation here
of Philippine citizenship; truth to tell, there is even no implied renunciation of
said citizenship. When We consider that the renunciation needed to lose
Philippine citizenship must be "express", it stands to reason that there can be
no such loss of Philippine 'citizenship when there is no renunciation either
"'express" or "implied".
Parenthetically, the statement in the 1987 Constitution that "dual allegiance of
citizens is inimical to the national interest and shall be dealt with by law"(Art.
IV, Sec. 5) has no retroactive effect. And while it is true that even before the
1987 Constitution, Our country had already frowned upon the concept of dual
citizenship or allegiance, the fact is it actually existed. Be it noted further that

under the aforecited proviso, the effect of such dual citizenship or allegiance
shall be dealt with by a future law. Said law has not yet been enacted.
WHEREFORE, the petition for certiorari is hereby DISMISSED and the Resolution
of the COMELEC is hereby AFFIRMED.

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 vicemayor 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. His unsworn 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 be bonafide candidates, like petitioner who had not filed his
candidacy in deference to Mendoza's candidacy who was one of his " coplanners " 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 vicemayor 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.